Case:
Civil Action No. 90-889-B
Location:
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA
Attorneys:
Robert F. Monahan Louisiana for Donald Chube.
Vicki M. Crochet Taylor Porter Baton Rouge Louisiana for Exxon Chemical Americas.
Douglas Nagli Houston Texas Co Counsel for Exxon Chemical Americas and American Institute for Drug Detection Inc.
Court:
Frank J. Polozola, United States District Court.
Author:
The Hon. Justice Polozola
Donald Chube filed this action seeking damages against his former employer Exxon Chemical Americas (Exxon) for an alleged wrongful termination of his employment. In addition the plaintiff is seeking damages for intentional infliction of emotional distress defamation and violation of the federal Fair Credit Reporting Act 15 U.S.C. SEC.1681 et seq. which he contends also arose out of the wrongful termination. In response to plaintiff's suit Exxon has filed a motion to dismiss and/or alternatively a motion for summary judgment.
Chube was terminated on September 13 1989 by the defendant for testing positive on a random drug urinalysis test administrated at the job site. Prior to the plaintiff's termination of employment Chube had been employed at the Exxon plant in Baton Rouge Louisiana since 1973 as a wage roll employee. Exxon wage roll employees are represented by the Baton Rouge Oil & Chemical Workers' Union (Union). The Union and Exxon have a collective bargaining agreement (Agreement) which governs all disputes between the employer and its employees. The Union serves as the collective bargaining agent for the represented employees. This Agreement contains a grievance process for resolving disputes between the employees and the company including terminations. The grievance process requires the dispute to be submitted to binding arbitration and specifies that the arbitrator's ruling shall be final and binding on the parties.
Exxon contends that Chube cannot bring this action before this Court but must follow the grievance procedures set forth in the Agreement as required by Section 301 of the Labor Management Relations Act (LMRA) 29 U.S.C. SEC. 185. In other words Exxon argues that the plaintiff has failed to exhaust his administrative remedies under the collective bargaining agreement. Exxon also contends that the state law claims for intentional infliction of emotional distress and defamation are preempted by SEC. 301 of the LMRA. Finally Exxon argues that the plaintiff has failed to state a cause of action under the Fair Credit Reporting Act.
Exxon has attached an affidavit and a copy of the Agreement to its motion. Since Court has considered evidence outside the pleadings Court must treat defendant's motion as a motion for summary judgment rather than a motion to dismiss. *fn1 Summary judgment is proper when "the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." *fn2 To oppose the granting of summary judgment Rule 56(e) provides that "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings [instead the defending party] by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial." When all the evidence presented by both parties could not lead a rational trier of fact to find for the non-moving party there is no genuine issue for trial. *fn3
I. Plaintiff's Wrongful Termination Claim is Barred by Section 301 of the LMRA
Section 301 of the LMRA permits an employee to file a federal cause of action against the employer for breach of a collective bargaining agreement. *fn4 However SEC.203 of the LMRA allows the union and the employer to agree through a collective bargaining agreement to resolve employment disputes by arbitration. *fn5 The use of arbitration procedures to resolve employment disputes received strong approval from the United States Supreme Court decisions which require compliance with the collective bargaining agreement's grievance process before resorting to the court when the employment dispute touches on a breach of the collective bargaining agreement. *fn6 Thus the Supreme Court has prohibited attempts by individual employees which would "completely sidestep available grievance procedures in favor of a lawsuit [because such suits] would deprive the employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances." *fn7 The Supreme Court explained its decision to enforce arbitration procedures in collective bargaining agreements in United Paperworkers International Union v. MISCO Incorporated wherein Court explained:
Court have jurisdiction to enforce collective-bargaining contracts; but where the contract provides grievance and arbitration procedures those procedures must first be exhausted and courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute. Because the parties have contracted to have disputes settled by an arbitrator rather than by a Court it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept. *fn8
In Allis-Chalmers Corporation v. Lueck the Supreme Court found that "Congress intended SEC. 301 to pre-empt this kind of derivative tort claim [because] only that result preserves the central role of arbitration in our 'system of industrial self-government.'" *fn9 Court also concluded that "the parties here have agreed that a neutral arbitrator will be responsible for interpreting the meaning of their contract. Unless this suit is preempted their federal right to decide who is to resolve contract disputes will be lost." *fn10 The Fifth Circuit Court of Appeals following the lead of the United States Supreme Court has also given strong support to arbitration procedures.
