United States District Court, W.D. New York
January 14, 2004.
BARBARA ANN CHILLE, a/k/a Barbara Ann McMillin, Plaintiff,
UNITED AIRLINES, Defendant; BARBARA McMILLIN, Plaintiff, v. HUGH JOHNSON, Defendant
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Barbara McMillin (formerly known as Barbara Chille), has
commenced two actions relating to her termination from employment with
United Airlines ("United") in March 2000. The first, Chille v. United
Airlines, has been stayed pursuant to 11 U.S.C. § 362(a), after
United filed a
suggestion of bankruptcy in December 2002. Plaintiff commenced the
second action, McMillin v. Johnson, against her former
supervisor at United, Hugh Johnson, in March 2003 in New York State
Supreme Court (Monroe County). Johnson removed that action to this court
in April 2003, asserting federal-question jurisdiction under
28 U.S.C. § 1331 and 1441.
United and Johnson (both of whom are represented by the same counsel)
have now moved to consolidate these two actions pursuant to Fed.R. Civ.
P. 42(a). Defendant also moves to dismiss the complaint in
McMillin for lack of subject matter jurisdiction, or in the
alternative, to extend the automatic stay under § 362(a) to the
McMillin action. Plaintiff has cross-moved for an order
remanding McMillin to state court pursuant to
28 U.S.C. § 1447(c).*fn1
Plaintiff commenced the Chille action against United in
November 2000, asserting claims (the substance of which is not important
with respect to the motions now before the Court) under the Americans
with Disabilities Act and the New York State Human Rights Law. In April
2002, plaintiff, with leave of court, filed a second amended complaint
that added the following allegations:
Additionally, as a result of the Plaintiff's
disability and her requests that United
accommodate that disability, United orchestrated
Plaintiff's separation from United by forging a
letter of resignation. This letter led to
Plaintiff's involuntary separation from employment
with United. This involuntary separation, which
was procured by fraud and deceit, caused
unnecessary financial hardship and intense
emotional anguish and stress for the Plaintiff.
Docket #34, ¶ 40.
Both parties subsequently moved for summary judgment in
Chille, but while the motions were pending, United filed for
bankruptcy under Chapter 11, and the automatic stay provision of §
362(a) took effect.
ln March 2003, plaintiff commenced the McMillin action in
state court. The McMillin complaint alleges, inter
alia, that after plaintiff submitted a letter to Johnson requesting
two weeks' vacation, Johnson "drafted an altered version of the . . .
letter" to indicate that plaintiff had resigned from her employment at
United, and that "[t]his [altered] letter bore the forged signature of
the Plaintiff." Docket # l, Ex. Y, ¶ 9. Plaintiff alleges that "by
virtue of this fraud and misrepresentation, the Plaintiff was separated
from her employment with United and she has been damaged in the sum of
$1,000,000.00." Id. ¶ 10. A second cause of action alleges
that Johnson "intentionally and willfully interfered with [Plaintiff's]
employment contract [with United] by improper means." Id. ¶
Although the McMillin complaint, on its face, thus asserts
only two claims under state law, defendant contends that it was properly
removed to federal court on the ground that those claims are preempted by
the Railway Labor Act, 45 U.S.C. § 151 et seq. Defendant
asserts that Plaintiff's claims "are inextricably intertwined" with
certain issues relating to the collective bargaining agreement ("CBA")
governing Plaintiff's employment and, therefore, properly prosecuted in
federal court. See Hawaiian Airlines v. Norris, 512 U.S. 246,
252-53 (1994) (RLA establishes mandatory arbitral mechanism for
settlement of "minor" disputes, which "involve `controversies over the
meaning of an existing collective bargaining agreement in a particular
fact situation'") (quoting Trainmen v. Chicago R. & I. R.
