Opinion
IP03-CV-0945-SEB-VSS.
March 15, 2005
ENTRY GRANTING IN PART DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS AND REMANDING CERTAIN CLAIMS TO STATE COURT
This matter comes before the Court on Defendant BorgWarner Diversified Transmission Products, Inc. ("BorgWarner") and Defendant Phenix Investigations, Inc.'s ("Phenix") separate Motions for Judgment on the Pleadings targeting Plaintiffs Willa Dixon and Hobart Dixon's (the "Dixons") claims alleging state tort law violations by BorgWarner and Phenix as a result of an investigation performed by Phenix. Defendants allege that the Dixons failed to comply with the six (6) month statute of limitations in filing their § 301 "hybrid" causes of action. For the reasons explained below, we GRANT in part Defendants' Motions for Judgment on the Pleadings and REMAND the remaining causes of action to Marion Superior Court.
Factual Background
Defendant BorgWarner employed Plaintiff Willa Jean Dixon ("Ms. Dixon") as a production worker at its automotive parts manufacturing facility in Delaware County, Indiana. Compl. ¶¶ 1, 2, 4. (Plaintiff Hobart Dixon is Ms. Dixon's husband, and they are citizens and residents of Indiana. Id. ¶ 1.) During the entirety of Ms. Dixon's employment with BorgWarner, from January 1988 to February 1998 and again from February 2002 to August 2002, BorgWarner and Local No. 287, International Union, United Automotive, Aerospace and Agricultural Implement Workers of America (UAW) ("the Union") were parties to a Collective Bargaining Agreement ("CBA"), which included Ms. Dixon in the represented bargaining unit. Id. ¶¶ 4, 8, 33, 47; Answer ¶¶ 4, 47; Notice of Removal Ex. D; Goss Aff. ¶ 3.
When Ms. Dixon was laid off from BorgWarner in February 1998, she participated in a job training program, paid for by BorgWarner, in which she learned a new trade, massage therapy. Compl. ¶¶ 5-6. In August 1999, she opened a massage therapy clinic in Muncie, Indiana. Id. ¶ 7. After being called back to work at BorgWarner in February 2002, Ms. Dixon continued to operate her clinic on her own time. Id. ¶ 10.
On or about June 17, 2002, Ms. Dixon tripped at home, spraining her right ankle and foot. Compl. ¶ 12. On doctor's orders, she remained off work from BorgWarner for approximately one month, until July 17, 2002. Id. ¶¶ 13-15. During this time, BorgWarner became suspicious that she was continuing her massage therapy business while on medical leave, or more specifically, that she was "employed elsewhere while on leave of absence," without the prior mutual consent of BorgWarner and the Union, in violation of Article 5, Section 14(f) of the CBA. Goss Aff. ¶ 3; Notice of Removal Ex. D. BorgWarner hired Defendant Phenix Investigations, Inc. ("Phenix"), an Indiana corporation, to investigate whether Ms. Dixon was, in fact, otherwise employed elsewhere while on sick leave from BorgWarner. Compl. ¶¶ 3, 28; Defs.' Resp. p. 4. As part of this investigation, Phenix conducted surveillance, including the videotaping of massage sessions provided by Ms. Dixon. Id. ¶ 28.
Upon Ms. Dixon's return to work at BorgWarner, Louis Goss ("Goss"), Manager of Employment and Safety, revealed "that he had videotape of her giving massages while standing on her injured foot" and that BorgWarner would hold a disciplinary hearing to evaluate her conduct before she could return to work. Compl. ¶¶ 26-27. On July 22, 2002, Ms. Dixon appeared before a disciplinary panel that was comprised of three management employees. Id. At the disciplinary hearing, Goss presented the affidavits of Michael and Brian Bauer, Phenix private investigators, which stated, falsely in Ms. Dixon's opinion, that Ms. Dixon stood during most of the massage sessions and showed no signs of pain or restriction with regard to her injured foot. Id. ¶¶ 28-29. Following the disciplinary hearing, the panel issued a verbal warning to Ms. Dixon for allegedly providing false information, and one of the panelists allegedly harassed Ms. Dixon with information he learned at the hearing, including telling her that "he needed a massage but that he promised not to bring a videotape to his appointment." Id. ¶¶ 30-31. Ms Dixon voluntarily terminated her employment at BorgWarner allegedly because BorgWarner's actions had created for her an intolerable working environment. Id. at ¶¶ 41-42.
