IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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Nos. 95-40353 and
95-40354
Summary Calendar
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MICHAEL MORENO,
Plaintiff-Appellant,
versus
CAMPBELL TAGGART BAKING COMPANIES, INC.,
STEVE BERNHARD, BOB BAHR, and
BOBBY HOWARD,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CA-C-93-438 & CA-C-94-52)
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January 19, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Michael Moreno was fired from his position with Campbell
Taggart Baking Co. (also known as Rainbo Baking Co. or "Rainbo"),
on grounds of insubordination. In two separate suits in state
court, he sued his employer, supervisors, and the company doctor,
alleging wrongful retaliation for filing a worker's compensation
claim, breach of contract, negligence, and invasion of privacy.
Immediately before the defendants removed the first suit to federal
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
court, the state court granted summary judgment to the defendants
on the retaliation claim. The remaining claims were removed by the
defendants to federal court, and Moreno's motions to remand both
lawsuits were denied. The district court subsequently granted
summary judgment in favor of the Rainbo defendants and Dr. Howard,
on all claims, and it is from this judgment that Moreno appeals.
We affirm.
I
Moreno was a baker's helper with Rainbo. On October 1, 1992,
he injured his heel at work. He called his supervisor the next day
to tell him he was sick and would not be in. The supervisor
directed Moreno to come to work to complete an injury report form,
and arranged for Moreno to see the company doctor, Dr. Howard, that
afternoon. Another supervisor, Steve Bernhard, told Moreno to call
him after visiting with the doctor. Dr. Howard confirmed the
injury, gave Moreno an excuse from work that day, and directed him
not to report to work until October 4, since October 3 (the next
day) was Moreno's regular day off. Moreno, however, did not tell
the doctor that he was scheduled to work later that afternoon, or
that light duty work was an option.
After his appointment, Moreno called Bernhard and told him
that Dr. Howard had advised him to stay home until Sunday, October
4. Bernhard told Moreno that he was going to call Dr. Howard and
ask if Moreno could perform light duty work, and that if he could,
he was to report to work that day to answer phones. Bernhard then
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called Dr. Howard, who told him that he had not considered light
duty. He further said that there was no reason Moreno could not
perform work that would not require him to stand. Bernhard then
had another Rainbo employee, Bob Bahr, call Dr. Howard to confirm
what the doctor had said, and Dr. Howard told Bahr the same thing.
While Bernhard was talking to Dr. Howard, Moreno called the
union's chief steward, Frank Garcia, and told him that he had been
injured, that Dr. Howard had ordered him not to work until October
4, and that Bernhard had ordered him to work light duty. Based on
this information, Garcia told Moreno not to go to work. Shortly
thereafter, Garcia told Bernhard that he had advised Moreno to stay
home, and Bernhard responded that Dr. Howard had cleared Moreno for
light duty. Based on this new information, Garcia told Bernhard
that he agreed that Moreno should perform light duty work. Garcia
said he would call Moreno to tell him to come to work. From about
4:25 p.m. to 10:00 p.m., Bernhard and Garcia tried to call Moreno
to order him to work, but Moreno did not answer his telephone.
When Moreno reported to work on October 4, Moreno told Garcia
that he had not answered his telephone because he knew Bernhard was
trying to call to order him to work, and he did not want to speak
to him. Bernhard then terminated Moreno for insubordination,
including failing to report to work as instructed, and failing to
answer the telephone when he knew Bernhard was going to call him.
Without a request from Moreno, Garcia filed a grievance on Moreno's
behalf, seeking to have Moreno reinstated on the grounds that he
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had been terminated without just cause. Garcia later withdrew the
grievance, after he concluded that Rainbo had just cause to
terminate Moreno under the terms of the collective bargaining
agreement between the union and Rainbo.
In his first lawsuit (Moreno I), filed in state court, Moreno
alleged a cause of action for wrongful retaliation for filing a
worker's compensation claim, and sued both Rainbo and Bernhard, the
supervisor who fired him. After the defendants filed motions for
summary judgment, Moreno amended his lawsuit to add new claims,
including breach of contract. The defendants then removed the case
to federal court, arguing that the case became removable upon
amendment by Moreno, since the breach of contract claim was
preempted by Section 301 of the Labor Management Relations Act
("Section 301"), 29 U.S.C. § 185(a). Before removal, however, the
state court granted summary judgment for the defendants on the
retaliation claim. After removal of the remaining claims, the
federal court denied Moreno's remand motion. Two weeks after the
removal of Moreno I, Moreno filed a second suit in state court
("Moreno II") against Rainbo, Bahr, and Dr. Howard, alleging
invasion of privacy and negligence. The defendants removed Moreno
II to federal court, again asserting preemption under Section 301.
Moreno's motion to remand Moreno II was also denied.
