FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         November 7, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
THOMAS RAEL,

      Plaintiff - Appellant,

v.                                                          No. 16-2278
                                                (D.C. No. 1:15-CV-00983-SCY-KK)
SMITH’S FOOD AND DRUG CENTERS,                               (D. N.M.)
INC.; ARTURO SUAZO, individually and
as an employee of Smith’s Food and Drug
Centers, Inc.,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
                   _________________________________

      Thomas Rael appeals the district court’s dismissal of his state law tort claims

as preempted by § 301 of the Labor Management Relations Act (“LMRA”),

29 U.S.C. § 185(a). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I.    Factual Background

      Rael worked for Smith’s Food and Drug Centers as a meat cutter for 25 years

until he resigned in December 2014. The terms of Rael’s employment were governed

by a collective bargaining agreement (“CBA”) negotiated between Smith’s and

Rael’s union. Arturo Suazo became Rael’s immediate supervisor approximately a

year before he resigned.

      In his operative complaint, Rael alleged that he left his position with Smith’s

because of continual harassment by Suazo. He claimed that Suazo frequently yelled

at and “constantly harassed, belittled, and degraded” him. Aplt. App. at 20. More

specifically, Suazo repeatedly called Rael “old man,” regularly said he “was moving

too slow,” and told Rael that younger meat cutters could do his job better and get it

done faster. 

that, due to a workplace injury, he was unable to work

as fast as younger employees or as quickly as Suazo demanded. He alleged that he is

58 years old, while Suazo is “much younger.” 

about Suazo’s harassment and mistreatment to several

assistant store directors and to the local head of human resources for Smith’s. These

individuals said they would talk to Suazo, but Suazo never modified his conduct. He

instead told Rael that he could find another job if he did not like the way Suazo

treated him. Rael ultimately resigned due to “constant pressure” from Suazo, feeling

that he had been “constructively terminated.” 

Rael alleged that Suazo was

acting within the course and scope of his employment at all material times.



                                           2
       Rael alleged state law claims for intentional infliction of emotional distress

(“IIED”) and prima facie tort against both Smith’s and Suazo. Defendants moved to

dismiss the complaint, arguing that Rael’s claims are preempted by § 301 of the

LMRA. The district court granted the motion and dismissed Rael’s complaint.

II.    Legal Background

       A.     Rael’s State Law Claims

       Rael alleged two tort claims under New Mexico law. To prevail on his IIED

claim, he was required to show that he suffered severe emotional distress caused by

defendants’ intentional or reckless conduct that was extreme and outrageous under

the circumstances. See Coates v. Wal-Mart Stores, Inc., 

, 1009

(N.M. 1999). The elements of a prima facie tort claim are: “(1) an intentional and

lawful act; (2) an intent to injure the plaintiff; (3) injury to the plaintiff as a result of

the intentional act; (4) and the absence of sufficient justification for the injurious

act.” Lexington Ins. Co. v. Rummel, 

, 995 (N.M. 1997). Rael argues

that neither of his state law tort claims is preempted by § 301.

       B.     Section 301 Preemption

       Section 301 of the LMRA provides: “Suits for violation of contracts between

an employer and a labor organization representing employees in an industry affecting

commerce as defined in this chapter . . . may be brought in any district court of the

United States having jurisdiction of the parties . . . .” 29 U.S.C. § 185(a). This

provision has been construed “as a congressional mandate to the federal courts to

fashion a body of federal common law to be used to address disputes arising out of

                                              3
labor contracts.” Allis-Chalmers Corp. v. Lueck, 

, 209 (1985). Section

301 is also deemed to have a preemptive effect, such that “[a] state rule that purports

to define the meaning or scope of a term in a contract suit . . . is pre-empted by

federal labor law.” 

In Allis-Chalmers, the Supreme Court extended this

rule beyond breach of contract claims, stating that “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.” 

Ultimately, the Court held

that preemption depends on “whether evaluation of the tort claim is inextricably

intertwined with consideration of the terms of the labor contract.” 

       Applying this test, the Supreme Court held in Lingle v. Norge Division of

Magic Chef, Inc., 

, 401 (1988), that a state law claim alleging a

retaliatory discharge for filing a workers’ compensation claim was not preempted by

§ 301. The Court reasoned that the “purely factual questions” necessary to prove the

elements of this claim could be determined without interpreting any term of a CBA.

(noting the factual issues were whether an employee was discharged or

threatened with discharge and whether the employer’s motivation was to deter the

employee from exercising his workers’ compensation rights). Thus, under Lingle,

“an application of state law is preempted by § 301 . . . only if such application

requires the interpretation of a collective-bargaining agreement.” 

