Opinion
Case No. C2-01-0097
March 26, 2002
OPINION AND ORDER
Plaintiff, Sarah Powers, originally brought this action in the Common Pleas Court of Franklin County, Ohio. Defendants, The Kroger Company ("Kroger") and Bruce Ford, removed the action to this Court under the Court's federal question jurisdiction. 28 U.S.C. § 1331. (Doc. #1). This matter is now before the Court on plaintiffs Motion to Remand under 28 U.S.C. § 1447. (Doc. #7). For the reasons set forth below, plaintiffs Motion to Remand is GRANTED.
I.
Plaintiff is female and a resident of Franklin County, Ohio. At all times relevant to this case, plaintiff was eighteen-years-old. Kroger is an Ohio corporation and employer doing business in the State of Ohio. Defendants Ford, David Clay, and Bruce Fugitt reside in Ohio and were employees of Kroger. Plaintiff was employed as a cashier and grocery stock person with Kroger until she resigned approximately ten (10) months later.
On December 20, 2000, plaintiff filed a complaint against Kroger, Ford, Clay, and Fugitt, in the Franklin County Court of Common Pleas. Plaintiffs complaint sets forth ten (10) separate claims for relief, all of which are brought pursuant to Ohio law. The claims variously assert causes of action for sexual harassment, assault and battery, intentional infliction of emotional harm, and false imprisonment. Two additional claims are asserted for (1) breach of Kroger's duty to provide a safe work place, under O.R.C. § 4101.12 and (2) breach of Kroger's duty to protect plaintiff from other employees under O.R.C. § 4101.11.
Kroger and Ford filed a Notice for Removal on February 1, 2001, asserting that this Court has original federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331. (Doc. #1). They assort that removal is proper because Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, provides federal question jurisdiction over suits for violation of contracts between an employer and a labor organization and completely preempts state law claims that require interpretation of the collective bargaining agreement ("CBA"). (Defendants' Notice for Removal, at 3) (citation omitted). Kroger and Ford argue that plaintiff is subject to a CBA executed between Kroger and plaintiff. Thus, resolution of plaintiffs case requires an analysis of the CBA terms to determine the parties' contractual obligations and rights. (Id.) Kroger and Ford argue that since plaintiffs allegations cannot be resolved independently of the CBA, this Court has original jurisdiction over this action. (Id.)
On April 11, 2001, plaintiff filed a Motion to Remand to the Court of Common Pleas of Franklin County pursuant to 28 U.S.C. § 1447. (Doc. #7). Plaintiff asserts that none of her claims requires this Court to interpret any term of the CBA because the claims do not turn on the meaning of any provision of the labor agreement. (Plaintiff's Memorandum in Support of Motion to Remand, at 9). Plaintiff argues that "although the CBA may agree or pledge to uphold certain rights, those rights are created by Ohio statute and case law not the CBA." (Id.)
Kroger asserts that Section 301 of the LMRA preempts six (6) of plaintiffs state law claims. (Defendant's Reply to Motion to Remand, at 10). These claims include: sexual harassment, hostile work environment, quid pro quo, intentional infliction of emotional distress, gender discrimination in violation of O.R.C. § 4112.02, and constructive discharge. Kroger argues that "even if one of plaintiffs claims is preempted, plaintiffs motion must be denied." (Id.)
II.
A. Removal and Remand
The procedure for removal of an action to federal court is found in 28 U.S.C. § 1441 (a), which provides:
[A]ny civil action brought in a State court of which the district courts of the United states have original jurisdiction, may be removed by defendant or defendants, to the district court of the United States for the districts and division embracing the place where such action is pending . . .28 U.S.C. § 1441 (a), however, must be read in conjunction with 28 U.S.C. § 1441 (b), which limits the power of defendant to remove. 28 U.S.C. § 1441 (b) provides that:
Any 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 shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought.
It is well settled that the party seeking removal bears the burden of establishing its right thereto. Wilson v Republic Iron Steel Co., 257 U.S. 92, 97-98 (1921). The removal petition is to be strictly construed, with all doubts resolved against removal. Her Majesty The Queen v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989).
On a motion for remand, the question is whether the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447 (c). In other words the issue is whether the case was properly removed in the first instance. Provident Bank v. Beck, 952 F. Supp. 539, 540 (S.D. Ohio 1996). Right of removal is determined by pleadings, viewed as of the time when petition for removal is filed. Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132 (3d Cir. 1976).
