Opinion
Civil Action No: SA-04-CA-0944-XR.
December 2, 2004
ORDER
On this date the Court considered Plaintiff's Motion to Remand. Defendant removed this case from state court to this Court based on diversity of citizenship and its assertion that it is facially apparent from Plaintiff's Original Petition that the amount in controversy jurisdictional requirement is met. Defendant also removed on the basis that Plaintiff's Original Petition raised a federal question. After considering Plaintiff's motion, as well as Defendant's response and the pleadings, the Court is of the opinion that the motion to remand should be DENIED (docket no. 4).
I. Factual and Procedural Background
Plaintiff alleges that he was employed by Defendant from July 2001 until May 2003, when he was "laid off." Plaintiff alleges that he was discharged because of his age in violation of the Texas Commission on Human Rights Act, Tex. Labor Code section 21.051 ("TCHRA"). Plaintiff affirmatively states in his Original Petition "that he is not seeking to hold Defendant liable under any federal statute, law or regulation." Further, Plaintiff states in his Petition and Affidavit attached thereto that "under no circumstances will I accept more than $74,000.00 for all damages, including attorney's fees, but excluding court costs and interest, regardless of the amount awarded to me."
II. Analysis
A. Applicable Law
"Unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). A plaintiff who does not "desire to try his case in federal court . . . may resort to the expedient of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove." Id. at 294. The face of the plaintiff's pleading will not control, however, if made in bad faith. De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995). The party seeking to maintain federal jurisdiction is required to establish by a preponderance of the evidence that the amount in controversy exceeds $75,000. Grant v. Chevron Phillips Chem. Co. L.P., 309 F.3d 864, 868 (5th Cir. 2002). When the case is one that has been removed from state court, such party may satisfy this burden in either of two ways: (1) by demonstrating that it is "facially apparent" from the petition that the claim likely exceeds $75,000 or (2) "by setting forth the facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). "The defendant must produce evidence that establishes that the actual amount in controversy exceeds [the jurisdictional threshold]." De Aguilar, 47 F.3d at 1412. If a defendant can show that the amount in controversy actually exceeds the jurisdictional amount, the plaintiff must be able to show that, to a legal certainty, he will not be able to recover more than the damages for which he has prayed in the state court complaint. Id. at 1411. Plaintiff's obligation may be met in various ways, including the filing of a "binding stipulation or affidavit with [his] complaint." Id. at 1412; Manguno v. Prudential Property Casualty Ins. Co., 276 F.3d 720, 724 (5th Cir. 2002); Maley v. Design Benefits Plan, Inc., 125 F. Supp.2d 197, 200 (E.D. Tex. 2000).
B. Plaintiff's Binding Stipulation
The Fifth Circuit has seemingly adopted the statement from the Seventh Circuit in In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam), that "[l]itigants who want to prevent removal must file a binding stipulation or affidavit with their complaints." See Manguno, 276 F.3d at 724; see also White v. Bank of America, N.A., No. 5-01-CV-0189-B, 2001 WL 804517, at *3 (W.D. Tex. July 9, 2001). District courts have consistently used this statement as a reason for denying a motion to remand where the plaintiff has failed to file a binding stipulation or affidavit. See, e.g, Martin v. Southwest PCS, L.P., No. 3-03-CA-966-XR, 2003 WL 22477692, at *3 (W.D. Tex. Nov. 3, 2003); Maley, 125 F. Supp.2d at 200. It would stretch reason to deny remand in a situation where a plaintiff actually has filed an unequivocal stipulation and affidavit limiting damages to $74,000. Defendant removed on the basis of diversity jurisdiction relying upon De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir.), cert. denied, 516 U.S. 865 (1995). However, De Aguilar does not support Defendant. In fact, De Aguilar states: "[l]itigants who want to prevent removal must file a binding stipulation or affidavit with their complaints." Id. at 1412. This is exactly what Plaintiff did. Therefore, the Court finds that Defendant failed to establish by a preponderance of the evidence that the amount in controversy exceeds $75,000.
Defendant's reference to this Court's earlier Order in Vincent v. Fresenius Med. Care of N. Am., 2003 U.S. Dist. Lexis 23399 (W.D. Tex. Oct. 29, 1993), which involved the same Plaintiff's attorney in this case, is also misplaced. Counsel adhered to the Court's direction that an affidavit limiting recovery filed prior to removal would be sufficient to justify a remand.
