The full case caption appears at the
end of this opinion. HANSEN, Circuit Judge. Andrew Gore appeals the district court’s
[FOOTNOTE 1]dismissal of his case due to preemptionunder the Railway Labor Act (RLA), 45 U.S.C. �� 151-163, 181-188 (1994 & Supp.II 1996). We affirm.. The statements of Smallwood and Cowher both reported that Gore stated heneeded to vent his anger before ending his own life and that he planned to kill TWAemployees during a shift change. (See J.A. at 279.) I. Andrew Gore is employed as a mechanic by Trans World Airlines (TWA) at itsMaintenance and Engineering Center, also known as the Overhaul Base, in KansasCity, Missouri. He is a member of the International Association of Machinist andAerospace Workers, AFL-CIO and the terms of his employment are subject to acollective bargaining agreement. On the evening of December 15, 1996, Gore was working at the Overhaul Base.While he and coworker Howard Cowher were on a break, another coworker, HaroldSmallwood, allegedly overheard Gore telling Cowher that he planned to kill himself aswell as other TWA employees. Smallwood reported the comments to union stewardRoy Gardner, who in turn reported the comments by telephone to Thomas Clossick, asupervisor in the Facilities Maintenance Department at the Overhaul Base. Clossicktelephoned the report to James Nass, who is the Manager of the Facilities MaintenanceDepartment and Clossick’s immediate supervisor. Nass consulted with Paul Davis,who is TWA’s Employee Relations Manager. Nass then instructed Clossick to getwritten statements from the coworkers as to Gore’s statements and if necessary to callthe police. After reading the coworkers’ statements,
[FOOTNOTE 2]Clossick called the Kansas CityInternational Airport Police. Gore asserted that Smallwood had not heard the entireconversation and had taken Gore’s statements out of context. The police handcuffedGore and patted him down searching for weapons. They requested permission tosearch his locker, tool chest, tool box, lunch box, and vehicle. Gore initially deniedconsent, but after consulting with union stewards, Gore consented to the search of his 3vehicle and locker. Supervisor Clossick required Gore to turn in his TWAidentification badge and parking pass, and he suspended Gore pending a terminationhearing. The following morning, Rollin Parker, a supervisor in the Facilities MaintenanceDepartment at that time, informed his crew members of the occurrence, warned themnot to allow Gore onto the premises, and instructed them to call the guard house ifGore attempted to return to the Overhaul Base. Nass held a supervisors’ meeting withParker and Kenneth Gabriel and told them to warn their employees that Gore was adangerous man. Gore’s identification badge photograph was enlarged and posted invarious places at the Overhaul Base to enable TWA employees to recognize Gore. The collective bargaining agreement includes a management rights clause,pursuant to which TWA issued Rules of Conduct and Personnel Regulations, providingin pertinent part that violence, threatening other employees, and firearms are prohibitedfrom the premises and that the company reserves the right to make inspections ofemployee lockers, desks, lunch boxes, vehicles, and other items of personal propertylocated on the premises when there is reason to believe they may contain prohibiteditems. Also, the collective bargaining agreement imposes contractual obligations onTWA to protect the safety of its employees. The agreement requires TWA to maintainsafe working conditions and to promptly handle complaints involving the safety ofworking conditions. (See J.A. at 179.) The defendants claim to have acted inaccordance with the duties imposed by the collective bargaining agreement. Gore disputed the truth of the statements made by supervisors advisingemployees that Gore was dangerous or posed a threat to TWA employees. While onsuspension, Gore submitted to a psychological examination which demonstrated thathe posed no threat to TWA personnel. Thereafter, the TWA hearing board decided thatGore did not pose a threat and reinstated him with back pay. Gore filed a complaint in federal court against TWA, Clossick, Nass,Smallwood, and Parker, asserting a 42 U.S.C. � 1983 violation along with severalstate-law claims. The district court granted summary judgment in favor of TWA andClossick on the � 1983 claim, concluding that they were not state actors and did not actunder color of state law. (J.A. at 254.) Having thus disposed of the only federal lawclaim, the district court declined to exercise supplemental jurisdiction over theremaining state-law claims. This court affirmed the dismissal for lack of a state actor.See Gore v. Trans World Airlines, 163 F.3d 603 (8th Cir. 1998) (unpublished); (J.A.at 255). Gore then filed an amended complaint in state court, asserting