Thomas v DCL Fabrication Inc. et al

Filing 16

MEMORANDUM AND ORDER OF REMAND re: 12 :IT IS HEREBY ORDERED that Plaintiff's Motion to Remand (Doc. 12) is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent it seeks remand of this action to the Circuit Court for the Co unty of St. Louis, Missouri. The motion is denied to the extent it seeks an award of costs and expenses under 28 U.S.C. § 1447(c). IT IS FURTHER ORDERED that this action is remanded to the Circuit Court for the County of St. Louis, Missouri.. Signed by District Judge John A. Ross on 7/25/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LeKENDRIC THOMAS,
Plaintiff,
vs.
DCL FABRICATION, INC. d/b/a DCL
FABRICATION AND SUPPLY, INC., et al.,
Defendants.

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Case No. 4:16-cv-00099-JAR

MEMORANDUM & ORDER OF REMAND
This matter is before the Court on Plaintiff LeKendric Thomas’s motion to remand the
action to the Circuit Court for the County of St. Louis, Missouri, from which it was removed by
Defendants DCL Fabrication, Inc., d/b/a DCL Fabrication and Supply, Inc. (“DCL”), Darrell
Dick, and Ray Laidet (together, “Defendants”) (Doc. 12). For the following reasons, the Court
will grant the motion.
Background
Thomas initially filed this civil action in the Circuit Court for the County of St. Louis,
Missouri, alleging the following relevant facts. (Doc. 1-1 at 1-10). In February 2013, he
suffered a shoulder injury while working for Defendants. His physician refused to release him to
return to work until he underwent an MRI on his shoulder, and Defendant Dick thereafter tried to
dissuade Thomas from undergoing the MRI. Thomas’s workers’ compensation claim was
initially denied. He was then informed that DCL did not have any “light duty” positions
available, and that he would not be put back to work unless a physician fully released him to
return to work with no restrictions. After his workers’ compensation claim was approved in

February 2014, he underwent the MRI, which revealed a torn labrum, a torn rotator cuff, and a
ripped bicep tendon; he then underwent surgery and extensive physical therapy. During his
recovery, Thomas’s doctor provided him multiple notes authorizing him to return to work with
restrictions on the amount of weight he could lift. Thomas provided these notes to DCL, but
DCL reiterated that it did not have any “light duty” positions available and refused to
accommodate his restrictions or allow him to return to work. In August 2014, Thomas’s
physician released him to return to work with no restrictions. He provided the release to DCL,
and informed Defendant Laidet that he was ready to return to work. In September 2014, Plaintiff
received a letter from DCL, notifying him that DCL would not reinstate his employment because
it did not have “any vacant positions,” and effectively terminating his employment. In December
2014, Thomas filed a Charge of Discrimination letter with the Missouri Commission on Human
Rights, alleging unlawful employment discrimination, and in November 2015, he was issued a
right to sue letter. In his complaint, Thomas claims that Defendants (1) discriminated against him
based on his disability, in violation of the Missouri Human Rights Act (“MHRA”); (2) failed to
accommodate his disability in violation of the MHRA; and (3) committed worker’s
compensation retaliation in violation of the Missouri Workers’ Compensation Law, see Mo. Rev.
Stat. § 287.780 (no employer shall discharge or discriminate against employee for exercising
rights under workers’ compensation act) (Doc. 1-1 at 1-10).
Defendants removed Thomas’s action to this Court.

In their notice of removal,

Defendants state that, during his employment with DCL, Thomas was a member of Sprinkler
Fitters and Apprentices, Local Union 268 (“the Union”); that DCL was a signatory party to a
collective bargaining agreement (“CBA”) with the Union; that the CBA governed the terms and
conditions of Thomas’s employment with DCL; that Thomas’s suit will require interpretation of

