United States Court of Appeals,

                                               Fifth Circuit.

                                               No. 91-7385.

                                 Miguel MEDRANO, Plaintiff-Appellee,

                                                     v.

                            EXCEL CORPORATION, Defendant-Appellant.

                                              March 9, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY and WIENER, Circuit Judges, and FITZWATER, District Judge:**

           GRADY JOLLY, Circuit Judge:

          This appeal presents a little twist in the basic question of whether a state claim for retaliatory

discharge under workers' compensation law is pre-empted pursuant to a collective bargaining

agreement. Our plaintiff and appellee, Miguel Medrano, sustained work-related injuries and filed two

workers' compensation claims, both of which he settled. On the date of the settlement, he was still

under medical restrictions relating to work duties that could not be accommodated by his employer,

Excel Corporation.        Applying the terms of a collective-bargaining agreement (CBA), Excel

terminated Medrano's employment. Medrano—asserting diversity jurisdiction—filed a wrongful

discharge complaint against Excel. In his complaint, Medrano alleged that Excel discharged him in

violation of article 8307c of the Texas Workmen's Compensation Act. Medrano alleged that Excel's

alleged reliance on the CBA as the reason for discharge was a mere pretext, and that Excel really

terminated him in retaliation for filing a workers' compensation claim. Things changed, however, at

the outset of the trial. Once the trial began, Medrano argued that the pro vision of the CBA itself

constituted discrimination in violation of article 8307c. Excel then argued to the district court that

Medrano's claim, as presented at trial, was pre-empted by sect ion 301 of the Labor Management

Relations Act (LMRA). Excel was unsuccessful, however, in obtaining, first, a leave to amend its

answer, and then in obtaining a directed verdict, a judgment notwithstanding the verdict (JNOV), or

   *
       District Judge of the Northern District of Texas, sitting by designation.
a new trial—all based on federal pre-emption of Medrano's state law claim. The $60,000 jury verdict

for Medrano was entered as the judgment of the court, and Excel appeals.

                                                   I

       Excel employed Medrano as a butcher at its Plainview, Texas, meat packing plant in June

1989. During November of that year, Medrano suffered injuries to his left wrist, his right arm, and

his right shoulder. As a result of his injuries, Medrano was unable to work for a substantial part of

1990. Medrano filed two workers' compensation claims and collected weekly compensation benefits.

       Medrano returned to work on October 5, 1990, with the restriction that he could not use a

knife or hook for more than 65% of the time. Medrano was still recovering from his shoulder injury,

which restricted him to light duty for four months. On November 12, however, Medrano's doctor

determined that his current position was too stressful to his shoulder and further restricted Medrano's

work conditions. On November 13, Medrano was medically prohibited from all use of knives or

hooks. On November 28, 1990, Medrano settled his two workers' compensation claims for

approximately $27,000.00.      On this date, there were no jobs available at Excel that could

accommodate Medrano's medical restrictions.

       On December 13, 1990, Medrano and thirty-seven other Excel employees filed suit against

Excel, alleging harassment, discrimination, and retaliation in violation of Tex.Rev.Civ.Stat.Ann. art.

8307c, the Texas Workmen's Compensation Act. On January 11, 1991, Excel informed Medrano that

his employment was terminated pursuant to Article XVII, Section 11(F), of the collective-bargaining

agreement (CBA) between Excel and the United Food and Commercial Workers District Local # 540.

This settlement provision states that an employee shall lose his seniority for full settlement for a

disability that the company cannot accommodate.1 The district court subsequently severed the claims

of the thirty-eight plaintiffs in the previously filed lawsuit. Medrano amended his complaint, dropping

the harassment claim.

       Medrano's retaliatory discharge action was tried before a jury. On the second day of trial,

   1
     Specifically, Article XVII, Section 11(F), provides that "[a]n employee shall lose his seniority
for the following reasons: Full settlement with an employee for a disability that the Company
cannot accommodate."
Excel moved for leave to file a trial amendment asserting that Medrano's claim was pre-empted by

federal labor law. Medrano's complaint alleged that the settlement provision in effect when he settled

his workers' compensation claims was merely a pretext for his termination; instead, Excel had

terminated him in retaliation for exercising his rights under the Texas Workmen's Compensation Act.

Excel argued, however, that beginning with the trial, Medrano had changed his position: He was now

arguing that the settlement provision of the CBA itself constituted discrimination against employees

who settled their workers' compensation claims. This claim, Excel argued, was pre-empted by section

301 of the Labor Management Relation Act (LMRA). Excel's motion to plead pre-emption, however,

was denied. At the close of Medrano's case-in-chief, Excel moved for a directed verdict, again

arguing that Medrano's claim—as presented at trial—was pre-empted by federal law. The district

court, however, rejected Excel's argument.