B. Preemption under Section 301 of the LMRA
The LMRA provides that actions for violations of labor contracts may be brought in federal court. 29 U.S.C. § 185 (a). The Supreme Court has held that when resolution of a state law claim is substantially dependant upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must be treated as a Section 301 claim or dismissed as preempted by Section 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985). To facilitate uniformity and predictability in interpreting the meaning of the terms of labor contracts, state law actions alleging violation of the contract's provisions must be brought under § 301 and resolved by reference to federal law. Lueck, 471 U.S. at 210-11. In other words, if interpretation of the CBA is required, the state cause of action is preempted by Section 301 and a federal court has jurisdiction to hear the case. Nevertheless, Section 301 does not preempt those substantive rights, "independent" of the labor contract itself, provided to workers by a state where those rights may be determined without interpreting the contract. Lingle v. Norge Div. of Magic Chef, Inc., 486 US. 399, 409-10 (1988). Therefore, application of state law is preempted by Section 301 only if such application requires the interpretation of a CBA. Id. at 413.
Because it has not often been a simple matter to determine whether a state cause of action is "independent" of a labor contract or is prompted under Section 301, the Sixth Circuit has developed a two-step method of analysis. DeCoe v. General Motors Corp., 32 F.3d 212 (6th Cir. 1994). Under DeCoe, a court must first decide whether proof of the state law cause of action requires the court to interpret the terms of the CBA. Id. at 216 citing Terwilliger v. Greyhound Lines, Inc., 882 F.2d 1033, 1037 (6th Cir. 1989). Second, the court must determine whether the right claimed by the plaintiff is created by the CBA, by state law, or by both. Unless the right claimed arises solely from state law and does not require interpretation of the labor contract, the cause of action is preempted. Id. (citations omitted). Finally, unless a plaintiff can satisfy both prongs of the test, Section 301 preemption will apply. Id.
The court is bound neither by the "well-pleaded complaint" rule nor by the defendant's assertion of the labor agreement as an affirmative defense; rather, the court "looks to the essence of the plaintiffs claim" to decide whether it has an independent state law claim or one that is dependent upon interpretation of the labor contract. Id. To test the independence of the state law claim, the court reviews the elements of the state law cause of action to determine whether each element may be proved without interpretation of the contractual terms or substantial reference to the CBA. Id. at 216-19.
III.
A. Sexual Harassment, Hostile Work Environment, Quid Pro Quo, and Gender Discrimination
O.R.C. § 4112.02(A) makes it an unlawful discriminatory practice "[f]or any employer, because of the . . . sex . . . of any person, . . . to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." Ohio Rev. Code Ann. § 4112 et seq.
The Supreme Court of Ohio held that a plaintiff may establish a violation of O.R.C. § 4112.02(A)'s prohibition of discrimination because of sex by proving either of two types of sexual harassment: (1) quid pro quo harassment, i.e., harassment that is directly linked to the grant or denial of a tangible economic benefit, or (2) "hostile environment" harassment, i.e., harassment that, while not affecting economic benefits, has the purpose or effect of creating a hostile or abusive working environment. Hampel v. Food Ingredient Specialties, Inc., 729 N.E.2d 726, 732 (Ohio 2000).
Claims for sexual harassment and gender discrimination under Ohio law are to be treated as are Title VII claims. Dorricott v. Fairhill Center for Aging, 187 F.3d 635 (6th Cir. 1999). The Sixth Circuit has consistently held that an employee's state law claims of civil rights violations are not preempted by Section 301. See, e.g., Tisdale, 25 F.3d at 1313-14 (denying Section 301 preemption of racial discrimination claim invoking a Michigan statute); O'Shea v. Detroit News, 887 F.2d 683 (6th Cir. 1989) (holding that state law claims for age and handicap discrimination, constructive discharge, and intentional infliction of emotional distress were not preempted by Section 301 because they are independent of the collective bargaining agreement); Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir. 1989) (finding plaintiff's handicap discrimination claim not preempted by Section 301 of the LMRA). As the Sixth Circuit stated:
Plaintiffs were free to sue in state or federal court under Title VII, and if they had brought such a suit in state court the union would have been entitled to remove the case to federal court on the ground that plaintiffs' claim arose under federal law. But plaintiffs were also fully entitled to choose, as they did, to bring only their state claim in state court. The [defendant] may not remove this case because it does not arise under federal law — plaintiffs do not invoke federal labor law, nor do they allege an injury which is within the area of labor relations over which Congress and the courts have given federal institutions exclusive jurisdiction.
. . . This is not fundamentally a labor case involving negotiated contractual terms, which is what § 301 addresses. This is a discrimination case involving nonnegotiable rights guaranteed by the State of Michigan. . . As the Supreme Court has stated, "it would be inconsistent with congressional intent under [§ 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract."
Tisdale, 25 F.3d at 1312 citing Allis-Chalmers, 471 U.S. at 212 (emphasis in original). Therefore, plaintiffs sexual harassment, hostile work environment, quid pro quo, and gender discrimination claims are not preempted by Section 301 of the LMRA, as they have been recognized as state created, statutory rights which are wholly independent of a labor contract.