claims of falsearrest, negligence, libel and slander, and invasion of privacy for publicly placing himin a false light and public disclosure of private facts. The defendants removed the caseto federal district court. Gore filed a motion to remand, which the district court deniedupon concluding that “the evaluation of whether the Plaintiff’s claims have merit isinextricably intertwined with consideration of terms in the [collective bargainingagreement].” (J.A. at 284.) Noting that the resolution of Gore’s claims will require ananalysis of both his rights and the defendants’ duties under the collective bargainingagreement, the district court determined that the claims are minor disputes preemptedby the RLA. The district court then granted the defendants’ motion to dismiss, citing itsprevious determination that the claims are preempted by the RLA and refusing toreconsider the preemption issue. Gore now appeals the district court’s denial of hismotion for remand and the dismissal of his complaint on grounds of preemption. II. We review the district court’s denial of a motion to remand and its dismissal ofthe complaint on grounds of preemption under a de novo standard. See Schuver v.MidAmerican Energy Co., 154 F.3d 795, 798 (8th Cir. 1998); Taggart v. Trans WorldAirlines, Inc., 40 F.3d 269, 272 (8th Cir. 1994). A defendant may remove a state court claim to federal court only if the claimoriginally could have been filed in federal court, and the well-pleaded complaint ruleprovides that a federal question must be presented on the face of the properly pleadedcomplaint to invoke federal court jurisdiction. Caterpillar Inc. v. Williams, 482 U.S.386, 392 (1987). A defendant is not permitted to inject a federal question into anotherwise state-law claim and thereby transform the action into one arising underfederal law. See id. “Congress has long since decided that federal defenses do notprovide a basis for removal.” Id. at 399. “Thus, a case may not be removed to federalcourt on the basis of a federal defense, even if the defense is anticipated in the plaintiff’scomplaint, and even if both parties admit that the defense is the only question truly atissue in the case.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998)(internal quotations and alterations omitted). To permit removal on the basis of afederal defense would deprive the plaintiff of the right to be the master of his cause ofaction. See Caterpillar Inc., 482 U.S. at 399. An independent corollary to the well-pleaded complaint rule is known as thecomplete preemption doctrine. Id. at 393. The complete preemption doctrine convertsan ordinary state-law claim into a federal claim where “the pre-emptive force of astatute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaintinto one stating a federal claim for purposes of the well-pleaded complaint rule.’” Id.(quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Whetherfederal law preempts a state-law cause of action is a question of congressional intent. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). “Congress’ purpose in passing the RLA was to promote stability in labor-managementrelations by providing a comprehensive framework for resolving labordisputes.” Id. Under the RLA, parties are obligated to arbitrate minor disputes, whichare controversies arising out of the application or interpretation of the collectivebargaining agreement, and therefore, complete preemption applies to disputes involvingduties and rights created or defined by the collective bargaining agreement. See id. at256-59. Claims of preemption under the RLA are governed by a standard that is”virtually identical” to that employed under � 301 of the Labor and ManagementRelations Act (LMRA), 29 U.S.C. � 185; under this standard, “a state-law cause ofaction is not pre-empted by the RLA if it involves rights and obligations that existindependent of the [collective bargaining agreement].” Norris, 512 U.S. at 260. “[W]here the resolution of a state law claim depends on an interpretation of the[collective bargaining agreement], the claim is pre-empted.” Id. at 261 (discussingfavorably the analysis set forth in Lingle v. Norge Div. of Magic Chef, Inc, 486 U.S.399 (1988)). However, “‘purely factual questions’ about an employee’s conduct or anemployer’s conduct and motives do not ‘requir[e] a court to interpret any term of acollective-bargaining agreement.’” Id. (quoting Lingle, 486 U.S. at 407) (alteration inoriginal). Also, a mere need to reference or consult a collective bargaining agreementduring the course of state court litigation does not require preemption. See id. at 261n.8. Our preemption analysis focuses on a determination of whether the state-law claim”confers nonnegotiable state-law rights on employers or employees independent of anyright established by contract, or, instead, whether