       On October 25, 1991, the jury found for Medrano. It concluded that Excel had terminated

Medrano in retaliation for his pursuit of workers' compensation benefits. On November 8, 1991,

Excel filed motions for a JNOV and for a new trial, again arguing that Medrano's claim was

pre-empted by section 301; again, both motions were denied by the district court. On November 26,

1991, the district court entered judgment in favor of Medrano in the amount of $60,000.00. Excel

appeals.

                                                  II

       On appeal, Excel raises three issues. First, Excel argues that Medrano's claim of retaliation,

as presented to the jury, was pre-empted by section 301 of the LMRA. Second, Excel argues that

Medrano failed to present evidence to support the jury's verdict. Third, Excel argues that Medrano

failed to present evidence to support the jury's verdict. Third, Excel argues that Medrano failed to

present evidence to support an award of exemplary damages.

       On the other hand, Medrano first argues that Excel has failed to preserve its claim of

pre-emption for appeal; if the issue has been preserved, Medrano argues that his claim is not

pre-empted. Medrano also defends his jury award against Excel's evidentiary attack.

                                                 III
                                                  A

        Section 301 of the LMRA states:

       Suits for violation of contracts between an employer and a labor organization representing
       employees in an industry affecting commerce ... or between any such labor organizations, may
       be brought in any district court of the United States having jurisdiction of the parties, without
       respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a). Any state law cause of action for violation of a collective-bargaining agreement

is entirely displaced by federal law under section 301. United Steelworkers of America, AFL-CIO-

CLC v. Rawson, 

, 368, 

, 1909, 

(1990). Furthermore,

state law is pre-empt ed by section 301 "in that only the federal law fashioned by the courts under

section 301 governs the interpretation and application of collective-bargaining agreements." 

claim "inextricably intertwined" with consideration of the terms of the collective-bargaining

agreement contract is pre-empted under section 301. Allis-Chalmers Corp. v. Lueck, 

,

213, 

, 1912, 

(1985). If, however, the state-law claim can be resolved

without interpreting the collective-bargaining agreement itself, the claim is independent of the

agreement for section 301 pre-emption purposes. Lingle v. Norge Division of Magic Chef, Inc., 

, 410, 

, 1883, 

(1988).

                                                  B

        Medrano's claim against Excel was for wrongful discharge under article 8307c of the Texas

Workmen's Compensation Act, which provides in part:

       Protection of claimants from discrimination by employers; remedies; jurisdiction

               Section 1. No person may discharge or in any other manner discriminate against any
       employee because the employee has in good faith filed a claim, hired a lawyer to represent
       him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the
       Texas Workmen's Compensation Act, or has testified or is about to testify in any such
       proceeding.

               Section 2. A person who violates any provision of Section 1 of this Act shall be liable
       for reasonable damages suffered by an employee as a result of the violation, and an employee
       discharged in violation of the Act shall be entitled to be reinstated to his former position. The
       burden of proof shall be upon the employee.

Tex.Rev.Civ.Stat.Ann. art. 8307c, Acts 1971, 62nd Leg. p. 884, ch. 115. In a case pursuant to article

8307c, the employee bears the initial burden of establishing a causal link between the discharge and
the workers' compensation claim. Swearingen v. Owens-Corning Fiberglas Corp., 

, 562

(5th Cir.1992). Retaliation only needs to be a determining factor for discharge to permit an employee

to recover under article 8307c. 

employee has established the causal link, the employer

must rebut the alleged discrimination by showing a legitimate reason for the discharge. 

this case we are asked to "determine if [Medrano's] claim is sufficiently independent of the

collective-bargaining agreement to withstand the pre-emptive force of section 301." International

Brotherhood of Electrical Workers, AFL-CIO v. Hechler, 

, 859, 

, 2167,

(1987).2 We conclude that it is not. Although this holding may at first appear

somewhat at odds with our holdings in Jones v. Roadway Express, Inc. (Roadway Express I ), 

(5th Cir.1991), and Jones v. Roadway Express, Inc. (Roadway Express II ), 

(5th Cir.1991), and the Supreme Court's holding in Lingle v. Norge Div. of Magic Chef, Inc., 

, 

, 

(1988), an examination of the cases demonstrates the

distinction.

        The state-law claim in Roadway Express I, as in the instant case, was based on article 8307c.

