United States Court of Appeals,

                            Fifth Circuit.

                             No. 95-20646.

                Raymond REECE, Plaintiff-Appellant,

                                   v.

      HOUSTON LIGHTING & POWER COMPANY, Defendant-Appellee.

                            April 10, 1996.

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

Before BARKSDALE, DeMOSS and PARKER, Circuit Judges.

     ROBERT M. PARKER, Circuit Judge:

                    I. FACTS AND PROCEEDINGS BELOW

     Reece is an employee of HL & P, subject to a collective

bargaining agreement (CBA) which contains a mandatory grievance and

arbitration procedure.     Reece filed suit against HL & P in state

court, alleging that, on the basis of his race, he was (1) denied

promotions and training;    (2) retaliated against for engaging in a

protected   activity;      and   (3)       subjected   to    the   intentional

infliction of emotional distress.           Reece never filed a grievance

under the CBA, and the time for doing so has run.

     HL & P answered and removed the case to federal court.               The

district court denied Reece's motion to remand, concluding that §

301 of the Labor Management Relations Act (LMRA) preempted Reece's

causes of action.    See 29 U.S.C. § 141, et seq.           The district court

then granted HL & P's motion for summary judgment, finding that

Reece's claims were barred because of his failure to exhaust his

mandatory administrative remedies under the CBA.

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     Reece appeals only the remand issue.

                            II. ANALYSIS

      At issue is whether the district court properly concluded

that § 301 of the LMRA preempted Reece's claims.        Preemption is a

question of law reviewed de novo.        Baker v. Farmers Elec. Coop.,

Inc., 

, 278 (5th Cir.1994).            If the resolution of

Reece's claims will require "interpretation" of the CBA, then the

state-law remedies upon which Reece relies are preempted by § 301

of the LMRA.    Lingle v. Norge Div. of Magic Chef, Inc., 

, 

, 

(1988).       Thus, the dispute is

whether the CBA must be interpreted in resolving Reece's claims.

A. Discrimination Claim:

      To establish a prima facie case of discrimination under the

Texas Labor Code, Reece would have to prove that he (1) was a

member of a protected class;    (2) suffered an adverse employment

action;      and (3) was treated dissimilarly from non-protected

employees.    Farrington v. Sysco Food Serv., Inc., 

,

251 (Tex.App.—Houston [1st Dist.] 1993, writ denied).          If Reece

were to establish a prima facie case, HL & P would then have the

burden of articulating a legitimate, non-discriminatory reason for

the allegedly unequal treatment.       

burden would shift

back to Reece to prove that the articulated reason was a pretext

for unlawful discrimination.    

claim turns on questions of promotion,

seniority, and assignment to training programs, all of which are

provided for in the CBA.   HL & P will undoubtedly rely on the CBA


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as its legitimate, non-discriminatory reason for Reece's treatment.

When Reece then attempts to show that HL & P's stated reason is

pretextual, the CBA would have to be interpreted because Reece

would have to challenge HL & P's rights under the CBA.                             Thus, the

interpretation         of   the    CBA   "is       made   necessary     by   an     employer

defense."      Rebecca Hanner White, Preemption of State Law Claims:

A Model for Analysis, 41 Ala.L.Rev. 377, 427 (1989).

B. Intentional Infliction of Emotional Distress Claim:

        For Reece to sustain his claim of intentional infliction of

emotional distress under Texas law, he must prove that (1) HL & P

acted intentionally or recklessly;                        (2) HL & P's conduct was

extreme    and    outrageous;            (3)       such   conduct     caused       emotional

distress;      and (4) such distress was severe.                      

.      In   order        to    evaluate     whether       HL   &   P's    conduct     was

"outrageous," the conduct must be measured against the CBA.

       Thus,     the    resolution        of       Reece's    claims        will    require

interpretation of the CBA. Therefore, the claims are pre-empted by

§ 301 of the LMRA.

       We acknowledge that the Ninth Circuit has taken a much more

lenient view of preemption of state law discrimination claims.

See, e.g., Ramirez v. Fox Television Station, Inc., 

,

748 (9th Cir.1993) ("In every case in which we have considered an

action brought under the California Employment Act, we have held

that it is not preempted by section 301.") (collecting cases).

Nevertheless, we find that Lingle mandates our analysis.

       This result is strengthened by the policies behind preemption


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in this context.   The Supreme Court has recognized the unique need

for uniformity in the interpretation of labor contracts:

     The possibility that individual contract terms might have
     different meanings under state and federal law would
     inevitably exert a disruptive influence upon both the
     negotiation and administration of collective agreements.
     Because neither party could be certain of the rights which it
     had obtained or conceded, the process of negotiating an
     agreement would be made immeasurably more difficult by the
     necessity of trying to formulate contract provisions in such
     a way as to contain the same meaning under two or more systems
     of law which might someday be invoked in enforcing the
     contract....     The ordering and adjusting of competing
     interests through a process of free and voluntary collective
     bargaining is the keystone of the federal scheme to promote
     industrial peace. State law which frustrates the effort of
     Congress to stimulate the smooth functioning of that process
     thus strikes at the very core of federal labor policy.

Local 174, Teamsters v. Lucas Flour Co., 

, 103-04, 

, 577, 

(1962) (citations omitted).

      Reece argues that the right to be free of discrimination is

a non-negotiable state-law right that cannot be altered or waived

by agreement.   Nevertheless, Lingle forecloses such an argument:

"It is conceivable that a State could create a remedy that,

although nonnegotiable, nonetheless turned on an interpretation of

a collective-bargaining agreement for its application.               Such a

remedy would be pre-empted by § 301."         

n.

n. 7.      The situation described by the Lingle

Court is the situation presented in this case.

     The   district   court's   denial   of   the   motion   to   remand   is

therefore AFFIRMED.




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