Guerrero v. Triangle Constr , 259 F. App'x 453 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-21-2007
Guerrero v. Triangle Constr
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3593
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-3593
LEONTE GUERRERO
v.
HOVENSA LLC
(D.C. No. 02-CV-00151)
LEONTE GUERRERO;
v.
TRIANGLE CONSTRUCTION AND MAINTENANCE, INC.
(D.C. No. 03-CV-00205)
Leonte Guerrero,
Appellant
On Appeal from the District Court of the Virgin Islands
District Court Nos. 02-CV-151 and 03-CV-205
District Judge: The Honorable Raymond Finch, III
Argued December 10, 2007
Before: SMITH, NYGAARD, and ROTH, Circuit Judges
(Filed: December 21, 2007)
K. Glenda Cameron (Argued)
Law Office of Rohn & Cameron
1101 King Street, Suite 2
Christiansted, St. Croix
U.S. Virgin Islands, 00820
Counsel for Appellant
Charles E. Engeman (Argued)
Ogletree, Deakins, Nash, Smoak & Stewart
1336 Beltjen Road, Suite 201
Charlotte Amalie, St. Thomas
U.S. Virgin Islands, 00802
Counsel for Triangle Construction
Linda J. Blair (Argued)
Bryant, Barnes, Moss & Beckstedt
1134 King Street, 2nd Floor
Christiansted, St. Croix
U.S. Virgin Islands, 00820
Counsel for Hovensa LLC
OPINION
SMITH, Circuit Judge.
The complicated facts and procedural history in this appeal are attributable in large
part to a lack of attention by appellant’s counsel to not only the requirements of federal
practice, but also the interests of her clients. The legal issues, however, are relatively
straightforward and we conclude, after combing the briefs and record before us, that there
2
is no basis for disturbing the judgment of the District Court of the Virgin Islands.1
I.
Leonte Guerrero worked since 1990 for various subcontractors at the Hovensa oil
refinery located on St. Croix, U.S. Virgin Islands. Beginning in July 2001, Guerrero was
employed by Triangle Construction and Maintenance, Inc. (“Triangle”), another Hovensa
subcontractor. On March 18, 2002, Triangle and Our Virgin Islands Labor Union
(“OVILU”) agreed to the terms of a collective bargaining agreement (“CBA”) with a
three year term. Among other things, the CBA allowed Triangle to submit its employees
to a written examination. The CBA provided:
Baseline Safety Assessment The parties recognize that maintenance of a
1
The question of whether the District Court had jurisdiction under 28 U.S.C. §
1446 is addressed below as it involves the merits of Guerrero’s territorial claims. We
exercise appellate jurisdiction over Guerrero’s appeal under 28 U.S.C. § 1291. Appellate
jurisdiction is lacking with respect to Hovensa as Guerrero’s claims against Hovensa are
not final and Guerrero has not challenged the order remanding his claims to the Territorial
Court.
As the parties are well aware, an amended complaint in this action added as
plaintiffs “Theophiles Williams, Mathias Mathews, and others too numerous to mention.”
Because Guerrero’s brief repeatedly referred to these putative plaintiffs, Triangle asserted
that we lack appellate jurisdiction over any claims by Williams, Mathews and others as
they were not identified in the Notice of Appeal. We agree.
The only document filed within the thirty day appeal period was the notice of
appeal, which cited the District Court’s order granting summary judgment in Triangle’s
favor as the basis for appeal and identified only Guerrero as the appellant. Because the
thirty day appeal period is jurisdictional, Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007),
we lack jurisdiction over the appeals of Williams and Mathews as the subsequent
documentation filed with the court, assuming it was the functional equivalent of a notice
of appeal that satisfied the specificity requirement of Appellate Rule 3, was untimely.
3
safe workplace is essential. The Company shall have the right to test
employees’ understanding of basic safe work practices and procedures and
reading and understanding safety signs and markings, directly or through a
third party. Such test may be by written examination. If deemed
appropriate by the Company, an employee may be permitted to have this
test read to him verbatim and his answers recorded for him. The employee
must, as a condition of employment, attain a passing grade (as established
by the Company) on this test. If an employee has already passed this test
he/she shall not be required to retest.