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the CBA. According to Defendants, the Court therefore has jurisdiction over this action under 28
U.S.C. § 1331 (federal question jurisdiction) because Thomas’s workers’ compensation
retaliation claim is completely preempted by § 301 of the Labor Management Relations Act
(“LMRA”), see 29 U.S.C. § 185 (Doc. 1).
Thomas now moves to remand the action back to the Circuit Court for the County of St.
Louis. According to Thomas, 28 U.S.C. § 1445(c) renders his action non-removable, as his
workers’ compensation retaliation claim “arises under” a workers’ compensation statute, and he
cites Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1246 (8th Cir. 1995) for the proposition that
actions asserting claims of workers’ compensation retaliation under Mo. Rev. Stat. § 287.780
“arise under” a workers’ compensation statute, and therefore are non-removable to federal court.
He further argues that his claims do not require interpretation of the CBA, and that they are not
preempted by § 301 of the LMRA. As such, he contends that the Court lacks jurisdiction over
this matter, making removal under 28 U.S.C. § 1441 inappropriate. In addition, Thomas seeks an
award of attorney’s fees, costs, and expenses--pursuant to 28 U.S.C. § 1445(c)--claiming that
Defendants lacked an objectively reasonable basis to remove his action (Doc. 12).
In response, Defendants reiterate their assertion that section 1445(c) does not prevent
removal of Thomas’s action because his claims are completely preempted by § 301 of the
LMRA, as they require interpretation of the CBA. Defendants argue that they anticipate that—in
defense of Thomas’s workers’ compensation retaliation claim—they will rely on the power
granted them by the CBA to articulate legitimate, nondiscriminatory reasons for their actions
relating to Thomas and his injury. They also note, in a footnote, that a provision of the CBA
prohibits discrimination, including discrimination on the basis of disability, and requires that
employees be able to perform the essential functions of the job at issue. Alternatively,

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Defendants argue that, even if the Court determines that remand is appropriate, it should not
award Thomas fees and costs under § 1447(c) because they had an objectively reasonable basis
to remove this action (Doc. 14).
In reply, Thomas asserts that Defendants have not identified any specific clause or
section of the CBA that would support complete preemption by the LMRA; and contends that
Defendants’ reliance on the CBA to support its affirmative defenses cannot alone support
complete preemption under the LMRA. Rather, according to Thomas, his claims are not
completely preempted under the LMRA, as his prima facie case is not “inextricably intertwined
with,” nor does it necessitate the interpretation of, any provision of the CBA (Doc. 15).
Discussion
A defendant may remove an action from state court to the federal district court for the
district in which the action is pending if the action falls within the district court’s original
jurisdiction, unless an Act of Congress provides otherwise. 28 U.S.C. § 1441(a). The Supreme
Court has explained district courts’ jurisdiction over removed actions as follows:
Only state-court actions that originally could have been filed in federal court may
be removed to federal court by the defendant. Absent diversity of citizenship,
federal-question jurisdiction is required. The presence or absence of federalquestion jurisdiction is governed by the “well-pleaded complaint rule,” which
provides that federal jurisdiction exists only when a federal question in presented
on the face of the plaintiff’s properly pleaded complaint.
Ordinarily federal pre-emption is raised as a defense to the allegations in a
plaintiff’s complaint . . . [I]t is now settled law that a case may not be removed to
federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if
both parties concede that the federal defense is the only question truly at issue.
There does exist, however, an “independent corollary” to the well-pleaded
complaint rule . . . known as the “complete pre-emption” doctrine. On occasion,
the Court has concluded that the pre-emptive force of a statute is so
“extraordinary” that it “converts an ordinary state common-law complaint into
one stating a federal claim for purposes of the well-pleaded complaint rule.” . . .
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Once an area of state law has been completely pre-empted, any claim purportedly
based on that pre-empted state law is considered, from its inception, a federal
claim, and therefore arises under federal law.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392-93 (1987). The Supreme Court has also
summarized the pre-emptive force of § 301 of the LMRA as follows:
[W]hile there may be instances in which the [LMRA] pre-empts state law on the
basis of the subject matter of the law in question, § 301 pre-emption merely
ensures that federal law will be the basis for interpreting collective bargaining
agreements, and says nothing about the substantive rights a State may provide to
workers when adjudication of those rights does not depend upon the interpretation
of such agreements. In other words, even if dispute resolution pursuant to a
collective-bargaining agreement, on the one hand, and state law, on the other,
would require addressing precisely the same set of facts, as long as the state-law
claim can be resolved without interpreting the agreement itself, the claim is
“independent” of the agreement for § 301 pre-emption purposes.
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 408-10 (1988). In addition, the Eighth
Circuit has held, on several occasions, that claims of workers’ compensation retaliation brought
pursuant to Mo. Rev. Stat. § 287.780 are not completely pre-empted by § 301 of the LMRA. See
e.g., Meyer v. Schnucks Markets, Inc., 162 F.3d 1048, 1050-52 (8th Cir. 1998); Humphrey, 58
F.3d at 1242-44.
In Dunn v. Astaris, LLC, 292 F. App’x 525, 526-27 (8th Cir. 2008) (unpublished per
curiam), the Eighth Circuit initially noted that, when determining whether a claim is completely
preempted under § 301 of the LMRA, courts should disregard any possible defenses, and should
ask only whether the claim itself is necessarily grounded in rights established by a CBA, i.e., that
the claim will require interpretation of a specific provision of the CBA, or that the claim is
inextricably intertwined with the CBA. Id. (citing Lingle, 486 U.S. at 405-06). The court then
specifically concluded that workers’ compensation retaliation claims under Mo. Rev. Stat.
§ 287.780 are not removable because they present a question of whether a causal relationship
existed between a plaintiff-employee’s workers’ compensation claim and a defendant5

