Cisneros v. ABC Rail Corporation

                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                        JUL 7 2000
                   UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                            Clerk
                                 TENTH CIRCUIT



 DANIEL CISNEROS,

       Plaintiff - Appellant,
 v.

 ABC RAIL CORPORATION, a
 corporation organized under the laws                  No. 99-1364
 of Delaware doing business in Pueblo,
 Colorado; UNITED
 STEELWORKERS OF AMERICA
 AFL-CIO-CLC, LOCAL UNION NO.
 3405,

       Defendants - Appellees.


                 Appeal from the United States District Court
                         for the District of Colorado
                           (D.C. No. 99-WM-825)


Margaret Laniak Herdeck, Pueblo, Colorado for the appellant.

William C. Berger of Stettner, Miller and Cohn, P.C., Denver, Colorado, and Angela
Pace, United Steelworkers of America, Pittsburgh, Pennsylvania, (Rudolph L.
Milasich, Jr., United Steelworkers of America, Pittsburgh, Pennsylvania, with them
on the brief), for the appellees.
Before SEYMOUR, Chief Circuit Judge, LUCERO, Circuit Judge and
ELLISON *, Chief District Judge.


LUCERO, Circuit Judge.



      The primary issue presented by this case is whether the exhaustion

requirements and limitation periods of Title VII, 42 U.S.C. § 2000e-5(f)(1), and

the Colorado Antidiscrimination Act, Colo. Rev. Stat. § 24-34-306(11), (14),

apply to an action brought by an employee to enforce a conciliation agreement

resolving a prior employment discrimination claim. We must also resolve, as a

preliminary matter, whether this Court has subject matter jurisdiction under § 301

of the Labor Management Relations Act, 29 U.S.C. § 185. We conclude that we

have jurisdiction and, under the plain language of the statutes and consistent with

their purpose, the exhaustion and limitations periods do not apply.

                                          I

      In February 1989, Daniel Cisneros and ABC Rail Corporation (“ABC”)

entered into a conciliation agreement, resolving Cisneros’s discrimination claims

filed with the Colorado Civil Rights Division (“CCRD”).   1
                                                              The conciliation


      *
         Honorable James O. Ellison, United States District Judge, United States
District Court for the Northern District of Oklahoma, sitting by designation.
      1
          Within the CCRD is the Colorado Civil Rights Commission, which has
                                                                   (continued...)

                                         -2-
agreement, to which the CCRD was a signatory, provided that ABC would restore

to Cisneros, “for vacation and pension purposes, a continuous service date to May

29, 1984.” (Appellant’s App. at 6.) Several years later, Cisneros filed a

complaint with the CCRD and Equal Employment Opportunity Commission

(“EEOC”) alleging that ABC had failed to properly calculate his seniority under

the terms of the conciliation agreement and the applicable labor agreement when

it denied his request for a vacation day. Both the CCRD and EEOC issued

determinations that ABC had not violated the conciliation agreement. The

agencies also issued right-to-sue letters to Cisneros. Within ninety days of

receiving those letters, Cisneros filed suit against ABC in federal district court,

asserting breach of contract and Title VII claims. That suit was later dismissed

without prejudice for failure to prosecute.

      On March 31, 1999, Cisneros filed suit in the District Court for the County

of Pueblo, Colorado, based on the same allegations made in his complaints to the

CCRD and EEOC and his subsequent action in federal district court. He styled

the new lawsuit as alleging only state law claims for breach of contract and

declaratory relief. According to Cisneros, he named the union as a party because



      1
        (...continued)
direct responsibility for enforcement of the relevant provisions of the Colorado
Antidiscrimination Act. See Colo. Rev. Stat. §§ 24-34-303, -305. As used in this
opinion, the CCRD is synonymous with the Commission.

                                         -3-
he believed its rights under the labor agreement between the union and ABC

might be affected by the relief sought.   Asserting the federal district court would

have had original jurisdiction under § 301 of the Labor Management Relations

Act, 29 U.S.C. § 185, defendants removed the action pursuant to 28 U.S.C.

§§ 1331 and 1441 . Cisneros did not move to remand the action to state court.

The district court then granted ABC’s motion to dismiss the suit as untimely on

the ground that it was filed more than ninety days after the issuance of the right-

to-sue letters.

