Garley v. Sandia Corp.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 3 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ELOY GARLEY,

Plaintiff-Appellant,
v.
No. 99-2255
SANDIA CORPORATION d/b/a
SANDIA LABORATORIES,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-98-1127 JC/RLP)

Michael D. Armstrong, Albuquerque, New Mexico for Appellant.

Robert P. Tinnin, Jr. (Ryan M. Randall with him on the brief), Hinkle, Cox, Eaton,
Coffield & Hensley, LLP, Albuquerque, New Mexico for Appellee.

Before TACHA, HOLLOWAY and BALDOCK, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff/Appellant Eloy Garley brought this action against Sandia Corporation

(Sandia) in New Mexico State District Court on August 17, 1998 alleging six state law

causes of action arising out of his employment at Sandia. Garley alleged: (1) breach of
implied contract; (2) breach of the duty of good faith and fair dealing; (3) retaliation; (4)

civil conspiracy; (5) defamation; and (6) intentional infliction of emotional distress.

Sandia removed the complaint to the United States District Court for the District of New

Mexico on September 14, 1998.

Sandia then moved to dismiss Garley’s suit on the ground that it failed to state a

claim on which relief may be granted. Garley moved to remand the case back to state

court. The judge denied Garley’s motion to remand and conditionally granted Sandia’s

motion to dismiss on the ground that Garley’s state law claims were preempted by § 301

of the Labor Management Relations Act (“LMRA”). The court granted Garley thirty days

in which to amend his complaint to state § 301 claims. When Garley failed to amend his

complaint accordingly, the court, sua sponte, unconditionally granted Sandia’s motion to

dismiss. On appeal, Garley claims error in: (1) the district court’s failure to grant his

motion to remand the case to state court; and (2) it’s decision to grant Sandia’s motion to

dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291.

I

A

FACTUAL BACKGROUND

Garley is a mechanic with Sandia and serves as a union steward for the Atomic

Projects and Production Workers Metal Trades Council, AFL-CIO (“Union”). The Union

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has a collective bargaining agreement (“CBA”) with Sandia. In 1996, after an

investigation into possible timecard fraud by Garley, Sandia terminated Garley’s

employment. Following procedures set forth in the CBA, the Union, acting on Garley’s

behalf, processed a grievance through arbitration.

On March 27, 1998, after arbitration hearings in October and December 1997, the

arbitrator found that Sandia had failed to carry its burden of establishing just cause to

support Garley’s termination, and directed that Garley be reinstated with full back pay,

benefits, and unbroken seniority. On April 7, 1998, Sandia complied with the order and

reinstated Garley. On August 14, 1998, Garley filed a complaint in New Mexico state

court stating state law claims arising from allegations that several members of Sandia’s

management conspired to levy against him false accusations of timecard fraud. Garley’s

version of the events leading to his termination, as alleged in his amended complaint,

follows.

Garley alleged that as a union steward he was permitted under Articles 6 and 9 of

the CBA to leave his post to attend to Union business. Complying with the procedural

requirements of those articles, Garley averred that he would fill out a form 9614

documenting the times during which he attended to Union business, and that he would

also customarily have his supervisor sign the form. Garley alleged that despite complying

with these procedures, on April 19, 1996 he was confronted by his immediate supervisor,

Mr. Rose, who demanded to know where he was going, and Garley says he responded he

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was leaving to attend to Union business.

Garley alleged in his First Amended Complaint that Mr. Rose, who had a

“personal axe to grind and a racist aversion toward plaintiff,” initiated an investigation

into timecard fraud, and that Mr. Rose related his “unsubstantiated allegations” to Mr.

Fraser, the manager of Sandia’s Employee and Labor Relations. Mr. Fraser and Mr. Harty

(another Sandia management official) then advised Mr. Rose to contact Mr. O’Neill,

Sandia’s in-house investigator, to conduct surveillance of Garley to catch him committing

timecard fraud, and that as a result Mr. O’Neill did conduct surveillance of Garley,

including following his vehicle on three occasions. App. at 54. Garley alleges that after

this surveillance, Mr. Rose ordered him to attend an “interview” where Mr. O’Neill

confronted him with dates and times of the surveillance. Id. at 54-55. Garley alleged that

during this “interview” he was neither asked to explain his activities nor informed of the

allegations against him. Id. at 55.

Garley alleges that Mr. Rose reported the results of O’Neill’s surveillance to two

members of the Disciplinary Review Committee, id. at 56, and that Mr. Rose explained

that the reason there was no written statement by Garley was because Garley had refused

to provide one. Id. at 56. Garley asserts, however, that during the seven month

investigation he was never asked to give an explanation of his activities, either verbally or

in writing. Id. Garley alleges that the Disciplinary Review Committee on receiving the

report that he committed timecard fraud (which amounted to three and one-half hours,

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totaling $80.00), terminated his employment, effective December 16, 1996. Id.

The Union commenced grievance proceedings on Garley’s behalf which were

inconclusive, and the parties agreed to binding arbitration. Id. at 48. Hearings were held

on October 13 and 14 and on December 1, 1997. The proceedings were terminated on

January 30, 1998, and on March 27, 1998 the arbitrator found the charge of timecard

fraud lacked sufficient proof. Id. at 49. The arbitrator ordered Sandia to reinstate Garley

to his job with full back pay, benefits, and unbroken seniority. Sandia reinstated Garley

on April 7, 1998. Id. at 49.