In Roadway Express I, we stated that "the basic issue in this case is whether a retaliatory discharge

occurred" and concluded that "[r]esolution of this issue does not require an interpretation of the

CBA." Roadway Express 

. We held that because the retaliatory discharge claim

was not "inextricably intertwined" with the CBA and did not depend upon a provision of the CBA,

the state law claim was not pre-empted. Roadway Express 

. Furthermore, we

observed that in the "typical case" involving such a retaliatory discharge, the claim could be resolved

without an interpretation of the CBA. 

before us today, however, is not a typical straightforward case alleging a retaliatory

discharge in violation of article 8307c. Unlike the plaintiff's claim in Roadway Express I and II,

   2
   We quickly dismiss of Medrano's argument that Excel did not preserve this issue for appeal.
Excel moved for a directed verdict at the close of Medrano's evidence, and also argued in its
motion for JNOV or new trial that Medrano's claim was pre-empted by section 301. Therefore,
Excel "properly preserved the issue" of pre-emption for appeal. Stephens v. C.I.T.
Group/Equipment Financing, Inc., 

, 1028 (5th Cir.1992).
Medrano's claim is indeed inextricably intertwined with a considerat ion of the terms of the CBA.

Medrano actually drew on the settlement provision of the CBA itself to establish a violation of article

8307c. Medrano's claim is distinctive in that he alleged Excel—by applying a specific provision of

the CBA—discriminated against him because he settled a workers' compensation claim, not because

he filed one. Throughout trial, Medrano drew a distinction between those employees who filed a

workers' compensation claim but did not settle (not discharged), and those who filed a claim but did

settle (discharged). Medrano was essentially challenging the very legality of Article XVII, Section

11(F), of the CBA, which Excel had faithfully applied and which was the basis for Medrano's

termination. Medrano's claim, without a doubt, is substantially dependent upon the meaning of a term

of the CBA and its applicability in this case.

       In Lingle the Court concluded that the "purely factual questions" necessary to show

retaliatory discharge in that case "pertain[ed] to the conduct of the employee and the conduct and

motivation of the employer." 

, 108 S.Ct. at 1882. The Court reasoned that

the plaintiff's state law retaliatory discharge claim was independent of the CBA because "resolution

of the state-law claim [did] not require construing the collective-bargaining agreement." 

contrary here—and we repeat ourselves—Medrano's claim clearly requires construing the CBA. The

unquestioned basis of Excel's discharge of Medrano was the settlement provision of the CBA; that

point is not in dispute. What is disputed in this case is whether the provision itself was illegal or

discriminatory. Unlike the facts presented in Lingle, here the CBA must be construed for resolution

of Medrano's state law claim. "No matter in what glamorous garb it is dressed, the basic thrust" of

Medrano's claim is that the enforcement of the settlement provision of the CBA "itself constitutes a

tort under state law." Strachan v. Union Oil Co., 

, 704 (5th Cir.1985).3

       At trial, Medrano acknowledged that he was discharged pursuant to the settlement provision

of the CBA, but argued that this provision itself constituted discrimination against employees who


   3
    We find our recent decision in Bagby v. General Motors Corp., 

(5th Cir.1992),
to be applicable to this case. In Bagby we concluded that when a plaintiff "asserts that acts
unquestionably taken in accordance with the provisions of the CBA were nonetheless tortious,"
such "claims will obviously require an interpretation of the CBA." 

settle their claims. In essence, Medrano's claim was that Article XVII, Section 11(F), of the CBA

was an admission by Excel that it discriminated against Medrano in violation of article 8307c because

this section of the CBA allowed Excel to discriminate against any workers' compensation claimant

who settled his claim while Excel was unable to accommodate him at work. Throughout the trial,

Medrano referred to this provision of the CBA and attempted to show the jury that Excel

discriminated not only against Medrano individually but against any employee who settled a workers'

compensation claim as opposed to an employee who did not.

       Medrano's attorney began his attack on the settlement provision of the CBA during voir dire,4

and his challenge to the CBA continued during opening statements. Medrano called six witnesses,

three of whom were questioned extensively about the terms of the CBA. Excel called only three

witnesses, but on cross-examination Medrano's attorney again concentrated on the terms of the CBA.

Even during his closing arguments, Medrano's attorney's emphasis was on the CBA. Medrano was

not challenging the act ions of his employers under section 8307c; instead, he was challenging a

provision of the CBA that was applied by his employer. Because the resolution of Medrano's claim

required an interpretation of the CBA, his claim was clearly pre-empted by section 301.

       REVERSED.




   4
    Medrano's attorney told prospective jurors that "[y]ou are going to be asked to consider
whether this rule [Article XVII, Section 11(F) ] violates the law, and I think the evidence will
show plainly it does. And I will ask you, just because there was a union contract involved where
they managed to get it in the contract, that would it keep you from fairly considering the issue at
hand, which is whether that rule discriminates against employees that settle claims." (Emphasis
added.)