                                           II

       In accordance with our duty to satisfy ourselves of this Court’s jurisdiction

to adjudicate this case, see Tafoya v. United States Dep’t of Justice, 748 F.2d

1389, 1390 (10th Cir. 1984), we ordered the parties to submit supplemental

briefing on whether federal question jurisdiction is present under either § 301 of

the Labor Management Relations Act, 29 U.S.C. § 185, or Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(3). We conclude that

this action arises under § 301 and that we therefore have jurisdiction. Thus, we

do not address whether 42 U.S.C. § 2000e-5(f)(3) affords an alternative basis for

jurisdiction.

       A defendant may remove to federal court “any civil action brought in a

State court of which the district courts of the United States have original


                                          -4-
jurisdiction.” 28 U.S.C. § 1441(a). Because the parties are not diverse in their

citizenship, original jurisdiction is present in this case only if the suit is an

“action[] arising under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1331. Under the “well-pleaded complaint” rule, an action arises

under federal law “only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.

386, 392 (1987) (citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936)).

Thus, as “‘master of the claim,’” a plaintiff “may prevent removal by choosing

not to plead a federal claim even if one is available.” Schmeling v. NORDAM,

97 F.3d 1336, 1339 (10th Cir. 1996) (quoting Caterpillar, 482 U.S. at 392).

      “There does exist, however, an ‘independent corollary’ to the well-pleaded

complaint rule, known as the ‘complete pre-emption’ doctrine,” Caterpillar, 482

U.S. at 393 (quoting Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1, 22 (1983)), which provides that “if a federal cause of action

completely pre-empts a state cause of action any complaint that comes within the

scope of the federal cause of action necessarily ‘arises under’ federal law,”

Franchise Tax Board, 463 U.S. at 24. Section 301 of the Labor Management

Relations Act is just such a federal cause of action. See Caterpillar, 482 U.S. at

393-94. That section creates federal jurisdiction over “[s]uits for violations of

contracts between an employer and a labor organization representing employees


                                           -5-
in an industry affecting commerce.” 29 U.S.C. § 185(a). The Supreme Court has

further elaborated that “[s]ection 301 governs claims founded directly on rights

created by collective-bargaining agreements, and also claims ‘substantially

dependent on analysis of a collective-bargaining agreement.’” Caterpillar, 482

U.S. at 394 (quoting Electrical Workers v. Hechler, 481 U.S. 851, 859 n.3

(1987)) (further citation omitted). Therefore, § 301 preempts “questions relating

to what the parties to a labor agreement agreed, and what legal consequences

were intended to flow from breaches of that agreement, . . . whether such

questions arise in the context of a suit for breach of contract or in a suit alleging

liability in tort.” Saunders v. Amoco Pipeline Co., 927 F.2d 1154, 1155 (10th

Cir. 1991) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11

(1985)) (further citations omitted).

      In determining whether Cisneros’s claims in the instant action are

“founded directly on rights created by collective-bargaining agreements,” or are

“substantially dependent on analysis of a collective-bargaining agreement,”

Caterpillar, 482 U.S. at 394 (internal quotations and citation omitted), we first

look to his complaint. However, because “[p]laintiffs often attempt to avoid

federal jurisdiction under § 301 by framing their complaints in terms of state law

theories,” we may “look beyond the allegations of the complaint, often to the

petition for removal, to determine whether the wrong complained of arose from a


                                          -6-
breach of obligations under the collective bargaining agreement.” Albertson’s,

Inc. v. Carrigan, 982 F.2d 1478, 1480-81 (10th Cir. 1993) (citing Mock v. T.G.

& Y. Stores Co., 971 F.2d 522, 530 (10th Cir. 1992); United Ass’n of

Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus. v. Bechtel

Power Corp., 834 F.2d 884, 888 (10th Cir. 1987)).

      Cisneros’s complaint is just the sort referred to in Albertson’s, 982 F.2d at

1480—carefully crafted to conceal its ultimate reliance on a collective bargaining

agreement. On their face, the asserted state law claims for breach of contract and

declaratory relief are premised exclusively on an alleged violation of the

conciliation agreement. When the complaint is viewed in its entirety, however,

we cannot escape the conclusion that Cisneros’s claims for relief are ultimately

founded on an alleged breach of the labor agreement between the union and

ABC. He asserts that ABC breached the conciliation agreement by disregarding

the provision setting forth his continuous service date. Yet the context in which

ABC failed to comply with that provision was the denial of his request for

vacation, and from the complaint it appears the only source of Cisneros’s right to

be awarded vacation based on his continuous service date, i.e., seniority, is the

labor agreement.

