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May 19, 2003


The opinion of the court was delivered by: Jerome B. Simandle, United States District Judge


In this employment discrimination and retaliation action, the Court is called upon to decide whether Plaintiff's state law claims under the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. § 10:5-1, et seq., are pre-empted by Section 301 of the federal Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"), which exclusively governs disputes between parties to a labor contract where a party has alleged a violation of the collective bargaining agreement ("CBA") or where the dispute at issue requires interpretation of the CBA.

Plaintiff, arguing that the preclusive reach of section 301 of the LMRA does not extend to claims brought under the LAD or under the CEPA, has moved to remand the instant matter to the Superior Court of New Jersey, Gloucester County, in accordance with 28 U.S.C. § 1447(c). In opposition to Plaintiff's motion for remand, Defendants argue that Plaintiff's Complaint is removable to this Court as a dispute arising under federal law because Plaintiff's whistleblower and retaliation claims are "inextricably intertwined with the provisions of the CBA and, therefore, are preempted." (Def.'s Br. at 1.)

For the reasons that follow, this Court holds that section 301 of the LMRA does not pre-empt Plaintiff's state law claims here because a violation of the CBA does not form the basis of Plaintiff's action nor is the Court called upon to interpret the CBA in order to reach the merits of Plaintiff's claims. Therefore, this matter will be remanded to the New Jersey Superior Court, Gloucester County, Law Division, because this Court is without subject matter jurisdiction over plaintiff's claims.


Plaintiff Clifford Patterson began working for Exxon Mobil Corp. (hereinafter "Exxon Mobil") in the Paulsboro, New Jersey facility in 1977 and has held various positions with the company since that time, most recently the position of "welder/hard trader maintenance mechanic" since 1992. (Compl. ¶ 20.) Plaintiff, a Caucasian male, alleges that his co-workers engaged in numerous acts of discriminatory and retaliatory behavior, including but not limited to pranks, jokes and games directed at plaintiff. (Id. ¶¶ 4, 21.) In 1994, for example, when a job posting for "service attendant" for the maintenance department was posted for current employees to bid for the job, defendant Martin Stock, supervisor of the maintenance department, stated that the job would definitely be awarded to a white person because he would not allow any "n_____" in his department. (Id. ¶ 22.)

Plaintiff also claims that defendants passed over the three most qualified applicants, who are of minority background, in favor of a non-minority applicant for the service attendant job in the maintenance department. (Compl. ¶ 23.) Specifically, plaintiff alleges that under "ExxonMobil's own policy and the collective bargaining agreement with the union, Independent Oil Workers ("IOW"), . . . the top three qualified individuals for the position were John Lyles, Frank Morales, and Lou Lopez," an African-American and two Hispanic gentlemen, yet the position was awarded to a Caucasian gentleman. (Id.) To correct the apparent error, Plaintiff notified his supervisor Stock and upper management that "someone other than the top qualified candidate" was awarded the position, and he then assisted co-employee Lyles in filing a grievance. (Compl. ¶ 24.)

For his part in exposing what he perceived as racially discriminatory animus in the awarding of the service attendant job, plaintiff alleges that defendants "embarked upon a course of continual harassment, retaliation, and discrimination" causing plaintiff to suffer "severe and acute emotional and psychiatric distress," for which he was placed on disability from October 18, 2000 through August 8, 2001. (Compl. ¶ 25.) Plaintiff alleges he had reported to his supervisors the numerous instances of racial discrimination, including defendants' use of obscene and profane language towards his African-American co-workers, and that he had filed grievances with his union representative, including but not limited to George Wagner. (Id. ¶¶ 27, 28.) In addition, plaintiff alleges defendants retaliated against him and subjected him to adverse employment conditions, including subjecting plaintiff to pornographic materials and frequent racial epithets used by co-workers and supervisors. (Id.)

After his return from disability in 2001, plaintiff alleges he was subjected to intensified harassment, intimidation, and retaliation by defendants. (Id. ¶ 29.) Plaintiff reported these incidents to supervisors, including the plant manager John Thomas and his union representative, although the alleged offenders were never disciplined. (Id. ¶¶ 29, 30.) Due to increased hostility, harassment, and retaliation, plaintiff was placed on disability again from August 2001 to April 24, 2002. (Id. ¶ 31.) Plaintiff allegedly remains on authorized leave due to his psychological status. (Id.)

On October 18, 2002, Plaintiff filed this action in the New Jersey Superior Court, Gloucester County, Docket Number L-1923-02, alleging the following claims: violations of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:190-1, et seq. (hereinafter "CEPA") (Count I); retaliation under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (hereinafter "LAD") (Count II); aiding and abetting under the LAD (Count III); hostile work environment under the LAD (Count IV); and intentional infliction of emotional distress (Count V). (Compl. ¶¶ 1-109.) Plaintiff pleads Count VI against Richard Roe Company in the event it is determined that another entity is the actual employer of plaintiff, and Count VII against John Does 1-10 in the event that additional individuals were engaged in the alleged unlawful actions, and seeks joint and several liability in Count VIII. (Compl. ¶¶ 110-14.)