Guerrero failed his test in July 2002 and was terminated on August 2, 2002. The
record does not contain documentation as to whether Guerrero or the OVILU filed a
grievance regarding his termination. Section 6.4 of the CBA provided, however, that
Test administration and test results as well as position assignments as a
result of this Article shall be subject to the grievance procedure. It is
expressly understood and agreed that the actual test(s), and information
concerning the test(s), are strictly confidential and will not be copied or
provided in any manner that could in the opinion of the Company
compromise the integrity of the test(s).
On September 18, 2002, Guerrero’s attorney, Lee Rohn, filed a complaint in the
Territorial Court of the Virgin Islands against Triangle and Hovensa. The complaint
averred that Guerrero was ordered to take the test, that the test was discriminatory
because it was only available in English and he only read Spanish, that he failed the test,
and that he was discharged as a result of the discriminatory test. Guerrero claimed that all
of Triangle’s employment decisions were made or approved by Hovensa. The complaint
asserted that Guerrero’s termination violated both the Virgin Islands’ Wrongful Discharge
Act (“WDA”), 24 V.I.C. § 76(a), and the implied contractual duty of good faith and fair
dealing. An amended complaint dated October 3, 2002 followed. It set out four counts
4
against Triangle and Hovensa: (1) wrongful discharge; (2) a violation of the duty of good
faith and fair dealing; (3) fraud; and (4) intentional infliction of emotional distress
(“IIED”).
On October 15, 2002, Triangle removed this action to the District Court for the
Virgin Islands pursuant to 28 U.S.C. § 1446 and 48 U.S.C. § 1613. Because Triangle had
yet to be served with the amended complaint, it appended only the initial complaint to its
Notice of Removal. In its Notice, Triangle explained that the District Court had original
jurisdiction over this matter because Guerrero’s claims for wrongful discharge and breach
of the implied duty of good faith and fair dealing were completely preempted by § 301 of
the Labor Management Relations Act (“LMRA”).2
Thereafter, Guerrero moved to remand the action to the Territorial Court.
Triangle opposed the motion and filed a motion to dismiss Guerrero’s original complaint.
The District Court denied the motion to remand on the basis that federal question
jurisdiction existed because Guerrero’s claims were completely preempted by § 301 of the
LMRA. Several months later, the District Court granted Triangle’s motion to dismiss on
2
Section 301 provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce . . .
may be brought in any district court of the United States having jurisdiction
of the parties . . . .
29 U.S.C. § 185.
5
the same basis. The claims against Hovensa were not completely preempted as Hovensa
was not a party to the CBA.
In October of 2003, Guerrero filed a second civil action in the Territorial Court
against only Triangle. This 2003 complaint listed only Guerrero as the plaintiff, and
averred essentially the same set of facts as those in the complaint in the 2002 civil action.
Like the amended complaint in the earlier civil action, this 2003 complaint presented the
same four territorial counts: (1) wrongful discharge; (2) violation of the duty of good faith
and fair dealing; (3) fraud; and (4) intentional infliction of emotional distress.
Not surprisingly, Triangle again timely removed these territorial claims to the
District Court. In response, Guerrero acknowledged that “removal is appropriate” and
asserted that the action could “be maintained in the District Court because the Complaint
states a cause of action under Section 301.” Simultaneously, Guerrero filed an amended
complaint, which asserted the same four territorial claims and included a new count,
which alleged a violation of § 301 of the LMRA. This action was consolidated with the
earlier action.
Triangle moved to dismiss Guerrero’s amended complaint in the 2003 action. By
court order dated April 27, 2005, the District Court converted the motion to dismiss to a
motion for summary judgment. More than a year later, on June 22, 2006, the District
Court granted summary judgment in Triangle’s favor. The Court concluded that
Guerrero’s § 301 claim failed for lack of standing “[b]ecause Guerrero does not allege
6
that OVILU breached its duty of fair representation . . . .” The Court also determined that
the territorial claims for wrongful discharge, breach of the duty of good faith and fair
dealing, fraud, and IIED were completely preempted by § 301.