All defendants in both cases moved for summary judgment. The
district court granted the motions, concluding that resolution of
Moreno's claims, and determination of his damages, required
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interpretation of the collective bargaining agreement between
Rainbo and the union, and that the claims were therefore preempted
by Section 301. The district court further found that Moreno had
failed to exhaust his administrative remedies under the collective
bargaining agreement, or to show that the union had violated its
duty of fair representation. Thus, Moreno had failed to state a
claim under Section 301, and he had no cognizable claims against
either his employer or the company doctor, Dr. Howard.
On appeal, Moreno contends that the district court improperly
granted summary judgment, arguing (1) that the district court did
not specifically rule that the defendants were in an industry
affecting commerce, so as to come under the purview of Section 301;
(2) that preemption should not have applied because (a) his claims
were against individuals, rather than against the defendant Rainbo,
(b) his lawsuit allegedly involved a written contract independent
of the collective bargaining agreement, and (c) exhaustion would
have been futile, and consequently he did not need to exhaust his
administrative remedies; (3) that the removal of his case was
improper, because Section 301 did not preempt his claim, but was
merely a federal defense; and, finally, (4) that the state court
erred in granting summary judgment in favor of Rainbo on the
retaliation claim.
II
Because this is a case on appeal from the grant of motions for
summary judgment, we review the record de novo. Calpetco 1981 v.
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Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir. 1993).
Under Rule 56(c) of the Federal Rules of Civil Procedure, we
examine evidence presented to determine that there is "no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." FED. R. CIV. P. 56(c). Once a
properly supported motion for summary judgment is presented, the
burden shifts to the non-moving party to set forth specific facts
showing that there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th
Cir.), cert. denied, 115 S.Ct. 639 (1994). We must review "the
facts drawing all inferences most favorable to the party opposing
the motion." Matagorda County v. Russell Law, 19 F.3d 215, 217
(5th Cir. 1994).
III
We have reviewed the briefs, record, and supporting
documentation, and are fully convinced that we must affirm the
district court's grant of summary judgment in all respects.
Although the district court could have rejected Moreno's state law
tort claims based on the uncontroverted substantive evidence in the
defendants' summary judgment motions, it instead found that the
claims were preempted, in their entirety, by Section 301. We
agree. The record establishes that Rainbo is in an industry
affecting commerce, and Moreno's claim to the contrary (to avoid
applicability of Section 301, and asserted for the first time on
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appeal), is meritless. Likewise, we agree with the district court
that Moreno's breach of contract claim was inextricably linked to
the collective bargaining agreement between Rainbo and the union,
and was, therefore, also displaced by Section 301. Finally, we
reject Moreno's claim that the state court improperly granted
summary judgment on his claim for retaliation for having filed a
workers' compensation claim. Moreno proffers no evidence of a
causal nexus between his injury and his termination, beyond his
conclusory allegations, and summary judgment was therefore
appropriate.
Because his state law claims were subsumed by Section 301,
Moreno was required to exhaust his grievance procedures before
filing a claim in court. He filed no grievance, nor requested that
one be filed on his behalf. After his union steward filed--and
then withdrew--a grievance for him, Moreno made no objection. His
futility argument is also without merit, because the collective
bargaining agreement that covered Moreno contained a provision for
a neutral arbitrator, and this court has held that the availability
of such arbitration refutes a futility argument as a matter of law.
Parham v. Carrier Corp., 9 F.3d 383 (5th Cir. 1993). Moreno simply
failed to exhaust his administrative remedies, and this failure is
fatal to his Section 301 claim.1
1
We also reject Moreno's legally flawed argument that, because
no Section 301 claim appeared on the face of his well-pleaded
complaint, no federal question existed so as to warrant removal of
the two lawsuits. We recently have explained as follows:
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IV
As Rainbo points out in its brief to this court, Moreno set
out on a legal quest to turn his $70.00 heel injury into a claim
for actual and punitive damages totalling $30 million. Unable to
find the proper mix of defendants and claims in his first lawsuit,
Moreno filed another, hoping somehow to evade the bar of Section
301 preemption. Having determined that Moreno's efforts have
failed, the judgment of the district court dismissing the complaint
is
A F F I R M E D.
Where removal jurisdiction is predicated on the
existence of a federal question, the federal question
generally must appear on the face of the plaintiff's
complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386,
391, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). The
removing defendant's interjection of a federal defense is
normally insufficient to remove the case. Id. at 393,
107 S.Ct. at 2430. One exception to this rule, however,
occurs where an area of state law has been completely
preempted by federal law. Id. Controversies involving
collective bargaining agreements, where section 301 of
the LMRA, 29 U.S.C. § 185(a), provides the grounds for
preemption, constitute such an area of preemption. Id.
at 394, 107 S.Ct. at 2430-31.
Baker v. Farmers Elect. Co-op, Inc., 34 F.3d 274, 278 (5th Cir.
1994).
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