evaluation of the tort claim isinextricably intertwined with consideration of the terms of the labor contract.” Allis-ChalmersCorp. v. Lueck, 471 U.S. 202, 213 (1985) (cited favorably in Norris, 512U.S. at 260-61); see Taggart, 40 F.3d at 272 (noting that “the critical question is oneof characterization–does the state law claim involve interpretation or application of thecollective bargaining agreement”). In this case, the district court concluded that Gore’s state-law claims arepreempted because they are inextricably intertwined with a consideration orinterpretation of the collective bargaining agreement. Gore asserts that his state-lawclaims exist independent of the collective bargaining agreement and are not preempted.Our review of Missouri law, however, convinces us that the rights asserted in Gore’stort suit are not nonnegotiable, independent state-law rights. Instead, the facts of thistort suit make it “inextricably intertwined with consideration of the terms of the laborcontract.” Allis-Chalmers Corp., 471 U.S. at 213. Gore’s complaint alleges claims of false arrest, negligence, libel and slander, andinvasion of privacy (both by placing Gore in a false light and by disclosing privatefacts). While state law has created these tort actions, the collective bargainingagreement is the defining source of the duties specifically owed by the defendants foreach claim asserted. “The essence of the cause of action of false arrest, or falseimprisonment, ‘is the confinement, without legal justification, by the wrongdoer of theperson wronged.’” Rustici v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. 1984) (en banc)(quoting Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo. 1969)). To prevail on thisclaim, the plaintiff bears the burden to demonstrate that the defendants’ actions weredone “without legal justification.” Gore’s complaint pleads this essential elementgenerically, avoiding any mention of the relative rights and duties contained within thecollective bargaining agreement. The defendants have indicated that their actions wererequired according to their interpretation of specific provisions in the collectivebargaining agreement. While we are mindful that removal cannot be invoked on the basis of facts notalleged in the complaint, see Caterpillar Inc., 482 U.S. at 397, we are also constrainedby the artful pleading doctrine–the principle that “a plaintiff may not defeat removal byomitting to plead necessary federal questions.” Rivet, 522 U.S. at 475 (internalquotations omitted). When a plaintiff has artfully pleaded in a manner that avoids anelement of the tort that rests on federal law, the court “may uphold removal even thoughno federal question appears on the face of the plaintiff’s complaint.” Id.; see alsoFederated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981) (quoting a treatisestating that courts will not permit artful pleading to close off a defendant’s right to a.8federal forum and will seek to determine whether the real nature of the claim is federal,regardless of plaintiff’s characterization). While Gore’s complaint avoids mention of the collective bargaining agreement,it indicates that the actions took place in the course and scope of the defendants’employment with TWA, a relationship in fact governed by a collective bargainingagreement that specifically requires TWA to provide a safe working environment andto promptly investigate and handle complaints relating to worker safety. Employersand employees are free to negotiate what actions an employer may take to preserve thesafety and security of the workplace and the safety of other employees. Given the factthat Gore’s alleged statements caused a serious security concern in the workplace,Gore’s burden to prove that he was falsely arrested without legal justification willnecessarily require an interpretation of the collective bargaining agreement to determinewhether the defendants acted contrary to their duties under the agreement. Thus, thisclaim is not based on an independent state-law right but is inextricably intertwined withthe provisions of the collective bargaining agreement. Therefore, the claim ispreempted. Likewise, Gore’s libel and slander claims will require the court to construewhether the defendants’ actions conformed to the rights and duties created under thecollective bargaining agreement. “The elements of defamation in Missouri are: 1)publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false,5) that is published with the requisite degree of fault, and 6) damages the plaintiff’sreputation.” Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (enbanc). The element requiring a showing that the statement was published with therequisite degree of fault will need to be evaluated within the framework of the contractterms governing the standard by which TWA must handle employee safety complaints.The defendants assert that their actions were required by specific provisions of thecollective bargaining agreement. Again, artful pleading has avoided the fact that the.9collective bargaining agreement is inextricably intertwined with the resolution of thisdispute. The same can be said about Gore’s claim of negligence. In the circumstancespresented in this case, where simple negligence is claimed in the manner in which TWAemployees (acting within the course and scope of their employment) investigated aclaim of a threat to other employees, the collective bargaining agreement is the sourceof the duty of care owed. The duty allegedly breached is defined by the agreement thatgoverns the employment relationship. See Allis-Chalmers Corp., 471 U.S. at 216(noting that preemption applies if the extent of the duty ultimately depends upon theterms of the agreement between the parties). When the collective bargaining contractis the source of the duty allegedly breached, application of the tort remedy ispreempted. See Lingle, 486 U.S. at 405 & n.4. Finally, Gore claims violations of his right to privacy because TWA employeespublished private facts and placed him in a false light. These state-law torts require ashowing that the other party unreasonably obtained private information or that thedisclosure would be highly offensive to a reasonable person. See St. Anthony’s Med.Ctr. v. H.S.H., 974 S.W.2d 606, 610 (Mo. Ct. App. 1998) (stating the elements of thetort of publishing private facts); Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475, 478n.5 (Mo. 1986) (en banc) (stating the elements of placing another in a false light). Theduties owed and the reasonableness of the parties’ actions in these circumstances cannotbe evaluated independently from the bargained-for terms of the collective bargainingagreement. The extent of the plaintiff’s privacy rights in this matter were legallynegotiated by the terms of the collective bargaining agreement, and therefore, theresolution of these tort claims is inextricably intertwined with an interpretation of therights and duties created by the collective bargaining agreement. Gore contends that his claims are purely factual, that the collective bargainingagreement need only be referenced during the state court litigation (not interpreted),and that justification defenses grounded in rights and duties created by the collectivebargaining agreement do not give rise to preemption, citing Norris and Meyer v.Schnucks Markets, Inc., 163 F.3d 1048 (8th Cir. 1998). We disagree. Gore’s claimsare not purely factual but are rooted in an interpretation of the collective bargainingagreement. We do not hold that removal and preemption may be based on a federaldefense. Instead, we have concluded that Gore cannot be successful on the claims hehas pleaded in this factual situation without interpreting certain terms of the collectivebargaining agreement that govern the rights and duties of the parties. Additionally, wefind the facts of Norris and Meyer distinguishable from the facts at hand. In Norris, the plaintiff alleged that he was discharged in violation of state publicpolicy and the state whistle-blower protection law. The Court held that these claimsare not preempted because they are grounded in independently created state-law rightsinvolving purely factual questions. See 512 U.S. at 266. To the contrary, for Gore toprove the elements of the torts he alleged in this case, he will be required to argue themeaning of standards or duties created and defined by the governing collectivebargaining agreement. Because the collective bargaining agreement provides thesource of the duties allegedly breached or governs the determination of reasonablenessunder the state law, the resolution of Gore’s tort claims will require more than a meretangential reference to the collective bargaining agreement, even though Gore’scomplaint omits any reference to the collective bargaining agreement. The Court inNorris expressly recognized that “where the resolution of a state-law claim depends onan interpretation of the [collective bargaining agreement], the claim is preempted.” 512U.S. at 261. In the same manner, the Meyer case from our court is distinguishable. In Meyer,we held that Meyer’s state-law claims of slander, tortious interference with a businessrelationship, and retaliatory transfer were not preempted by the LMRA. The facts,however, are far different from Gore’s case. In Meyer, the plaintiff alleged that inretaliation for his criticism of his employer’s improper sanitation procedures in handlingmeat, the company allowed supervisors to harass him and criticize him publicly. 