                                            4
      C.     Tenth Circuit Cases Holding IIED Claims Preempted by § 301

      After Lingle, we have regularly held that IIED claims are preempted by § 301.

In Johnson v. Beatrice Foods Co., 

, 1016 (10th Cir. 1990), the plaintiff

alleged that he left his job as a delivery driver due to harassment by his supervisor.

We held that his IIED claim was preempted because “[e]ach of [his] allegations

directly relates to either explicit or implied rights derived from the CBA, just as the

bad faith tort claim in Allis-Chalmers did.” 

Further, because an IIED

claim under Oklahoma law “should not be considered in a sterile setting, detached

from the milieu in which it took place,”1 we held that “all aspects of [the plaintiff’s]

employment, including the terms of the CBA, must be considered when evaluating

whether [his employer’s] conduct was outrageous.” 

marks

omitted). More specifically, we concluded that “it cannot be determined whether [the

employer’s] conduct was outrageous without determining whether the conduct was

allowed under the CBA. Indeed, actions that the CBA permits might be deemed

reasonable in virtue of the fact that the CBA permits them.” 

internal quotation marks omitted). Finally, we determined that Lingle was inapposite

because, unlike a state statute that specifically prohibits firing an employee for

exercising rights under a workers’ compensation act, the state law IIED claim in

Johnson did not “create an independent method of measuring when an employer’s

work-related conduct is outrageous.” 

      1
        Rael does not argue that an IIED claim under New Mexico law requires a
different analysis.

                                            5
      Our subsequent decisions have largely followed Johnson in holding that IIED

claims are preempted by § 301. See Mowry v. United Parcel Serv., 

,

1158 (10th Cir. 2005) (determination whether alleged conduct was outrageous

required construction of employer’s rights and obligations under the CBA); Steinbach

v. Dillon Cos., 

, 542 (10th Cir. 2001) (same); Garley v. Sandia Corp.,

, 1214 (10th Cir. 2001) (same, as to part of IIED claim); Mock v. T.G.

& Y. Stores Co., 

, 530 (10th Cir. 1992) (same).

      D.     Tenth Circuit Cases Holding IIED Claims Not Preempted by § 301

      We have also held that some IIED claims were not preempted by § 301.

Although we held that part of the plaintiff’s IIED claim was preempted in Garley, we

concluded that it was not preempted to the extent that the claim was based on the

employer’s conduct after an arbitrator ordered the plaintiff’s 

. We emphasized this portion of the IIED claim was not preempted by § 301

because it was based on allegations regarding the employer’s “retaliatory acts”; thus,

as with the plaintiff’s “independent cause of action for retaliation, determining

whether [the employer’s] acts are ‘outrageous’ would not require resort to the CBA.”

more cases, we held that IIED claims were not preempted based on the

nature of the alleged conduct. In Albertson’s, Inc. v. Carrigan, 

, 1479

(10th Cir. 1993), the plaintiff brought a state law claim for extreme and outrageous

conduct, alleging that she was suspended after the defendants conspired to falsely

accuse her of shoplifting. Relying on Lingle, we held that the plaintiff’s state law

                                           6
claim was not preempted by § 301 because “if [she] can show defendants conspired

to have [her] arrested by fabricating her theft of groceries from her employer, proving

their outrageous conduct need not require interpretation of or reference to the CBA.”

see also 

(citing earlier Supreme Court decision holding that

IIED claims were not preempted by another provision of the LMRA where the

alleged conduct was “particularly abusive”).

      We also held that IIED claims were not preempted in Fry v. Airline Pilots

Ass’n, International, 

, 841 (10th Cir. 1996).2 The plaintiffs were airline

pilots who continued working when their union went on strike. In support of their

IIED claims against the union, the pilots presented evidence that they and their

families were targeted with “massive abuse” intended to punish them, drive them

from their jobs, and deter other union members from crossing future picket lines. 

The harassment campaign included “food and drink contamination, property

loss and property damage, death threats and threats of physical harm, threats of

sexual assault of spouses and family members, and harassing phone calls and knocks

on the door during the night on flight layovers, among other acts of harassment and

intimidation.” 

marks omitted). We held that the pilots’ IIED

claims were not preempted because it was unnecessary to interpret the CBA to find

liability for outrageous conduct on these facts. 

In reaching this


      2
        In Fry, we considered preemption under the Railway Labor Act rather than
§ 301 of the LMRA. But this court applies the Lingle preemption standard under
both 

.

                                           7
conclusion, we cited a Seventh Circuit case holding that an IIED claim was not

preempted by § 301 where the conduct alleged was “‘not even arguably sanctioned

by the labor contract.’” 

v. Consol. Freightways of Del., Inc.,

, 138 n.6 (7th Cir. 1987)).

