THOMAS L. LUDINGTON, United States District Judge

Victor J. Mastromarco, Jr., Kevin J. Kelly, Rikki Mechelle Mays-Reak, I, The Mastromarco Firm, Saginaw, MI, for Plaintiff.

Angela Ramson, David W. Long-Daniels, Lee M. Paris, Squire Patton Boggs (US) LLP, Atlanta, GA, Erik D. Lange, Squire Patton Boggs (US) LLP, Cleveland, OH, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND, REMANDING CASE, AND DENYING AS MOOT DEFENDANT'S MOTION FOR PROTECTIVE ORDER

THOMAS L. LUDINGTON, United States District Judge

The immediate question is whether an employee's racial-discrimination claims against his union for refusing to intervene in his racial-discrimination claims against his employer requires interpretation of their collective bargaining agreement. The answer, respectfully, is "No."

Notably, in reviewing a motion to remand, this Court must assume all the facts set forth by Plaintiff to be true and resolve all uncertainties as to state substantive law in favor of Plaintiff. Walker v. Philip Morris USA, Inc. , 443 F. App’'x 946, 954 & n.7 (6th Cir. 2011) (unpublished) (collecting cases); accord Colon v. Ashby , 314 F. Supp. 3d 116, 120 (D.D.C. 2018).

I.

A.

Plaintiff Matthew Castanon, a man of Hispanic heritage, began working for UPS in 1991. ECF No. 1 at PageID.7. Twenty-six years later, UPS promoted Plaintiff to drive a semitruck on two different routes. Id. at PageID.7–8. He was the only Hispanic driver assigned to those routes. Id. As a UPS employee, he was a union member of Teamsters Local 406. See id.

After Plaintiff "transported the wrong trailer on a job" in October 2019, "Defendants conspired, all together, to discriminate against Plaintiff and replace him with a Caucasian driver, Brett Coley." Id. at PageID.8. He alleges that Defendants repeatedly skipped discipline procedures outlined in the collective bargaining agreement (CBA). Id. He adds that two of Defendants’ attempts "to terminate Plaintiff and replace him with a Caucasian were overturned as violating of the [CBA]." Id.

Defendants nevertheless terminated Plaintiff's employment in October 2019, Plaintiff alleges, "for allegedly putting touch-up paint on his truck." Id. Semitruck drivers at UPS commonly used touch-up paint to make their trucks look nicer, and Plaintiff's supervisors were well aware of that practice. Id. Thus, according to Plaintiff, the paint incident was a mere pretext for Defendants to terminate Plaintiff's employment and to replace him with a Caucasian employee. Id. The true reason, he claims, is his Hispanic identity.

B.

In July 2021, Plaintiff filed a complaint in the Tenth Circuit Court of Saginaw County. According to Plaintiff, Defendants terminated his employment because of his Hispanic race in violation of Michigan's Elliot Larsen Civil Rights Act (ELCRA), MICH. COMP. LAWS § 37.2202. See generally Castanon v. United Parcel Service, Inc. , No. 21-44780-CD (Mich. Cir. Ct. Saginaw Cnty. July 22, 2021); ECF No. 1 at PageID.6–16. He sought at least $25,000 in damages "in addition to costs, interest, and attorney fees along with any and all legal and/or equitable relief this Court deems just." See ECF No. 1 at PageID.15.

Within a month, Defendant Local 406 removed the case under 28 U.S.C. § 1441, asserting that Plaintiff's Michigan ELCRA claims against Local 406 were completely preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a). ECF No. 1. Specifically, Local 406 argued that resolving Plaintiff's ELCRA claims would require interpretation of the CBA.

In September 2021, Plaintiff stipulated to dismissing Local 406 and then filed a motion to remand the case. ECF Nos. 13–15. Defendant Rankin contests the Motion to Remand. ECF No. 17. The assigned United States District Judge was elevated to the Sixth Circuit Court of Appeals, and the case was reassigned to the undersigned in June 2022. Defendant UPS has also filed a motion for a protective order. ECF No. 33.

Having reviewed the parties’ papers, a hearing is not required, and this case will be remanded back to the Saginaw County Circuit Court.

II.

Plaintiff's Complaint pleads only Michigan-law claims. Defendant Local 406's Notice of Removal is exclusively grounded on Plaintiff's ELCRA claims.

A.

The ELCRA prohibits "discriminat[ion] against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... race." MICH. COMP. LAWS § 37.2202(1)(a).

