Billups v. AT&T Corporation et al

Filing 31

ORDER granting #17 motion to remand. The case is remanded to the Circuit Court of Pettis County, Missouri. Signed on 1/19/23 by District Judge M. Douglas Harpool. (View, Pat)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
CHRISTOPHER L. BILLUPS,
Plaintiff,
vs.
AT&T CORPORATION, SOUTHWESTERN
BELL TELEPHONE COMPANY,
COMMUNICATION WORKERS OF
AMERICA, DUSTIN STUART, and
KORY VAUGHAN,
Defendants.

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Case No. 2:22-cv-04116-MDH

ORDER
Before the Court are the following motions: Defendants AT&T Corp. And Southwestern
Bell Telephone Company’s Motion To Dismiss Plaintiff’s Petition (Doc. 8); Defendants
Communication Workers Of America, Dustin Stuart, And Kory Vaughan’s Motion To Dismiss
Or, In The Alternative, Motion For Summary Judgment (Doc. 11); Plaintiff’s Motion to Remand
(Doc. 17); and Plaintiff’s Motion for Leave to File Right to Sue Letter (Doc. 30). The motions are
ripe for review.
BACKGROUND
Plaintiff filed his employment related lawsuit in the Circuit Court of Pettis County,
Missouri against the Defendants alleging the following counts: Count 1 – Age Discrimination
(MHRA) against all Defendants; Count 2 – Unlawful Practice of Law against defendants CWA,
Stuart, and Vaughan; Count 3 – Negligence against all Defendants; and Count 4 – Additional
Unlawful Discriminatory Practice (MHRA) against Defendants AT&T, Southwestern Bell, and
CWA. Defendants CWA, Stuart and Vaughan removed the case to this Court pursuant under 28
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U.S.C. §§ 1331, 1337, 1441, and 1446 arguing Plaintiff’s claims are covered by § 301 of the Labor
Management Relations Act (LMRA).
Plaintiff was previously employed as a technician by defendants AT&T Corp. and
Southwestern Bell Telephone Company. Plaintiff was also a member of Communication Workers
of America (“CWA”) a national union. On June 30, 2020, Plaintiff was parked in his company
vehicle closing out a job when he was struck by a tractor trailer hauling oversized tires. The
oversized tires were damaged during the accident.
Plaintiff was called in by his managers on July 6, 2020, to discuss the accident. Plaintiff
was represented by Dustin Stuart who was president of CWA, Local 6314 at the time. Plaintiff
was given 24 hours to decide whether he wanted to resign and was told by the managers that if he
did not resign the employer could fire him. Following the meeting, Plaintiff alleges Stuart called
Plaintiff and told him that if he did not resign, he was at risk for being sued for almost $100,000.00.
Plaintiff alleges Stuart recommended that Plaintiff resign.
Plaintiff alleges the next day he spoke with Kory Vaughan, a CWA steward, and told him
about Stuart’s advice. Plaintiff alleges Vaughan informed him that his father was a retired police
officer and his understanding was that Plaintiff could be responsible for the tires if he were fired
but not if he resigned. Plaintiff contends he felt he had no choice but to resign based on Stuart and
Vaughan’s advice.
Plaintiff’s Complaint further alleges that the treatment he received was because of his age.
Plaintiff contends he was pressured to resign, was provided false and misleading legal advice by
non-lawyers in order to induce his resignation, and was falsely advised he would be liable for
$100,000 in damages if he did not resign. Plaintiff alleges Defendants never “threatened younger

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employees or younger union members who have been in accidents that they would be personally
liable for any damages caused if they refuse to resign.”
CWA has attached a copy of the collective bargaining agreement (“CBA”) that governed
Plaintiff’s employment with AT&T/Southwestern Bell to its motion. Stuart and Vaughan assisted
members of Plaintiff’s bargaining unit by accompanying them to disciplinary meetings and filing
grievances on their behalf over discipline and other matters arising under the CBA.
Article IV of the CBA, is entitled ARBITRATION and states:
Section 1. If, during the term of this Agreement, with respect to the 2017
Departmental Agreement effective April 9, 2017, between the Union and the
Company, and subsequent agreements which by specific reference therein are made
subject to this Article, a difference shall occur, between the 198 Union and the
Company, and continue after all steps in the “Formal Grievance” procedure
established in the 2017 Departmental Agreement shall have been undertaken and
completed, regarding:
c. the dismissal for just cause of any employee with more than one (1) completed
year’s Net Credited Service, or
d. the disciplinary suspension for just cause of any employee ….
Defendants state Plaintiff did not request that CWA, Stuart, or Vaughan file a grievance on his
behalf. Defendants further argue Plaintiff’s claims are covered by the CBA and that the CBA
completely preempts any state law claims brought by Plaintiff.
Plaintiff filed a charge of discrimination with the MHRA. Plaintiff has a pending Motion
for Leave to File Right to Sue Letter that he filed in response to the pending motions to dismiss
because Defendants argue Plaintiff failed to obtain a right to sue prior to filing suit. (Doc. 30).
STANDARD OF REVIEW
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Such courts can only hear cases that they are authorized to hear by the
Constitution or a statute. Id. An action may be removed from state court to federal district court if
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the case falls within the original jurisdiction of the district court. 28 U.S.C. § 1441(a) and 1446(b).
A removing defendant “bears the burden of establishing that the district court ha[s] original
jurisdiction by a preponderance of the evidence.” Knudson v. Sys. Painters, Inc., 634 F.3d 968,
975 (8th Cir. 2011). “All doubts about federal jurisdiction should be resolved in favor of remand
to state court.” Id., citing Junk v. Terminix Int'l Co., 628 F.3d 439, 446 (8th Cir. 2010).
“To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint is facially plausible where its factual content “allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. The plaintiff must plead facts that show more than a mere speculation or possibility that the
defendant acted unlawfully. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the
Court accepts the complaint’s factual allegations as true, it is not required to accept the plaintiff’s
legal conclusions. Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
The court’s assessment of whether the complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Ashcroft, 556 U.S. at 679. The reviewing court must read the complaint as a
whole rather than analyzing each allegation in isolation. Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009).
DISCUSSION
1. Motion to Remand
Plaintiff moves to remand arguing that his claims based on the MHRA (Counts 1 and 4),
his unlawful practice of law claim pursuant to Missouri statute (Count 2), and his common law

