In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1129
C ONSTANCE H UGHES,
Plaintiff-Appellant,
v.
U NITED A IR L INES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 6558—Elaine E. Bucklo, Judge.
A RGUED JANUARY 11, 2011—D ECIDED F EBRUARY 8, 2011
Before E ASTERBROOK, Chief Judge, and C UDAHY and
P OSNER, Circuit Judges.
E ASTERBROOK, Chief Judge. United Air Lines recalled
flight attendant Constance Hughes from furlough in
October 2004. Physically unable to work, she com-
menced a medical leave. The collective bargaining agree-
ment between United and the flight attendants’ union
permits workers to retain seniority for three years of
2 No. 10-1129
injury or illness. When that time was almost up, United
told Hughes that she must report to duty. The airline’s
physician cleared her for work. She completed requali-
fication training. But, according to Hughes, less than a
week before her first flight assignment, she slipped and
fell at United’s training facility, suffering a new injury
so severe that she could not fly. United then ended
her employment. Hughes says that this constituted re-
taliation for the workers’ compensation claim she made
on account of the new injury; for its part, however,
United characterizes the termination as a routine ap-
plication of the collective bargaining agreement’s limit
on how long an inactive employee can retain seniority.
Hughes sued in a state court of Illinois, which treats as
tortious any materially adverse response to a workers’
compensation claim. See 820 ILCS 305/4(h); Kelsay v.
Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978); Clemons
v. Mechanical Devices Co., 184 Ill. 2d 328, 704 N.E.2d 403
(1998). United removed the proceeding to federal court
under the federal-question jurisdiction. See 28 U.S.C.
§§ 1331, 1441(b). Hughes’s complaint rests entirely on
state statutes and decisions; it does not mention federal
law. United contended, however, that framing a claim
under state law is impossible—that the Railway Labor
Act, which despite its name also applies to labor rela-
tions of airlines, so occupies the field that state law is
“completely preempted” and that any claim must rest
on federal law.
“Complete preemption” is a misleadingly named doc-
trine that applies to subjects over which federal law is
No. 10-1129 3
so pervasive that it is impossible to make out a state-
law claim, no matter how careful the pleading. Several
branches of labor-relations law come within this descrip-
tion. See, e.g., Avco Corp. v. Machinists Union, 390 U.S.
557 (1968). Preemption normally is a defense, which
must be pleaded and established in the court where
the litigation began. But “complete preemption” is not
a defense. It means that the claim itself arises under
federal law. See Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1 (1983); Lehmann v.
Brown, 230 F.3d 916 (7th Cir. 2000). If “complete preemp-
tion” applies to Hughes’s retaliatory-discharge suit,
then United was entitled to remove it; but if United’s
argument is a species of ordinary preemption, then all
it has is a defense that must be asserted in state court,
unless the diversity jurisdiction supports removal.
Graf v. Elgin, Joliet & Eastern Ry., 790 F.2d 1341 (7th Cir.
1986), holds that a retaliatory-discharge suit against an
employer governed by the Railway Labor Act is com-
pletely preempted, allowing removal. We gave two
principal reasons. First, the RLA establishes its own
method of adjudication for claims that concern applica-
tion of a collective bargaining agreement. 45 U.S.C. §§ 151a,
184. This method, which requires disputes about the
meaning or application of a labor agreement to be sub-
mitted to a systems board of adjustment, is incompatible,
we thought, with state-court litigation whose disposi-
tion could well depend on the meaning of a collective
bargaining agreement. 790 F.2d at 1344–45. Second,
we noted that appellate authority strongly favored a
complete-preemption approach. Although we conceded
4 No. 10-1129
that the first reason on its own was inconclusive, we
thought it inappropriate to create a conflict. Id. at 1346.
The district court concluded that Graf controls and
denied Hughes’s motion to remand. 675 F. Supp. 2d 907
(N.D. Ill. 2009). The court then dismissed the suit,
ruling that only an adjustment board can provide
Hughes with a remedy.
Hughes asks us to overrule Graf, and we conclude that
this is the appropriate course. Explaining why requires
a brief turn from the Railway Labor Act to other parts
of labor law.
Not long after Graf, we extended its holding through-
out labor-relations law, concluding in Lingle v. Norge
Division of Magic Chef, Inc., 823 F.2d 1031 (7th Cir. 1987)
(en banc), that the Labor-Management Relations Act
completely preempts retaliatory-discharge claims nomi-
nally based on state law. As with Graf and Hughes’s
claim, the state law in question was the rule in Illinois
that prohibits retaliation against workers who exercise
their legal remedies against employers. Our decision
had a short life, however. The Supreme Court reversed,
486 U.S. 399 (1988), holding that a retaliatory-discharge
suit resting on state law is a real state-law claim, not a
federal claim in disguise. The Justices concluded that a
retaliatory-discharge claim is preempted if it cannot
be resolved without construing a collective bargaining
agreement, but this is normal preemption—that is, a
defense to be asserted in the original forum rather than
a rule that the claim itself must rest on federal law. It is
easy to see how a retaliatory-discharge claim could be
No. 10-1129 5
resolved without reference to a labor agreement. Sup-
pose a flight attendant asserted that the reason she was
sacked was a workers’ compensation claim, while the
employer asserted that the reason was the flight atten-
dant’s failure to give passengers the required safety
briefing. The question for decision would be who was
telling the truth, not what a collective bargaining agree-
ment provided.