Race discrimination may be established through circumstantial evidence using the McDonnell Douglas burden-shifting approach. Romans v. Mich. Dep't of Hum. Servs. , 668 F.3d 826, 835 (6th Cir. 2012) ; Hazle v. Ford Motor Co. , 464 Mich. 456, 628 N.W.2d 515, 520 (2001). Under that framework, Plaintiff must demonstrate that Defendants’ purported reason for terminating his employment was pretext because it "(1) had no basis in fact, (2) did not actually motivate defendant's conduct, or (3) was insufficient to warrant the challenged conduct." Zambetti v. Cuyahoga Cmty. Coll. , 314 F.3d 249, 258 (6th Cir. 2002) ; Davis v. City of Detroit , No. 351617, 2021 WL 1050170, at *6 (Mich. Ct. App. Mar. 18, 2021) (unpublished) (per curiam).

To establish federal subject-matter jurisdiction over Plaintiff's ELCRA claims, Local 406 stated that Plaintiff's claims require this Court to interpret the CBA. See ECF No. 1 at PageID.2–3. Although Plaintiff referenced the CBA and Local 406's failure to adequately represent him in his race-discrimination claims against UPS and Rankin, see, e.g., id. at PageID.13, those details are merely nonessential background information.

B.

Under the rule for well-pleaded complaints, for a state-law claim to establish subject-matter jurisdiction under 28 U.S.C. § 1331, a federal question must appear on the face of the plaintiff's complaint. Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). In this way, a complaint that relies on only state-law claims lacks subject-matter jurisdiction and should therefore be remanded to the state court. Crawford v. TRW, Inc. , 815 F. Supp. 1028, 1032 (E.D. Mich. 1993).

Defendants can avoid the well-pleaded complaint rule in two limited circumstances. Roddy v. Grand Trunk W. R.R. , 395 F.3d 318, 322 (6th Cir. 2005). The first is when Congress expressly permits removal. Id. ; see, e.g. , 15 U.S.C. § 77p(c) (allowing certain securities class actions to be removed to federal court). That exception does not apply here.

The second circumstance is when the "pre-emptive force of a statute is so ‘extraordinary,’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ " Caterpillar , 482 U.S. at 393, 107 S.Ct. 2425 (quoting Metro. Life Ins. v. Taylor , 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ).

The Supreme Court has recognized complete preemption in only three statutory settings: Section 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185 ; the Employee Retirement Income Security Act of 1975 ("ERISA"), 29 U.S.C. §§ 1001 – 1461 ; and § 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86. See Beneficial Nat'l , 539 U.S. at 7–9, 123 S.Ct. 2058 ; Mikulski v. Centerior Energy Corp. , 501 F.3d 555, 563 (6th Cir. 2007).

Defendants’ Notice of Removal relies on § 301 of the LMRA, 29 U.S.C. § 185. See ECF No. 1 at PageID.2. Section 301 of the LMRA provides that:

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

29 U.S.C. § 185(a).

Although Local 406 has been dismissed from this case, "the nature of [Plaintiff's] claim must be evaluated, and the propriety of remand decided, on the basis of the record as it stands [a]t the time the petition for removal is filed. " Williams v. Lockheed Martin Corp. , 990 F.3d 852, 863 (5th Cir. 2021) (citing Westmoreland Hosp. Ass'n v. Blue Cross of W. Pa. , 605 F.2d 119, 123 (3d Cir. 1979) ); see also Pullman Co. v. Jenkins , 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939).

Thus, this case must be remanded only if Plaintiff's ELCRA claims would have required this Court to interpret the CBA.

III.

A.

As a threshold matter, this case is improperly removed. Although the notice of removal was filed more than 300 days ago, all Defendants have not yet consented as required by statute. Chambers v. HSBC Bank USA, Nat'l Ass'n , 796 F.3d 560, 564 (6th Cir. 2015) ("[A] defendant seeking removal to federal court must obtain the consent of all other ‘properly joined and served’ defendants to ensure the motion is unanimous." (quoting 28 U.S.C. § 1446(b)(2)(A) )). Granted, Local 406's Notice of Removal alleged that UPS and Rankin consented to removal. ECF No. 1 at PageID.3. But the Notice does not contain the signatures of those Defendants or their counsel, and neither UPS nor Ranking have corroborated their alleged consent. And though Rankin has filed a response contesting the Plaintiff's Motion to Remand, ECF No. 17, UPS has not filed a similar response or joined Rankin's response.

For those reasons, the case will be remanded for improper removal.

B.

1.

Plaintiff's ELCRA claims against Rankin and UPS do not require interpretation of the CBA, nor does the Notice of Removal allege that they do. Those claims allege that Rankin and UPS conspired to terminate Plaintiff's employment because of his race through the pretext of Plaintiff putting touch-up paint on his work truck. Therefore, his ELCRA claims against Rankin and UPS require him to prove only that the paint incident was not the true reason that Defendants terminated his employment—that his Hispanic race was their actual motivation. Whether Rankin and UPS conspired to terminate his employment, then, has nothing to do with the CBA. And to the extent that Plaintiff's allegations that Rankin and UPS did not follow the CBA's disciplinary process, that is merely additional circumstantial background evidence of Rankin and UPS's motivations.