On July 24, 2006, a Notice of Appeal was filed. Guerrero contends that the
District Court erred by denying his motion to remand his initial complaint in the 2002
civil action because his territorial claims were not preempted. He also asserts that the
District Court improperly granted summary judgment on his § 301 claim and the
territorial causes of action asserted in the second civil action.3
II.
Even though Guerrero acknowledged in the District Court that the territorial
claims in his second civil action were completely preempted, he now challenges not only
the propriety of the District Court’s order denying the motion to remand but also the
ruling that the territorial claims were completely preempted.4 In Allis-Chalmers
Corporation v. Lueck, 471 U.S. 202 (1985), the Supreme Court considered the standard to
3
Guerrero also challenged the propriety of a ruling by the magistrate judge
striking his counsel’s notice to correct the caption in the earlier civil action to include
Williams, Mathews, and “others too numerous to mention.” We need not address that
issue inasmuch as we lack appellate jurisdiction over those individuals.
4
We are mindful of Triangle’s assertion that Guerrero waived his right to
challenge the District Court’s ruling denying remand in that he later acknowledged that
removal was appropriate because his allegations stated a claim under § 301. Inasmuch as
the determination of whether these claims were completely preempted also establishes the
District Court’s subject matter jurisdiction, we are obliged to review the issue. Because
the determination that Guerrero’s claims were completely preempted presents a question
of law, our review is de novo. In re U.S. Healthcare, 193 F.3d 151, 159 (3d Cir. 1999).
7
be employed in determining whether a state law claim was completely preempted by §
301 of the LMRA. The Court acknowledged that it was not holding that “every state-law
suit asserting a right that relates in some way to a provision in a collective-bargaining
agreement, or more generally to the parties to such an agreement, necessarily is pre-
empted by § 301.” Id. at 220. It instructed, however, that the preemptive scope of § 301
must be “fleshed out on a case by case basis” and held that “when resolution of a state-
law claim is substantially dependent upon analysis of the terms of an agreement made
between the parties in a labor contract, that claim must either be treated as a § 301 claim,
or dismissed as pre-empted by federal labor-contract law.” Id. (citation omitted). In
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987), the Supreme Court reiterated this
standard, declaring that “[s]ection 301 governs claims founded directly on rights created
by collective-bargaining agreements, and also claims ‘substantially dependent on analysis
of a collective-bargaining agreement.’” Id. at 394 (citation omitted). The inquiry,
therefore, must focus on whether the state law claim “can be resolved without interpreting
the agreement itself[.]” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410
(1988). If so, “the claim is ‘independent’ of the agreement for § 301 pre-emption
purposes.” Id.
Consistent with this standard, we must consider the nature of Guerrero’s claim that
Triangle violated the Virgin Islands’ WDA. The WDA allows an employee to sue for
wrongful discharge if he has been discharged for any reason other than the nine grounds
8
set forth in § 76(a). 24 V.I.C. § 76(a). Section 76(a), however, provides that these nine
grounds for dismissal may be modified by union contract. To discern whether the
WDA’s statutory grounds have been modified requires more than mere consultation of
the CBA. Instead, we must interpret whether the provisions of the CBA regarding
employee testing create a new ground for discharge. Because this analysis requires
interpretation of the CBA, Guerrero’s WDA claim is completely preempted. Lingle, 486
U.S. at 413.
Guerrero’s second claim is also completely preempted as it alleged that there was a
“violation of the implied contractual duty of good faith and fair dealing.” Whether there
is an “implied contractual duty,” will necessarily require an analysis of the terms of the
CBA to determine if the contract as a whole obliges the employer to act with good faith
and fair dealing. See Allis Chalmers Corp., 471 U.S. at 218 (observing that liability for
breach of a contractual duty of good faith “inevitably will involve contract
interpretation”).