If the arbitration and grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement the employee may not sue his employer under SEC. 301 until he has exhausted the procedure. *fn11
In the case before this Court it is clear that Chube as a wage role employee at Exxon is subject to the collective bargaining agreement negotiated on his behalf by the Union. Plaintiff's claim for wrongful termination of employment requires an interpretation of the collective bargaining agreement to determine whether the plaintiff's termination was wrongful. The Agreement between the parties to this action sets forth the steps for resolution of employment related disputes such as that now pending before Court with arbitration as the final step. Furthermore evidence submitted by the defendant shows that an arbitration proceeding filed in accordance with the Agreement is currently pending between the plaintiff and Exxon concerning the termination issue which is pending before Court.
Based on the evidence presented to Court, Court finds that the plaintiff has failed to exhaust his administrative remedies as provided by the collective bargaining agreement. Indeed the parties are now actively engaged in the arbitration process. Therefore plaintiff's suit for wrongful termination of employment is preempted by SEC. 301. Because the wrongful termination claim is premature it must be dismissed without prejudice.
II. Preemption of the State Law Claims
Court must now determine whether the state law causes of action for intentional infliction of emotional distress and defamation are also preempted by SEC. 301. It is clear that the preemptive effect of SEC. 301 extends beyond actions alleging mere violations of the collective bargaining agreement. *fn12 In order to prevent the risk of inconsistent results which may result from the different principles of law of each state and to promote uniformity in the area of federal labor law the Supreme Court has consistently applied the principle that a state law claim is preempted if that action hinges upon the interpretation and meaning of the collective bargaining agreement. *fn13 Consequently if the resolution of a state law claim cannot be made without an interpretation of the collective bargaining agreement the claim is "inextricably intertwined" with the agreement and preempted under SEC. 301. *fn14 To be "independent" of the collective bargaining agreement and thus not be preempted the resolution of a state law claim must turn on purely factual questions not touching upon the terms of the collective bargaining agreement. *fn15
Following the mandate of the Supreme Court this Court must determine whether the plaintiff's state law claims for defamation and intentional infliction of emotional distress can be resolved without turning to the collective bargaining agreement.
A. Intentional Infliction of Emotional Distress.
The plaintiff's state law action for intentional infliction of emotional distress arises out of the alleged wrongful termination of his employment by Exxon. Relying on Farmer v. United Board of Carpenters & Joiners of America *fn16 the plaintiff argues that this cause of action is not preempted by SEC. 301. Court disagrees.
In Brown v. Southwestern Bell Telephone Co. the Fifth Circuit found that a claim for intentional infliction of emotional distress was preempted by SEC. 301. *fn17 In Brown the Fifth Circuit explained that the Supreme Court had previously held in Farmer that intentional infliction of emotional distress is precluded from preemption when such claims "relate only peripherally to federal concerns." *fn18 Finding the conduct of a union toward the plaintiff outrageous and abusive the Farmer Court concluded that the actions were outside the scope of federal preemption. However the allegation of improper labor practices do not constitute sufficient outrageous conduct to establish an independent claim. *fn19 In Brown the Fifth Circuit found that because the facts surrounding the plaintiff's discharge did not give rise to a separate claim for emotional distress the claim was preempted by SEC. 301.
The Ninth Circuit when faced with a charge of emotional distress arising out of an alleged wrongful termination also found the action preempted by SEC. 301. *fn20 Court explained that in order for Court to rule on the validity of the plaintiff-employee's emotional distress claim Court must determine whether the termination was justified according to the terms of the collective bargaining agreement. *fn21 The plaintiff's "claim therefore cannot be decided without interpreting or analyzing the terms of the agreement. It is therefore preempted under the test of Lingle and Allis-Chalmers." *fn22 Consequently a claim arising out of conduct covered by the collective bargaining agreement i.e. the termination is inextricably intertwined with the interpretation of the collective bargaining agreement.
Based on the facts surrounding the plaintiff's termination this Court finds that the plaintiff's allegations are not sufficient to establish an independent action for intentional infliction of emotional distress under Farmer. The plaintiff has only made allegations of a state law cause of action arising out of his termination. In addition the claim of emotional distress arises out of conduct covered by the Agreement. Therefore Court finds that the plaintiff's claim for intentional infliction of emotional distress is preempted by SEC. 301.