On December 2, 2002, Defendants removed the matter to federal court, pursuant to 28 U.S.C. § 1441(a), on the basis of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (hereinafter "LMRA"), and federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Notice of Removal, 12/2/02, ¶¶ 3(i), 4(d).) Defendants assert that removal is proper because in order to resolve plaintiff's state CEPA claim asserted in Count I, the Court must determine whether defendant Exxon Mobil breached the CBA by failing to award the service attendant position to a minority employee and/or by failing to promote plaintiff to a position in the safety department. (Id. ¶ 3(g).) Defendants also assert that in order to resolve plaintiff's LAD claim in Count II, the Court must determine whether Exxon Mobil breached the CBA pursuant to the allegations in Count I, and by its alleged failure to award plaintiff a job promotion. (Id. ¶ 4(c).) Plaintiff filed this motion for remand on December 20, 2002, arguing that his claims are not preempted by § 301 of the LMRA.


A. Plaintiff's CEPA and LAD State Law Claims and Section 301 of the LMRA

Plaintiff seeks remand of this case to New Jersey Superior Court because his claims neither "substantially depend" upon interpretation of the collective bargaining agreement ("CBA") nor are "inextricably intertwined" with the CBA in this case, and therefore Section 301 of the LMRA does not preempt plaintiff's claims. Defendants contend that this action is properly removed to this Court because the Court will be called upon to interpret the CBA in order to determine whether Defendants have breached the agreement and, in turn, violated state law. Thus, the issue that must be resolved in deciding this motion is whether Plaintiff's allegations that he was subjected to retaliation, for which he seeks remedies under the LAD and the CEPA, are "inextricably intertwined" with the terms of the CBA, and require interpretation of its provisions.

Where a plaintiff who is a subject to a labor contract seeks recovery for a violation of the CBA or where interpretation of the CBA is necessary in order to resolve the parties' claims, federal jurisdiction is proper since section 301 of the LMRA confers upon federal courts exclusive jurisdiction to enforce labor contracts. See Labor Management Relations Act, 29 U.S.C. § 185(a), § 301(a). That section provides:

Suits for violation of contracts between an employer and a labor organization 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), § 301(a). Disputes relating to the provisions of a CBA are thus appropriately circumscribed to the federal courts because Congress, in enacting the LMRA, intended to fashion a uniform body of federal labor law. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985); Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456-57 (1957); see also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 263 & n. 9 (1994) (explaining that the principles of preemption under section 301 of the LMRA are applicable to the Railway Labor Act). However, not "every state-law suit asserting a right that relates in some way to a provision in a collective bargaining agreement, or more generally to the parties to such agreement, necessarily is pre-empted by § 301." Allis-Chalmers, 471 U.S. at 220. Only where "resolution of the state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract [will the claim] either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law." Id. (internal citation omitted).

Nor does mere reference to the collective bargaining agreement in the Complaint automatically cast the claim as one invoking federal labor law. Livadas v. Bradshaw, 512 U.S. 107, 124 (1994) (explaining that "the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished"). Rather, as plaintiff points out, in deciding whether a plaintiff's state law claims are within the purview of section 301 of the LMRA for purposes of preemption, courts must determine whether the state law claims are "inextricably intertwined with consideration of the terms of the labor contract." Allis-Chalmers, 471 U.S. at 213. "`[P]urely factual questions' about an employee's conduct or an employer's conduct and motives do not `require a court to interpret any term of a collective-bargaining agreement.'" Hawaiian Airlines, 512 U.S. at 261 (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988)).

1. Plaintiff's CEPA Claim

Plaintiff raises Lingle v. Norge Div. of Magic Chef, Inc., supra, as support that his CEPA claim is not "inextricably intertwined" with the interpretation of the CBA in this case. In Lingle, plaintiff alleged the state tort of retaliatory discharge for filing a workers' compensation claim. The Supreme Court discussed the plaintiff's burden of proof in demonstrating that he was discharged or threatened with discharge and that the employer's motive was to deter him from exercising his rights under the state workers' compensation act. The Court then reasoned that resolution of plaintiff's retaliatory discharge claim "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." Lingle, 486 U.S. at 407. The Supreme Court determined that, although plaintiff was covered by a CBA that provided her with a contractual remedy for discharge without cause, the retaliatory discharge claim was not preempted by ยง 301 of the LMRA. The Court disagreed with the Seventh Circuit's conclusion that the retaliatory discharge tort was inextricably intertwined with the CBA merely because it implicated the same analysis of facts that would take place under the just cause provision of the CBA. Rather, "pre-emption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the ...

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