B

PROCEDURAL BACKGROUND

As noted, Garley filed suit in New Mexico state court in August 1998, alleging six

state law claims: (1) breach of implied contract; (2) breach of the duty of good faith and

fair dealing; (3) retaliation; (4) civil conspiracy; (5) defamation; and (6) intentional

infliction of emotional distress. On September 14, 1998, Sandia filed a notice of removal

in the United States District Court for the District of New Mexico on the ground that

Garley’s suit could have been commenced as an original action in federal court under 28

U.S.C. § 1331 because, according to Sandia, the state law claims were preempted by

federal law under § 301 of the LMRA.1 Consequently, the case was removable to federal

1
Section 301 of the LMRA states in pertinent part:
Suits for violation of contracts between an employer and a labor organization

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court under 28 U.S.C. § 1441.

After the removal Sandia filed a motion to dismiss for failure to state a claim

upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). Sandia argued: (1)

Garley’s state law claims were preempted by § 301 of the LMRA; and (2) Garley failed to

state a cause of action under state law. Sandia argued that four of Garley’s state law

claims (civil conspiracy, defamation, breach of contract, and intentional infliction of

emotional distress) were preempted by § 301 and should be dismissed because they were

based on Sandia’s investigation and termination of Garley. Consequently, they depend

“wholly upon an interpretation of what investigatory and disciplinary actions Defendant

was authorized to take under the CBA . . .” App. at 78. Sandia further argued that

Garley’s two remaining state law claims (retaliation and breach of the duty of good faith

and fair dealing) were preempted by § 301 because they require review of the arbitrator’s

award and the terms of the collective bargaining agreement. See id. at 80.

The same day Sandia filed its motion to dismiss, Garley filed his First Amended

Complaint. Garley states that at the time of filing his amended complaint on September

18, 1998, there had been no filing by Sandia except its notice of removal in connection

representing employees in an industry affecting commerce as defined in this
chapter, or between any 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).

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with Sandia’s preemption argument. From the amended complaint Garley excised all

references to the CBA, thereby attempting to show that his complaint was not based on

the collective bargaining agreement and was not preempted by § 301.

The First Amended Complaint restated Garley’s six state law claims. First, he

alleged that the activities of four of Sandia’s representatives (Rose, O’Neill, Fraser, and

Harty) constituted a civil conspiracy to deprive him of his employment, income, benefits,

and to impugn his reputation.2 App. at 53. More specifically, Garley based his civil

conspiracy claim on Rose’s timecard fraud investigation; his conveyance of

“unsubstantiated allegations” to Fraser and the subsequent surveillance; and the conduct

of the “interview,” where O’Neill confronted Garley with dates and times when he had

conducted surveillance against him and where Garley alleged that he was neither asked to

explain his activities nor informed of the allegations against him. Id. at 55. In addition,

Garley alleged that when Fraser became manager of Sandia’s Employee and Labor

Relations, he altered the composition of the Disciplinary Review Committee (the entity

which rules on disciplinary actions against employees who violate Sandia’s Code of

Ethics), so that a Union representative was no longer included on the Committee. Garley

2
Under New Mexico law, the elements of a cause of action for civil conspiracy are: (1)
the existence of a conspiracy; (2) a wrongful act or acts done pursuant to that conspiracy; and (3)
damages resulting from that act or acts. Reeves v. Wimberly, 107 N.M. 231, 235, 755 P.2d 75,
79 (N.M. Ct.App. 1988) (citing Las Luminarias of the New Mexico Council of the Blind v.
Isengard, 92 N.M. 287, 587 P.2d 444 (N.M. Ct.App. 1978)). The New Mexico Supreme Court
has ruled, however, that “[c]ivil conspiracy is not of itself actionable; the gist of the action is the
damage arising from the act(s) done pursuant to the conspiracy.” Reeves, 107 N.M. at 235, 755
P.2d at 79.

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also alleged that Fraser changed the Committee’s procedures so that notice of meetings

was no longer given to employees or their union. Garley maintained that this “civil

conspiracy” resulted in the Committee’s wrongful determination that he had committed

timecard fraud, leading to his termination on December 16, 1996, a determination later

overturned by the grievance arbitrator but which nonetheless deprived him of his

livelihood and tarnished his reputation.

Second, Garley alleged breach of implied contract. In support of this claim,

Garley maintained that Sandia’s published personnel policies and procedures found in its

Code of Ethics, Personnel Policies, and Director’s Memo, formed an express and implied

contract which had been breached by Sandia in that it failed to follow the criteria stated

for progressive disciplinary policy because, without clear and documented evidence

supporting the allegations against him, Sandia authorized an investigation that was

neither fair nor thorough.

Third, Garley alleged a claim of retaliation based on the fact that although the

arbitrator ruled that Garley was entitled to immediate reinstatement and other relief,

Sandia had stripped him of his Q-clearance without which any opportunities for

promotion and career advancement were almost nil and that Sandia retaliated by refusing

to reimburse his back pay, retirement funds, and by refusing to reinstate him to his

previous work station.