On May 16, 2003, Ms. Dixon filed a Complaint against Defendants BorgWarner and Phenix in the Marion Circuit/Superior Court, alleging against BorgWarner the state law claims of constructive termination, invasion of privacy, fraud, negligence, negligent supervision, intentional infliction of emotional distress and negligent infliction of emotional distress, and against Phenix, the state law claims of intentional interference with a contractual or business relationship, invasion of privacy, fraud, defamation, intentional infliction of emotional distress and negligent infliction of emotional distress.
Defendants removed this case to federal district court based on federal preemption, whereupon Plaintiff sought to have the cause remanded to Marion Superior Court. In an order dated March 29, 2004, we concluded that because at least one of Plaintiffs' state law tort claims would be dependent on an analysis of the CBA, the Dixons' lawsuit was preempted by § 301 of the Labor Management Relations Act ("LRMA"), 29 U.S.C. § 185. See 2004 WL 801270, *5 (S.D.Ind. 2004).
Section 185(a) of the Act provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . 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.
Legal Analysis
I. Standard of Review for Motion for Judgment on the Pleadings
A party moving to dismiss under Rule 12(c), F.R.Civ.P., bears a weighty burden. It must show "beyond a doubt that the non-moving party cannot prove any facts that would support his claim for relief." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local 150, AFL-CIO, 335 F.3d 643, 647 (7th Cir. 2003) (internal quotation omitted). As a practical matter, a dismissal under Rule 12(c) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Owner-Operator Indep. Drivers Ass'n v. Mayflower Transit, Inc., 161 F. Supp. 2d 948, 950-51 (S.D. Ind. 2001) (quoting 5A Charles A. Wright and Arthur R. Miller, Federal Practice Procedure: Civil § 1357). In resolving a Rule 12(c) motion, all well-pled factual allegations are treated as true, and all inferences that reasonably may be drawn from those facts are construed in a light most favorable to the party opposing the motion, in this case the Dixons. R.J. Corman, 335 F.3d at 647. If matters outside the pleadings are presented (and not excluded by the court), then the motion must be converted to one for summary judgment, under Federal Rule of Civil Procedure 56, and "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(c). See also R.J. Corman, 335 F.3d at 647; Church v. General Motors Corp., 74 F.3d 795, 798 (7th Cir. 1996).
Discussing the analogous standard of review under a Rule 12(b)(6) motion to dismiss.
Although BorgWarner's motion incorporates the CBA, we need not treat it as a motion for summary judgment. BorgWarner confines its analysis to the CBA, the authenticity of which is not in doubt and which was referenced in the Dixons' complaint.See Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 718 n. 4 (7th Cir. 2003) citing Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (stating "`[D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim'") (quoting Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994); citing Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
II. Preemption of Claims
We first must determine which of the Dixons' various claims are completely preempted by § 301 of the LMRA. Defendants argue that all of Plaintiffs' claims are completely preempted by § 301 and therefore subject to a six-month statute of limitations. Plaintiffs respond that all their claims are based entirely on Indiana law, that they do not require interpretation of the CBA, and therefore are not preempted by § 301.
Consistent with the goals of a uniform national labor policy, the Supreme Court has given "broad preemptive sweep to § 301 of the LMRA" Schmidt v. Ameritech Corp., 115 F.3d 501, 504-05 (7th Cir. 1997). When resolution of a plaintiff's claim is "substantially dependent upon analysis of the terms" of the labor agreement, the claims are preempted by § 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citing Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968)); see also Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S. 399, 408 (1988) (holding that "if 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 principles — necessarily uniform throughout the Nation — must be employed to resolve the dispute.") However, not every state-law claim "tangentially involving a provision of" a labor agreement is preempted by § 301 and, if a state-law claim can be resolved through a factual inquiry independent of the collective bargaining agreement, it is not preempted.Alis-Chalmers Corp., 471 U.S. at 211, 213; Lingle, 486 U.S. at 408.
In order to determine whether a plaintiff's claims are preempted, the Seventh Circuit directs that the "required § 301 analysis . . . `focus . . . on whether the state tort action confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.'"Schmidt, 115 F.3d at 505-06 (quoting Keehr v. Consolidated Freightways of Delaware, Inc., 825 F.2d 133, 137 (7th Cir. 1987) (internal quotation omitted)). We therefore address whether the Dixons' state law claims require interpretation of the CBA between BorgWarner and its employees, and, to answer that question, we examine the specific allegations by the Dixons in this lawsuit.