Guerrero’s claims for fraud and IIED are based on the facts surrounding the testing
requirement, the manner in which the test was administered, Guerrero’s failure to pass the
test, and his ultimate discharge. The testing requirement and the necessity of passing are
matters specifically addressed in the CBA. Thus, resolving whether there was fraud or an
IIED in the testing and discharge of Guerrero would substantially depend on the analysis
of these provisions in the CBA. Allis-Chalmers, 471 U.S. at 220. Inasmuch as the heart
9
of these state law claims is the testing that occurred, and the heart of Triangle’s defense is
the CBA’s testing provisions, we conclude that Guerrero’s claims alleging fraud and IIED
arise under federal law and are completely preempted. Caterpillar, 482 U.S. at 394
(citation omitted).
We are mindful of our precedent in Berda v. CBS Inc., 881 F.2d 20, 27 (3d Cir.
1989), and Trans Penn Wax Corporation v. McCandless, 50 F.3d 217, 232 (3d Cir. 1995),
which determined that state law claims alleging fraud and IIED were independent from
the CBAs in those cases and not completely preempted by § 301. Berda and Trans Penn
Wax are not controlling, however, as the state law claims in both of those cases were
based on agreements which were separate and distinct from the governing CBAs. Berda,
supra (concerning state tort claim based on oral guarantee of employment); Trans Penn
Wax, supra (concerning state tort claims of fraud and IIED based on written guarantee
given immediately before decertification vote).
Accordingly, we find no error in the District Court’s determination that Guerrero’s
territorial claims were completely preempted. As a result, the District Court’s denial of
Guerrero’s motion to remand in the 2002 civil action and its grant of summary judgment
in favor of Triangle were not incorrect.
III.
Guerrero contends that the District Court erred by granting summary judgment in
10
Triangle’s favor on his § 301 claim.5 We disagree. In Delcostello v. International
Brotherhood of Teamsters, 462 U.S. 151 (1983), the Supreme Court instructed that in a
hybrid § 301 claim against one’s employer and the union, “[t]he employee may, if he
chooses, sue one defendant and not the other; but the case he must prove is the same
whether he sues one, the other, or both.” Id. at 165 (emphasis added). Thus, to prevail on
a § 301 claim, an employee “must not only show that their discharge was contrary to the
contract but must also carry the burden of demonstrating breach of duty by the Union.”
Id. (internal quotation marks and citation omitted); see also Breininger v. Sheet Metal
Wkrs. Int’l Ass’n Local Union No. 6, 493 U.S. 67, 82 (1989) (instructing that an
employee’s § 301 claim against his employer requires demonstrating that the union
breached its duty of fair representation); Vadino v. A. Valey Eng’rs, 903 F.2d 253, 261
(3d Cir. 1990) (observing that an “unfair representation claim is the necessary ‘condition
precedent’ to the employee’s suit” under § 301 against his employer).
Guerrero’s brief in the District Court stated that he “did not allege a breach of the
duty of fair representation by OVILU because there was no such breach.” App. 213. If
there was no such breach, then Guerrero could not prove an essential element of his claim
and the grant of summary judgment was proper.
“5 We exercise plenary review over the District Court’s grant of summary
judgment” and “apply the same standard that the District Court should have applied.”
Shuman ex rel Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005)
(internal citation and quotation marks omitted).
11
IV.
In sum, Guerrero’s territorial claims were completely preempted by § 301 of the
LMRA. As a result, the District Court did not err by denying Guerrero’s motion to
remand the initial complaint, or by granting the motion for summary judgment on the
territorial claims in Triangle’s favor. The dismissal of the § 301 claim was also proper in
light of the fact that Guerrero failed to adduce proof of an essential element of his § 301
claim. Accordingly, we will affirm the judgment of the District Court.6
6
As the parties know, Triangle and Hovensa moved in the District Court to
disqualify Guerrero’s counsel, Lee Rohn, because of her simultaneous representation of
not only the OVILU, but also Triangle’s former director of human resources. The
magistrate judge recognized the conflict and granted the second motion to disqualify.
The District Judge reversed and allowed Rohn to continue her representation of Guerrero
because of Guerrero’s written consent. In our view, the conflict was patent and counsel’s
simultaneous representation of these parties was not the result of an oversight. We are at
a loss to understand how Attorney Rohn could assert, or the District Judge could find, that
Guerrero’s consent to Rohn’s representation of others with interests adverse to him was
informed in light of the circumstances of this case.
12