Filed: Jun. 13, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 13, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk Summary Calendar No. 02-11139 _ CHARLES E. KERN, Plaintiff-Appellant, versus THE DANNON CO., INC.; CHARLES KUJAWA; BRUCE HORKLEY; PATTY HOLDER; DWAYNE TINCHER; JAMES BAKER; DON FALLAVOLLITA; DARLENE REFORE; STEVE DALTON; BILL WRIGHT, Defendants-Appellees. _ _ Appeal from the United States District Court for the Northern District of Texas, Fort
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 13, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk Summary Calendar No. 02-11139 _ CHARLES E. KERN, Plaintiff-Appellant, versus THE DANNON CO., INC.; CHARLES KUJAWA; BRUCE HORKLEY; PATTY HOLDER; DWAYNE TINCHER; JAMES BAKER; DON FALLAVOLLITA; DARLENE REFORE; STEVE DALTON; BILL WRIGHT, Defendants-Appellees. _ _ Appeal from the United States District Court for the Northern District of Texas, Fort W..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 13, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
Summary Calendar
No. 02-11139
_______________________
CHARLES E. KERN,
Plaintiff-Appellant,
versus
THE DANNON CO., INC.; CHARLES KUJAWA; BRUCE HORKLEY;
PATTY HOLDER; DWAYNE TINCHER; JAMES BAKER; DON FALLAVOLLITA;
DARLENE REFORE; STEVE DALTON; BILL WRIGHT,
Defendants-Appellees.
____________________________________________________ ____________
Appeal from the United States District Court
for the Northern District of Texas, Fort Worth Division
Docket No. 4:01-CV-213-Y
_________________________________________________________________
Before DAVIS, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Charles E. Kern (“Kern”) appeals the district court’s
grant of summary judgment to his employer, the Dannon Company
(“Dannon”), and several of its supervisory employees on a variety
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
of state labor law claims. For the reasons that follow, we affirm
the district court’s judgment.
FACTS
In January 1998, Kern began working as a seasonal
employee for Dannon. At the time, all of Dannon’s hourly full-
time, part-time, and seasonal employees were represented by a
union. Dannon and the union were parties to a collective-
bargaining agreement (“CBA”) that defined the rights and
responsibilities of Dannon, the union, and Dannon’s employees.
Kern alleges that shortly thereafter, once Dannon
discovered that he was 50 years old, his supervisors subjected him
to a wide range of discriminatory treatment with the goal of
prompting his resignation. After filing Charges of Discrimination
with the Texas Commission on Human Rights (“TCHR”) and the Equal
Employment Opportunity Commission (“EEOC”) for age discrimination
in violation of the Texas Commission on Human Rights Act (“TCHRA”)
and retaliation for filing a Charge of Discrimination, and upon
receiving Notices of Right to Sue, Kern filed suit in February 2001
in state court. He alleged the following state-law causes of
action: (1) age discrimination in violation of the TCHRA, Tex. Lab.
Code Ann. § 21.001 (Vernon 1996); (2) retaliation in violation of
TCHRA, Tex. Lab. Code Ann. § 21.055 (Vernon 1996); (3) negligent
supervision of employees; (4) negligent retention of employees; (5)
negligent investigation of claims of plaintiff; and (6) intentional
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infliction of emotional distress (“IIED”). His pleadings raised no
federal question.
Dannon removed the case to the federal court, arguing
that the district court had subject-matter jurisdiction to hear the
case because Kern’s state-law claims were preempted by § 301 of the
Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq.
Kern moved to remand the case to state court, but the district
court denied his motion.
On August 27, 2002 the district court granted Dannon’s
Motion for Summary Judgment. After finding that there was in fact
a valid CBA — a predicate requirement for preemption under § 301 —
in place at the time of all alleged tortious events, the district
court held that Kern’s first, second, and sixth causes of action —
age discrimination, retaliation, and IIED — were preempted by §
301. It also held that, though the remaining three claims were not
themselves preempted by § 301, the state-law torts of negligent
retention, hiring, and supervision were “only viable if the
employer’s employee commits an underlying actionable tort.”
