Fouche v. Missouri American Water Company et al

Filing 11

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that by December 16, 2011, defendants shall file a memorandum of law including citation to relevant authority, supported by any relevant exhibits, to establish that plaintiffs state law claims under the MHRA are so intertwined with interpretation ofthe collective bargaining agreement that they are preempted by Section 301 of the LMRA. IT IS FURTHER ORDERED that plaintiff shall have ten (10) days after defendants memorandum of law is filed in which to file a response.IT IS FURTHER ORDERED that all other proceedings in this case are STAYED pending further order of this Court., Case stayed.. Signed by Honorable Charles A. Shaw on 12/1/11. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KAMMICK FOUCHE,
Plaintiff,
v.
MISSOURI AMERICAN WATER
COMPANY, et al.,
Defendants.

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No. 4:11-CV-1622 CAS

ORDER
This matter is before the Court on review of the file. The Court has examined the Notice of
Removal and petition and believes questions remain as to whether federal subject matter jurisdiction
exits in this case. “In every federal case the court must be satisfied that it has jurisdiction before it
turns to the merits of other legal arguments.” Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d
1046, 1050 (8th Cir. 2006). The Eighth Circuit has admonished district courts to “be attentive to a
satisfaction of jurisdictional requirements in all cases.” Sanders v. Clemco Indus., 823 F.2d 214, 216
(8th Cir. 1987).
Plaintiff filed suit in the Circuit Court of the County of St. Louis, State of Missouri. The
petition asserts that plaintiff was employed by Missouri American Water Company (“MAWC”), and
that he was discriminated against on the basis of his race, African American. Plaintiff also alleges that
MAWC and three of its employees, who are named as defendants, unlawfully refused to reinstate him
after sick leave, and that they retaliated against him for successfully prosecuting a prior claim with
the Missouri Human Rights Commission (“MHRC”). Plaintiff did not label claims or counts in his

petition, but he does state in his introduction and in his prayer for relief that he is bringing his claims
pursuant to the Missouri Human Rights Act (“MHRA”).
Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1331, 1441 and 1446,
asserting that (1) plaintiff has asserted a claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e; and (2) plaintiff’s state law claims are preempted under Section 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185.
In regard to defendants’ assertion that plaintiff is bringing a claim under Title VII, defendants
argue that plaintiff is clearly seeking relief under Title VII because he alleges: (1) he filed a charge
of discrimination with MHRC and the Equal Employment Opportunity Commission (“EEOC”); (2)
the EEOC issued him a “Notice of Right to Sue”; and (3) the action was “ timely under the EEOC,
in that it is filed within ninety (90) days of such notice . . . .” See Petition at ¶¶ 20-22. Despite
defendants’ assertion to the contrary, the Court is unaware of any controlling authority to support
the notion that an assertion in a complaint that an action is timely filed “under the EEOC” (sic) states
a claim under Title VII, particularly when the statute is not otherwise mentioned in the petition. In
the Court’s view, plaintiff is not attempting to bring a claim under Title VII, and the Court does not
have jurisdiction on this basis.
In regard to defendants’ argument that plaintiff’s state claims are preempted by § 301 of the
LMRA, defendants assert plaintiff was an equipment operator for MAWC and a union employee
represented by the Utility Workers Union of America, Local 335 (“Local 335”). Therefore, the
terms and conditions of plaintiff’s employment were subject to a collective bargaining agreement,
including procedures for sick leave and termination of employment. Citing Lingle v. Norge Division
of Magic Chef, 486 U.S. 399, 410 (1988), among other cases, defendants assert that resolving

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plaintiff’s state claims will involve substantial analysis of the collective bargaining agreement and,
therefore, the state claims are completely preempted by federal labor law.
A removing defendant, as the party invoking jurisdiction, bears the burden of proving that all
prerequisites to jurisdiction are satisfied. Green v. Ameritrade, Inc., 279 F.3d 590, 596 (8th Cir.
2002). Removal statutes are strictly construed, In re Business Men’s Assurance Co. of America, 992
F.2d 181, 183 (8th Cir. 1993), and any doubts about the propriety of removal are to be resolved in
favor of remand. Central Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, Inc.,
561 F.3d 904, 912 (8th Cir. 2009). While a defendant has a statutory right to remove in certain
situations, the plaintiff is still the master of his own claim. See Caterpillar Inc. v. Williams, 482 U.S.
386, 391 & n.7 (1987); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)
(“Defendant’s right to remove and plaintiff's right to choose his forum are not on equal footing”;
consequently, “uncertainties are resolved in favor of remand.”)
In most instances, the presence or absence of a federal question is governed by the wellpleaded complaint rule “which provides that federal jurisdiction exists only when a federal question
is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, 482 U.S. at 392.
“Congress has long since decided that federal defenses do not provide a basis for removal.” Id. at
399. “Thus, a case may not be removed to federal court on the basis of a defense, . . . even if the
defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the
only question truly at issue in the case.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475
(1998) (quotation marks and quoted case omitted).
It is well established that Section 301 of the LMRA completely preempts state law claims,
including tort claims, that involve the interpretation and application of a collective bargaining