In their motions for judgment on the pleadings, Defendants attempt to sidestep an analysis of the Dixons' individual claims by reading into our previous denial of remand certain determinations we did not expressly make, namely, that all of the Dixons' claims are completely preempted under § 301. In our March 29, 2004, order denying remand we limited our holding to the conclusion that the Dixons' claim against Phenix for tortious interference with a contractual or business relationship was completely preempted under § 301 and on that ground we denied remand of this case. See id. at 8-10; 2004 WL 801270 at *4-*5 (holding, "A single federal claim suffices to support removal. 28 U.S.C. § 1441(c). Therefore, once the claim of tortious interference with a contractual or business relationship is brought under § 301, the case is removable"). While suggesting that additional claims of Plaintiffs might also be preempted by § 301, we declined to undertake a thorough analysis of the other claims at that time because it was unnecessary to our remand decision. See id. at 10; 2004 WL 801270 at *5.
For example, BorgWarner incorrectly asserts, "The Court has previously determined that Plaintiffs' purported state law claims against BorgWarner are completely preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. (Entry Denying Plaintiffs' Motion to Remand and Request for Fees and Costs, dated 3/29/2004)." BorgWarner's Brief in Supp. of Mot. for J. on the Pleadings at 2.
BorgWarner cannot be heard to object to our initial abbreviated analysis, having argued at the time that "once the Court determines that one of the claims in this action is completely preempted, it may stop and reserve judgment on complete preemption of the other claims until the summary judgment stage." BorgWarner's Brief in Opp'n to Remand at 15.
Being confronted now with the Defendants' Motions for Judgment on the Pleadings, a full analysis of the legal merits of the Dixons' claims is required, and thus follows below.
A. Count I: Alleged Constructive Termination by BorgWarner.
Ms. Dixon claims that she was forced to terminate her employment at BorgWarner because "BorgWarner's actions created a working environment that was intolerable for [her]." Compl. ¶¶ 41-42. The particular actions by BorgWarner that Ms. Dixon found offensive were "the information disclosed at the disciplinary hearing" and the harassment she received by a member of a management panel at the disciplinary hearing. Id. at 31-32.
We conclude the allegations supporting this claim cannot be resolved without reference to the CBA. See Schmidt, 115 F.3d at 505-06; Alis-Chalmers Corp., 471 U.S. at 220. In particular, the Dixons' allegations involve BorgWarner's presentation of information at the disciplinary hearing. Evaluating BorgWarner's conduct will necessarily require a court to examine Article Four of the CBA, entitled "Disciplinary Actions," to determine the extent to which BorgWarner has the right to initiate a disciplinary hearing and present information at such a hearing. As a result, resolution of the constructive termination claim is "inextricably intertwined with consideration of the terms of the labor contract." See Schmidt, 115 F.3d at 506. Accordingly, we conclude Plaintiffs' claim for constructive termination is completely preempted by § 301.
We note that Ms. Dixon was not terminated by BorgWarner as a direct result of any actions that took place outside of the workplace.
B. Count II: Alleged Intentional Interference with a Contractual or Business Relationship by Phenix.
The Dixons' claim that "Phenix and its agents intentionally interfered with the relationship between BorgWarner and [Ms. Dixon], using false pretenses without justification." Compl. ¶ 49.
In our March 29, 2004, order denying remand, we determined that this claim is completely preempted by § 301, id. at 8-10; 2004 WL 801270 at *4-*5. However, after additional briefing by the parties and further review by the court, we must conclude that our initial determination was overly broad. The Dixons' state law claims against Phenix for invasion of privacy, fraud and defamation appear to constitute the conduct underlying the intentional interference claim by Ms. Dixon respecting her contractual relationship with BorgWarner. To the extent this claim for tortious inference with a contractual relationship involves only the three state law claims, it does not require interpretation of the CBA, and thus would not be preempted under § 301.
Based on similar facts in Loss v. Blankenship, the Seventh Circuit permitted a tortious interference with a contractual relationship suit against a third party to proceed on state law grounds. 673 F.2d at 948 n. 6 (7th Cir. 1982) (explaining that "[r]equiring suits against non-parties for tortious interference with contract to be brought under state law . . . will not `exert a disruptive influence upon both the negotiation and administration of collective agreements.' (Local 174, Int'l Bhd. of Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962)). Parties to the collective bargaining agreement will still be able to have their respective obligations to one another determined by federal law.") Indeed, the Seventh Circuit has promulgated a general rule that suits against third parties should be resolved on state law grounds and not be preempted by § 301. To the extent that the Dixons' intentional interference with a contractual relationship claims relies on the same underlying conduct at issue in the invasion of privacy, fraud, and defamation claims, we conclude the Seventh Circuit's reasoning in Loss is controlling. Accordingly, the Dixons' claim of intentional interference with a contractual relationship against Phenix is not completely preempted by § 301.