      This conclusion follows from his claim for declaratory relief, which alleges

“Defendant through it [sic] actions in 1997 denied Plaintiff his rights granted


                                        -7-
under the Conciliation Agreement as defined in the applicable Labor Agreement,”

based on which plaintiff “prays for a declaration of his rights under the

Agreement relating to his vacation rights.” (Appellant’s App. at 3 (Complaint

¶¶ 23, 24) (emphasis added).) Although the final reference to “the Agreement”

obtusely avoids specifying whether it pertains to the conciliation agreement or

the labor agreement, we conclude that it refers to the latter. This must be so,

given that the conciliation agreement, which Cisneros attached to his complaint,

does not confer any vacation rights but rather defines his date of continuous

service for purposes of applying independent sources of such rights. The only

independent source of vacation rights evident from the complaint is the labor

agreement, which the complaint suggests required vacation requests to be

awarded based on seniority. 2 Indeed, in the final section of his complaint,

Cisneros also seeks a declaration “that his seniority under the Labor Agreement

be based [on a continuous service date of May 29, 1984].” (Appellant’s App. at

3 (Complaint ¶ 27(1)) (emphasis added).) This prayer for relief strongly


      2
         Only an irrelevant portion of the labor agreement concerning the
procedure for filling new positions based on seniority is attached to the
complaint. As a result, we are compelled to glean the relevant content of that
agreement from the face of the complaint. In addition to the labor agreement, the
complaint makes a passing reference to a “new vacation rule” instituted by
company management, (Appellant’s App. at 2 (Complaint ¶ 19)), but there is no
suggestion that that rule required vacation to be allotted based on seniority, and
thus there is no suggestion that the rule is the source of the rights on which
Cisneros’s claims rely.

                                        -8-
indicates Cisneros’s claim is at bottom an allegation that ABC failed to grant a

vacation request based on seniority as required by the labor agreement, with the

conciliation agreement implicated only to the extent that it defines his seniority.

      That conclusion is further bolstered by Cisneros’s claim for breach of

contract. That claim seeks “[c]ompensation for injuries sustained by Plaintiff as

a result of the denial of vacation requests in 1997 and after.” (Id. (Complaint

¶ 27(2)).) Again, no such injuries could result from a breach of the conciliation

agreement alone because that agreement does not establish a right to vacation or

a procedure for handling vacation requests. The only apparent source of those

rights is the labor agreement.

      Our reading of Cisneros’s complaint is also supported by the notice of

removal. That pleading asserts that Cisneros’s complaint in essence alleges a

denial of his rights under the labor agreement, a characterization Cisneros has

never challenged. Instead, in his supplemental brief, he continues to cloud,

rather than clarify, the nature of his claim: “[T]he instant case does not directly

allege an imminent claim for breach of a union contract. Appellant joined the

union in his complaint for declaratory relief and breach of contract as a necessary

party because his claim implicated the union’s rights or interests under the Labor

Agreement . . . .” (Appellant’s Supp. Br. at 1 (emphasis added).) Cisneros never




                                         -9-
indicates a source, other than the labor agreement, of his right to vacation based

on seniority.

      Because Cisneros’s claims are, in essence, claims arising out of the alleged

breach of a contract “between an employer and a labor organization representing

employees in an industry affecting commerce,” 29 U.S.C. § 185(a), Textron

Lycoming Reciprocating Engine Division, AVCO Corp. v. UAW, 523 U.S. 653

(1998), does not apply. In that case, the Supreme Court held that § 301 confers

federal jurisdiction over suits alleging a labor agreement has been violated but

does not confer jurisdiction over suits alleging a labor agreement is invalid. See

id. at 657; see also UFCW v. Albertson’s, Inc., 207 F.3d 1193, 1195-96 (10th

Cir. 2000). Although reference must be made to an outside document—the

conciliation agreement—in order to analyze fully ABC’s obligations under the

labor agreement, the inescapable conclusion is that Cisneros’s claims, properly

characterized, are “founded directly on rights created by [that] collective-

bargaining agreement[].” Caterpillar, 482 U.S. at 394. Therefore, this Court has

jurisdiction under § 301.

