Jones v. Allied Waste Services

Full title: PATRICK JONES, Plaintiff, VS. ALLIED WASTE SERVICES, ET AL., Defendants

Court: United States District Court, N.D. Texas

Date published: Mar 14, 2001

CIVIL ACTION NO. 3:00-CV-2087-G (N.D. Tex. Mar. 14, 2001)

Opinion

CIVIL ACTION NO. 3:00-CV-2087-G

March 14, 2001

MEMORANDUM ORDER

A. JOE FISH, Chief Judge, District

Before the court is the motion of the plaintiff Patrick Jones ("Jones") to remand this case to the state court from which it was previously removed. For the reasons set forth below, the motion is denied; however, in the exercise of its discretion, the court on its own motion remands to the state court two of Jones' three claims.

I. BACKGROUND

Jones was employed by Allied Waste Services, Inc. and Allied Waste Systems, Inc., d/b/a Trinity Waste Services (together, "Allied Waste corporate defendants") as a driver and garbage collector. Plaintiff's Second Amended Petition ("Petition") at 2-3. Defendant David Heikkinen ("Heikkinen") was Jones' supervisor.¹ Id. Jones seeks damages from Allied Waste on the grounds of wrongful discharge, intentional infliction of emotional distress, and discrimination because of disability under the Texas Human Rights Act. Id. at 5-10. Jones avers that he injured his knee while working for Allied Waste on October 21, 1997 and that he was forced to continue working in spite of his injury. Id. at 2. Then, Jones contends, on October 31, 1997, he sustained an injury to his head and neck while riding as a passenger in an Allied Waste garbage truck. Id. at 2-3. Jones claims that in spite of continuing head and neck pain, he remained an employee of Allied Waste until December 26, 1997, when his knee gave out completely as a result of the October 21 injury. Id. at 3. It is Jones' contention that Allied Waste tried to keep him from filing for worker's compensation benefits, refused to make reasonable accommodations to permit him to return to work, wrongfully discharged him and then refused to rehire him after his doctor cleared him to work. Id. at 3-4.

1 The court will refer to the Allied Waste corporate defendants and Heikkinen collectively as "Allied Waste."

On November 15, 1999, Jones filed the instant suit in a state district court. Plaintiff's Motion to Remand and Brief in Support ("Motion") at 1. The Allied Waste corporate defendants were served with the Original Petition on November 19, 1999 and Heikkinen was served with Jones' First Amended Petition on December 1, 1999. Id. Allied Waste filed an Original Answer on December 10, 1999. Id. Jones filed his Second Amended Petition on August 22, 2000, adding the Texas Human Rights Act claim. Id. at 2. The case was set for trial in state district court on November 27, 2000. Reply to Defendants' Response to Plaintiff's Motion to Remand ("Reply") at 1. Allied Waste deposed Jones on August 24, 2000. Id. at 2. It was at Jones' deposition that Allied Waste claims it first received notice that this case was removable. Id. On September 22, 2000, Allied Waste removed this case to this court, contending that Jones' state law claims require an interpretation and application of a collective bargaining agreement ("CBA") and that the case thus presents a federal question under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Notice of Removal at 2.

Jones now moves to remand the case on two grounds: (1) that Allied Waste's removal was untimely and (2) this case presents no federal question. Motion at 2-4. For the reasons set forth below, the court finds that removal was timely and that the case presents a federal question.

II. ANALYSIS A. Timeliness of Removal

Title 28 U.S.C. § 1441(b) permits removal of "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States." Removal jurisdiction must be strictly construed, however, because it implicates important federalism concerns. Frank v. Bear Stearns Company, 128 F.3d 919, 922 (5th Cir. 1997); see also Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988). Furthermore, "any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court." Cross v. Bankers Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992). The burden of establishing federal jurisdiction is on the party seeking removal — in this case, Allied Waste. See Frank, 128 F.3d at 921-22; Willy, 855 F.2d at 1164.

District courts have original jurisdiction over civil cases arising under the laws of the United States. See 28 U.S.C. § 1331. A cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law. Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63 (1987). This scheme allows a plaintiff to be the "master to decide what law he will rely upon" in pursuing his claims. The Fair v. Kohler Die Specialty Company, 228 U.S. 22, 25 (1913). Therefore, where potential remedies exist under both state and federal law, a plaintiff may choose to proceed only under state law and avoid federal court jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

Despite the lack of a federal claim on the face of Jones' complaint, other documents may evince a case's federal character:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. . . .