We note that the facts in Loss closely resemble the facts in the present case, insofar as the employees in both cases attempted to assert state-tort claims against third-party, non-signatories to the CBA who, at the relevant time, were working as agents of the employer. In Loss, the defendant had been hired "allegedly to help the company to induce the decertification of Local 87." 673 F.2d at 944.
Phenix's reliance on the decision in Teamsters Nat'l Automotive Transporters v. Troha, 328 F.3d 325 (7th Cir. 2003), which creates an exception to the rule against § 301 suits against third parties, is unavailing. In Troha, the Seventh Circuit created a narrow exception to the general rule barring § 301 suits against third parties to allow for the enforcement of an arbitration subpoena because, it held, to do otherwise would render essential provisions of the CBA unenforceable. see id. at 330 (stating "A collective bargaining agreement that requires arbitration is powerless if the parties to the arbitration cannot present evidence in the form of third person testimony or documents possessed by third parties. Enforcement of an agreement to arbitrate cannot provide the "necessary legal remedy" if the parties to the arbitration have no means of securing valuable evidence other than their own testimony.") No such concern exists in the present case and, therefore, the rule announced in Loss, a case factually analogous to this one, is controlling.
C. Counts III and IV: Alleged Invasion of Privacy and Fraud by BorgWarner and Phenix.
Plaintiffs allege that Phenix investigators, Mike Bauer and Brian Bauer (the "Bauers"), as agents of BorgWarner violated the posted rules of Ms. Dixon's massage clinic by videotaping a massage session and that the Bauers used false pretenses to "intrude upon the privacy, solitude and seclusion that [Ms. Dixon] enjoyed and expected in her massage therapy clinic." Compl. ¶¶ 56-58. Defendants argue that these claims are preempted by § 301 because the Court must necessarily address the "management-rights clause" as well as other provisions of the CBA in order to determine if Ms. Dixon had a reasonable expectation of privacy. BorgWarner's Brief Opp'n Remand at 16. Plaintiffs counter that the conduct which forms the basis of these claims occurred not inside the workplace but instead "in a private locale where [Ms. Dixon] had a reasonable expectation of privacy." Pls.' Reply Brief in Supp. of Remand at 7-8.
The extent, if any, to which Ms. Dixon enjoyed a reasonable expectation of privacy under Indiana law in her massage clinic has not been briefed by the parties.
Privacy in the workplace is ordinarily a subject of collective bargaining and the extent of an employee's privacy rights is a "condition" of employment.Matter of Amoco Petroleum Additives Co., 964 F.2d 706, 710 (7th Cir. 1992). Even collective bargaining agreements which do not "mention surveillance expressly may deal with the subject by implication." Id. However, because this case involves surveillance outside the workplace, the analysis is more complicated. As the Seventh Circuit explained in Schmidt v. Ameritech Corp.:
[The plaintiff], it bears repeating, is not making any claim about surveillance of his workplace telephone, his workplace environment, or even about Ameritech's use of surveillance techniques such as surreptitious photography of public behavior that would be available to any other employer to check on disability fraud. He is asking only that Ameritech treat access to his residential telephone records the way that General Motors, Pepsi Co, or IBM would have to treat access to residential telephone records. His claim essentially rests on a dual capacity allegation. Ameritech had to respect his capacity as a residential telephone customer and treat his MUD records the same way it would treat all other MUD records, even though he fortuitously also was an Ameritech employee. Whether or not this is true depends not on the scope of the collective bargaining agreement between Ameritech and its employees, but upon the scope of Illinois privacy law.115 F.3d 501, 505 (7th Cir. 1997) (emphasis added). InSchmidt the Seventh Circuit determined that since the plaintiff's claims did not involve surveillance in the workplace, "the state tort claim did not purport to give meaning to the terms of the labor contract." Id. at 506. See also Keehr v. Consolidated Freightways of Delaware, Inc., 825 F.2d 133, 137 (7th Cir. 1987) (finding an employee's claims of intentional infliction of emotional distress, invasion of privacy, and defamation were not preempted by § 301 because the claims were not "derived from rights or duties provided for under the contract.")