Fourth, Garley alleged breach of the duty of good faith and fair dealing by

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violating the public policy expressed by the New Mexico Unfair Practices Act. See

N.M. Stat. Ann., § 57-12-3 (1978) (“Unfair or deceptive trade practices and

unconscionable trade practices in the conduct of any trade or commerce are unlawful.”).

On this claim Garley further averred that Sandia did not comply with all the terms of the

award in that although reinstated, he was not given his former work station, his 401K

benefits were not fully restored, he was not reinstated with full seniority, and he was

stripped of his Q-clearance.

Fifth, Garley alleged a claim of defamation based on being summarily fired for a

trumped up alleged offense which had no basis in documented facts. Garley emphasizes

that he was an employee with a nineteen and one-half year record of unblemished service

and no disciplinary action, and Sandia’s actions branded him a thief.

Sixth, Garley alleged that Sandia committed the tort of intentional infliction of

emotional distress because it knew or should have known that the actions of Rose,

Fraser, O’Neill, and Harty were maliciously motivated and designed to punish and

humiliate Garley and would cause him emotional harm.

C

THE DISTRICT COURT RULING

On September 30, 1998, Sandia moved to dismiss Garley’s First Amended

Complaint on the same grounds it asserted in its original motion – that the claims were

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preempted by § 301. On November 3, 1998, Garley filed a motion to remand the case

back to New Mexico state court. On February 4, 1999, the district judge issued an

unpublished Memorandum Opinion and Order which denied Garley’s motion to remand

and conditionally granted Sandia’s motion to dismiss. The judge noted that the civil

conspiracy, defamation, breach of implied contract, and intentional infliction of emotional

distress claims all revolve around the manner in which Sandia conducted its investigation

of suspected employee misconduct and the way in which Garley was terminated. The

judge cited the articles of the CBA governing management of the business, treatment of

employees performing council duties, etc. and found that an analysis of whether Sandia

acted properly would inevitably require an analysis of the CBA and what it permitted.

This reasoning supported the position that there was § 301 preemption.

The judge likewise held that Garley’s retaliation and breach of the duty of good

faith and fair dealing claims were preempted by § 301 since one of the “key

determinants” for resolving these claims would be whether reinstatement as defined by

the CBA included reinstatement to the same work station and with the same security

clearance. The judge also denied Garley’s motion to remand, and ruled that Sandia’s

motion to dismiss would be granted unless Garley filed an amended complaint within

thirty days that stated claims under § 301 of the LMRA.

Rather than amending his complaint Garley filed a notice of appeal to this court on

March 2, 1999. On July 2, 1999, however, we dismissed that appeal for lack of

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jurisdiction because the district judge’s conditional dismissal was not a final decision

from which Garley could appeal. When Garley did not amend his complaint to state a §

301 claim, the judge sua sponte issued a final order on July 19, 1999 granting Sandia’s

motion to dismiss. Garley now appeals this final judgment and argues that the district

court erred both in granting Sandia’s motion to dismiss and in denying his motion to

remand the case to the New Mexico state court.

III

A

The district court granted Sandia’s motion to dismiss for failure to state a claim

upon which relief can be granted. We review that decision de novo. Brever v. Rockwell

Int’l Corp., 40 F.3d 1119, 1125 (10th Cir. 1994) (“[T]he sufficiency of a complaint is a

question of law which we review de novo.”) (quoting Ayala v. Joy Mfg. Co., 877 F.2d

846, 847 (10th Cir. 1989)); Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d

1111, 1115 (10th Cir. 1991) (“We review de novo a district court's dismissal of a

complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief

could be granted.”). Whether state law is preempted by federal law is a conclusion of law

which we also review de novo. Panhandle E. Pipeline Co. v. Oklahoma ex rel. Comm’rs

of Land Office, 83 F.3d 1219, 1225 (10th Cir. 1996). We review a denial of a motion to

remand a claim for lack of removal jurisdiction de novo. Audette v. International

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Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1111 (9th Cir. 1999).

B

Congress has granted the federal courts removal jurisdiction to hear claims initially

brought in state court if the federal district court could have exercised original

jurisdiction. 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court of which the district courts of the

United States have original jurisdiction, may be removed by the defendant or the

defendants, to the district court of the United States for the district and division

embracing the place where such action is pending.”). As the Supreme Court noted in

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987), “[o]nly state-court actions that

originally could have been filed in federal court may be removed to federal court by the

defendant.” Here, we must determine whether Garley’s original complaint, although

stating state law claims, could have been founded in federal court under federal question

jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or treaties of the United States.”).

Generally, the “well-pleaded complaint” rule requires that the federal question

appear on the face of the plaintiff’s properly pleaded complaint. Williams, 482 U.S. at

392 (“The presence or absence of federal-question jurisdiction is governed by the

‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a

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federal question is presented on the face of the plaintiff's properly pleaded complaint.”).

In other words, the plaintiff is considered to be the “master of the claim” since “he or she

may avoid federal jurisdiction by exclusive reliance on state law.” Id. Consequently,

cases originally brought in state court may not be removed to federal court even if a

federal defense is anticipated in the plaintiff’s complaint, and “even if both parties

concede that the federal defense is the only question truly at issue.” Id. at 393.