B. Defamation.
The plaintiff also contends Exxon is liable for defamation resulting from its use of a positive drug test to form the basis of terminating the plaintiff's employment. Plaintiff argues that this action is independent of the collective bargaining agreement. This Court applying the same principles discussed above in relation to the allegation of intentional infliction of emotional distress finds plaintiff's argument to be without merit. This Court must conclude that the defamation requires a determination under the collective bargaining agreement of whether the termination was wrongful. Based on this finding Court holds that plaintiff's defamation claim is inextricably intertwined with the interpretation of the collective bargaining agreement. *fn23 Therefore Court finds that the allegation of defamation is also preempted by SEC. 301 of the LMRA.
III. Federal Fair Credit Reporting Act
Finally the plaintiff contends that he has a cause of action under the federal Fair Credit Reporting Act (Act) 15 U.S.C. SEC.1681 et seq. Specifically the plaintiff contends the results of the drug urinalysis test qualified as a "consumer report" as defined by the Act. *fn24 The plaintiff also argues that Exxon's reliance on this "consumer report" causes the defendant to be subject to the Act.
In support of his argument the plaintiff relies on Hodge v. Texaco USA 761 F. Supp. 27 (W.D. La. 1990) which is currently pending in the Western District of Louisiana. In Hodge the district court denied a motion to dismiss for failure to state a cause of action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. *fn25 In response to plaintiff's claim under the Fair Credit Reporting Act Exxon contends that plaintiff failed to establish a claim under the Act.
Court finds that the plaintiff has failed to state a cause of action under the Fair Credit Reporting Act against Exxon. By definition the Act excludes from the definition of a consumer report "any report containing information solely as to transactions or experiences between the consumer and the person making the report " *fn26 Exxon as the plaintiff's employer had such a relationship with the plaintiff. Therefore Exxon is not subject to the Act under the facts of this case. *fn27 Court finds that the plaintiff's claim under the Fair Credit Reporting Act is without merit.
IV. Conclusion
Court finds that the plaintiff's action for the alleged wrongful termination of employment is subject to the arbitration provisions of the collective bargaining agreement and is preempted by SEC. 301 of the Labor Management Relations Act. Because there is an arbitration proceeding currently pending between the parties Court finds that the plaintiff has failed to exhaust his administrative remedies. Consequently the plaintiff's action for wrongful termination is premature and must be dismissed without prejudice. Further Court finds that the state law claims for defamation and intentional infliction of emotional distress are also preempted by SEC. 301 and must be dismissed with prejudice. Finally Court finds that plaintiff has failed to state a cause of action against Exxon under the federal Fair Credit Reporting Act.
Therefore:
IT IS ORDERED that defendant's motion to dismiss or in the alternative for summary judgment be treated as a motion for summary judgment.
IT IS FURTHER ORDERED that Exxon's motion for summary judgment against Chube's suit for wrongful termination of employment be and it is GRANTED and this claim shall be DISMISSED without prejudice.
IT IS FURTHER ORDERED that Exxon's motion for summary judgment against Chube's state law claims for defamation and intentional infliction of emotional distress and plaintiff's claim under the federal Fair Credit Reporting Act be and it is GRANTED and the plaintiff's suit on these claims shall be DISMISSED with prejudice.
Judgment shall be entered accordingly.
Notes:
*fn1 Fed. R. Civ. P. 12(b). The plaintiff has filed a response to the motion. Thus Court does not need to give plaintiff additional time to respond.
*fn2 Fed. R. Civ. P. 56(c); Celotex v. Catrett 477 U.S. 317 106 S. Ct. 2548 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby 477 U.S. 242 106 S. Ct. 2505 91 L. Ed. 2d 202 (1986); Fontenot v. Upjohn Co. 780 F.2d 1190 (5th Cir. 1986).
*fn3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 586 106 S. Ct. 1348 1356 89 L. Ed. 2d 538 (1986).
*fn4 29 U.S.C. SEC. 185.
*fn5 29 U.S.C. SEC. 173.