In Schmidt, the Seventh Circuit distinguished the factual situation underlying its prior decisions in Amoco andDouglas v. Am. Info. Tech. Corp., 877 F.2d 565, 572 (7th Cir. 1989). Moreover, the distinction made in Schmidt applies to the other case BorgWarner cites, Panayi v. Northern Indiana Public Service Co., 109 F. Supp. 2d 1012 (N.D. Ind. 2000), which also involved surveillance of an employee's workplace activities.
Plaintiffs' claims here involve surveillance committed at Ms. Dixon's massage clinic and not in the workplace; accordingly, this case is analogous to Schmidt, rather than Amoco. The decision in Amoco involved offending surveillance occurring in the workplace. As was true in Schmidt, Ms. Dixon does not "[make] any claim about surveillance of . . . [her] workplace environment, or even about [the employer's] use of surveillance techniques such as surreptitious photography of public behavior that would be available to any other employer to check on disability fraud." Schmidt, 115 F.3d at 505. Ms. Dixon's claim is based on her role as a massage therapist and she contends that BorgWarner must treat her the same way it would treat all other massage therapists, "even though [she] fortuitously also was [a BorgWarner] employee." Id. Clearly, the scope of Ms. Dixon's privacy rights as a massage therapist do not depend on the collective bargaining agreement with BorgWarner; rather, they depend upon the scope of Indiana privacy law. Plaintiffs' privacy claims are therefore not preempted by § 301.
See Amoco, 964 F.2d at 710 (explaining: "What expectations of privacy in the workplace are objectively reasonable depends on powers and duties specified in the collective bargaining agreement."); id. at 709 (finding that "surveillance in the workplace is one of the standard conditions of employment, either regulated by agreement or reserved to management's discretion by a management-rights clause").
D. Count V: Alleged Defamation by Phenix.
Plaintiffs explain that the basis of their defamation claim against Phenix is that the Bauers made "false statements to BorgWarner regarding [Ms. Dixon], both verbally and in the form of the affidavits submitted to BorgWarner . . .". Compl. ¶ 73. The Dixons claim that these "false statements . . . were defamatory and harmed [Ms. Dixon's] standing and reputation with BorgWarner to her material detriment." Id. ¶ 74. Phenix fails to explain how the resolution of this claim in any way implicates the CBA between Ms. Dixon and BorgWarner and, indeed, we perceive no basis. Any rights Phenix possessed, as an agent of BorgWarner, to investigate Ms. Dixon certainly did not include the right to make false statements about Ms. Dixon to her detriment, as she alleged she has suffered. Consequently, the defamation claim is not preempted by § 301.
E. Counts VI and VII: Alleged Negligence and Negligent Supervision by BorgWarner.
Plaintiffs allege that "BorgWarner owed a duty to [Ms. Dixon] to provide a reasonably safe and tolerable work environment." Compl. ¶ 80. Plaintiffs argue that these negligence claims arise exclusively under Indiana law and that there is no basis for referring to the CBA in order to resolve them. However, BorgWarner claims that the duty alleged to have been violated stemmed directly from the CBA.
The fact that provisions of a collective bargaining agreement may deal with issues encompassed within a state statute, even when the same words are used, cannot result in the CBA's preemption of the state cause of action. The Seventh Circuit has emphasized that Congress, in adopting § 301, did not "wish to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. Clearly, § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law." Alis-Chalmers Corp., 471 U.S. at 211-212 (footnote omitted). Accordingly, to the extent that Plaintiffs have pled their negligence claims based entirely on Indiana law, these claims can be resolved without reference to the CBA and thus they are not preempted by § 301.
As the source of the alleged duty in their negligence claims, the Dixons point to Indiana Code section 22-1-1-10, which states, in relevant part, that:
Every employer and place of employment under the jurisdiction of the department of labor created by this chapter shall:
(1) furnish employment that is safe for the employees therein;
I.C. 22-1-1-10. This statute at first blush appears to relate only to workplace safety, which so far as we know, has not been asserted in this case. Thus, we are skeptical that this statute establishes the duties Plaintiffs assert. Our interpretation of this statute escapes straightforward analysis, however, because the Indiana Court of Appeals has determinated that "[what duties are imposed by I.C. 22-1-1-10] is a question not easily answered by the case law because the cases all involve application of . . . regulations which have been repealed."Ramon v. Glenroy Const. Co., Inc., 609 N.E.2d 1123, 1129 (Ind.App. 1993). This ambiguity has neither been addressed nor resolved by the parties, leaving us unable to determine definitively whether Plaintiffs have pled valid state law negligence claims. Therefore, to the extent the Dixons' negligence claims are based entirely on state law, they are not preempted by § 301.
