[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 02-16393 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 8, 2004
THOMAS K. KAHN
D. C. Docket No. 02-00051 CV-2-WDO-5 CLERK
RONALD BARTHOLOMEW,
BENNY CHILDERS, et al.,
Plaintiffs-Appellants,
versus
AGL RESOURCES, INC.,
ATLANTA GAS LIGHT COMPANY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 8, 2004)
Before EDMONDSON, Chief Judge, COX, Circuit Judge, and PAUL*, District Judge.
COX, Circuit Judge:
*
Honorable Maurice M. Paul, United States District Judge for the Northern District of
Florida, sitting by designation.
Five former field service representatives of Atlanta Gas Light Company
(“Atlanta Gas”) appeal the district court’s grant of summary judgment in favor of
AGL Resources, Inc. and Atlanta Gas on their Georgia state-law claims of breach of
contract, intentional infliction of emotional distress, tortious interference with
business relations, and defamation. For the following reasons, we dismiss the appeal
of Charlie Johnson, and as to the other plaintiffs, we affirm in part, vacate in part, and
remand.
I. BACKGROUND & PROCEDURAL HISTORY
The plaintiffs – Ronald Bartholomew, Benny Childers, James Higgins, Lester
Moss, and Charlie Johnson – were employed by Atlanta Gas as Class A Field Service
Representatives in Macon, Georgia. During a statewide reduction in force in March
2000, Bartholomew, Childers, and Higgins were “bumped” out of their positions by
field service representatives with more seniority. These three employees were then
permitted to transfer to other positions held by field service representatives with less
seniority – to “bump” less senior field service representatives – but they declined the
opportunity to do so and were laid off on March 10, 2000. Moss and Johnson, by
contrast, were among the least senior field service representatives, and they did not
have enough seniority to “bump” other field service representatives. As a result,
2
Moss and Johnson were laid off on March 10, 2000, without having been afforded the
opportunity to transfer.
The plaintiffs’ employment with Atlanta Gas was governed by a collective
bargaining agreement between Atlanta Gas and their union. Bartholomew, Higgins,
and Childers complained to their union steward about their layoffs, and they
submitted written grievances. Johnson also complained to his union steward about
his layoff, and Moss complained to an individual whom he believed to be his union
steward about his layoff, but neither Johnson nor Moss submitted written grievances.
Pursuant to Article 13 of the collective bargaining agreement, the union made
a formal request for a grievance meeting on behalf of Bartholomew, Higgins, and
Childers. After the meeting, on May 11, 2000, Atlanta Gas notified the union and
these three employees that their grievances had been denied. Under the terms of
Article 14 of the collective bargaining agreement, the union then had ten days to
submit the employees’ grievances to arbitration, but the union took no further action.
On September 18, 2001, Bartholomew, Higgins, Childers, Moss and Johnson
filed a complaint in Georgia state court. In the four-count complaint, they asserted
claims under Georgia law for breach of contract, intentional infliction of emotional
distress, tortious interference with business relations, and defamation; AGL
3
Resources, Inc. and Atlanta Gas were named as defendants.1 The defendants removed
the action to the United States District Court for the Northern District of Georgia, and
the action was then transferred to the Middle District of Georgia. The gravamen of
the plaintiffs’ complaint was that the defendants terminated their employment in
violation of the collective bargaining agreement and that the defendants’ management
employees made statements that gave rise to tort liability.
AGL Resources, Inc. and Atlanta Gas filed a motion for summary judgment as
to all of the plaintiffs’ claims. On October 22, 2002, the district court entered an
order granting the defendants’ motion. In its order, the court reached the following
conclusions: (1) the plaintiffs’ state-law claims were preempted by § 301 of the Labor
Management Relations Act (the “LMRA”), 29 U.S.C. § 185; (2) to the extent that the
plaintiffs’ preempted state-law claims could be treated as “hybrid” § 301/fair
representation claims under the LMRA, these claims were barred by the six-month
statute of limitations; and (3) even if the plaintiffs’ state-law claims were not
preempted by the LMRA, Moss and Johnson’s claims were due to be dismissed
because they failed to avail themselves of the grievance procedure established in the
1
A third defendant, the chief executive officer of Atlanta Gas, was voluntarily
dismissed by stipulation of the parties.
4
collective bargaining agreement and the claims of Bartholomew, Childers, and
Higgins were barred by the one-year state statute of limitations.