Kroger argues that O.R.C. § 4112.14(c) requires arbitration before the assertion of a statutorily created claim. Even if so, this is a matter of state law, not an issue bearing on § 301 preemption.
B. Intentional Infliction of Emotional Distress
To sustain a cause of action for intentional infliction of emotional distress in Ohio a plaintiff must show the following: "(1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that the defendant's conduct was extreme and outrageous, and (3) that the defendant's conduct was the proximate cause of plaintiffs serious emotional distress." Phung v. Waste Management, Inc., 644 N.E.2d 286, 289 (Ohio 1994). Preemption depends upon whether the second element, that the defendants acted outrageously, requires interpretation of the CBA. Dalton v. Jefferson Smurfit Corp., 979 F. Supp. 1187, 1200 (S.D. Ohio 1997).
The Sixth Circuit has stated that a defendant has not acted outrageously "where he has done no more than to insist upon his legal rights in a permissible way, even though he was well aware that such insistence was certain to cause emotional distress." DeCoe, 32 F.3d at 219. Thus, if the defendants were exercising a right provided for under the CBA, then plaintiffs claim is preempted. Id.
Defendant Kroger argues that DeCoe is applicable, as the Sixth Circuit found the intentional infliction of emotional distress claim to be preempted. (Defendant "s Memorandum in Opposition, at 3-4). DeCoe is distinguishable, however, in that the plaintiff therein essentially contended that the defendant employer intentionally disseminated charges of sexual harassment against him which he claimed were false. The employer contended that the CBA required it to promptly investigate and deal with charges of sexual harassment. The Court of Appeals held that reference to the CBA was required to determine whether the employer was simply pursuing its legal rights or was otherwise acting outrageously. These facts are not analogous to the case at bar.
More similar are the circumstances in Dalton v. Jefferson Smurfit Corp., 979 F. Supp. 1187 (S.D. Ohio 1997). There, Judge Dlott of this Court found that a claim for intentional infliction of emotional harm was not preempted by § 301. The plaintiff alleged that the racial slurs and threats complained of by a union employee gave rise to a claim for intentional infliction of emotional harm. Judge Dlott concluded that "[a]s the outrageous conduct that forms the basis of the intentional infliction of emotional distress claim was not the result of [defendant] Boyd exercising his rights under the collective bargaining agreement, § 301 preemption does not apply." Id. at 1201.
In looking at the essence of plaintiffs claim, the Court finds no allegation in the Complaint claiming that defendant's conduct was in any way permitted or required by the CBA. The claim is instead based upon an allegedly outrageous form of sexual harassment which plaintiff asserts caused emotional distress. Therefore, plaintiffs cause of action for intentional infliction of emotional distress rests in part upon her claim of sexual harassment — a claim recognized under Ohio law, and nor preempted by § 301.
As the alleged outrageous conduct that forms the basis of plaintiffs intentional infliction of emotional distress claim was not the result of defendant's exercising any fights under the CBA, Section 301 preemption does not apply. Dalton v. Jefferson Smurfit Corp., 979 F. Supp. at 1201. Thus, this Court does not have jurisdiction to hear this claim.
C. Constructive Discharge
Plaintiff claims that although she resigned and was not terminated from her position, she was constructively discharged. Conduct that forces an employee to quit, constituting constructive discharge, is actionable only if the conduct is motivated by discriminatory intent against a protected employee characteristic. Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (6th Cir. 1996). The discriminatory conduct must then make working conditions so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. Id.
Similar to the intentional inflection of emotional distress claim, plaintiffs constructive discharge claim is based on allegations of sexual harassment. The allegations of sexual harassment are independent of any alleged violations of the CBA. Because plaintiffs claims are independent of the CBA and arise from Ohio law, an interpretation of the CBA is not necessary. As such, this Court does not find the constructive discharge claim preempted by Section 301 of the LMRA.
In Stratoti v. Kroger Co. 2002 WL 193100 (S.D. Ohio Jan 30, 2002), Judge Marbly of this Court found that a complaint which included a claim for wrongfully computed wages could not be maintained under state law and was preempted by § 301. In that case, the claim for wages could only be adjudicated with reference to the CBA, which actually set the rate of pay. Such claim was clearly not independent of the CBA. Consequently, the entire case was properly removable to this Court.
In contrast, the claims in this case are wholly independent of the CBA and arise exclusively under state law. In the absence of § 301 preemption, this Court lacks jurisdiction. The Court concludes that Section 301 does not preempt plaintiffs claims because the state law causes of action do not require the court to interpret the terms of the CBA, and the rights claimed by the plaintiff arise under only state law.
IV.
In light of the foregoing, plaintiffs Motion to Remand this action to the Franklin County Court of Common Pleas is GRANTED. All other motions remain pending for decision by the state court.
IT IS SO ORDERED.