Co., 353 U.S. 30, 33 (1957)), and id at 261 ("where the
resolution of a state-law claim depends on an interpretation of the CBA,
the claim is preempted"). Defendant
also asserts that this Court (indeed, any court) lacks subject
matter jurisdiction because minor disputes "must be resolved
only through the RLA mechanisms, including the carrier's
internal dispute-resolution processes and an adjustment board established
by the employer and the unions." Id. at 253 (citing
45 U.S.C. § 184; emphasis added).
I believe that the threshold issue here is whether the
McMillin action should be remanded to state court. If the Court
grants Plaintiff's motion to remand, defendant's other motions will be
Under 28 U.S.C. § 1441(a), a defendant may remove from state court
to federal court "any civil action . . . of which the district courts
of the United States have original jurisdiction." It is the complaint
that determines removal. "Normally, a defense that Plaintiff's claims are
preempted by federal law will not suffice to confer federal question
jurisdiction, which must be determined by reference to the allegations
that `appear on the face of a well-pleaded complaint.'" Marcella v.
Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 45 (2d Cir.
2002) (quoting Plumbing Indus. Bd v. E.W. Howell Co.,
126 F.3d 61, 66 (2d Cir. 1997); see also Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987) ("Federal pre-emption is ordinarily a
federal defense to the plaintiff's suit. As a defense, it does not appear
on the face of a well-pleaded complaint, and, therefore, does not
authorize removal to federal court").
There are exceptions to this general rule, however, two of which must
be considered here. The first is the principle that "a plaintiff may not
defeat removal by omitting to plead necessary federal questions in a
complaint." Franchise Tax Bd of State of Cal. v. Construction
Vacation Trust for Southern California, 463 U.S. 1, 22
(1983) (citation omitted). "If a court concludes that a plaintiff has
`artfully pleaded' claims in this fashion, it may uphold removal even
though no federal question appears on the face of the Plaintiff's
complaint." Rivet v. Regions Bank of Louisiana, 522 U.S. 470,
The second relevant exception applies to cases involving "complete
preemption." Such cases involve claims that are "of necessity so federal
in character that [they] arise under federal law for purposes of
28 U.S.C. § 1331." Plumbing Indus. Bd., 126 F.3d at 66; see
also Rivet, 522 U.S. at 475 ("The artful pleading doctrine allows
removal where federal law completely preempts a Plaintiff's state-law
In these cases, and in all cases seeking remand, "the burden is on the
defendant, as the party asserting federal jurisdiction, to demonstrate
the propriety of removal." Marcella, 293 F.3d at 46; see
also Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) ("It is
also hornbook law that the party invoking federal jurisdiction bears the
burden of proving facts to establish that jurisdiction"), ln my view,
defendant has failed to demonstrate that removal is appropriate.
First of all, as to the first exception to the well-pleaded complaint
rule, there is no evidence that plaintiff engaged in artful pleading by
omitting matters in the complaint for the purpose of defeating
jurisdiction. The allegations in the complaint are clear and
straightforward and nothing appears to be omitted just for the sake of
defeating federal question jurisdiction.