The plaintiffs timely filed a notice of appeal, and the notice includes all five
plaintiffs: Bartholomew, Childers, Higgins, Moss, and Johnson. But Johnson was not
named on the appellants’ initial brief, nor was he listed in the certificate of interested
persons. The omission of Johnson was brought to the appellants’ attention by the
defendants in their answer brief, but the appellants’ reply brief again failed to list
Johnson and it did not mention Johnson’s omission. We are left to conclude that
Johnson has not filed a brief in this appeal, and as a consequence, we dismiss his
appeal for failure to prosecute. See 11th Cir. R. 42-1(b).
II. ISSUES ON APPEAL & STANDARDS OF REVIEW
The only issue on appeal is whether the district court erred when it granted
summary judgment in favor of AGL Resources, Inc. and Atlanta Gas as to all of the
plaintiffs’ claims. We review a district court’s grant of summary judgment de novo,
and we view the evidence in the light most favorable to the nonmoving party. Artistic
Entm’t, Inc. v. City of Warner Robins, 331 F.3d 1196, 1203 (11th Cir. 2003).
Summary judgment is proper only when “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). Whether the LMRA preempts a state-law claim is a question of law
5
which we review de novo. Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1556
(11th Cir. 1995).
III. PREEMPTION DISCUSSION
Section 301(a) of the Labor Management Relations Act provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce
. . . 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). This section grants jurisdiction to federal courts to adjudicate
employment disputes involving collective bargaining agreements, and it embodies the
policy that federal law, fashioned from national labor law, should provide the
substantive law that applies in § 301(a) suits. See Textile Workers Union of Am. v.
Lincoln Mills of Ala., 353 U.S. 448, 456, 77 S. Ct. 912, 918 (1957); Lightning, 60
F.3d at 1556.
Accordingly, § 301 provides the foundation for the preemption doctrine that
the Supreme Court concisely summarized in Lingle v. Norge Division of Magic Chef,
Inc., 486 U.S. 399, 108 S. Ct. 1877 (1988):
[I]f the resolution of a state-law claim depends upon the meaning of a
collective-bargaining agreement, the application of state law (which
might lead to inconsistent results since there could be as many state-law
principles as there are States) is pre-empted and federal labor-law
6
principles – necessarily uniform throughout the Nation – must be
employed to resolve the dispute.
Id. at 405-06, 108 S. Ct. at 1881. This preemption doctrine exists to “ensure uniform
interpretation of collective-bargaining agreements, and thus to promote the peaceable,
consistent resolution of labor-management disputes,” id. at 404, 108 S. Ct. at 1880,
but it is important to note that “not every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining agreement, is pre-empted
by § 301 . . . .” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S. Ct. 1904,
1911 (1985). The Supreme Court has instructed that a state-law claim is preempted
by § 301 of the LMRA if “evaluation of the tort claim is inextricably intertwined with
consideration of the terms of the labor contract,” or, stated another way, “when
resolution of a state-law claim is substantially dependent upon analysis of the terms
of an agreement made between the parties in a labor contract,” the state-law claim has
been preempted. Id. at 213, 220, 105 S. Ct. at 1912, 1916.
In light of these principles of § 301 preemption, we now turn our attention to
each of the plaintiffs’ four state-law claims to determine whether these claims have
been preempted by the LMRA. If one or more of the plaintiffs’ claims have not been
preempted, we must then consider the alternative grounds for affirmance asserted by
the defendants on appeal.
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A. Breach of Contract
In Count I, the plaintiffs assert a state-law breach of contract claim against
AGL Resources, Inc. and Atlanta Gas. In particular, they allege that “[b]y entering
into the collective bargaining agreement with the plaintiffs, Defendants have
expressly assumed contractual and fiduciary obligations to the plaintiffs.” (R.1-1 ¶
12.) Moreover, the plaintiffs allege the defendants “have violated their contractual
obligations by termination of these Plaintiffs’ employment in manners contrary to the
terms of the collective bargaining agreement.” (Id. ¶ 13.) It is undisputed that the
plaintiffs’ breach of contract claim refers solely to the collective-bargaining
agreement that governed the plaintiffs’ employment with the defendant.
The elements of a right to recover for a breach of contract under Georgia law
are simply “the breach and the resultant damages to the party who has the right to
complain about the contract being broken.” Budget Rent-A-Car of Atlanta, Inc. v.