                                         III

      “We review de novo the district court’s determination that [p]laintiff’s

claims are barred by the statute of limitations.” Sterlin v. Biomune Sys., 154

F.3d 1191, 1194-95 (10th Cir. 1998) (citations omitted). At the outset, we note


                                        - 10 -
the district court and both parties apparently have assumed that the relevant

inquiry is whether Title VII, and in particular 42 U.S.C. § 2000e-5(f)(1)

(requiring that a civil action be brought within ninety days of receiving a right to

sue letter), applies to Cisneros’s civil action. It is unclear, however, whether the

relevant civil rights statute is Title VII or Part 4 of the Colorado

Antidiscrimination Act, Colo. Rev. Stat. § 24-34-401 to -406. Although the

conciliation agreement released ABC from all claims filed with the EEOC or

CCRD, thus suggesting a Title VII claim, the EEOC was not a party to that

agreement, and the present action does not purport to assert a Title VII claim.

This ambiguity is ultimately irrelevant, however, because we conclude that neither

the exhaustion requirements nor the limitation periods of Title VII, 42 U.S.C. §

2000e-5(f)(1), nor those of the Colorado Antidiscrimination Act, Colo. Rev. Stat.

§ 24-34-306(11), (14), apply to this action to enforce the terms of a labor

agreement as defined by reference to a conciliation agreement.     3




      3
          Both statutes provide that, on receiving a complaint, the agency shall
conduct an investigation to determine if there is cause to believe the allegations.
See 42 U.S.C. § 2000e-5(b); Colo. Rev. Stat. § 24-34-306(2)(a).     If reasonable
cause is found, the agency must first seek to resolve the complaint through
conference, conciliation, or persuasion. See 42 U.S.C. § 2000e-5(b); Colo. Rev.
Stat. § 24-34-306(2)(b)(II).    The complainant is permitted to bring a civil action
only after the agency fails to resolve the complaint within a prescribed time
period and issues a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1); Colo. Rev.
Stat. § 24-34-306(2)(b)(II)(B), -306(11).   After receiving the right-to-sue letter,
the complainant has ninety days within which to bring an action. See 42 U.S.C.
                                                                        (continued...)

                                         - 11 -
      Several federal appellate courts have addressed, with different results, the

applicability of the administrative procedures set forth in 42 U.S.C. § 2000e-5 to

an action to enforce a conciliation agreement resolving a Title VII claim and to

which the EEOC is a party. In    Parsons v. Yellow Freight Systems, Inc.   , 741 F.2d

871, 874 (6th Cir. 1984), the Sixth Circuit held that “we do not think that the

jurisdictional requirements recited above[, i.e., filing a timely complaint with the

EEOC and subsequently receiving and acting upon a right-to-sue letter,] can be

evaded by a suit designed to enforce a contract under state law where the contract

itself is a product of EEOC action and the EEOC is a signatory to the contract.”

Accord Blank v. Donovan , 780 F.2d 808, 809-10 (9th Cir. 1986). The Eleventh

Circuit took a contrary approach in   Eatmon v. Bristol Steel & Iron Works, Inc.   ,

769 F.2d 1503, 1510 n.8 (11th Cir. 1985), holding “there is no need for the filing

of timely charges [with the EEOC] with regard to the breach of a Title VII

conciliation agreement; such agreements can be enforced in federal court in the

absence of any charges.”    The Eatmon court’s conclusion followed from a line of



      3
       (...continued)
§ 2000e-5(f)(1); Colo. Rev. Stat. § 24-34-306(11). The administrative procedures
of the Colorado Antidiscrimination Act differ from those of Title VII in two
respects: they provide for an administrative hearing if conciliation efforts are
unsuccessful, Colo. Rev. Stat. § 24-34-306(4); and they permit a complainant to
bring a civil action if the CCRD’s jurisdiction terminates for certain defined
reasons other than issuance of a right-to-sue letter, Colo. Rev. Stat. § 24-34-
306(11). Neither of these distinctions is relevant to our analysis.