The rule that the federal question must appear on the face of the plaintiff’s

complaint is subject to an important exception, however. Under the “complete

preemption doctrine,” federal courts may exercise federal question jurisdiction over

complaints that, although not presenting federal questions on their face, nonetheless

present state law claims that are preempted by federal law. As the Supreme Court noted

in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987), a “corollary of the

well-pleaded complaint rule . . . is that Congress may so completely pre-empt a particular

area that any civil complaint raising this select group of claims is necessarily federal in

character.” Thus, once “an area of state law has been completely pre-empted, any claim

purportedly based on that pre-empted state law is considered, from its inception, a federal

claim, and therefore arises under federal law.” Williams, 482 U.S. at 393; see also

Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for Southern

California, 463 U.S. 1, 24 (1983) (“[I]f a federal cause of action completely preempts a

state cause of action any complaint that comes within the scope of the federal cause of

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action necessarily ‘arises under’ federal law.”).

Here, Garley appeals the district court’s grant of Sandia’s motion to dismiss on the

ground that Garley’s state law claims have been preempted by § 301 of the LMRA. To be

sure, the “complete pre-emption doctrine to the well-pleaded complaint rule is applied

primarily in cases raising claims pre-empted by § 301 of the LMRA.” Williams, 482 U.S.

at 393. This arises from the fact that § 301 “expresses a federal policy that the

substantive law to apply in § 301 cases ‘is federal law, which the courts must fashion

from the policy of our national labor laws.’” Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 209 (1985) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957)). In

other words, § 301 establishes a “congressional mandate to the federal courts to fashion a

body of federal common law to be used to address disputes arising out of labor contracts.”

Allis-Chalmers, 471 U.S. at 209. Consequently, in Teamsters v. Lucas Flour Co., 369

U.S. 103 (1962), the Court held that § 301 may preempt state law, ruling that “in enacting

§ 301 Congress intended doctrines of federal labor law uniformly to prevail over

inconsistent local rules.” As the Court subsequently explained in Allis-Chalmers, 471

U.S. at 210, Lucas Flour.

held that a suit in state court alleging a violation of a provision of a labor
contract must be brought under § 301 and be resolved by reference to
federal law. A state rule that purports to define the meaning or scope of a
term in a contract suit therefore is preempted by federal labor law.

However, the Supreme Court has made clear that the preemptive effect of § 301 is

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not limited to state suits alleging violations of labor contracts; rather, the “interests in

interpretive uniformity and predictability that require that labor-contract disputes be

resolved by reference to federal law also require that the meaning given a contract phrase

or term be subject to uniform federal interpretation.” Id. at 211. Consequently,

“questions relating to what the parties to a labor agreement agreed, and what legal

consequences were intended to flow from breaches of that agreement, must be resolved

by reference to uniform federal law, whether such questions arise in the context of a suit

for breach of contract or in a suit alleging liability in tort.” Id. (emphasis added).

Nevertheless, the Supreme Court has also made it clear that “not every dispute

concerning employment, or tangentially involving a provision of a collective-bargaining

agreement, is pre-empted by § 301 or other provisions of the federal labor law.” Id.

Consequently, § 301 does not preempt “state rules that proscribe conduct, or establish

rights and obligations, independent of a labor contract.” Id. at 212 (emphasis added).

The test articulated by the Supreme Court in Allis-Chalmers for determining whether a

state law claim is not independent and thus is preempted by § 301 is “whether evaluation

of the tort claim is inextricably intertwined with consideration of the terms of the labor

contract.” Id. at 213 (emphasis added). In other words, “[i]f the state tort law purports to

define the meaning of the contract relationship, that law is pre-empted.” Id. (emphasis

added);

In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 401 (1988), the

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Supreme Court elaborated on the Allis-Chalmers test for determining whether a state law

claim is preempted by § 301. Lingle presented the question of whether “an employee

covered by a collective bargaining agreement that provides her with a contractual remedy

for discharge without just cause may enforce her state-law remedy for retaliatory

discharge.” The Court held that in this case application of the state tort remedy was not

preempted by § 301 of the LMRA. Id. Looking to the elements of the state tort action,

the Court noted that “to show retaliatory discharge, the plaintiff must set forth sufficient

facts from which it can be inferred that (1) he was discharged or threatened with

discharge and (2) the employer’s motive in discharging or threatening to discharge him

was to deter him from exercising his rights under the Act or to interfere with his exercise

of those rights.” Id. at 407 (quoting Horton v. Miller Chemical Co., 776 F.2d 1351, 1356

(7th Cir. 1985)). The Court thus concluded that proving this tort did not require

examining the substance of the collective bargaining agreement because

[e]ach of these purely factual questions pertains to the conduct of the
employee and the conduct and motivation of the employer. Neither of the
elements requires a court to interpret any term of a collective-bargaining
agreement. To defend against a retaliatory discharge claim, an employer
must show that it had a nonretaliatory reason for the discharge; this purely
factual inquiry likewise does not turn on the meaning of any provision of a
collective-bargaining agreement. Thus, the state-law remedy in this case is
“independent” of the collective-bargaining agreement in the sense of
“independent” that matters for § 301 pre-emption purposes: resolution of
the state-law claim does not require construing the collective-bargaining
agreement.

Id. at 407 (internal citations and footnote omitted).