Webb, 469 S.E.2d 712, 713 (1996). To determine whether the defendants breached
the collective-bargaining agreement, there is no doubt that we would be called upon
to consider the terms of the labor contract. Because the plaintiffs’ state-law breach
of contract claims are substantially dependent upon an analysis of the collective
bargaining agreement, they are preempted by § 301 of the LMRA, and we affirm the
8
district court’s grant of summary judgment in favor of AGL Resources, Inc. and
Atlanta Gas as to Count I of the complaint.
B. Intentional Infliction of Emotional Distress
In Count II, the plaintiffs assert a state law claim for intentional infliction of
emotional distress. Their complaint includes only the most general allegations
regarding this claim. For instance, they allege in Count II that the defendants “have
behaved in an extreme and/or outrageous manner,” and that this conduct “gave rise
to intense feelings of anxiety, depression, and extreme outrage.” (R.1-1 ¶ 15.) In the
“Factual Background” of the complaint, the plaintiffs allege that they “have been
placed under tremendous stress and economic pressures as a direct result of the
actions and omissions of [the defendants],” and the plaintiffs further allege that they
“have suffered loss of weight, unable [sic] to sleep, . . . high blood pressure, feelings
of humiliation, depression and severe mortification.” (Id. ¶ 10.) Although the
plaintiffs’ complaint does not specify the outrageous or extreme conduct that provides
the foundation for their intentional infliction of emotional distress claims, it is clear
from the record and the briefs on appeal that their claims are based on their belief that
9
they were not provided with proper notice of their termination and that they were not
allowed a meaningful opportunity to consider their option to transfer.2
Under Georgia law, a plaintiff must prove four elements to sustain a claim for
intentional infliction of emotional distress: “(1) [t]he conduct must be intentional or
reckless; (2) [t]he conduct must be extreme and outrageous; (3) [t]here must be a
causal connection between the wrongful conduct and the emotional distress; and (4)
[t]he emotional distress must be severe.” Northside Hosp., Inc. v. Ruotanen, 541
S.E.2d 66, 68-69 (2000); see also Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835,
837 (1991). For us to determine whether the defendants’ conduct in terminating the
plaintiffs was “extreme and outrageous,” we necessarily must consider the terms of
the collective-bargaining agreement that governs the plaintiffs’ employment. As a
consequence, we conclude that our evaluation of the plaintiffs’ intentional infliction
of emotional distress claims would be substantially dependent upon an analysis of the
labor agreement, and we hold that these claims are preempted by the LMRA.
2
For instance, the plaintiffs assert that their opportunity to transfer was not
“meaningful,” (Appellants’ Br. at 2), and that they were “terminated without notice in an egregious
and harassing manner,” (id.). Moreover, they assert that “[t]he very manner of the terminations was
done in a manner that insulted, humiliated and embarrassed each of the plaintiffs due to their long-
term employment and caused all the factual elements of a state law cause of action for intentional
infliction of emotional distress.” (Id. at 3.)
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Accordingly, we affirm the district court’s grant of summary judgment in favor of
AGL Resources, Inc. and Atlanta Gas as to Count II of the complaint.3
C. Tortious Interference with Business Relations
In the third count of the complaint, the plaintiffs assert a claim for tortious
interference with business relations. The plaintiffs allege that the chief executive
officer of Atlanta Gas and other agents of AGL Resources, Inc. “took affirmative
actions to jeopardize the business opportunities of Plaintiffs.” (R.1-1 ¶ 17.) More
specifically, according to the plaintiffs, the defendants tortiously interfered with their
“contracts of employment with potential subsequent employers,” and the chief
executive officer “made defamatory comments over the last year as to the status and
capabilities” of the plaintiffs. (Id.) The plaintiffs allege that the defendants’
representatives made statements, both before and after their termination, that hindered
the plaintiffs in their subsequent attempts to obtain employment; for example, the
3
This result is wholly consistent with this court’s prior holding in Lightning v.
Roadway Express, Inc., 60 F.3d 1551 (11th Cir. 1995). In Lightning, we concluded that the
plaintiff’s claim for intentional infliction of emotional distress was not preempted by the LMRA.
Id. at 1557. In that case, however, the intentional infliction of emotional distress claim was
predicated upon the verbal and physical abuse that was brought to bear upon the plaintiff, and the
court concluded that it could evaluate the allegedly “extreme and outrageous” conduct of the
defendant without considering the collective-bargaining agreement. Id. Notably, in Lightning, this
court acknowledged that analyzing an intentional infliction of emotional distress claim may well
require consideration of the terms of a collective-bargaining agreement. Id. We conclude, in this
case, that it does.