As to the second exception, it is clear that complete preemption does
not exist here under the RLA or any other federal statute. Concerning the
RLA, as to whether the RLA completely preempts state law claims within
its scope, there appears to be some disagreement among the circuits over
this question. Compare Gore v. Trans World Airlines,
210 F.3d 944, 949 (8th Cir. 2000) ("complete
preemption [under the RLA] applies to disputes involving duties and
rights created or defined by the collective bargaining agreement"),
cert. denied, 532 U.S. 921 (2001), with Geddes v. American
Airlines, Inc., 321 F.3d 1349, 1357 (11th Cir. 2003) ("we find that
the doctrine of complete preemption does not extend to the RLA's
provisions governing minor disputes"), cert. denied,
124 S.Ct. 386 (2003); see also Holman v. Laulo-Rowe Agency, 994 F.2d 666,
669 (9th Cir. 1993) (noting conflict within Ninth Circuit over whether
RLA has complete preemptive power).*fn2
The Second Circuit did state in Shafii v. British Airways,
PLC, 83 F.3d 566, 569 (2d Cir. 1996), that "[i]f the state claims
put forward are in fact preempted by the RLA, the action may properly be
removed to the federal courts, even when the plaintiff's complaint does
not itself include a federal cause of action," but that statement was
dictum, since the court went on to find that the Plaintiff's claims in
Shafii were not preempted, on the ground that resolution of
those claims did not require interpretation of the CB A, but rather were
"grounded on `rights and obligations that exist[ed] independent of" the
CBA. Id. at 570 (quoting Hawaiian Airlines, 512 U.S. at
247). See also Solimo v. Metro-North Commuter R.R.,
253 F. Supp.2d 733, 735 n. l (S.D.N.Y. 2003) (opining that "[t]he Second
Circuit . . . is clearly of the opinion that the RLA . . . offers
complete preemption and thus removal jurisdiction for artfully pled state
law complaints in the RLA field") (citing Shafii, 83 F.3d at
569); but see Gay v. Carlson, 60 F.3d 83 (2d Cir. 1995) (noting
that the Second Circuit's previously "expansive view of [RLA]
pre-emption . . . has been called into question by the Supreme Court's
decision" in Hawaiian Airlines).
I find it unnecessary to decide whether there is complete preemption
under the RLA, however, because Plaintiff's claims are not governed by
the RLA in any event. Defendant contends that Plaintiff's claims against
Johnson present two issues governed by the RLA: whether plaintiff "quit
or resigned" within the meaning of the CBA; and whether United acted
within its rights under the CBA in refusing Plaintiff's request that she
be allowed to use her two weeks' vacation time as her two weeks' notice
of resignation so as to preserve her eligibility for rehire. Notice of
Removal ¶ 13. Key to defendant's claim that the RLA controls, is its
belief that the CBA must be interpreted to resolve the dispute between
these parties. Contrary to defendant's assertions, I find that these
issues, at least insofar as they relate to Plaintiff's claims against
Johnson, do not require any interpretation of, or even reference
to, the CBA. As in Shafii, resolution of plaintiff's claims does
not "depend on an interpretation of the [CBA]," but are "grounded on
rights and obligations that exist independently under state law." 83 F.3d
at 570. See also Rice v. Panchal, 65 F.3d 637, 644 (7th Cir.
1995) ("where the plaintiff seeks recovery for breach of a duty imposed
by state law, and the claim does not involve the interpretation of
contract terms, there is no complete preemption under the . . . RLA");
Anderson v. American Airlines, Inc., 2 F.3d 590, 595 (5th Cir.
1993) ("if a Plaintiff's state law claim does not require an
interpretation of a collective bargaining agreement, then the claim does
not involve a minor dispute, the RLA does not pre-empt the claim, and a
state court is a proper forum").
The Supreme Court stated in Hawaiian Airlines that "`purely
factual questions' about an employee's conduct or an employer's conduct
and motives do not `requir[e] a court to interpret any term of a
collective-bargaining agreement.'" 512 U.S. at 261 (quoting Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988)). Such
"purely factual questions" are all that is presented here.
Other courts when faced with analogous situations have found no federal
jurisdiction because provisions of the CBA were either not in dispute or
needed no interpretation. For example, in Foy v. Pratt & Whitney
Group, 127 F.3d 229 (2d Cir. 1997), several former employees of the
defendant brought a suit in state court alleging that their manager had
induced them to forgo a limited transfer opportunity by falsely assuring
them that another opportunity would be afforded at some later time prior
to layoff. The defendant removed the action to federal court on the sole
jurisdictional ground that the action was preempted by § 301 of the
Labor Management Relations Act ("LMRA").*fn3 The district court denied
the Plaintiff's' motion to remand, and granted the defendant's motion on
the ground of Garmon preemption under the National Labor
Relations Act ("NLRA"). See San Diego Bldg. Trades Council v.
Garmon, 359 U.S. 236, 245 (1959).