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agreement. United Steelworkers of America v. Rawson, 495 U.S. 362, 368-69 (1990). As a result,
an action that in substance charges a violation of a collective bargaining agreement may be removed
to federal court, even though the petition itself does not include a federal cause of action.
Allis-Chalmers v. Lueck, 471 U.S. 202, 214 (1985). The Supreme Court has explained that in order
to give the “policies that animate § 301” their proper range, “the pre-emptive effect of § 301 must
extend beyond suits alleging contract violations. These policies require that the relationships created
by a collective-bargaining agreement be defined by application of an evolving federal common law
grounded in national labor policy.” Id. at 210-11 (internal quotation marks, brackets and quoted case
omitted).
It is certain, however, that not every state tort suit brought by an employee covered by a
collective bargaining agreement is preempted by the LMRA. In Lingle v. Norge Division of Magic
Chef, Inc., the Supreme Court explained that a state-law claim is preempted by Section 301 only if
resolution of the claim requires interpretation of a collective bargaining agreement. 486 U.S. 399,
413 (1988). In Lingle, the Court held that the plaintiff’s state-law claim for retaliatory discharge for
filing a workers’ compensation claim was not preempted by Section 301. Id. Federal preemption
is driven by the need to ensure
that the meaning given a contract phrase or term be subject to uniform federal
interpretation. Thus, questions relating to what the parties to a labor agreement
agreed, and what legal consequences were intended to flow from breaches of that
agreement, must be resolved by reference to uniform federal law, whether such
questions arise in the context of a suit for breach of contract or in a suit alleging
liability in tort.
Allis-Chalmers, 471 U.S. at 211.
State law tort claims that do not implicate these federal interests are not preempted, and the
determination must be made on a case-by-case basis. Kmetz v. Permacel St. Louis, Inc., 2008 WL
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4643868, at *2 (E.D. Mo. Oct. 20, 2008). “[N]ot every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or
other provisions of the federal labor law.” Allis-Chalmers, 471 U.S. at 211. The inquiry is whether
the state tort claim “confers nonnegotiable state-law rights on employers or employees independent
of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably
intertwined with consideration of the terms of the labor contract.” Id. at 213. “[W]hen resolution
of a state-law claim is substantially dependent upon analysis of the terms of an agreement made
between the parties in a labor contract, that claim must either be treated as a § 301 claim, or
dismissed as pre-empted by federal labor-contract law.” Id. at 220 (internal citation omitted).
In Lingle, the Supreme Court approved, in dicta, the Seventh Circuit’s recognition “that § 301
does not pre-empt state anti-discrimination laws, even though a suit under these laws, like a suit
alleging retaliatory discharge, requires a state court to determine whether just cause existed to justify
the discharge.” Lingle, 486 U.S. at 412 (quoted case omitted). The Supreme Court explained that
in most cases, the existence of a violation of state-law antidiscrimination law will not be dependent
on the terms of a collective bargaining agreement:
The operation of the antidiscrimination laws . . . illustrate[s] the relevant point for
§ 301 pre-emption analysis that the mere fact that a broad contractual protection
against discriminatory-or retaliatory discharge may provide a remedy for conduct that
coincidentally violates state-law does not make the existence or the contours of the
state law violation dependent upon the terms of the private contract. For even if an
arbitrator should conclude that the contract does not prohibit a particular
discriminatory or retaliatory discharge, that conclusion might or might not be
consistent with a proper interpretation of state law. In the typical case a state tribunal
could resolve either a discriminatory or retaliatory discharge claim without
interpreting the “just cause” language of a collective-bargaining agreement.
Lingle, 486 U.S. at 412-13.

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An employment discrimination law treatise states that the majority of courts to address the
question whether state disability discrimination laws are preempted by the LMRA have ruled that
such claims generally do not sufficiently implicate the collective bargaining agreement to require
preemption. See 9 Lex K. Larson, Employment Discrimination, § 167.06 (2d ed. 2007), primarily
discussing Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir. 1989); see, e.g., Brown v. Holiday
Stationstores, Inc., 723 F. Supp. 396, 406-07 (D. Minn. 1989) (remanding diabetic employee’s statelaw handicap discrimination failure to accommodate claim).
In Smolarek, the employee claimed the employer violated its duties under the Michigan
Handicappers’ Civil Rights Act (“HCRA”) by refusing to return him to his former position or to
another position consistent with his medical restrictions, and instead maintained him on disability
layoff. The employee’s complaint did not allege a violation of the collective bargaining agreement
The Sixth Circuit held that the claim was not preempted by Section 301, even though the collective
bargaining agreement contained a provision regarding reinstatement and the employer might assert
as a defense that its treatment of plaintiff was required by the terms of the agreement. Smolarek, 879
F.2d at 1334.
The Sixth Circuit stated that even if the plaintiff might have been able to charge his employer
with a violation of the collective bargaining agreement under the circumstances of his case, he did not
do so, and “this does not mean that § 301, even if applicable but not utilized by plaintiff, preempts
the claim.” Id. at 1333. The court observed that case was not one “in which the duty claimed to have
been breached (i.e., the duty not to discriminate) arises solely from the collective bargaining
agreement,” nor was it a case in which evaluation of the employer’s prima facie liability would
necessarily require a determination whether the collective bargaining agreement had been breached.