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plaintiffs contend that a representative of Atlanta Gas told contractors that they
should not hire employees who had been laid off by Atlanta Gas.
To establish a cause of action for tortious interference with business relations
under Georgia law, a plaintiff must show that the defendant, (1) acting improperly
and without privilege (2) and acting purposely and with malice with the intent to
injure, (3) induced a third party or parties not to enter into or continue a business
relationship with the plaintiff (4) for which the plaintiff suffered some financial
injury. Perimeter Realty v. GAPI, Inc., 533 S.E.2d 136, 144-45 (2000). To the extent
that the plaintiffs’ tortious interference with business relations claims are based upon
statements made prior to their termination or during the grievance process, we
conclude that their claims are preempted by the LMRA. In such a circumstance, to
determine whether the defendants’ alleged statements were “improper” and “without
privilege,” we necessarily would need to consider the terms of the collective-
bargaining agreement, including, for instance, the Management Rights clause of that
agreement. However, to the extent that the plaintiffs base their tortious interference
with business relations claims on statements made by company representatives to
prospective employers after their layoff and after the grievance procedure was
concluded, we hold that their claims are not preempted. In evaluating such a claim,
12
we need not consult the collective-bargaining agreement.4 As a consequence, the
district court erred when it granted summary judgment in the defendants’ favor on the
ground that all of the plaintiffs’ tortious interference with business relations claims
were preempted.5
4
First, the defendants contend that the plaintiffs offered only inadmissible hearsay at
the summary judgment stage regarding the post-termination statements. Because the district court
did not address this argument in its order, we decline to do so here and remand for further
consideration.
Second, the defendants contend that the plaintiffs waived their argument that the post-
termination statements were made outside of the collective-bargaining agreement, and thus were not
preempted by the LMRA. Having reviewed the record, we conclude that the argument was not
waived. (R.2-31 at 7-8.)
Third, the defendants contend that even if a company representative made an admissible
statement following the plaintiffs’ termination that could give rise to a tortious interference claim,
their claims would still be preempted by the LMRA. In support of this contention, the defendants
point to Turner v. American Fed’n of Teachers Local 1565, 138 F.3d 878 (11th Cir. 1998). In
Turner, we held that a tortious interference with employment claim was preempted by the LMRA.
Id. at 884. But Turner is distinguishable. The plaintiff in Turner had been terminated from her
position with the American Federation of Teachers (“AFT”), and she brought suit against AFT. In
her suit, she alleged that AFT (and two former executive officials of AFT) tortiously interfered with
her employment with AFT, which was governed by a collective bargaining agreement. In holding
that her tortious interference with employment claim was preempted by the LMRA, we noted that
resolution of her state-law claim would depend upon the terms of the collective bargaining
agreement because her claim was “based solely upon her theory of wrongful discharge.” Id. at 884
n.14. By contrast, in this case, Count III does not allege that the plaintiffs were wrongfully
discharged from Atlanta Gas. Instead, the plaintiffs contend that the defendants interfered with their
relationship with a prospective employer. As a consequence, we are not compelled by Turner to
conclude that the plaintiffs’ tortious interference with business relations claims are preempted by the
LMRA.
5
On appeal, the defendants contend that even if § 301 of the LMRA does not preempt
the plaintiffs’ tortious interference claims, the defendants are nonetheless entitled to summary
judgment as to these claims because they fail as a matter of law. But the district court did not reach
the merits of the state-law claims asserted by the plaintiffs. Because the district court did not
address their argument in the first instance, we decline to do so here.
13
D. Defamation
In the final count of the complaint, the plaintiffs assert a state-law claim of
defamation. The plaintiffs allege that the defendants “made charges against the
plaintiffs in reference to their trade and profession calculated to injure” them. (R.1-1
¶ 20.) Although the complaint again is silent regarding the facts that underlie this
claim, it is clear following our review of the record and the briefs on appeal that the
plaintiffs base their defamation claim on essentially the same statements that form the
foundation of their tortious interference with business relations claim. In particular,
the plaintiffs’ defamation claims are based on alleged statements by a company
official that the plaintiffs “were laid off for a reason.” (R.2-25 at 140-141; R.2-29 at
84-87; R.2-30 at 245.)