On appeal, the Second Circuit held that removal was improper, and
vacated the judgment and remanded with instructions to remand the case to
state court.*fn4 In so ruling, the court rejected the defendant's
argument that resolution of the Plaintiff's' negligent-misrepresentation
claims required interpretation of certain provisions of the CBA relating
to the defendant's right to offer transfers to another job prior to a
layoff and to the employees' right to be given the opportunity to move
along with their unit if the unit were transferred. As to the former
provision, the court stated,
Assuming that the alleged misrepresentation was
made, interpretation of this provision would not
be necessary to resolve Plaintiff's' state law
claims. Either the alleged pre-layoff
transfer offer was made pursuant to the
provision or not, a question of employer intent
that does not depend on an interpretation of the
language in the provision.
Foy, 127 F.3d at 235.
Similarly, as to the provision dealing with transfers, the court stated
that although "one might consult this provision in determining whether
Plaintiff's' [sic] justifiably relied on that alleged unqualified
promise, . . . reasonable reliance is primarily a fact question as to
(1) what the Plaintiff's believed, and (2) the circumstances surrounding
the misrepresentation made by the employer." Id. The court added
that "[t]hese Plaintiff's' state law misrepresentation claims depend upon
the employer's behavior, motivation, and statements, as well as
Plaintiff's' conduct, their understanding of the alleged offer made to
them, and their reliance on it." Id.
Likewise, in Gay, in which the plaintiff asserted various
state law claims that revolved around certain reports of misconduct made
against him by the defendant and an alleged conspiracy to have him fired
by his employer, the court of appeals held that the Plaintiff's
state-law claims of defamation, prima facie tort
and conspiracy (which is dependent upon the first
two) are not pre-empted by the Railway Labor Act.
No interpretation of the collective bargaining
agreement is required to resolve these claims.
State law provides the only source of the rights
asserted by Gay-the right to be free of defamation
and the right to be free from the infliction of
intentional harm. The only questions that need to
be resolved in Gay's lawsuit are purely factual
questions that center upon his conduct and upon
the conduct and motives of his fellow employees,
the defendants in the action.
60 F.3d at 88. See also Hernandez v. Conriv Realty
Associates, 116 F.3d 35, 39-40 (2d Cir. 1997).
And in Shafii, the Second Circuit held that the Plaintiff's
state-law claim that the defendant airline fired him in violation of a
mediation agreement between the plaintiff and the airline did not require
interpretation of the CBA applicable to the plaintiff, and therefore was
not preempted by the RLA and not removable. The court stated that "the
fact that one part of the mediation agreement
can be understood only in relation to the CBA does not mean that
every part of the mediation agreement requires us to parse the CBA." 83
F.3d at 570. The court added,
The portion of the mediation agreement on which
Shafii rests his claim of breach of contract,
instead, contains no reference to the CBA, nor
does its interpretation require any such
reference. A state court can determine, as a
matter of state contract law, whether the
airline's decision to fire Shafii was a violation
of the terms of the mediation agreement, and can
do so without looking into the CBA.
Id. at 570. In addition, the court held that the
Plaintiff's retaliatory-discharge claim, "which primarily depend[ed] on a
determination of the employer's motive for firing [the plaintiff]-d[id]
not require an interpretation of the CBA." Id.
Defendant attempts to distinguish Shafii on the ground that
the plaintiff in Shafii "was protected from wrongful
termination, not by the terms of his collective bargaining agreement, but
by state anti-discrimination and anti-retaliation laws and the terms of
the mediation agreement." Defendant's Reply Memorandum of Law at 10.
Defendant contends that plaintiff in the cases at bar "does not allege
that she has any relevant rights that arise under state law, independent
of the [CBA]."
This argument is not persuasive. Plaintiff's claims against United in
Chille may or may not implicate the CBA, but her claims against
Johnson in McMillin are not based on any allegation that he
violated her rights under the CBA. Plaintiff alleges that
Johnson, in effect, engineered her termination from United by means of a
forged or doctored letter that purported to be her notice of resignation.