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 The Court went on to rule that even though the factual inquiry involved in

resolving the state law claim and construing the CBA could overlap, that does not

mandate preemption of the state tort action:

We agree with the [lower] court’s explanation that the state-law analysis
might well involve attention to the same factual considerations as the
contractual determinations of whether [the plaintiff] was fired for just
cause. But we disagree with the court’s conclusion that such parallelism
renders the state-law analysis dependent upon the contractual analysis. . . .
[Section] 301 pre-emption merely ensures that federal law will be the basis
for interpreting collective-bargaining agreements, and says nothing about
the substantive rights a State may provide to workers when adjudication of
those rights does not depend upon the interpretation of such agreements. In
other words, even if dispute resolution pursuant to a collective-bargaining
agreement, on the one hand, and state law, on the other, would require
addressing precisely the same set of facts, 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.

Id. at 409-410 (footnotes omitted) (emphasis added).

With this in mind, we turn now to examine each of Garley’s state law claims to

determine whether their resolution requires a court to interpret the collective bargaining

agreement.

C

Sandia first argues that four of Garley’s claims, those for civil conspiracy,

defamation, breach of contract, and intentional infliction of emotional distress, are

preempted by § 301 because they are based on the investigation and termination of Garley

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and therefore require interpretation of the CBA. Sandia relies principally on two cases

from our precedent to support this proposition – Mock v. T.G. & Y. Stores, Co., 971 F.2d

522 (10th Cir. 1992), and Johnson v. Beatrice Foods Co., 921 F.2d 1015 (10th Cir. 1990).

In Johnson, 921 F.2d at 1015, we considered whether an employee’s state law

claim for intentional infliction of emotion distress against his former employer was

preempted by § 301. Holding that it was preempted, we noted that the plaintiff’s claim

“directly relates to either explicit or implied rights derived from the CBA,” and that his

complaint “pertains to the manner in which discipline was carried out.” Moreover, we

found that the plaintiff “could have used the CBA grievance procedure for any of the

allegations in his complaint since all the allegations involved either a suspension,

discharge, or work-related dispute.” Id. at 1020. Finally, we took note of the fact that

under applicable state law standards for intentional infliction of emotional distress, it

could not be determined whether the defendant’s conduct was sufficiently outrageous

without determining whether the conduct was allowed under the CBA. Id. at 1020-21.

Distinguishing the Supreme Court’s opinion in Lingle which held that a state tort claim

for retaliatory discharge was not preempted, we emphasized the fact that the state law at

issue in Lingle:

create[d] an independent state cause of action because it create[d] an
independent method of review. The facts alleged by the employee in Lingle
fit specifically into the Act’s prohibition of firing an employee for
exercising rights under the Act. Such a statute is not pre-empted by § 301
even though the CBA grievance procedure would review the same facts
under a more general claim of unjust discharge. In contrast, Oklahoma’s

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 tort for intentional infliction of emotional distress does not create an
independent method of measuring when an employer’s work-related
conduct is outrageous.

Id. at 1021.

In Mock, we followed Johnson in considering whether § 301 preempted state law

claims brought in federal court by unionized employees against their employer arising

from the employer’s investigation of suspected employee theft and substance abuse. We

held that the plaintiffs’ state law claims, which included, inter alia, intentional infliction

of emotional distress, defamation, and breach of an implied covenant of good faith and

fair dealing, were preempted by § 301, because

[p]laintiffs’ claims all arose out of the manner in which [the defendant]
conducted its investigation of suspected employee misconduct, and the way
in which it terminated certain employees. Under the CBA, [the defendant]
could conduct such an investigation of suspected employee misconduct, and
could terminate any employee for “just cause.” An analysis of whether [the
defendant] acted properly or not will inevitably require an analysis of what
the CBA permitted.

Id. at 530.

Sandia argues that here, as in Johnson and Mock, resolving Garley’s claims for

civil conspiracy, defamation, breach of contract, and intentional infliction of emotional

distress all depend upon interpreting what investigatory and disciplinary actions Sandia

was authorized or required to take under the CBA and therefore are preempted by § 301.

Appellee’s Brief at 12. We agree, but only insofar as this analysis applies to Garley’s

claims of breach of implied contract and defamation. As explained below, we disagree

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with regard to the conspiracy claim and conclude that that claim is not preempted.

Concerning the intentional infliction of emotional distress claim, we conclude that

Garley’s claim is partially preempted.

We turn first to the breach of implied contract claim. We conclude it is preempted

by § 301. To the extent that the claim is based on an alleged breach of the CBA, the

claim is clearly preempted. Mock, 971 F.2d at 529; Johnson, 921 F.2d at 1018-19.

Garley, however, contends that his claim is not founded on the CBA but rather is based

exclusively on implied contracts created by Sandia’s Personnel Policy, Code of Ethics,

and Director’s Memo. Consequently, Garley argues that the CBA is irrelevant to his

claim and that his First Amended Complaint deleted all references to it. Thus, Garley

contends that a court has no need to interpret the CBA.

We disagree. To be sure, the Supreme Court has ruled that “a plaintiff covered by

a collective-bargaining agreement is permitted to assert legal rights independent of that

agreement, including state-law contract rights, so long as the contract relied upon is not a

collective-bargaining agreement.” Williams, 482 U.S. at 396. However, we do not

believe this to be the case here. Despite Garley’s emphatic protestations to the contrary,

we are persuaded that the documents he cites were intended to be read in harmony with

the CBA.3 Sandia’s Personnel Policy, under the heading “Disciplinary Action,”

Although we have been provided only selected excerpts of these documents we
3

nonetheless believe that the materials in our possession are adequate for us to arrive at this
determination.