See, e.g., Compl. ¶¶ 81 ("Borg Warner owed a duty to Willa Jean to provide a reasonably safe and tolerable work environment."), 86 ("Borg Warner owed a duty to Willa Jean to supervise and provide appropriate resources and guidance to its management employees so that they could provide a reasonably safe and tolerable work environment [sic] Willa Jean and not cause her physical or emotional injury.")
Since we are remanding all claims not preempted by § 301, we shall leave to the state court the opportunity to resolve this ambiguity.
F. Counts VIII and IX: Alleged Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress by BorgWarner and Phenix.
Plaintiffs allege that BorgWarner and Phenix "engaged in conduct towards [Ms. Dixon's] that was extreme and outrageous." Compl. ¶ 93. As with their other claims, Plaintiffs' argue that their claims for infliction of emotional distress can be resolved without interpretation of the CBA.
In their briefs, neither BorgWarner nor Phenix specifically addresses the Dixons' claims for infliction of emotional distress; however, they cite cases which found claims for infliction of emotional distress, among other claims, preempted by § 301. See, e.g., BorgWarner's Brief in Opp'n to Remand at 12-13 (citing Thomas v. LTV Corp., 39 F.3d 611, 619 (5th Cir. 1994) (employee's claims for intentional and negligent infliction of emotional distress preempted because analysis of collective bargaining agreement would be necessary to determine whether employer's conduct was wrongful.)
A plaintiff's claims for infliction of emotional distress are completely preempted by § 301 when "the conduct [the plaintiff] must prove to be `extreme and outrageous' in order to assert successfully her claim concerns directly the terms and conditions of her employment." Douglas v. Am. Info. Tech. Corp., 877 F.2d 565, 572 (7th Cir. 1989). However, the Seventh Circuit has repeatedly indicated that the "`extreme and outrageous' character of certain sorts of employer conduct may be evident without reference to the terms of a collective bargaining agreement." Id. at 571-72 (citing Keehr v. Consolidated Freightways, Inc., 825 F.2d 133, 137-38 (7th Cir. 1987) (finding that the plaintiff's claims "revolved around conduct by his employer that is not even arguably sanctioned by the labor contract"); Miller v. AT T Network Sys., 850 F.2d 543, 550 n. 5 (9th Cir. 1988)).
In Douglas, there was no dispute between the parties that the relevant conduct was governed by the collective bargaining agreement. Id.
Utilizing the analysis prescribed by the Seventh Circuit, we are unable to determine whether the Dixons' infliction of emotional distress claims can be resolved without reference to the CBA, primarily because of insufficient briefing by the Defendants. Defendants have failed to cite any provision of the CBA which implicitly or explicitly concerns the surrender of an employee's privacy rights outside the workplace. We are therefore unable to determine whether the interpretation of the CBA is relevant to the allegedly offending conduct. Assuming there is such a provision of the CBA, the extent of the privacy rights under Indiana law that Plaintiffs assert remains unaddressed, as does the issue of whether such privacy rights are "nonnegotiable state-law rights." We shall leave these determinations to the state court to resolve, here concluding only that the claims for infliction of emotional distress are not preempted by § 301, to whatever extent they do not require interpretation of the CBA.
BorgWarner has asserted that "the Collective Bargaining Agreement contains terms dealing with leave, investigatory and disciplinary issues, and a process of dealing with the parties' disputes relating to such matters;" however, BorgWarner never actually specifies any provisions within the CBA which deal with "investigatory issues," and we are not inclined, nor is it our duty, to independently sift through the 180 pages of the CBA to ascertain if BorgWarner's contention is factually correct.
See discussion in Section II(C), supra.
III. Statute of Limitations for Preempted Claims.
Plaintiffs assert that their claims determined to be § 301 claims should be deemed "straightforward" and subject to a state law statute of limitations. Defendants, in response, argue that the claims are not "straightforward" but are "hybrid" claims, invoking a statute of limitations of six months under federal law. We therefore address these opposing contentions.