I fail to see how that requires interpretation of the CBA.
Defendant also argues that the CBA is Plaintiff's only possible source
of a right to continued employment, because plaintiff had no employment
contract, and New York is an "at-will employment" state. Such an argument
misses the point. Plaintiff's claim against Johnson in
McMillin is not that she had an enforceable right to
employment under the CBA, but that Johnson breached a duty or duties that
he owed to her under common law, independent of the CBA. See
Gay, 60 F.3d at 88 ("State law provides the only source of the rights
asserted by Gay the right to be free of defamation and the right
to be free from the infliction of intentional harm"). Plaintiff's loss of
employment is really just an aspect of her damages, which were allegedly
incurred by Johnson's tortious acts. The Court expresses no view as to
whether Plaintiff's status as an at-will employee defeats her claims
under New York law, but the simple fact is that resolution of those
claims does not require reference to the CBA.
In that regard, it is noteworthy that defendant has not pointed to any
provision of the CBA which he contends would require
interpretation, or which would even need to be referred to, in order to
resolve Plaintiff's claims against Johnson. Defendant's notice of removal
asserts that Plaintiff's claims in McMillin are inextricably
intertwined with the issues of whether plaintiff "quit or resigned"
within the meaning of the CBA, and whether United was justified under the
CBA in denying Plaintiff's request to use her two weeks' vacation time as
her two weeks' notice of resignation. Notice of Removal ¶ 13. As to
the latter question, however, the propriety of United's actions
are not at issue in McMillin. It is not a question of whether
plaintiff quit or resigned "within the meaning of" the CBA; it is simply
a question of whether she actually resigned, or whether Johnson
deceitfully made it appear that she had done so. That is a
"purely factual" question that "do[es] not requir[e] a court to interpret
any term of a collective-bargaining agreement." Hawaiian
Airlines 512 U.S. at 261 (internal quote omitted).
I also find defendant's reliance on Solimo to be misplaced.
The plaintiff in Solimo alleged that his former employer had
refused in violation of a promise that it had allegedly made to
allow him to return to his prior employment after he had sustained
an on-the-job injury. Finding the Plaintiff's state law claims to be
preempted by the RLA, the court stated that the "immediate question
before the Court" was "whether Mr. Solimo had proven himself medically
eligible for employment under the collective bargaining agreement." If he
were not medically fit for duty as required by the CBA, the plaintiff
would have had no right to return to work in the first place.
Accordingly, "[u]nlike Hawaiian Airlines or Shafii v.
British Airways, [Solimo] [wa]s a case
where the CBA [wa]s the only source of Solimo's right not to be
discharged wrongfully." Solimo, 253 F. Supp.2d at 735.
That is a far different situation from the one presented in
McMillin. The right asserted in McMillin is not a right
to continued employment under the CBA, but a right not to be victimized
by fraudulent behavior, or not to have one's employment relationship
interfered with by improper means. Whether plaintiff prevails in state
court for violation of these rights remains to be seen, but the CBA is
not the source of those rights, and will not need to be applied or
interpreted in determining the merits of plaintiff's claims.
I conclude, therefore, that plaintiff has pleaded purely state law
claims presenting factual questions, which do not require reference to or
interpretation of the CBA. Accordingly, those claims are not preempted by
the RLA. The McMillin action, therefore, was not properly
removed to federal court, and it must be remanded to state court.
Plaintiff's motion to remand (Docket #7) in McMillin v.
Johnson, 03-CV-6177, is granted, and that action is remanded to New
York State Supreme Court, Monroe County.
Defendant's motion to dismiss for lack of subject matter jurisdiction
in McMillin (Docket #2) is denied. Defendant's motions to
consolidate McMillin with Chille v. United Airlines,
00-CV-6571, and to extend the automatic stay of Chille to the
McMillin action (Docket #2 in McMillin and Docket #46
in Chille) are denied as moot.
IT IS SO ORDERED.