28 U.S.C. § 1446(b) (emphasis added). In this case, Allied Waste maintains that Jones' deposition testimony is a type of "other paper," within the meaning of § 1446(b), and that removal was therefore proper even though it occurred nearly ten months after the last defendant was served. Defendants' Response to Plaintiff's Motion to Remand and Brief in Support ("Response") 3-4.

B. "Other Paper"

Federal courts have deemed a variety of documents to be the "other paper" necessary to give notice to defendants of the existence of federal jurisdiction. See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 491-92, 494 (5th Cir. 1996) (holding that deposition transcript of plaintiff's president was "other paper"); Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992), cert. denied, 507 U.S. 967 (1993) (construing "other paper" to "clearly refer to actions normally and logically occurring after the filing of the initial pleading," including plaintiff's answers to defendant's interrogatories); Stramel v. GE Capital Small Business Finance Corporation, 955 F. Supp. 65, 66-68 (E.D. Tex. 1997) (holding that settlement letter from plaintiff's attorney to defendant's counsel was "other paper") ; Johnson v. Dillard Department Stores, Inc., 836 F. Supp. 390, 391-95 (N.D. Tex. 1993) (finding that plaintiff's first amended original petition and answers to defendant's second set of requests for admission were "other paper"). Here, Jones deposition transcript is an "other paper" within the meaning of § 1446(b). However, this does not end the analysis.

Jones argues that because his Original Petition alleged wrongful discharge as a result of his filing of a workers compensation claim, Allied Waste was aware of the argument for LMRA preemption from the date of service of the Original Petition. Motion at 3. As additional support for his contention that Allied Waste has long been aware of the argument for LMRA preemption, Jones points to Allied Waste's responses to plaintiff's request for disclosure, wherein Allied Waste claims Jones was terminated pursuant to the CBA. Id. Finally, Jones directs the court's attention to a union grievance form completed by Jones on February 24, 1999 and produced to Jones by Allied Waste in discovery. Reply at 2. All of these, according to Jones, prove that Allied Waste knew of his contention that the CBA was not properly applied in his case long before his deposition.

Allied Waste may indeed have known of Jones' contention that the CBA was improperly applied to him long before September 22, 2000. Even so, Allied Waste is correct that under the law of this circuit, its own subjective knowledge that the case may have been removable was insufficient to "start the accrual of the 30-day removal period." S.W.S. Erectors, 72 F.3d at 494. Furthermore, Allied Waste's discovery responses cannot constitute an "other paper" under § 1446(b) because "the `other paper' conversion requires a voluntary act by the plaintiff." Id. (emphasis in original). Thus, "an initially non-removable case `cannot be converted into a removable one by evidence of the defendant or by an order of the court.'" Id. Jones' reliance upon the February, 1999 grievance form is similarly unavailing. Jones filed his grievance nearly seven months prior to filing this suit. "[A]n `other paper,' in order to trigger the thirty-day time period, [must] be received by a defendant only after that defendant has received the initial pleading." Chapman, 969 F.2d at 164. Because Allied Waste filed its Notice of Removal less than thirty days after receipt of an "other paper" from which it was first ascertainable that the case had become removable, the removal of this case on September 22, 2000 was timely.²

2 Because the court concludes that Jones' deposition is an "other paper" triggering the thirty day removal period under § 1446(b), it need not address the question of whether Jones conceded federal subject matter jurisdiction by mistakenly referencing the Americans with Disabilities Act in the joint status report. However, the court notes that while post-removal events cannot deprive the court of jurisdiction once it has attached, the Fifth Circuit has allowed consideration of a post-removal affidavit that clarifies any ambiguity regarding federal jurisdiction. See Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994), abrogated on other grounds, Marathon Oil Company v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998).