III.   Analysis

       We review de novo the district court’s dismissal of Rael’s complaint for

failure to state a claim on which relief can be granted. See 

;

see also 

(reviewing district court’s grant of motion to dismiss for failure

to state a claim based on § 301 preemption). “Whether state law is preempted by

federal law is a conclusion of law which we also review de novo.” 

the Reasoning in Johnson, Rael’s State Law Tort Claims are
             Preempted by § 301

       Applying Johnson and its progeny, the district court held that Rael’s IIED

claim is preempted by § 301. It reasoned that, as in Johnson, Rael’s allegations

directly relate to explicit and implied rights derived from the CBA. The court

pointed to CBA provisions granting Smith’s the sole right and function “to maintain

the discipline and efficiency of the employees,” Aplt. App. at 47 (CBA § 6.1), and

prohibiting “the use of profanity, raised voices and harassment” in the workplace, 

(CBA § 26). The court concluded that “[w]hether Suazo’s comments

constituted harassment as opposed to an appropriate evaluation of a subordinate’s

efficiency requires an interpretation of the CBA.” 

It further held that “the

allegations in the present case do not rise to the level of the clearly outrageous


                                            8
conduct in Albertson’s . . . and do not lend themselves to such a clear cut

determination.” 

      The district court held that Rael’s prima facie tort claim is also preempted by

§ 301 because “[a]s is the case with determining the ‘outrageousness’ of conduct in

the [IIED] context, determining whether the conduct was ‘justified’ cannot be

evaluated without resort to the [CBA].” 

The court reasoned that his prima

facie tort claim “lacks an independent method of measuring whether the employer’s

alleged conduct was justified.” 

not separately challenge the district

court’s reasoning in dismissing his prima facie tort claim.3

      Rael argues that Suazo’s conduct could not arguably be sanctioned by the

CBA. See Aplt. Opening Br. at 14 (citing 

n.6). But we agree

with the district court that the facts underlying Rael’s state law claims are more akin

to the allegations in Johnson than in Albertson’s. Like Rael, the plaintiff in Johnson

alleged that his supervisor yelled at him, verbally abused him, and frequently called

him names in the presence of 

. Moreover, Johnson also

involved other conduct that is more egregious than any of the treatment alleged by




      3
         The district court dismissed both of Rael’s preempted claims rather than
treating them as arising under § 301 because Rael did not demonstrate that he had
exhausted his available remedies under the CBA. Rael does not challenge this aspect
of the district court’s decision.

                                           9
Rael.4 Yet we held that it was necessary to construe the applicable CBA to determine

whether the supervisor’s alleged conduct was outrageous. 

      In reaching our holding in Johnson, we acknowledged our sister circuits’

varying decisions applying § 301 preemption to IIED claims. 

But we

nonetheless held that Allis-Chalmers and Lingle necessitated our preemption

conclusion. 

Johnson is binding precedent in this circuit; if not

distinguishable, it controls our result in this case, see United States v. Edward,

, 1220 (10th Cir. 2000) (“Under the doctrine of stare decisis, this panel

cannot overturn the decision of another panel of this court barring en banc

reconsideration, a superseding contrary Supreme Court decision, or authorization of

all currently active judges on the court.” (internal quotation marks omitted)).

      B.     Rael’s Arguments why Johnson is distinguishable

      Rael advances two arguments why his case is distinguishable from Johnson.

He first contends that the determining factor for § 301 preemption is whether the

employee “suffered emotional distress caused by [his] employer in a matter involving

employee discipline, or in a matter involving the disciplinary process.” Aplt.

Opening Br. at 6. If it did, Rael argues that the tort claim is preempted; but if the

      4
         The delivery-driver plaintiff in Johnson alleged that his supervisor, among
other things, encouraged one co-worker to shun him and others to follow him around;
told a co-worker to ignore theft by other drivers and instead devote his time to getting
rid of the plaintiff; publicly ridiculed the plaintiff, falsely claiming he had the most
“bad product” on his route; rearranged the plaintiff’s route, making it more difficult
to run; made it impossible to properly service a particular customer; planted bad
product on the plaintiff’s route, then disciplined the plaintiff for it; and suspended the
plaintiff for leaving bad product with a customer, knowing it was left by a different

.
                                           10
claim arose “outside of the disciplinary context,” 

Rael contends that

preemption is not generally applied. He argues that his tort claims are not preempted

by § 301 because, unlike the IIED allegations in Johnson, Rael’s claims are based on

conduct by Suazo outside of a disciplinary context. Rael also contends that Johnson

is distinguishable because, unlike the CBA in Johnson, the Smith’s CBA lacks a

clearly applicable grievance procedure. Neither contention has merit.