163F.3d at 1049. We stated that complete preemption occurs when the plaintiff’s claim”require[s] the interpretation of some specific provision of a [collective bargainingagreement].” Id. at 1051. We concluded, however, that the causes of action allegedin that particular context were neither based on nor substantially dependent upon aninterpretation of the collective bargaining agreement. Id. (also noting that although thefacts of the complaint occurred while the plaintiff was on the job, “the claimsthemselves are not inherently tied to any provision of the relevant [collective bargainingagreement]“). To the contrary, Gore asserts facts that occurred while the defendants wereseeking to respond, according to their duties under the collective bargaining agreement,to a perceived security threat to many employees. The defendants have set forthspecific provisions of the collective bargaining agreement that they contend governedtheir actions and prescribed their duties in this factual scenario. Gore cannot establishliability on his tort claims without demonstrating that the defendants’ actions werewrongful under a proper interpretation of the relevant rights and duties bargained forin the collective bargaining agreement. III. Accordingly, we affirm the judgment of the district court. HEANEY, Circuit Judge, dissenting. The majority opinion is inconsistent with the United States Supreme Court’sdecision in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994), and with thedecisions of this circuit in Taggart v. Trans World Airlines, Inc., 40 F.3d 269 (8th Cir.1994), Luecke v. Schnucks Mkts., Inc., 85 F.3d 356 (8th Cir. 1996), and Meyer v..3I recognize that some of the cases I rely upon involve preemption questionsunder the Labor Management Relations Act (LMRA). I agree with the majority thatpreemption analysis under the LMRA and the RLA is virtually identical. SeeNorris, 512 U.S. at 263 n.9. Schnucks Mkts., Inc., 163 F.3d 1048 (8th Cir. 1998), and for that reason, I respectfullydissent.
[FOOTNOTE 3] Justice Blackmun, writing for the Court in Norris, reviewed the scope of federalpreemption under the RLA in a case involving a state law claim brought by an aircraftmechanic alleging he was discharged for refusing to certify a plane that he consideredunsafe and for reporting his safety concerns to the FAA. The Court held that Norris’sstate law claim was not preempted even though he also could seek redress through theRLA’s arbitral mechanism. The Court stated that “no proposed interpretation [of theRLA] demonstrates a clear and manifest congressional purpose to create a regime thatbroadly pre-empts substantive protections extended by the States, independent of anynegotiated labor agreement.” Norris, 512 U.S. at 255-56. Here, the majority recognizes, and I agree, that the state of Missouri has createdtort actions for false arrest, negligence, libel and slander, and invasion of privacy, bothby placing Gore in a false light and by disclosing private acts. I part company with themajority, however, in its conclusion that the collective bargaining agreement is thedefining source of the duties specifically owed by TWA to Gore. Here, as in Norris,the collective bargaining agreement is not the “only source” of the rights that Goreasserts in his state law claims. See id. at 258. Wholly apart from the collectivebargaining agreement, TWA had an obligation not to violate Gore’s state law rights.The parties’ obligation under the RLA to arbitrate disputes arising out of the applicationor interpretation of the collective bargaining agreement does not relieve the companyof this duty, nor does it deprive an employee of his opportunity to bring a state lawaction for damages. See id. Here, as in Norris, we have purely factual questions aboutan employee’s conduct, the employer’s response to that conduct, and its motives for soresponding. The majority’s argument that resorting to the collective bargaining agreement isnecessary to determine where state statutes have been violated is foreclosed by theSupreme Court’s decisions in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.399 (1988), and in Norris, holding that the issue of whether an employer’s actionestablishes the elements of a claim under state law is purely a factual question. Norris’simpact on the jurisprudence relating to an employee’s right to bring a state law actionin RLA cases is illustrated by the pre- and post-Norris decisions in the Fifth Circuitcase of Hirras v. National R.R. Passenger Corp., 10 F.3d 1142, cert. granted andjudgment vacated, 512 U.S. 1231 (1994). There Hirras asserted, inter alia, a state lawclaim for intentional infliction of emotional distress based on verbal abuse by co-workers,abusive telephone calls from unknown sources, and offensive graffiti. Thedistrict court held that the claim was preempted by the RLA; the Fifth Circuit affirmed.On certiorari, the Supreme Court vacated the decision and remanded to the Fifth Circuitfor reconsideration in light of Norris. On remand, the Fifth