C. Existence of a Federal Question

Jones contends that his wrongful discharge, intentional infliction of emotional distress, and Texas Human Rights Act disability discrimination claims do not require interpretation of a collective bargaining agreement and thus that the court is not presented with a federal question under the LMRA.³ Motion at 5. Allied Waste contends that all of Jones' claims are preempted by LMRA § 301. Section 301 provides:

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 such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a). Congress passed § 301 to allow "federal courts to fashion a body of federal law for the enforcement of . . . collective bargaining agreements." Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 451 (1957). The Supreme Court has thus determined that if the state law cause of action is inextricably intertwined with interpretation of the terms of the collective bargaining agreement, the state law claim is preempted by § 301. United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 369 (1990); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988); Allis-Chalmers Corporation v. Lueck, 471 U.S. 202, 220 (1985); see also Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir. 1996) (citing Thomas v. LTV Corporation, 39 F.3d 611, 616 (5th Cir. 1994); Jones v. Roadway Express, Inc., 931 F.2d 1086, 1089 (5th Cir. 1991); and Baker v. Farmers Electric, 34 F.3d 274 (5th Cir. 1994)). In those cases where resolution of the state law claim does not require an interpretation of the collective bargaining agreement, the claim is deemed "independent," and is not preempted. See Roadway Express, 931 F.2d at 1089; see also Lingle, 486 U.S. at 410 ("as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes"). But see Medrano v. Excel Corporation, 985 F.2d 230, 233 (5th Cir.) (holding that "[u]nlike the plaintiff's claim in Roadway Express . . . ., [plaintiff]'s claim is indeed inextricably intertwined with a consideration of the terms of the CBA"), cert. denied, 510 U.S. 822 (1993).

1. Wrongful Discharge

Jones contends that he was discharged by Allied Waste for filing a workers compensation claim, in violation of § 451.001 of the Texas Labor Code. Petition at 5. Allied Waste argues that this claim is "inextricably intertwined" with, and requires interpretation of, the terms of the CBA and is thus preempted. Response at 5. "In order to recover under § 451.001, an employee must show that the employer's discriminatory action `would not have occurred when it did had the worker's compensation claim not been filed.'" Trevino v. Ramos, 197 F.3d 777, 780 (5th Cir. 1999), cert. denied, U.S., 121 S.Ct. 625 (2000). "This purely factual question centers on the employee's conduct and the employer's motivation," neither of which requires the court to interpret a CBA. Id. See also Roadway Express, 931 F.2d at 1090 (holding that a claim for retaliatory discharge for pursuing a workers' compensation claim is not preempted by the LMRA); Umphrey v. Fina Oil Chemical Company, 882 F. Supp. 585, 587-88 (E.D. Tex. 1995). Indeed, Jones' "right to be free from retaliatory discharge for pursuing workers' compensation exists . . . independently of the CBA" and "would exist even were there no CBA." Roadway Express, 931 F.2d at 1090. Because Jones' retaliatory discharge claim exists independently of and is not "inextricably intertwined" with the CBA, it is not preempted by the LMRA.

2. Intentional Infliction of Emotional Distress

A plaintiff pursuing a claim against his employer for intentional infliction of emotional distress has the burden of proving wrongful conduct by that employer. See Dancy v. Fina Oil Chemical Company, 921 F. Supp. 1532, 1536 (E.D. Tex. 1996) (citing Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633 (5th Cir. 1994)). "The plaintiff must establish not that the defendant's conduct was wrongful in some abstract sense, but wrongful under the circumstances." Id. "[T]he collective bargaining agreement is a crucial component of these circumstances." Id. Because emotional distress claims normally require an analysis of an extant CBA, in this circuit the LMRA has been held to preempt state law emotional distress claims that are related to employment discrimination. See Barrow v. New Orleans Steamship Association, 10 F.3d 292, 300 (5th Cir. 1994); Thomas, 39 F.3d at 619; Reece v. Houston Lighting Power Company, 79 F.3d 485, 487 (5th Cir.), cert. denied, 519 U.S. 864 (1996); Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir. 1997).

The conduct of which Jones complains and upon which he bases his claim for emotional distress undoubtedly relates to employment discrimination. Jones claims that Allied Waste forced him to work in full duty capacity and refused to schedule him for light duty or otherwise to accommodate his injury; refused to permit Jones to apply for less strenuous positions within the company; failed to apply for workers compensation benefits on his behalf; and falsely maintained that Jones was not injured at work and that he could not apply for both workers compensation and disability benefits. Petition at 6-7. Here, as in Stafford, "[t]he emotional distress claim is clearly part of the same matter as the employment discrimination claim, and would likely never have come into existence but for the original dispute . . . and is far from peripheral to the central employment issue." Stafford, 123 F.3d at 296. Accordingly, the LMRA preempts Jones' state law claim for intentional infliction of emotional distress.