C. Federal Question Jurisdiction
Defendant also removed on the basis that Plaintiff was a member of a collective bargaining unit that was a signatory to a collective bargaining agreement ("CBA"). Defendant argues that Plaintiff was a non-local employee, that the CBA favors local employees in the context of layoffs, and that is why he was selected for a lay-off. Defendant further argues that the CBA requires exhaustion of administrative remedies. Given the above, Defendant argues that the CBA issues are inextricably intertwined with Plaintiff's claims and are preempted by the Labor Management Relations Act, 29 U.S.C. §§ 185, et seq ("LMRA"). See Reece v. Houston Power Lighting Co., 79 F. 3d 485 (5th Cir. 1996).
Apparently defined in the CBA as an employee residing more than 100 miles of a job site.
The mere fact that the CBA requires a mandatory grievance procedure and arbitration and also contains a non-discrimination clause does not determine whether preemption exists. "[T]he right to be free from retaliatory discharge [or discrimination] for pursuing workers' compensation exists for Jones, as it did for the employee in Lingle, independently of the CBA. The right originates in the statute which Texas has enacted to protect employees seeking compensation for work-related injuries. It does not depend upon any right or duty originating in the CBA. Jones' right would exist even where there no CBA." Jones v. Roadway Express, Inc., 931 F. 2d 1086, 1090 (5th Cir. 1991).
In Reece, the plaintiff was an employee of HLP and subject to a collective bargaining agreement that contained a mandatory grievance and arbitration procedure. Reece filed suit against HLP 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. HLP answered and removed the case to federal court. The district court denied Reece's motion to remand, concluding that § 301 of the LMRA preempted Reece's causes of action. In affirming the district court's denial of the motion to remand, the Fifth Circuit stated: "Reece's 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 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.'" Id. at 487.
Therefore, under Reece, if Plaintiff's claims or the defenses to be raised would involve interpretations of the CBA, the Court must retain jurisdiction notwithstanding the fact that the state petition does not refer to the terms of the CBA. Plaintiff argues for remand on the basis that his Petition makes no claims under the CBA, and does not even reference the CBA. He argues that the prohibition of age discrimination Defendant allegedly breached arises under state law, not under the CBA.
The Court notes that "claims only tangentially involving provisions of collective-bargaining agreements are not preempted by section 301." Thomas v. LTV Corp., 39 F.3d 611, 617 (5th Cir. 1994). In Thomas, however, the Court found Plaintiff's claims preempted because to determine whether LTV's discharge of the Plaintiff for excessive absenteeism was wrongful under the circumstances, an analysis of the collective-bargaining agreement was necessary. Id. at 619.
The Supreme Court in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988) stated that the LMRA only preempts state law claims whose resolution turns on the meaning of a collective bargaining agreement. "[I]f the resolution of a state-law claim depends upon the meaning of a collective bargaining agreement, the application of state law . . . is pre-empted and federal labor law principles . . . must be employed to resolve the dispute." Id. at 405-06. The Court emphasized that the LMRA does not pre-empt state law claims whose resolution does not depend on an interpretation of a collective bargaining agreement.
Plaintiff relies upon Jones v. Roadway Express, Inc., 931 F. 2d 1086 (5th Cir. 1991) for his position that an interpretation of the CBA is not inextricably intertwined with the state-law age discrimination claim.
In Jones, the plaintiff was a truck driver. In November 1987, Jones was discharged for failing to protect his bids, i.e., failing to work on an assignment which Roadway had scheduled and for which the drivers had bid based on their seniority. The grievance committee established under the CBA later reduced his discharge to ten days. Jones re-injured his back on January 26, 1988, and was forced to miss work for a few weeks in February 1988. Roadway issued a written warning to Jones that he would be dismissed if he failed to work the assignments on which he had bid. On February 26, 1988, Jones phoned to say that he could not work that evening on an assignment on which he had bid. Roadway fired him by letter dated February 26th. Id. at 1087.
The Fifth Circuit stated:
the basic issue in this case is whether a retaliatory discharge occurred. Resolution of this issue does not require an interpretation of the CBA. The trial court has to ascertain if retaliation was among the reasons for which Roadway dismissed Jones. Roadway may have had other reasons, even reasons which the CBA justified, for dismissing Jones. But if retaliation was a factor, then for the purposes of Jones' article 8307c claim, an interpretation of the CBA is not inextricably intertwined with the state-law claim. As this court has earlier noted, however, we do not require that the CBA be irrelevant to the dispute; either party may still use the CBA to support the credibility of its claims.Id. at 1090 (citations omitted). The Fifth Circuit concluded that Jones' worker's compensation retaliation suit was not preempted by the LMRA.