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negligence claim (Count 3) are all state law claims that do not give rise to federal jurisdiction.
Plaintiff states that his claims are not preempted and that Defendants preemption arguments are
defenses to Plaintiff’s claim in state court, not the basis for federal jurisdiction.
First, the parties do not dispute that the MHRA claims are not preempted by the NLRA.
See Markhan v. Wertin, 861 F.3d 748, 759-60 (8th Cir. 2017). The Notice of Removal states the
Court has supplemental jurisdiction over Counts 1 and 4 (the MHRA claims) because they are
related to Counts 2 and 3.
In Counts 2 and 3 Plaintiff clearly intends to raise state law claims. Count 2 is a claim for
unlawful practice of law based on a Missouri statute and Count 3 is a Missouri common law claim
for negligence. To begin, “[t]he presence or absence of federal-question jurisdiction is governed
by the ‘well-pleaded 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.” Markham
v. Wertin, 861 F.3d 748, 754 (8th Cir. 2017). It is well settled “that a case may not be removed to
federal court on the basis of a federal defense, including the defense of pre-emption.” Id. at 393.
The Court begins its analysis with Count 3, a claim against all Defendants. The Union
Defendants filed the opposition to Plaintiff’s motion to remand but all Defendants argue in the
motions to dismiss that Plaintiff’s common law claim for negligence is preempted by the MHRA
and LMRA. Defendants argue the MHRA is the exclusive remedy for any and all claims arising
out of an employment relationship and Plaintiff’s claim of negligence based on “inaccurate legal
advice” and his decision to quit because of “negligent” advice falls under the MHRA. See Huskey
v. Petsmart, No. 18-00813-CV-W-NKL, 2019 WL 122873, at *2 (W.D. Mo. Jan. 7, 2019); Reese
v. Tyson Foods, Inc. No. 3:21-05087-CV-RK, 2021 WL 5625411, at *6 (W.D. Nov. 30, 2021);
Francis v. Compass Group USA, Inc., 572 F.Supp.3d 706, 709-11 (E.D. Mo. 2021) (MHRA

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abrogates common law wrongful termination claim). In addition, Defendants argue Plaintiff’s
negligence claim is also preempted by the LMRA as the claim is dependent upon the analysis of a
CBA. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985); Lingle v. Norge Division of
Magic Chef, 486 U.S. 399, 410 (1988).1
In response, Plaintiff states he “does not challenge AT&T Defendants’ arguments that the
negligence claim against them is preempted by the MHRA.” (Doc. 16, p. 10). As a result, with
regard to the AT&T defendants the only remaining claims are the MHRA state law claims and
those claims should be remanded. While conceding the negligence claim against the AT&T
defendants, Plaintiff states that the negligence claims against Stuart and Vaughan are not
preempted by the MHRA. Plaintiff does not elaborate on this argument and the Court finds it
unpersuasive.
The Union Defendants argue that this case falls within the narrow complete preemption
exception to the well-pleaded complaint rule. That rule states, “[o]nce 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.” Id. This
“complete pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases
raising claims pre-empted by § 301 of the LMRA.” Id. (noting that “[f]or 20 years, this Court has
singled out claims pre-empted by § 301 of the LMRA for such special treatment”). Accordingly,
“[s]ection 301 governs claims founded directly on rights created by collective-bargaining
agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining
agreement.’” Markham v. Wertin, 861 F.3d 748, 754–55 (8th Cir. 2017). Thus, we have said that