                                         - 12 -
cases holding “[t]he EEOC can go directly to court to enforce [conciliation]

agreements, as soon as it believes the agreement [sic] has been breached.”     Id. at

1508 (citing EEOC v. Safeway Stores, Inc. , 714 F.2d 567 (5th Cir. 1983);     EEOC

v. Liberty Trucking Co. , 695 F.2d 1038 (7th Cir. 1982)).

      Our reading of the language of Title VII, and consideration of the purpose

of the administrative procedure it establishes, lead us to agree with the Eleventh

Circuit’s result. Furthermore, the similar language and purpose of the Colorado

Antidiscrimination Act mandate the same result under that statute. Under the

plain language of Title VII, its relevant administrative procedures apply only to

civil actions involving “a charge filed with the Commission pursuant to

subsection (b),” 42 U.S.C. § 2000e-5(f)(1), which subsection refers to charges of

“unlawful employment practice[s],” 42 U.S.C. § 2000e-5(b).        Similarly, the

administrative procedures of the Colorado Antidiscrimination Act apply only to

civil actions “based on an alleged discriminatory or unfair practice” prohibited by

the statute. Colo. Rev. Stat. § 24-34-306(14);     see also Brooke v. Restaurant

Servs. Inc. , 906 P.2d 66, 70 (Colo. 1995) (holding that administrative exhaustion

is required for a claim alleging a violation of the Act, but not for a claim alleging

common law sex discrimination).      Cisneros alleges the denial of his vacation

request was based on a calculation of seniority that conflicted with the terms of

the conciliation agreement and labor agreement. His civil action, therefore, is not


                                          - 13 -
based on an alleged discriminatory act; it is based on the alleged breach of those

contracts. The contrary distinction—the employee’s action involved a

discrimination claim, not a breach of contract claim—informed the court’s

conclusion in Blanks that administrative exhaustion under Title VII was required.

780 F.2d at 809-10. Given the purely contractual nature of Cisneros’s claim,

administrative exhaustion under Title VII or the Colorado Antidiscrimination Act

is not required.

      Moreover, requiring Cisneros to adhere to the administrative procedures of

Title VII or the Colorado Antidiscrimination Act would do nothing to further the

goals of those procedures. It is well established that the primary purpose of Title

VII’s administrative procedure is to achieve voluntary resolution of employment

discrimination disputes.   See Alexander v. Gardner-Denver Co.      , 415 U.S. 36, 44

(1974) (finding that Congress selected cooperation and voluntary compliance as

the preferred means for eliminating discrimination in the workplace);     Woodman

v. Runyon , 132 F.3d 1330, 1342 (10th Cir. 1997) (“The twofold purpose of the

exhaustion requirement is to give notice of an alleged violation to the charged

party and to give the administrative agency an opportunity to conciliate the claim

in furtherance of Title VII’s goal of securing voluntary compliance.”    ). Although

neither the Colorado legislature nor the Colorado courts have delineated the

purposes of the administrative procedure of the Colorado Antidiscrimination Act,


                                          - 14 -
the similarity of form between the Act’s procedure and that of Title VII strongly

suggests a similar purpose. It is clear that that purpose would not be furthered by

requiring Cisneros to file a complaint with the CCRD or EEOC alleging a breach

of the conciliation agreement.   4
                                     The goal of voluntary compliance with Title VII

or the Colorado Antidiscrimination Act was met when Cisneros’s discrimination

claim was resolved by conciliation. What Cisneros now seeks is compliance with

that agreement, not with the anti-discrimination laws.

      We therefore conclude that Cisneros’s claim is not subject to Title VII or

the Colorado Antidiscrimination Act’s requirements that a complainant can bring

a civil action only after exhausting administrative procedures and within ninety-

days of receiving a right-to-sue letter. We express no view as to the proper

statute of limitations for Cisneros’s action, nor as to whether he has satisfied that

or any other applicable procedural prerequisite.

                                              IV

      The judgment of the district court is        REVERSED , and this case is

REMANDED for further proceedings consistent with this opinion.




      4
         Actually, Cisneros did file such a claim with the CCRD and EEOC. At
issue here is whether those filings were mandatory or discretionary.

                                            - 15 -