The Supreme Court’s decision in Lingle pulls the rug
out from under Graf, unless some material difference
between the Railway Labor Act and the Labor-Manage-
ment Relations Act makes Lingle’s approach inapplicable
to the RLA. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246
(1994), considered that possibility. Norris, a mechanic
discharged after he had refused to sign an aircraft’s
maintenance record, sued under state law, contending
that the real reason for the discharge was his insistence
that the air carrier use proper maintenance procedures.
The Court first held that a claim resting entirely on
state law need not be resolved by an adjustment board
under the RLA; instead, the opinion states, “the category
of minor disputes contemplated by [45 U.S.C.] §151a
are those that are grounded in” a collective bargaining
agreement, 512 U.S. at 256, and that the RLA’s pro-
cedures do “not pre-empt causes of action to enforce
rights that are independent of the CBA.” Ibid. Hawaiian
Airlines went on to apply Lingle to the RLA, stating, id. at
260, that “[t]he pre-emption standard . . . —that a state-
law cause of action is not pre-empted by the RLA if it
involves rights and obligations that exist independent of
the CBA—is virtually identical to the pre-emption
6 No. 10-1129
standard the Court employs in cases involving §301 of
the Labor-Management Relations Act”, 29 U.S.C. §185.
Lingle held that a retaliatory-discharge claim under
Illinois law “involves rights and obligations that exist
independent of the CBA”. 512 U.S. at 260. Putting Lingle
together with Hawaiian Airlines means that the RLA
does not completely preempt retaliatory-discharge
suits. This leaves Graf without support.
Since Hawaiian Airlines, we have decided two retaliatory-
discharge suits against employers covered by the Railway
Labor Act. The first of these, Westbrook v. Sky Chefs, Inc.,
35 F.3d 316 (7th Cir. 1994), concluded that the state-law
claim was independent of the CBA and not preempted,
completely or otherwise. The second, Monroe v. Missouri
Pacific R.R., 115 F.3d 514 (7th Cir. 1997), held that the state-
law claim could not be resolved without construing
the CBA and thus was preempted. Neither decision
mentioned Graf; likely the litigants and judges all
assumed that Graf did not survive Hawaiian Airlines.
Westbrook was removed under the diversity jurisdiction,
so the choice between normal and complete preemp-
tion did not matter. The panel in Monroe did not say
whether the suit had been removed under the diversity
jurisdiction or the federal-question jurisdiction; perhaps
the parties did not make anything of that difference.
This leads United to contend that Monroe must be under-
stood as a complete-preemption case and that Graf there-
fore retains vitality. Yet the absence of a discussion is
just silence. Even when the issue concerns subject-
matter jurisdiction, a topic passed over without discus-
sion has not been resolved. Steel Co. v. Citizens for a
No. 10-1129 7
Better Environment, 523 U.S. 83, 91 (1998); United States
v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37–38 (1952).
Monroe did not hold that the RLA completely preempts
any category of state-law claims; it held only that a par-
ticular claim was preempted under the approach of
Lingle and Hawaiian Airlines.
The three other circuits that have considered this
subject since Hawaiian Airlines have concluded that the
RLA does not completely preempt retaliatory-discharge
claims under state law. Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); Sullivan v. American
Airlines, Inc., 424 F.3d 267, 277 (2d Cir. 2005); Geddes v.
American Airlines, Inc., 321 F.3d 1349 (11th Cir. 2003). To
the extent these decisions rest on a belief that complete
preemption is possible only when federal courts supply
a remedy, we are skeptical. Much conduct that is
arguably forbidden as an unfair labor practice by the
National Labor Relations Act, or arguably protected by
that statute, is covered by the complete-preemption
doctrine. See generally Sears, Roebuck & Co. v. San Diego
Council of Carpenters, 436 U.S. 180 (1978). Yet federal
courts do not entertain suits about unfair labor prac-
tices; only the National Labor Relations Board can ad-
judicate disputes under sections 7 or 8 of the NLRA. A
suit alleging an unfair labor practice filed in state court,
and removed to federal court, will be dismissed rather
than resolved on the merits. This establishes that com-
plete preemption does not depend on the ability of the
federal courts to supply a remedy. But it is unneces-
sary to agree or disagree with all of the reasons
given in Geddes, Sullivan, and Moore-Thomas; Lingle and
8 No. 10-1129
Hawaiian Airlines show that the results of those deci-
sions are correct.
Graf’s holding that the RLA completely preempts
retaliatory-discharge suits under state law is overruled.
(Other parts of Graf are unaffected by this conclusion.)
Because this conclusion is compelled by decisions of
the Supreme Court after Graf, circulation under Circuit
Rule 40(e) is unnecessary. This suit must be remanded
to state court, because both Hughes and United are
citizens of Illinois. United submits that Hughes cannot
prevail unless the court considers, and rejects, its con-
tention that the collective bargaining agreement
required her discharge after three years on medical
leave. If “the state-law claim is dependent on the inter-
pretation of a CBA", Hawaiian Airlines, 512 U.S. at 262,
then her claim is preempted. But the state judiciary
(subject to review by the Supreme Court of the United
States) is the right forum for United’s argument on that
subject; it would be inappropriate for us to discuss it.
The judgment is vacated, and the case is remanded to
the district court with instructions to remand the litiga-
tion to state court.
2-8-11