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specifically refers the reader to a separate section (not included in this record) for rules

governing the discipline of represented employees. See Appendix at 168 (“See Section

6.7 for cases involving represented employees.”). Likewise, the Director’s Memo also

indirectly references the CBA by stating that when formal actions become necessary

because of poor performance, “managers should invite the employee to obtain union

representation if the employee is represented.” Id. at 173 (emphasis added). These

provisions lead us to conclude that the documents upon which Garley relies are

“inextricably intertwined with consideration of the terms of the labor contract.” Allis-

Chalmers, 471 U.S. at 213. Consequently, they are preempted by § 301. See Cisneros v.

ABC Rail Corp., 217 F.3d 1299, 1303 (10th Cir. 2000); Aguilera v. Pirelli Armstrong

Tire Corp., 223 F.3d 1010, 1014-1016 (9th Cir. 2000); Audette v. International

Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1112 (9th Cir. 1999);

Beidleman v. The Stroh Brewery Co., 182 F.3d 225, 229-31 (3d Cir. 1999); Henderson v.

Merck & Co., Inc., 998 F. Supp. 532 (E.D.Pa. 1998).

Regarding Garley’s defamation claim, we also conclude that it is preempted by §

301. As we ruled in Mock, when confronted with a § 301 preemption challenge to a state

defamation action, “federal courts look beyond the allegations of the complaint . . . to

determine whether the wrong complained of actually arises in some manner from the

breach of the defendants’ obligations under a collective bargaining agreement.” Mock,

971 F.2d at 530 (quoting United Assoc. of Journeymen & Apprentices of the Plumbing &

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Pipefitting Industry v. Bechtel Power Corp., 834 F.2d 887-88 (10th Cir. 1987), cert.

denied, 486 U.S. 1055 (1988)). Here, Garley bases his defamation claim on the theory

that his termination for timecard fraud publically branded him as dishonest. We believe

that this is preempted by § 301. In Mock, after noting that the plaintiff’s defamation

claim arose out of “the manner” in which the defendant “conducted its investigation of

suspected employee misconduct, and the way in which it terminated certain employees,”

we held that determining whether the defendant “acted properly or not will inevitably

require an analysis of what the CBA permitted.” Id. at 530. Likewise, here, in order to

determine whether Garley was defamed by Sandia’s actions, the court would inevitably

have to examine Sandia’s rights and obligations under the CBA to decide whether

Sandia’s actions were authorized; § 301, however, preempts state causes of action from

permitting this sort of inquiry. Consequently, we hold the defamation claim to be

preempted.

Turning next to the civil conspiracy claim, we hold that the district court erred in

finding it preempted by § 301. Sandia’s contention that Johnson and Mock control our

decision regarding this claim fails to take account of our subsequent opinion in

Albertson’s, Inc. v. Carrigan, 982 F.2d 1478 (10th Cir. 1993), which in distinguishing and

limiting both cases held that a claim for civil conspiracy was not preempted. In

Albertson’s, a union employee covered by a collective bargaining agreement filed a claim

in Colorado state court alleging that her employer “unlawfully suspended [her] from

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employment and conspired to accuse her falsely of shoplifting from her employer.” Id. at

1479.4 The defendants then sought to remove the action to federal court on the ground

that § 301 of the LMRA preempted her state law claims, and moved to dismiss, which the

court treated as a motion for summary judgment. Id. Although the district court

dismissed the suspension claim on preemption grounds, it nonetheless ruled that “the

conspiracy claim was not preempted because it did not require interpretation of the

collective bargaining agreement.” Id. (emphasis added). Thus, the district court

remanded the conspiracy claim back to state court. Id. The defendants then sought review

of the remand by a petition for a writ of mandamus, arguing that the plaintiff’s claim was

completely preempted and thus should have been dismissed without remand to the state

court.

In determining whether the alleged conspiracy arose from a breach of obligations

under the collective bargaining agreement, we distinguished our holding in Johnson by

noting that there “the acts that formed the basis of the outrageous conduct claim were

alleged acts of harassment on the job by Johnson’s supervisor, many of which were in the

form of grievances filed against Johnson invoking procedures set out in the CBA.” Id. at

1482. We also explained that in Johnson “it could not be determined whether the conduct

The original complaint stated a single cause of action for “extreme and outrageous
4

conduct,” inflicting upon the plaintiff “severe emotional distress.” The district court, however,
construed this as actually consisting of two distinct claims: “one based on suspension and one
based on conspiracy to charge [plaintiff] with shoplifting.” Albertson’s, 982 F.2d at 1479.

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was outrageous without determining whether the conduct was allowed under the CBA.”

Id. (internal quotations omitted). Our Albertson’s opinion then distinguished Mock by

noting that since in that case “‘all of the state law claims ‘arose out of conduct alleged to

have occurred during the course of an investigation by [the employer], and would

‘inevitably require an analysis of what the CBA permitted,’” preemption was required.