Subsequent decisions of the Fifth Circuit in this area, however, have sought to distinguish Jones and have failed to endorse it. See Kern v. Dannon Co., Inc., 71 Fed. Appx. 442, 2003 WL 21418137 (5th Cir. 2003) ("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. . . . 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.").
The only exception found was Trevino v. Ramos, 197 F.3d 777 (5th Cir. 1999). In Trevino, the defendant employer argued that the plaintiffs were discharged in accordance with policies outlined in its CBA. Id. at 778. In distinguishing Reece and Jones, the Court stated that Reece addressed whether the LMRA preempted a provision of the Texas Labor Code prohibiting racial discrimination, but Jones applied in a worker's compensation retaliation case. The Court further stated: "In a retaliatory discharge case, the court's task is complete when it determines, as a factual matter, whether the employer's motivation for the discharge was the employee's filing of a worker's compensation claim or some other motive. If it determines that retaliation was not a motive, it does not need to determine whether other motives were legitimate or whether the CBA justified them." Id. at 780 (citations omitted). This Court, however, has difficulty understanding why this rationale would not also apply to discrimination cases, where employer's motivation is also the central issue.
In Thomas v. LTV Corp., 39 F.3d 611 (5th Cir. 1994), the Court found LMRA preemption because in a worker's compensation retaliation claim, Thomas relied upon the CBA for his argument that his excessive absenteeism should have been excused.
In Medrano v. Excel Corp., 985 F.2d 230 (5th Cir. 1993), a worker's compensation retaliatory discharge case, the Court distinguished Jones stating: "The case before us today, however, is not a typical straightforward case alleging a retaliatory discharge in violation of article 8307c. Unlike the plaintiff's claim in Roadway Express I and II, Medrano's claim is indeed inextricably intertwined with a consideration of the terms of the CBA. Medrano actually drew on the settlement provision of the CBA itself to establish a violation of article 8307c. Medrano's claim is distinctive in that he alleged Excel — by applying a specific provision of the CBA — discriminated against him because he settled a workers' compensation claim, not because he filed one." Id. at 233.
In this present case, Korndoffer signed an affidavit to the Equal Employment Opportunity Commission which was incorporated by reference into Plaintiff's Original Petition. The Plaintiff alleges that he had been employed at various times with Defendant. At some point he was told by a Project Manager that Defendant was "going to start laying off the old [fire sprinkler] fitters to make room for the younger ones." Plaintiff states that because his job foreman intervened on his behalf, he was not laid off at that time. He further alleges that on or about April 29, 2003, he was laid off allegedly because the "hours in the project were running out." Plaintiff contends that the project was expected to last until August 2003. He further states that a manager told him that he and another employee were laid off because "we were from San Antonio and they wanted to do the job with local people." Plaintiff contends this statement is false because others who were retained lived in the San Antonio and La Vernia areas. Finally, Plaintiff alleges in his affidavit that a new job was to start on May 19, 2003, and he was told that he would be recalled, but that he was never recalled.
Given the allegations made by Plaintiff, the Court concludes that interpretation of the CBA is necessary for the resolution of this case, and that the Plaintiff's allegations are "inextricably intertwined" with a consideration of the terms of the CBA. The parties will be required to interpret Article 5 of the CBA to determine if Plaintiff was properly selected for lay off, whether "local" employees were entitled to a preference, and what recall rights Plaintiff enjoyed. Because Plaintiff's TCHRA age discrimination claim will involve a substantial issue of construction and operation of the CBA, plaintiff's claim is preempted by § 301 of the LMRA. See also Brown v. Southwestern Bell Telephone Co., 901 F.2d 1250, 1255-56 (5th Cir. 1990) ("Although his claim is couched in terms of outrageous conduct and intentional infliction of emotional distress, Brown essentially maintains that Southwestern Bell could not terminate him while he was absent from work pursuant to his doctor's orders. . . . Thus, Brown's intentional infliction of emotional distress claim requires interpretation of the collective bargaining agreement and, like any other purported state-law claim that is in fact `inextricably intertwined with the terms of . . . [a] labor contract,' is preempted by section 301 of the LMRA.").
III. Conclusion
For the reasons stated above, Plaintiff's motion to remand is DENIED and this Court retains jurisdiction over this claim. Due to the nature of the issues, each side will bear their own costs, including attorney's fees, incurred in relation to this motion. 28 U.S.C. § 1447(c).