For essentially the same reasons articulated above regarding the tortious
interference with business relations claims, the plaintiffs’ defamation claims are not
preempted by the LMRA to the extent that they are based upon defamatory statements
that occurred after their termination. Under Georgia law, an oral defamation action
lies when (1) a defendant makes charges against the plaintiff in reference to his trade,
office, or profession, if such charges are calculated to injure him therein; (2) the
charge is false; (3) the charge is made with malice; and (4) the communication is not
privileged. Ga. Code Ann. §§ 51-5-4(a)(3), 51-5-5, 51-5-6, 51-5-7. Because the
14
plaintiffs’ defamation claim is based upon alleged statements made by an Atlanta Gas
official to a contractor after they were terminated, our analysis of their defamation
claims under Georgia law is not substantially dependent upon the terms of the
collective-bargaining agreement. Simply stated, the elements of the plaintiffs’ post-
termination defamation claim do not turn upon the terms of their labor contract with
the defendants. Accordingly, we hold that the district court also erred when it granted
summary judgment in the defendants’ favor on the ground that all of the plaintiffs’
defamation claims were precluded by the LMRA.6
E. “Hybrid” Section 301/Fair Representation Claim
The district court, having concluded that the plaintiffs’ state-law claims were
preempted by the LMRA, apparently heeded the Supreme Court’s invitation in Allis-
Chalmers and treated the plaintiffs’ state-law claims as claims under § 301. See Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S. Ct. 1904, 1916 (1985) (noting
that when the resolution of a state-law claim is substantially dependent upon the
terms of a collective bargaining agreement, the claim should be dismissed as
preempted or treated as a § 301 claim). But to prevail on their § 301 claims against
6
The defendants contend that even if the defamation claims are not preempted by the
LMRA, they are still entitled to summary judgment because the defamation claims fail as a matter
of law. Again, the district court did not reach this argument. Accordingly, we leave this issue to the
district court to consider in the first instance.
15
AGL Resources, Inc. and Atlanta Gas, the plaintiffs must show both that the employer
violated the terms of the collective-bargaining agreement and that the union breached
its duty of fair representation. Chauffeurs, Teamsters & Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 564, 110 S. Ct. 1339, 1344 (1990). As a consequence, although
the plaintiffs’ complaint only names their employer, the district court properly
characterized the plaintiffs’ § 301 claims as “hybrid” § 301/fair representation claims.
See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 103 S. Ct. 2281 (1983)
(noting that the employee may sue the employer, the union, or both, but that the case
he must prove is the same in all circumstances). Because the plaintiffs’ preempted
state-law claims are properly construed as hybrid § 301/fair representation claims, the
six-month statute of limitations from § 10(b) of the National Labor Relations Act
applies. Id. at 169, 103 S. Ct. at 2293. The court did not err when it concluded that
the statute of limitations began to run when the plaintiffs were informed that the
union would not submit their grievances to arbitration, which occurred no later than
May 16, 2000.7 Because the complaint in this case was filed on September 18, 2001,
the court held that the plaintiffs’ hybrid § 301/fair representation claims were barred
by the six-month statute of limitations, and we agree.
7
Of course, Moss never filed a grievance with the union, and therefore he was barred
from asserting a claim under § 301. DelCostello, 462 U.S. at 163, 103 S. Ct. at 2290.
16
IV. CONCLUSION
Because Johnson failed to file a brief on appeal, we DISMISS his appeal for
failure to prosecute. As to the appeals brought by Bartholomew, Childers, Moss, and
Higgins, we AFFIRM IN PART, VACATE IN PART, and REMAND. We AFFIRM
the district court’s grant of summary judgment in favor of AGL Resources, Inc. and
Atlanta Gas as to the plaintiffs’ state-law breach of contract claims and their
intentional infliction of emotional distress claims. Likewise, we AFFIRM the district
court’s grant of summary judgment in favor of the defendants’ as to the plaintiffs’
claims under § 301 of LMRA. But we hold that the plaintiffs’ state-law claims for
tortious interference with business relations and defamation are not preempted by the
LMRA to the extent that these claims are based upon the defendants’ conduct
following the plaintiffs’ termination and unrelated to the grievance process.
Accordingly, we find that the district court erred when it granted summary judgment
in favor of AGL Resources, Inc. and Atlanta Gas as to Bartholomew’s, Childers’s,
Moss’s, and Higgins’s state-law claims for tortious interference with business
relations and defamation, and we VACATE the district court’s judgment as to these
claims and REMAND for further proceedings.
17
APPEAL OF CHARLIE JOHNSON DISMISSED FOR FAILURE TO
PROSECUTE; REMAINING APPEALS AFFIRMED IN PART, VACATED IN
PART, AND REMANDED.
18