3. Disability Discrimination under the Texas Human Rights Act

The Fifth Circuit has yet to address the question of whether a claim for disability discrimination under the Texas Human Rights Act is subject to LMRA preemption. Those circuits to have considered the question have uniformly held that state law disability discrimination claims are not preempted by LMRA. See Martin Marietta Corporation, Aero Naval Systems v. Maryland Commission on Human Relations, 38 F.3d 1392, 1402 (4th Cir. 1994); Smolarek v. Chrysler Corporation, 879 F.2d 1326, 1335 (6th Cir.) (en banc), cert. denied, 493 U.S. 992 (1989); Milton v. Scrivner, Inc., 53 F.3d 1118, 1121 (10th Cir. 1 995); Jimeno v. Mobil Oil Corporation, 66 F.3d 1514, 1528 (9th Cir. 1995). The two district courts in this circuit to have examined this issue have also held that state law disability discrimination claims are not preempted by LMRA. See Thompson v. BellSouth Telecommunications, Inc., 1997 WL 800831, *2 (E.D. La. 1997); Elstner v. Southwestern Bell Telephone Company, 659 F. Supp. 1328 1344 (S.D. Tex. 1987), aff'd, 863 F.2d 881 (5th Cir. 1988) (table).

The court finds the reasoning of Smolarek particularly instructive. The Smolarek plaintiffs sued their employer, Chrysler, for violating the Michigan handicap discrimination law. Smolarek, 879 F.2d at 1328-29. The defendant contended that the handicap discrimination claim was preempted by LMRA. Id. at 1331-32. The CBA in Smolarek contained a provision regarding an employee's right to reinstatement following disability leave. Id. at 1332. The court, quoting Lingle, 486 U.S. at 412-13, reiterated that "[t]he mere fact that a broad contractual protection against discriminatory . . . discharge may provide a remedy for conduct that coincidentally violates state-law does not make the existence or the contours of the state law violation dependent upon the terms of the private contract." Id. Noting that the case was not one in which the duty breached arose solely from the CBA or which required a determination of whether the CBA itself was breached, the court held that the claim was not preempted. Id. at 1332-33. Similarly, here, the CBA contains a general anti-discrimination provision. Teamsters Local 767 Proposed Articles of Agreement, Appendix to Defendants' Response to Plaintiff's Motion to Remand and Brief in Support, Tab B, at Article 5. However, as in Smolarek, neither the existence nor the contours of Jones' alleged state law disability discrimination claim depends upon the terms of the CBA. Allied Waste may assert a defense based upon the CBA. "The assertion of a defense requiring application of federal law, however, does not support removal to federal court." Smolarek, 879 F.2d at 1333. The court finds that Jones' claim of disability discrimination based on the Texas Human Rights Act is not dependent on and thus not "inextricably intertwined" with interpretation of the terms of the CBA. Thus, it is not preempted by LMRA § 301.

III. CONCLUSION

Because Jones' intentional infliction of emotion distress claim against Allied Waste requires a construction of the CBA, and because Allied Waste's removal to this court was timely under 28 U.S.C. § 1446(b), Jones' motion to remand this claim to the state court is DENIED.

The other two state law claims asserted by Jones, however, are not preempted by LMRA § 310, 29 U.S.C. § 185(a). Those claims, for wrongful discharge, in violation of § 451.001 of the Texas Labor Code, and for disability discrimination under the Texas Human Rights Act, would exist even if there were no CBA. Allowing those claims to remain here would permit the federal tail to wag the state dog. Under 28 U.S.C. § 1441(c), the court will exercise its discretion to remand these claims to the state court from which they were previously removed.

Accordingly, Jones' claims for wrongful discharge and for disability discrimination are REMANDED to the 44th Judicial District Court of Dallas County, Texas. The clerk shall mail a certified copy of this order to the district clerk of Dallas County, Texas. 28 U.S.C. § 1447(c).

SO ORDERED.