employer’s refusal to allow him to return to work, a question that turns on purely factual
questions about the employer’s conduct and motives rather than on the scope of its contractual
authority to refuse to reinstate the injured employee under a CBA. Id.
In light of these well-established precedents, the Court finds that Thomas’s workers’
compensation retaliation claim does not require interpretation of the CBA; that it instead “arises
under” Mo. Rev. Stat. § 287.780; and that it thus is not pre-empted by § 301 of the LMRA. The
Court further concludes that Defendants’ mere anticipatory reliance on the CBA in relation to
their affirmative defenses is insufficient to invoke this Court’s federal question jurisdiction
through the complete preemption doctrine. Id.; Johnson, 159 F.3d at 1115-17 (presence of
federal question, even § 301 question, in defensive argument does not render cause removable to
federal court; employer’s non-retaliatory reason to discharge employee based on provisions of
CBA was not enough to confer federal jurisdiction based on complete preemption); Humphrey,
58 F.3d at 1244 (fact that employer’s defense to claim that it had “just cause” to terminate
employee relied on CBA did not create basis for LMRA preemption).
The Court lacks jurisdiction over any of Thomas’s claims, all three of which assert
violations of Missouri law. 28 U.S.C. §§ 1331, 1441. In addition, the Court concludes that,
because Thomas’s complaint asserted a workers’ compensation retaliation claim, this action was
also non-removable under 28 U.S.C. § 1445(c), which bars removal of a “civil action in any
State court arising under the workmen’s compensation laws of such State.” Humphrey, 58 F.3d
at 1244-45 & 1245 n.8 (if § 1445(c) applies, i.e., a claim “arises under” a state workers’
compensation statute, the entire case is non-removable, even if complaint also contains federal
claims).

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Fees and Costs
When remanding an action to state court, a district court may require defendants to pay
just costs and actual expenses that a plaintiff has incurred as a result of improper removal. 28
U.S.C. § 1447(c). An award of costs and fees is appropriate where the removing party lacked an
“objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S.
132, 141 (2005). The Court concludes that Defendants’ removal of this action was not
objectively unreasonable, and that an award of costs and fees is not warranted under these
circumstances. However, the Court notes that the Eighth Circuit has concluded that claims of
workers’ compensation retaliation under Mo. Rev. Stat. § 287.780 are not preempted by § 301 of
the LMRA for purposes of establishing federal removal jurisdiction. In light of this binding
authority from the Eighth Circuit, as well as the consistency with which such actions have been
remanded back to state courts from the United States District Court for the Eastern District of
Missouri, awards of costs and fees under § 1447(c) will likely be warranted in future cases
should defendants continue to remove such actions to this Court. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (Doc. 12) is
GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent it seeks
remand of this action to the Circuit Court for the County of St. Louis, Missouri. The motion is
denied to the extent it seeks an award of costs and expenses under 28 U.S.C. § 1447(c). IT IS
FURTHER ORDERED that this action is remanded to the Circuit Court for the County of St.
Louis, Missouri.
Dated this 25th day of July, 2016.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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