*fn6 Groves v. Ring Screw Works 498 U.S. 168 111 S. Ct. 498 501-02 112 L. Ed. 2d 508 (1990); Lingle v. Norge Div. of Magic Chef 486 U.S. 399 411 108 S. Ct. 1877 1884 100 L. Ed. 2d 410 (1988); United Paperworkers Int'l Union v. MISCO Inc. 484 U.S. 29 36-38 108 S. Ct. 364 370-71 98 L. Ed. 2d 286 (1987); Hines v. Anchor Motor Freight 424 U.S. 554 561-62 96 S. Ct. 1048 1054-55 47 L. Ed. 2d 231 (1976); Teamsters v. Lucas Flour Co. 369 U.S. 95 82 S. Ct. 571 7 L. Ed. 2d 593 (1962); see also Jackson v. Liquid Carbonic Corp. 863 F.2d 111 114 (1st Cir. 1988) cert. denied 490 U.S. 1107 109 S. Ct. 3158 104 L. Ed. 2d 1021 (1989); Strachan v. Union Oil Co. 768 F.2d 703 705 (5th Cir. 1985).
*fn7 Republic Steel Corp. v. Maddox 379 U.S. 650 653 85 S. Ct. 614 616 13 L. Ed. 2d 580 (1965); Strachan 768 F.2d at 705.
*fn8 MISCO 484 U.S. at 37-38 108 S. Ct. at 370.
*fn9 471 U.S. 202 219 105 S. Ct. 1904 1915 85 L. Ed. 2d 206 (1985) citing Steelworkers v. Warrior & Gulf Navigation Co. 363 U.S. 574 581 80 S. Ct. 1347 1352 4 L. Ed. 2d 1409 (1960).
*fn10 Id.
*fn11 Landry v. The Cooper/T. Smith Stevedoring Co. 880 F.2d 846 850 (5th Cir. 1989); Daigle v. Gulf States Utility Co. 794 F.2d 974 977 (5th Cir.) cert. denied 479 U.S. 1008 107 S. Ct. 648 93 L. Ed. 2d 704 (1986).
*fn12 Court have broadly defined the preemptive scope of SEC. 301. Lueck 471 U.S. at 210 105 S. Ct. at 1911; Jackson v. Liquid Carbonic Corp. 863 F.2d 111 114 (1st Cir. 1988); cert. denied 490 U.S. 1107 109 S. Ct. 3158 104 L. Ed. 2d 1021 (1989).
*fn13 Lingle v. Norge Div. of Magic Chef 486 U.S. 399 405-06 108 S. Ct. 1877 1881 100 L. Ed. 2d 410 (1988); Lueck 471 U.S. at 220 105 S. Ct. at 1916; Teamsters v. Lucas Flour Co. 369 U.S. 95 103-04 82 S. Ct. 571 576-77 7 L. Ed. 2d 593 (1962).
*fn14 Lingle 486 U.S. at 407-10 108 S. Ct. at 1882-83; Caterpillar Inc. v. Williams 482 U.S. 386 107 S. Ct. 2425 96 L. Ed. 2d 318 (1987). See also Wells v. General Motors Corp. 881 F.2d 166 172 (5th Cir. 1989) cert. denied 495 U.S. 923 110 S. Ct. 1959 109 L. Ed. 2d 321 (1990).
*fn15 Lingle 486 U.S. at 407-10 108 S. Ct. at 1882-83.
*fn16 430 U.S. 290 97 S. Ct. 1056 51 L. Ed. 2d 338 (1977).
*fn17 901 F.2d 1250 (5th Cir. 1990). Other circuits also follow the same rule. See Harris v. Alumax Mill Products Inc. 897 F.2d 400 (9th Cir.) cert. denied U.S. 111 S. Ct. 102 112 L. Ed. 2d 73 (1990); Douglas v. American Information Technologies Corp. 877 F.2d 565 (7th Cir. 1989).
*fn18 Brown 901 F.2d at 1256.
*fn19 Farmer 430 U.S. at 305 97 S. Ct. at 1066 (footnote omitted).
*fn20 Newberry v. Pacific Racing Ass'n 854 F.2d 1142 (9th Cir. 1988).
*fn21 Id. at 1149.
*fn22 Id. at 1149-50.
*fn23 See Edelman v. Western Airlines Inc. 892 F.2d 839 844 (9th Cir. 1989).
*fn24 15 U.S.C. SEC.1681a(d).
*fn25 This same argument is currently before this Court also in another case. By making a reference to the Hodge case this Court is in no way indicating its approval or disapproval of the result reached in Hodge. *fn26 15 U.S.C. SEC. 1681a(d).
*fn27 In reaching this decision Court is not deciding whether or not a cause of action exists under the Act against a laboratory that conducts the drug test and then submits the findings of that test to a party other than the employee. Regardless of the liability if any of the laboratory no cause of action exists against the employer Exxon under the Fair Credit Reporting Act.