2.

The more salient issue is whether Plaintiff's ELCRA claim against Local 406 requires interpretation of the CBA. It does not.

Employment-related claims based solely on state law might be preempted by § 301 of the LMRA. Smolarek v. Chrysler Corp. , 879 F.2d 1326, 1329 (6th Cir. 1989) (en banc); see also Willett v. Gen. Motors Corp. , 904 F. Supp. 612, 614 (E.D. Mich. 1995) (citing Lingle v. Norge Div. of Magic Chef, Inc. , 486 U.S. 399, 405–06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) ).

But "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is preempted by § 301." Ivery v. Chrysler Corp. , 31 F. App’'x 841, 843 (6th Cir. 2002) (unpublished) (per curiam) (quoting Allis–Chalmers v. Lueck , 471 U.S. 202, 211, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)) ; see also King v. Detroit Diesel Corp. , No. 11-11895, 2012 WL 4475723, at *6 (E.D. Mich. Sept. 27, 2012).

As the Supreme Court aptly stated, "even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other hand, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 preemption purposes." Lingle , 486 U.S. at 409–10, 108 S.Ct. 1877 ; see also Tisdale v. United Ass'n of Journeymen , 25 F.3d 1308, 1312 (6th Cir. 1994) ("It should be self-evident that if Congress did not preempt state civil rights actions by operation of federal civil rights law it could not have meant to do so through federal labor law.").

Granted, Plaintiff's ELCRA claims against Local 406 could be resolved by interpreting the CBA. Plaintiff alleges that Local 406's refusal to defend him against Rankin and UPS's race-based termination of his employment violated the CBA. See ECF No. 1 at PageID.13 ("Defendant Local 406 failed to fairly and adequately represent Plaintiff in the grievance process."). Determining whether Local 406 was obligated to defend Plaintiff in his complaints against Rankin and UPS would likely require interpreting Local 406's obligations as set forth in the CBA.

But Local 406's obligations to represent Plaintiff under the CBA are not essential to resolving his ELCRA claims against Local 406. Plaintiff adds that Local 406's acquiescence to Rankin and UPS's race-based conduct was also motivated by Plaintiff's race. See id. at PageID.13 (alleging that Defendant Local 406's "reasons" for "allow[ing] Plaintiff to be immediately removed from his employment" were "pretextual in nature"); id. ("Defendant Local 406 did so due to Plaintiff's race"). In this way, Plaintiff alleged that Local 406 chose not to intervene because Plaintiff is Hispanic. Regardless of the merits of that claim, resolving it would not require interpreting the CBA. For example, Plaintiff could demonstrate pretext with evidence that Local 406 has intervened in similar claims made against similarly situated non-Hispanic employees. See, e.g., Burzynski v. UAW Local 699 , No. 1:21-CV-12650, 586 F.Supp.3d 729, 736–37 (E.D. Mich. Feb. 18, 2022) (remanding state-law defamation case against union because some but not all theories of plaintiff's claims would not require interpretation of the union constitution); Everett v. UAW Local 699 , No. 1:21-CV-12648, 2022 WL 2359654, at *6 (E.D. Mich. Feb. 18, 2022) (same).

And any of Local 406's defenses that might require interpretation of the CBA would not confer federal jurisdiction. Paluda v. ThyssenKrupp Budd Co. , 303 F. App’'x 305, 308 (6th Cir. 2008) (unpublished) ("In determining whether a claim arises under federal law for purposes of removal, we must examine the well-pleaded allegations on the face of the complaint and ignore any potential defenses.") (citing Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) ); accord Patterson v. Detroit Edison , No. 13-12895, 2014 WL 1032322, at *3 (E.D. Mich. Mar. 17, 2014) ("[R]eliance upon the CBA as a defense to a civil rights complaint is insufficient to invoke preemption" (citing Fox v. Parker Hannifin Corp. , 914 F.2d 795, 800 (6th Cir. 1990) )).

Consequently, this case will be remanded for the Saginaw County Circuit Court to resolve Plaintiff's state-law claims. Notably, this Order will not impede the state court's ability to determine whether Defendants’ conduct accorded with the CBA or whether Defendants’ defenses require interpretation of the CBA. In other words, the state court may still interpret the CBA, if necessary, to resolve Plaintiff's ELCRA claims.

IV.

Accordingly, it is ORDERED that Plaintiff's Motion to Remand, ECF No. 14, is GRANTED.

Further, it is ORDERED that the Complaint, ECF No. 1, is REMANDED to the Tenth Circuit Court of Saginaw County for further proceedings.

Further, it is ORDERED that Defendant UPS's Motion for Protective Order, ECF No. 33, is DENIED AS MOOT .