             1.     Rael Fails to Show that § 301 Preemption Applies Only to
                    IIED Claims Involving Conduct Related to a Disciplinary
                    Process

      Rael maintains that there is a line of cases demonstrating his proposition that

§ 301 preempts only tort claims based on conduct that occurred within a disciplinary

process. But he points to no case expressly holding that preemption turns on this

factor. Nor do all of his cases align with his proposition.

      Johnson, itself, does not support it. Although the conduct alleged in Johnson

involved workplace harassment both in and outside of a disciplinary context,5 we

held that § 301 preempted all of the plaintiff’s IIED 

.

Moreover, we specifically disagreed with the district court to the extent it limited its

preemption holding to the plaintiff’s allegations related to suspensions or disciplinary




      5
         The allegedly outrageous conduct in Johnson included written warnings,
suspensions, and terminations, as well as other actions not allegedly related to any
disciplinary action or process. 

.

                                           11
actions, stating that “since the CBA also allows ‘disputes’ to be grieved, we would

hold that all of [his] allegations are pre-empted.” 

6

      Rael’s response is that Johnson is an “outlier” case, Aplt. Opening Br. at 10,

and he attempts, without success, to assemble a line of other cases clearly supporting

his proposition. Rael is correct that, when we have followed Johnson in finding IIED

claims were preempted by § 301, the cases involved conduct that occurred within a

disciplinary context. See 

(termination); 

(cancellation of employee’s vacation on threat of termination and

initiation of disciplinary proceedings); 

(investigation of

employee and termination); 

(investigation of employees and

termination). But our non-preemption holdings in Albertson’s and Garley do not

clearly support Rael’s proposition.

      In Albertson’s, the plaintiff alleged that she was suspended from employment

based on a false accusation of 

. In holding that her

“single state law claim” of extreme and outrageous conduct7 was not preempted by


      6
         Contrary to Rael’s assertion, see Aplt. Opening Br. at 12, we did not dismiss
the plaintiff’s non-disciplinary allegations in Johnson because they were insufficient
to sustain an IIED claim. We did hold that the supervisor’s alleged statements and
actions related to the plaintiff’s divorce were arguably not “work-related,” and we
held that those allegations were insufficient, on their own, to support an IIED 

n.3 (emphasis added). But we held that the plaintiff’s remaining
allegations—involving conduct both within and outside of a disciplinary context—
were preempted by § 301. 

      7
        The district court had construed the plaintiff’s complaint as bringing two
claims: one based on her suspension and one based on the conspiracy to charge her
with 

.
                                           12
§ 301, we distinguished Johnson and other previous decisions in which the

outrageousness of the alleged conduct could not be determined without interpreting

the CBAs. 

Thus, we did not hold that the claim avoided § 301

preemption because the allegedly outrageous conduct occurred outside of a

disciplinary context. Rather, we acknowledged that her outrageous conduct claim

would require a determination of the same factual issues and disputes as her separate

challenge to her suspension, which she was pursuing through arbitration under the

CBA. 

      In Garley, we held that part of the plaintiff’s IIED claim was not preempted

because it was based on the employer’s “retaliatory acts,” not because the conduct

occurred outside of a disciplinary 

(citing the court’s prior

analysis regarding the employee’s retaliation claim). Moreover, the allegations

underlying the non-preempted IIED claim in Garley arguably involved conduct

related to a disciplinary process. The employee claimed that his employer retaliated

by refusing to provide the relief he was entitled to under an arbitrator’s reinstatement

ruling that followed his termination. 

, 1214. Two other cases

Rael cites similarly found that retaliation-based IIED claims were not preempted by

§ 301. See Meyer v. Schnucks Mkts., Inc., 

, 1049, 1051-52 (8th Cir.

1998) (holding IIED claim based on harassment in retaliation for employee’s

complaints about sanitation and selling outdated meat was not preempted by § 301);

Krashna v. Oliver Realty, Inc., 

, 115 (3d Cir. 1990) (holding IIED claim



                                           13
based on harassment and termination after filing workers’ compensation claim was

not preempted by § 301).8

      Finally, Rael mischaracterizes another case. He contends that Douglas v.

American Information Technologies Corp., 

(7th Cir. 1989), involved

only “discipline,” Aplt. Opening Br. at 7. The plaintiff did allege “an unjustified

final warning” and a threat of termination, but she also alleged forced participation in

stressful work, unwarranted scrutiny of her work, and constant 

. Yet the court held that her IIED claim was preempted by § 301 because

its resolution would require interpretation of the CBA. 