That, however, was not the case in Albertson’s. Thus, Albertson’s held that:

In the case before us, there is no doubt that many, if not all, of the same
factual issues and disputes will have to be resolved in arbitrating the
discharge under the CBA as in determining the conspiracy or outrageous
conduct claim. But, it is also true that if plaintiffs can show defendants
conspired to have Mrs. Aguirre arrested by fabricating her theft of groceries
from her employer, proving their outrageous conduct need not require
interpretation of or reference to the CBA.

Id. at 1482.

We based this conclusion on the fact that if we

were to hold § 301 preempts plaintiff’s state law claim that defendants
conspired to set her up for arrest and imprisonment just because the same
factual disputes would be present in arbitration under the CBA, it would
seem to be virtually impossible for a plaintiff to set out a state claim when
the complaint also states a federal § 301 claim or a grievance procedure is
commenced under the CBA. We cannot reconcile such a conclusion with
Lingle.

Id. at 1482-83.

In the instant case, as in Albertson’s, the plaintiff’s civil conspiracy claim is

predicated on an allegation that management sought to frame the plaintiff for misconduct.

Likewise here, as in Albertson’s, though addressing the conspiracy claim would involve

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many of the same factual inquiries as assessing the plaintiff’s discharge under the CBA,

because the focus of the claim is on the defendant’s alleged conspiring against the

plaintiff (an inquiry analytically distinct from whether its actions were permitted by the

CBA), we conclude that it is not preempted by § 301. Lingle, 486 U.S. at 409-410

(holding that even if construing the CBA and the state law “require addressing precisely

the same set of facts, 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”).

Regarding Garley’s claims for breach of the duty of good faith and fair dealing,

and for retaliation, Sandia argues that they are preempted by § 301 because resolving

those claims would require review of the arbitrator’s award and thus the terms of the

CBA. We turn first to the claim of breach of the duty of good faith and fair dealing.

That claim is easily disposed of for Garley bases this claim on allegations that Sandia did

not fully implement the arbitrator’s order that he be reinstated with full back pay,

seniority, and benefits. Consequently, this issue can only be resolved by construing the

arbitrator’s ruling. Since that ruling was made pursuant to the CBA, it is preempted by §

301 as “inextricably intertwined with consideration of the terms of the labor contract.”

Allis-Chalmers, 471 U.S. at 213.

Turning to the retaliation claim, in examining whether that claim is preempted, we

must draw an important distinction between Sandia’s contractual rights to take the actions

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it did and the motivations behind them. As we explained in Jarvis v. Nobel/Sysco Food

Services Co., 985 F.2d 1419, 1427 (10th Cir. 1993), in holding that a retaliatory discharge

claim was not preempted, “[s]o long as the state law cause of action is concerned not with

the employer’s contractual rights to discharge the employee, but rather with its motives in

exercising that right, the CBA is not relevant and preemption does not apply.” The

Supreme Court itself recognized in Lingle that litigating a state law retaliatory discharge

claim presents purely factual questions pertaining to the “conduct of the employee and the

conduct and motivation of the employer,” and that neither required “a court to interpret

any term of a collective-bargaining agreement.” Lingle, 486 U.S. at 407.

Consequently, “[e]ven if the employee violated the employer's rules, giving the

employer ‘just cause’ to discharge him, the question is whether the employer's motivation

for the discharge was the rule violation or retaliation for an activity protected by the

retaliatory discharge law.” Davies v. American Airlines, Inc., 971 F.2d 463, 466 (10th

Cir. 1992) (citing Marshall v. TRW, Inc., Reda Pump Division, 900 F.2d 1517 (10th Cir.

1990)) (applying LMRA preemption analysis to hold that the Railway Labor Act does not

preempt state law tort for retaliatory discharge); Cramer v. Consolidated Freightways,

Inc., 209 F.3d 1122, 1135 (9th Cir. 2000) (holding that retaliatory discharge claim is not

preempted where it rests on the defendant’s motivations for firing the plaintiff); Owen v.

Carpenters’ District Council, 161 F.3d 767, 776 (4th Cir. 1998) (holding a state law claim

for retaliatory discharge not preempted where the claim “primarily concerns the conduct

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of the employee and the conduct and motivation of the employer”); Martin Marietta Corp.

v. Maryland Comm’n on Human Relations, 38 F.3d 1392, 1402 (4th Cir. 1994).

Although these cases involved retaliatory discharge, and here Garley alleges the

retaliation came in the form of withholding back pay, reassignment to a different

workstation, and loss of a security clearance, the principle remains the same and

preemption is not mandated. See White v. General Electric Co., 1997 W.L. 437092 (6th