State law claims against defendants determined to be preempted by § 301 of the LMRA can either be "straightforward" claims subject to the most analogous state limitation period, or "hybrid" claims subject to the federal limitation period adopted in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-71 (1983). A "straightforward" claim, in a labor law context, is a breach of contract claim (i.e., the collective bargaining agreement) made against the employer either by an employee or a union. See Int'l Union, United Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696 (1966). Well established precedent holds that an individual employee may bring suit against her employer for breach of a collective bargaining agreement, but that the employee is first required to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. DelCostello, 462 U.S. at 163. "Subject to very limited review, [she] will be bound by the result according to the finality provisions of the agreement." Id. at 164.
In contrast, a "hybrid" claim comprises two causes of action, one against the employer for breach of the collective bargaining agreement and another against the union for breach of the union's duty of fair representation. DelCostello, 462 U.S. at 164. The two causes of action in such a "hybrid" claim are "inextricably interdependent. To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union." Id. at 164-65 (quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-67 (1981)). While the employee may choose to sue one defendant and not the other, the case to be proved is the same whether she sues one, or the other, or both. Id. at 165.
The Supreme Court has provided guidance in distinguishing between these two types of claims in DelCostello. InDelCostello, plaintiffs filed suit against their employer and union alleging that the employer had breached a provision of a collective bargaining agreement and that the union had breached its duty of fair representation by mishandling the ensuing grievance-arbitration proceedings. 462 U.S. at 155-56. The issue in DelCostello, as in this case, was what statute of limitations should apply. The Supreme Court noted that the suit against the employer rested on § 301, since the employee was alleging a breach of the collective bargaining agreement, whereas the suit against the union for breach of its duty of fair representation was implied under the scheme of the National Labor Relations Act ("NLRA"). Because "the two claims [were] inextricably interdependent," the Supreme Court concluded that the suit was not a "straightforward" breach of contract suit under § 301 but was instead a hybrid § 301/fair representation claim, amounting to a direct challenge to the private settlement of disputes under the collective-bargaining agreement. Id. at 164-65.
As a "hybrid" claim, the Supreme Court determined, there was no close analogy to state causes of action. Id. at 165. The appropriate statute of limitation period was, therefore, determined to be analogous to § 10(b) of the NLRA, which establishes a six-month period for bringing charges of unfair labor practices to the National Labor Relations Board.Id. at 169-172. The Court stressed that it remains the exception to depart from their prior practice of borrowing limitations periods for federal causes of action, and that the norm is, unless inconsistent with federal law or policy, a federal court will apply the most analogous state limitation period in a § 301 suit. Id. at 171.
Justice Stewart observed in Mitchell:
In § 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system. . . . The employee's interest in setting aside the final and binding determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates those consensual processes that federal labor law is chiefly designed to promote — the formation of the . . . agreement and the private settlement of disputes under it. Accordingly, the need for uniformity among procedures followed for claims, as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of § 10(b) of he NLRA as the appropriate limitations period for lawsuits such as this.451 U.S. at 70-71 (Stevens, J., concurring) (citations and internal quotations omitted).
In light of these principles, and applying them here, we conclude the Dixons' preempted claims are properly characterized as "hybrid." Ms. Dixon has not sued the Union, and in fact noted that she was happy with its representation of her interests when BorgWarner attempted to terminate her employment, but a suit against the union is not a condition precedent to a claim held to be "hybrid." DelCostello, 462 U.S. at 165. Article three of the CBA between Defendant BorgWarner and the Union provides specific procedures to be followed related to grievances (defined as controversies) "between the Company and its employees or the Union involving the interpretation, application, or violation of the provisions of this Agreement. . . ." And Article five, § 14 of the CBA references the termination of seniority, which makes constructive termination a grievable issue. Ms. Dixon never filed a grievance against BorgWarner for constructive termination. Because Ms. Dixon failed to exhaust all administrative remedies and thereby allow the Union to "perfect" its function, the § 301 claims at issue here are necessarily "hybrid," rather than "straightforward" claims, and the six-month statute of limitation in the NLRA applies.
See also Flores v. Levy Co., 757 F.2d 806, 808 (7th Cir. 1985) (noting where the union and employer have agreed to submit disputes to a grievance-arbitration process, the employee must first show union has breached its duty of fair representation before suing employer for violation of the collective bargaining agreement). Furthermore, the Seventh Circuit noted in Flores that:
[T]he Court evidenced an intent to treat all hybrid section 301/fair representation cases alike. . . . It appears quite irrelevant at what point in the contractual grievance procedure the union's breach of its duty of fair representation has occurred. Whether the union has failed to file any grievance at all, or has declined to take a grievance to arbitration, or has failed to represent the employee fairly before the grievance or arbitration committee, has no significance in relation to the substance of a section 301 claim, namely, whether the union has breached its duty of fair representation.Id. at 808-09 (emphasis added) (internal citations omitted).