      Rael fails to show there is a line of cases in which § 301-preemption rulings

have turned on whether the state law claim arose from conduct within a disciplinary

process. Nor has he distinguished Johnson as an “outlier” as to any such line of

cases. Moreover, it is unsurprising that many of the cases applying § 301 preemption

to IIED claims have involved allegations of outrageous conduct that occurred within

a disciplinary process, as that subject is often addressed by the terms of a CBA. See,

e.g., 

(IIED claim related to manner of employee investigation

and termination required interpretation CBA provision permitting termination for

“just cause.”). But § 301 preemption extends to any state law claim that requires


      8
         Rael acknowledges that Krashna involved allegations of harassment not
related to discipline (e.g., increasing the amount of the employee’s workload,
impugning him orally, and taking other acts “to harass and annoy” him), as well as
termination of the 

& n.5. But despite the
disciplinary-related allegation, the court held that the plaintiff’s IIED claim was not
preempted by § 301. 

                                           14
interpretation of any CBA term. What “matters for § 301 pre-emption purposes [is

whether] resolution of the state-law claim does not require construing the

collective-bargaining agreement.” 

.

             2.     Rael Also Fails to Show that the Smith’s CBA Lacks a
                    Grievance Procedure Applicable to His Claims

      Rael also attempts to distinguish Johnson on the basis that the Smith’s CBA

“does not provide a[] clear and express procedure for [him] to grieve his harassment

and bullying.” Aplt. Opening Br. at 18.9 We noted in Johnson that the plaintiff

“could have used the CBA grievance procedure for any of the allegations in his

complaint since all the allegations involved either a suspension, discharge, or

work-related 

. Therefore, because “disputes” were

grievable under the CBA, we did not limit our § 301-preemption ruling to the

plaintiff’s IIED claims related to suspensions and disciplinary actions. 

that, unlike in Johnson, he could not redress his claims under the

grievance provisions in the Smith’s CBA. He contends that Suazo’s harassment was


      9
         Although Rael does not explain why grievability of his claim is relevant, the
Supreme Court has said that § 301 preemption “preserves the central role of
arbitration” in labor disputes. 

; see also 

n.11 (noting arbitration is called for in most CBAs). Thus, a
preemption rule

      that permitted an individual to sidestep available grievance procedures
      would cause arbitration to lose most of its effectiveness, as well as
      eviscerate a central tenet of federal labor contract law under § 301 that it is
      the arbitrator, not the court, who has the responsibility to interpret the labor
      contract in the first instance.

(citation omitted).
                                             15
not grievable because the anti-harassment provision in the CBA is merely

aspirational and unenforceable and the grievance provision is ambiguous. Rael bases

these contentions entirely on the absence of an express statement in the CBA that a

violation of the anti-harassment provision is grievable.

      But Smith’s argues that Rael’s allegations are grievable under the CBA.

Smith’s points to the broad language of the grievance provision itself:

             The Union or any employee in the Bargaining Unit who has any
      dispute or disagreement of any kind or character arising out of or in any
      way involving the interpretation or application of this Agreement, shall
      submit such dispute or disagreement for resolution under the procedures
      and in the manner set forth in this Section.
Aplt. App. at 66 (CBA § 15.1). Rael does not explain why he could not grieve

Suazo’s alleged harassment under this expansive grievance language (as

supplemented by implied contractual rights and “the common law of the shop,”

). He also notes that “harassment” is not defined in the

CBA. But the final step in the CBA’s grievance process is arbitration. Aplt. App. at

67 (CBA § 15.2(c)). And under § 301, it is the arbitrator who must interpret the

CBA’s anti-harassment provision in the first instance. 

. Rael again fails to show that his case is distinguishable from Johnson.

      C.     Rael Also Fails to Establish that his Individual Claims against
             Suazo are not Preempted by § 301

      In his final contention, Rael argues the district court erred in holding that his

individual claims against Suazo are preempted. The court based its ruling on

Steinbach, which affirmed the dismissal of an IIED claim brought against both the


                                           16
plaintiff’s former employer and her supervisor because the claim was preempted by

§ 

. Rael asserts that Steinbach has not been cited for this

proposition, but he fails to point to any decision holding that claims against a

supervisor are not preempted. Nor did he provide any support for this contention in

the district court. See Aplt. App. at 132 (district court’s dismissal order noting that

“Plaintiff cites no authority for this proposition”). We decline to address an

argument for which Rael provides no legal authority. See United States v. Banks,

, 728 (10th Cir. 2006).

IV.   Conclusion

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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