Cir. Aug. 4, 1997) (holding that retaliation claim for refusing to correct personnel records

and withholding back pay is not preempted by § 301).5

We turn now to the intentional infliction of emotional distress claim. Garley

5
We are not persuaded by Sandia’s reliance on the unpublished district court decision in
White v. General Electric Co., 157 L.R.R.M. (BNA) 2113, 2115 (W.D.Ky. 1995), where,
according to Sandia, the district court ruled that the plaintiff’s claim that the defendant did not
fully comply with an arbitrator’s award was preempted by § 301. See Appellee’s Brief at 18.
Our research reveals that the Sixth Circuit, in an unpublished opinion affirming the district court
decision cited by Sandia, demonstrates that the plaintiff’s retaliation claim was not preempted:
[T]he district court correctly held that § 301 of the LMRA does not preempt
White’s retaliation claim. A state law claim is preempted only if the action
requires interpretation of a collective bargaining agreement. Here, the emphasis
of White’s claim of retaliation is that GE refused to correct her personnel record
to reflect her appropriate seniority for at lease fifteen years. She further claimed
that once her seniority date was restored and her backpay calculated, GE
continued to retaliate against her by waiting five months to pay her back wages
and then refusing to explain how it calculated that amount. The inquiry into GE’s
motivation does not require an interpretation of the terms under the collective
bargaining agreement. Because White’s retaliation claim does not require “an
interpretation of collective bargaining agreement terms,” and her claim is
“created” by state law, her claim of retaliation . . . is not preempted by § 301 of
the LMRA.

White v. General Electric Co., 1997 W.L. 437092, at *2 (6th Cir. Aug. 4, 1997) (internal
citations omitted) (emphasis added).

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presents two factual predicates for this claim: (1) Sandia’s actions leading to his

dismissal; and (2) Sandia’s “continued retaliatory acts.” App. at 64. To the extent that

Garley bases his claim on Sandia’s conduct during the investigation, we affirm the district

court’s ruling that this claim is preempted. Determining whether Sandia’s conduct during

its investigation of Garley was “outrageous,” an element of the tort, requires construction

of Sandia’s rights and obligations under the CBA as that is the reference point against

which Sandia’s action must be scrutinized.

This line of inquiry, however, is preempted by § 301. Carter v. Ford Motor Co.,

121 F.3d 1146, 1149 (8th Cir. 1997) (holding that state tort action for intentional

infliction of emotional distress is preempted where a determination on the merits “would

require the court to determine whether [plaintiff’s] discharge was warranted under the

terms of the collective bargaining agreement”); Flibotte v. Pennsylvania Truck Lines,

Inc., 131 F.3d 21, 27 (1st Cir. 1997) (“[The defendant’s] rights and obligations under the

collective bargaining agreement are obviously central not only to an inquiry into [its]

intentions, but also to an inquiry into whether [it] conducted itself in a sufficiently

outrageous manner to give rise to liability under state tort law.”); Douglas v. American

Information Technologies Corp., 877 F.2d 565, 573 (7th Cir. 1989) (“Because

[plaintiff’s] intentional infliction of emotional distress claim consists of allegedly

wrongful acts directly related to the terms and conditions of her employment, resolution

of her claim will be substantially dependent on an analysis of the terms of the collective

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bargaining agreement under which she is employed.”); Scott v. Machinists Automotive

Trades Dist. Lodge No. 190 of Northern California, 827 F.2d 589, 594 (9th Cir. 1987)

(“[S]tate tort claims for intentional infliction of emotional distress are preempted where

they arise out of the employee’s discharge or the conduct of the defendants in the

investigatory proceedings leading up to the discharge.”). Accordingly, we hold that § 301

forecloses Garley from successfully asserting an intentional infliction of emotional

distress claim based on Sandia’s disciplinary procedures.

The fact that Garley’s claim for intentional infliction of emotional distress, to the

extent that it is based on Sandia’s actions leading to his dismissal, is preempted by § 301,

does not require us to arrive at the same conclusion with respect to Garley’s second

factual predicate for his claim -- Sandia’s alleged retaliatory actions taken following the

arbitrator’s ruling. We are not required to find preemption in “every conceivable claim

for intentional infliction of emotional distress which arises from conduct in the work

place.” Jackson v. Kimel, 992 F.2d 1318, 1326 (4th Cir. 1993). For the reasons we set

out above when discussing Garley’s claim for retaliation, we find that to the extent

Garley’s claim of intentional infliction of emotional distress is based on Sandia’s

retaliatory acts, we conclude that the claim is not preempted and reverse. As with

Garley’s independent cause of action for retaliation, determining whether Sandia’s

allegedly retaliatory acts are “outrageous” would not require resort to the CBA.

Consequently, to the extent that Garley’s cause of action for intentional infliction of

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emotional distress is based on Sandia’s conduct after the completion of the binding

arbitration, his claim is not preempted by § 301.

IV

We hold that Garley’s claims of breach of implied contract, breach of the duty of

good faith and fair dealing, and of defamation are preempted by § 301 of the LMRA.

Garley’s claims for alleged civil conspiracy and retaliation are not so preempted.

Garley’s claim of intentional infliction of emotional distress is preempted only to the

extent that the claim is based upon Sandia’s actions leading to the termination of his

employment, but the emotional distress claim is not preempted to the extent that it is

based upon alleged retaliatory actions.

Accordingly, we AFFIRM the dismissal of the claims of breach of implied

contract, of breach of the duty of good faith and fair dealing, and of defamation. We

leave it to the discretion of the district court to decide whether to permit amendment of

these preempted state law claims to allege claims under § 301. We REVERSE the

dismissal of the claims of alleged civil conspiracy and retaliation, and the claim of alleged

intentional infliction of emotional distress insofar as it is based on Sandia’s alleged

retaliatory actions. As to the claims the dismissal of which we hold to be in error, those

claims are remanded to the district court for further proceedings pursuant to 28 U.S.C. §

1367.

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IT IS SO ORDERED.

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