Plaintiffs cite three cases to support a contrary conclusion; however, none of the cases relied on by the Dixons involves a suit by an employee nor permission to an employee to circumvent the six-month statute of limitations adopted in DelCostello. The first case relied on by Plaintiffs, Int'l Union, United Automobile Workers v. Hoosier Cardinal Corp., was specifically distinguished by the Supreme Court in DelCostello, which noted that the suit in Hoosier was brought by the union itself rather than by the individual employee. DelCostello, 462 U.S. at 162. Similarly, Int'l Union of Elevator Constructors, v. Home Elevator Co., Inc. involved a complaint by the union against the employer for violation of the collective bargaining agreement. 798 F.2d 222 (7th Cir. 1986). Finally, Plumbers Pension Fund, Local 130, U.A. v. Domas Medical Contractors, Inc., 778 F.2d 1266 (7th Cir. 1985) involved an action to enforce an arbitration award brought by several union employee benefit funds. Clearly, none of the cases cited by Plaintiffs stands for the proposition that these kinds of claims are to be deemed "straightforward."
The Seventh Circuit distinguished this type of claim from the one at issue in DelCostello: "The Court in DelCostello had ruled that the six-month limitation period embodied in section 10(b) of the NLRA is to be applied where an individual employee challenges an arbitration award by bringing a section 301/fair representation claim against his union and/or employer." Plumbers Pension Fund, 778 F.2d at 1268 (second emphasis added). The court further noted that:
[B]ecause employees are not parties to collective bargaining agreements, their section 301 suits amount to a direct challenge to the private settlement of disputes under [the collective bargaining agreement.] Thus their hybrid § 301/fair representation claims have no close analogy in ordinary state law, and the much more closely analogous six-month federal statute of limitations . . . is to be substituted.Id. at 1269 (internal quotations omitted).
Additionally, "straightforward" versus "hybrid" claims were at issue in Williams v. United States Steel, 877 F.Supp. 1240 (N.D. Ind. 1995). That case was brought by the employee only after the union had secured an arbitration award on his behalf. The district court determined that the union had no duty to enforce the arbitration award. Id. at 1244. Instead, it noted that "the function of the Union [is] perfected by its winning of the arbitration." Id. (quoting F.W. Woolworth Co. v. Miscellaneous Warehousemens's Union, 629 F.2d 1204, 1212 (7th Cir. 1980)). Therefore, the court concluded that the claim could best be characterized as a "straightforward" § 301 suit. Id. In the case at bar, there was no grievance filed related to the constructive termination and the union had no opportunity to "perfect" its function.
Consequently, with respect to the Dixons' claims that are preempted by § 301, pursuant to the holding in DelCostello, as well as § 10(b) of the NLRA, we must apply a six-month statute of limitations for these "hybrid" claims. Given that this suit was filed more than eight months after the most recent alleged wrongful act, any and all claims preempted by § 301 are necessarily barred by the statute of limitations. Therefore, the § 301 claims are dismissed with prejudice.
IV. Resolution of Claims not Preempted by § 301.
Since we must dismiss all of the Dixons' claims preempted by § 301 of the LMRA, there is no remaining basis for federal jurisdiction over this litigation. All non-§ 301 claims are therefore remanded to Marion Superior Court for resolution on state law grounds.
Conclusion
Having determined that Plaintiffs' claims preempted by § 301 of the LMRA are "hybrid" claims and that the appropriate limitations period for those claims is six (6) months; and because Plaintiffs' claims here were filed after the six-month statute of limitations; we hold that Plaintiffs' claims preempted by § 301 are time-barred, and therefore GRANT Defendants' Motion for Judgment on the Pleadings as to those claims, consistent with this opinion. To the extent Plaintiffs' claims have not been preempted by § 301, they survive summary judgment and are herebyREMANDED to Marion Superior Court.
If the state court hereafter determines that any remanded claim involves an interpretation of the collective bargaining agreement, the court should incorporate the determinations made in this entry as "law of the case," warranting the dismissal of all claims preempted by § 301 for failing to comply with the applicable statute of limitations.