Circuit rejected theemployer’s argument that a state law claim for intentional infliction of emotionaldistress arises out of the collective bargaining agreement because the agreementdetermines the standard by which the employer’s conduct is judged. See Hirras v.National R.R. Passenger Corp., 44 F.3d 278 (5th Cir. 1995). The similarity betweenHirras and this case should dictate the same result, one which the majority eschews.I thought that this court settled the questions raised here in the two Schnuckscases. In Luecke v. Schnucks Mkts., Inc., 85 F.3d 356 (8th Cir. 1996), an employeebrought an action for defamation against his employer, Schnucks Markets, alleging thatthe employer told others that he refused to take a drug test. Schnucks argued thatresolving the defamation claim depended on an analysis of the collective bargainingagreement’s clauses regarding management rights and establishing a grievance. procedure. We held that the claim was not preempted because the issue could bedetermined based on whether the employee took the drug test, whether the company’sstatement that he refused was false, and whether it was made with malice. Similarly,here the questions to be answered are whether Gore was confined without legaljustification, and whether Gore was libeled or slandered. The first question can beanswered without reference to the collective bargaining agreement. Either theemployer was justified or it was not. Although TWA’s justification defense may bebased on the collective bargaining agreement, the agreement would at most beconsulted, and not interpreted. Whether Gore was libeled or slandered can beanswered by determining whether TWA made a defamatory false statement aboutGore, published it with the requisite intent, and in so doing damaged Gore, all questionsthat can be answered without interpreting the collective bargaining agreement. Thisreasoning applies equally to the privacy and negligence claims. In Meyer v. Schnucks Mkts., Inc., 163 F.3d 1048 (8th Cir. 1998), John Meyer,a meat cutter, brought a state law action for slander, intentional infliction of emotionaldistress, and other claims. Schnucks removed the case to federal court allegingpreemption. The district court held some claims were preempted; others were not. Itthen granted summary judgment on the non-preempted claims. Our court reversed,holding that none of the plaintiff’s claims were preempted. We stated:Although the events underlying Mr. Meyer’s complaint occurred onthe job, the claims themselves are not inherently tied to any provision ofthe relevant CBA. To prove slander, Mr. Meyer will have to produceevidence that Mr. Jansen made false statements that injured Mr. Meyer’sreputation. The elements of tortious interference with a businessrelationship are the existence of a contract or of a valid businessexpectancy known to the defendant, intentional and unjustifiedinterference causing a breach of the contract, and damages. Except forthe existence of the valid business expectancy itself, which can bedemonstrated by mere reference to the CBA without any analysis of it,neither of these causes of action is based on, or substantially dependent.upon an interpretation of, the CBA. Therefore, neither of them isautomatically preempted by the LMRA. For similar reasons, we seenothing in the basic elements of the other claims that requires analysis ofthe CBA for their resolution. Id. at 1051. Similarly, any inquiry in this case into the collective bargaining agreement merelywould require its consultation, and not interpretation of it. Accordingly, Gore’s claimsare not be preempted. For the reasons outlined above, I have no alternative but to dissent.A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. :::FOOTNOTES:::
FN1The Honorable Gary A. Fenner, United States District Judge for the WesternDistrict of Missouri.
FN2The statements of Smallwood and Cowher both reported that Gore stated heneeded to vent his anger before ending his own life and that he planned to kill TWAemployees during a shift change. (See J.A. at 279.)
FN3I recognize that some of the cases I rely upon involve preemption questionsunder the Labor Management Relations Act (LMRA). I agree with the majority thatpreemption analysis under the LMRA and the RLA is virtually identical. SeeNorris, 512 U.S. at 263 n.9.
Gore v. Trans World Airlines The Honorable Gary A. Fenner, United States District Judge for the WesternDistrict of Missouri. United States Court of Appeals For The Eighth Circuit No. 99-2363 Andrew L. Gore, Appellant, v. Trans World Airlines, a Delawarecorporation; Thomas J. Clossick;James Nass; Harold Smallwood;Kenneth Gabriel; Rollin O. Parker, Appellees. Appeal from the United StatesDistrict Court for theWestern District of Missouri. Submitted: December 16, 1999 Filed: April 26, 2000 Before BEAM, HEANEY, and HANSEN, Circuit Judges.