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As discussed herein, the Court does not find that the negligence claim is dependent on the terms
of the CBA. However, whether the CBA will provide a defense to Plaintiff’s claims in state court
is an issue for the state court to determine.
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“the claim must require the interpretation of some specific provision of a CBA; it is not enough
that the events in question took place in the workplace or that a CBA creates rights and duties
similar or identical to those on which the state-law claim is based.” Id. at 755.
Defendants argue Section 9(a) of the NLRA covers any duty of care owed by Defendants
in connection with their representation of Plaintiff and therefore the common law negligence claim
is preempted. Defendants cite Hansen v. Qwest Commc'ns, 564 F.3d 919, 924 (8th Cir. 2009) in
support of their argument that negligence is preempted. However, in Hansen, the plaintiff brought
a claim for breach of its duty of fair representation. In affirming summary judgment, the Eighth
Circuit stated that mere negligence was insufficient to establish a breach of duty of fair
representation. Id. Defendants argue here Plaintiff has brought a mislabeled federal claim and
that the union’s representational role is necessarily federal and cannot be the basis for a common
law negligence claim. Defendants state that the Eighth Circuit has expressly reserved a ruling on
this issue in Markham.
The Court finds Plaintiff’s negligence claim is preempted by the MHRA and as a result
any such claim is a state law claim. The Court further finds that the NLRA preemption argument
would be more appropriately considered in the defenses of the MHRA claims in state court, but
does not provide a basis for federal jurisdiction for Plaintiff’s claims.
As a result, the Court finds Plaintiff’s claims are state law claims and the defenses raised
by Defendants are not enough to confer federal jurisdiction on the ground of complete preemption.
Id. (internal citation omitted) (“[T]he presence of a federal question, even a § 301 question, in a
defensive argument” does not render a cause removable: “a defendant cannot, merely by injecting
a federal question into an action that asserts what is plainly a state-law claim, transform the action

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into one arising under federal law, thereby selecting the forum in which the claim shall be
litigated.”).
Further, the Court finds Plaintiff’s claims are not “based on” a provision of the CBA or
dependent upon an analysis of the CBA. The Union defendants cite to Article IV of the CBA
entitled Arbitration. (Doc. 12-3). The CBA provision sets forth the basis for arbitration after all
steps of the Formal Grievance have been established, including “the dismissal for just cause of any
employee with more than one complete year’s Net Credited Service” and “the disciplinary
suspension for just cause of any employee.” Defendants argue Plaintiff’s claims fall under these
provisions. However, Plaintiff’s claims specifically allege he was given negligent advice and that
Defendants engaged in the unauthorized practice of law. Plaintiff does not reference the CBA or
any rights under it. This is not to say that Plaintiff’s cause of action for unauthorized practice of
law can survive in state court. This Court merely finds that it does not give rise to federal
jurisdiction.
The Court does not rule on whether Defendants may ultimately prove that Plaintiff’s claims
are without merit, either based on the CBA, the NLRA, or some other defense raised in the pending
motions to dismiss. The Court only finds that the arguments raised by Defendants do not establish
that Plaintiff’s claims are removable based on federal preemption. See Caterpillar Inc. v. Williams,
482 U.S. 386, 398 (1987).
In Markham, the Eighth Circuit stated that the Defendant was “free to assert a preemption
defense in state court after the case is remanded, but the presence of a federal question ... in a
defensive argument does not overcome the paramount policies embodied in the well-pleaded
complaint rule—that the plaintiff is the master of the complaint, that a federal question must appear

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on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law,
choose to have the cause heard in state court.” Id. at 759–60.
Upon remand the state court can analyze the issues raised by Defendants, including
whether Plaintiff has stated a claim sufficient to survive a motion to dismiss. However, this Court
finds it does not have jurisdiction over Plaintiff’s claims. Wherefore, for the reasons set forth
herein, the Court GRANTS Plaintiff’s motion to remand.
2. Defendants AT&T and Southwestern Bell’s Motion to Dismiss
Because the Court finds the claims against the AT&T Defendants should be remanded the
Court does not rule on the remaining arguments raised in Defendants’ Motion to Dismiss. Any
arguments with regard to the failure to state a claim may be raised with the state court upon remand.
This includes Defendants’ argument that Plaintiff has failed to obtain a notice of a right to sue and
Plaintiff’s motion for leave to file his right to sue letter. (Doc. 30).
3. Defendants CWA, Stuart and Vaughan’s Motion to Dismiss or in the Alternative
Motion for Summary Judgment.
Defendants argue, in part, Plaintiff fails to state an MHRA claim against these Defendants
because he failed to obtain a right to sue letter and that the MHRA does not authorize age
discrimination claims against the local union officers Stuart and Vaughan. Again, the issues raised
in the Union Defendants’ motion to dismiss are issues for the state court to determine upon remand.
CONCLUSION
Wherefore, for the reasons stated herein, Plaintiff’s Motion to Remand is GRANTED.
(Doc. 17). The case is remanded to the Circuit Court of Pettis County, Missouri. The Court
declines to rule on the remaining motions (Docs. 8, 11, and 30) as the Court finds its does not have
jurisdiction over these claims.

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IT IS SO ORDERED.
DATED: January 19, 2023
/s/ Douglas Harpool
_
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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