Because no underlying tort remained after the court’s judgment on
actions one, two, and six, the court proceeded to grant summary
judgment to Dannon on these negligence claims as well. The
district court additionally found that Kern had failed to plead any
cause of action under § 301.
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Kern now appeals the district court’s grant of summary
judgment.
STANDARD OF REVIEW
This court reviews district court grants of summary
judgment de novo. Thomas v. Barton Lodge 11, Ltd., 174 F.3d 636,
644 (5th Cir. 1999).
DISCUSSION
The district court’s Order is clear and persuasive, we
affirm for essentially the reasons there stated.
Another point should be made concerning Kern’s basic
misunderstanding of the reach of the well-pleaded-complaint rule in
the context of labor law claims, especially those that occur in the
shadow of a CBA.
As Kern no doubt recognizes, ascertaining the scope of a
CBA’s preemption of state labor-law claims is not always easy.
While the Supreme Court has repeatedly said that a CBA does not
necessarily completely preempt state-law actions, these same
opinions suggest that the preemption is well nigh unto complete.
See Livadas v. Bradshaw, 512 U.S. 107 (1994); Lingle v. Norge Div.
of Magic Chef, Inc.,
486 U.S. 399 (1988); Allis-Chalmers Corp. v.
Lueck,
471 U.S. 202 (1985). As a result, a determination of
preemption necessarily entails a careful examination of the
relationship between the elements of the state-law claim and the
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CBA at issue. Jones v. Roadway Express, Inc., 931 F.2d 1086, 1089
(5th Cir. 1991). The district court adequately described this
tension and the method by which federal courts should determine
whether the particular state-law actions asserted by Kern have been
preempted by a CBA.
Kern, however, repeatedly expresses puzzlement that he
has ended up in federal court, even though his original pleadings
scrupulously avoided reference to federal questions. His complaint
is premised upon two axioms of our law, namely, that a plaintiff is
master of his complaint, Caterpillar, Inc. v. Williams, 482 U.S.
386, 398–399 (1987), and, second, that federal courts are courts of
limited jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377. These two come together in the “well pleaded
complaint rule,” a Supreme Court interpretation of 28 U.S.C. § 1331
that holds that a non-diverse defendant cannot remove a case to
federal court if the plaintiff declined to plead an issue of
federal law on the face of his complaint. Gully v. First National
Bank,
299 U.S. 109 (1936). Kern believes he pled state law claims
and should enjoy the benefit of a state-law forum.
Unfortunately for Kern, the Supreme Court has
consistently held, since 1957, that with § 301 Congress federalized
all of state labor law. Textile Workers Union of America v.
Lincoln Mills of Alabama, 353 U.S. 448, 456–57 (1957); see also
Avco Corp. v. Aero Lodge No. 375,
390 U.S. 557, 559–360 (1968). As
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the Court said in Lincoln Mills: “Any state law . . . will be
absorbed as federal law and will not be an independent source of
private rights.” 353 U.S. at 457. Even if the CBA turns out not
to preempt a plaintiff’s properly pleaded state-law claim, the
federal court itself still has jurisdiction over the case. Plead
it how he will, a plaintiff simply cannot avoid removal of a labor-
law claim — even one premised on state law — to federal court.
Kern might find some solace, all of this notwithstanding,
in the fact that one of the Supreme Court’s brighter minds thought
this interpretation of § 301 misguided. This court would refer
Kern to Mr. Justice Frankfurter’s dissent in Lincoln Mills, 353
U.S. at 460, a position which, for all its wisdom, has not found
favor with the majority of his brethren. Until such time, however,
as the Supreme Court follows Frankfurter’s logic, or Congress
leaves the field of labor law to the States, plaintiffs like Kern
cannot avoid their cases — in spite of their careful pleading —
from being removed to federal court.
Judgment AFFIRMED.
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