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Id. The court also stated that while Chrysler, in its defense, could assert that its treatment of the
plaintiff was allowed or required by the terms of the collective bargaining agreement and therefore
was not based on his handicap, the assertion of a defense requiring application of federal law did not
support removal to federal court. Id.
In contrast, a few decisions have held that state law disability discrimination claims are
preempted when the terms of the collective bargaining agreement have been intertwined with the state
law claims. 9 Larson, Employment Discrimination, § 167.06. For example, in Davis v. Johnson
Controls, Inc., 21 F.3d 866 (8th Cir. 1994), the Eighth Circuit affirmed the district court’s holding
that a handicap discrimination claim under the MHRA was preempted by Section 301 where the
plaintiff had been unable to work following a back injury, and the employer did not permit him to
return to work after his condition improved.
The district court had decided that § 301 preemption based on affidavits and matters outside
the pleadings, so the Eighth Circuit reviewed the district court’s order as a summary judgment ruling.
The Eighth Circuit began its analysis by stating that under Lingle, state-law claims are preempted
under Section 301 only if resolution of the claim requires the interpretation of a collective bargaining
agreement. Davis, 21 F.3d at 867. The employer argued that for the plaintiff to establish he was
disabled within the meaning of the MHRA, he must show the employer could have reasonably
accommodated his request to return to work, which would require reviewing the employer’s
obligations under the collective bargaining agreement and interpreting the agreement’s seniority
provisions. Id. at 868. The Eighth Circuit agreed with the district court that under the circumstances
of the case, relocating the plaintiff to a position commensurate with his physical limitations would
require an examination of the plaintiff’s and other employees’ seniority rights under the collective

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bargaining agreement, and thus would require interpretation of the agreement. As a result, the state
law claims in Davis were preempted under Allis-Chalmers and Lingle. Id.
With these principles in mind, the Court examines the removed case before it. Plaintiff alleges
in his petition that he was unlawfully discriminated against by defendants based on his race. He
alleges defendants unlawfully failed and refused to grant him reinstatement after sick leave, and
defendants retaliated against him for successfully prosecuting a prior claim with the MHRC. He
alleges that he has a medical condition and went out on sick leave on June 17, 2010, with an
anticipated return date of June 24, 2010. He alleges that defendants did not apply MAWC’s policy
and held him to a different standard than what was applied to white employees. He also alleges that
he was falsely accused of abusing narcotics, and he was required to prove that he was not using drugs
within an unreasonable time frame. Plaintiff claims he did provide medical proof, but he did so one
day later than requested. He alleges defendants “used this inconsequential delay as a pretext to
discharge plaintiff for purported cause, but was, in fact, retaliation for plaintiff’s prior actions against
defendants for violation of his rights.” See Petition at ¶17. Plaintiff then filed a charge of
discrimination with the EEOC and MHRC, and received a right to sue notice. As stated previously,
the petition asserts state law claims for race discrimination and retaliation in violation of the MHRA.
The petition does not contain a claim for breach of the union contract.
Defendants contend in their Notice of Removal that the Court must interpret the collective
bargaining agreement in order to resolve plaintiff’s claims, but they do not adequately explain how
plaintiff’s claims are so intertwined with the agreement that the Court must interpret its terms in order
to resolve plaintiff’s state law claims. Defendants also do not discuss the nature of the rights
conferred on plaintiff by the MHRA, i.e., whether the statute “confers nonnegotiable state-law rights

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on employers or employees independent of any right established by contract, or, instead, whether
evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor
contract.” Allis-Chalmers, 471 U.S. at 213.
For these reasons, the Court cannot determine whether it has subject matter jurisdiction over
this action. The Court will direct defendants to file a memorandum of law to establish the existence
of subject matter jurisdiction. Defendants shall address the issue of labor law preemption, but they
may also address the Court’s position that plaintiff is not asserting a Title VII claim. Plaintiff will
have the opportunity to respond. Defendants’ failure to timely and fully comply with this Order will
result in the remand of this case for lack of subject matter jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that by December 16, 2011, defendants shall file a
memorandum of law including citation to relevant authority, supported by any relevant exhibits, to
establish that plaintiff’s state law claims under the MHRA are so intertwined with interpretation of
the collective bargaining agreement that they are preempted by Section 301 of the LMRA.
IT IS FURTHER ORDERED that plaintiff shall have ten (10) days after defendants’
memorandum of law is filed in which to file a response.
IT IS FURTHER ORDERED that all other proceedings in this case are STAYED pending
further order of this Court.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 1st day of December, 2011
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