Employees that work under a union contract or collective bargaining agreement (CBA) can face arguments that their state law claims are preempted by the CBA. An example is provided in the recent Sixth Circuit case, Paul v. Kaiser Foundation Health Plan of Ohio, No. 11-4217 (December 11, 2012), where the court ruled reversed a district court ruling that the plaintiff's disability discrimination claims were preempted.
Dana Paul worked for 12 years as a CT technologist for Kaiser Foundation Health Plan of Ohio. along the way, she suffered very serious back injuries that resulted in a cervical spine fusion and a bone graft along with other procedures. However, these did not interfere with or impair her ability to perform the essential functions of her job.
However, in late 2008, Kaiser reorganized its operations and created a hybrid job of CT/Rad technologist. As part of her orientation to this position, Paul learned that it would include some lifting and turning of patients for diagnostic X-rays. Given her history of back trouble Paul was concerned about her ability to perform safely these lifting duties alone. And so she filed with Kaiser's human resources department a "Request for Accommodation" that explained she could not work in the diagnostic area without assistance. She had been working second shift but had never worked alone.
Although Paul had not requested it, Kaiser initially misinterpreted Paul's request as asking to be exempted from all diagnostic X-Ray duties. This Kaiser said it could not do. Kaiser next, although Paul had not requested a shift change, informed Paul that it could not accommodate her request for a shift change, explaining that other employees' seniority rights under a CBA prevented it from doing so. Subsequently and even though Paul had never had any trouble doing her job, had never asked to be let out of doing her job, had never asked for a shift change but had asked merely not to work alone so as to make sure someone was available to help lift a patient (a request completely consistent with Kaiser's safety policy that all employees get help when lifting a patient), Kaiser terminated her employment.
After being terminated, Paul sued Kaiser for disability discrimination and retaliation and Ohio State Court under Ohio state law. Kaiser then remove the case to federal court and moved successfully for dismissal on grounds that Paul's "state law claims implicated the terms and conditions of her employment, would necessitate interpretation of rights under the CBA, and were therefore subject to complete preemption by federal law, the Labor Management Relations Act." Paul appealed.
The Sixth Circuit, in an opinion written by Judge David McKeague joined by Judges Gilbert Merritt and Jane Stranch, reversed, holding that Paul's claims were not preempted and that the case had been removed improperly to federal district court. The court found its prior en banc decision in Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir. 1989)(en banc), controlling for two points: (1) whether a CBA may provide relief for the same misconduct is insufficient to trigger preemption where the plaintiff's claims were exclusively under state law; and, (2) an employer's reliance on a CBA as a defense is also insufficient to trigger preemption. Paul's complaint was with in the parameters of this holding for the following reasons:
- her complaint explicitly asserted rights exclusively under Ohio's anti-discrimination civil rights law
- the CBA is not mentioned in the complaint
- Paul's complaint did not invoke rights or procedures under the CBA
- terms of the CBA were invoked only by Kaiser and defense to Paul's claims and as justification for its actions.
The court then went on to consider whether Paul's claim implicated a dispute "inextricably intertwined" or merely "tangentially related" to the CBA's terms, the former supporting preemption and the latter not. The court concluded Paul's claim was merely tangentially related to the CBA explaining as follows:
Plaintiff's request gave rise to an interactive discussion in which Kaiser viewed the request as necessarily implicating need for scheduling changes, changes that would implicate other employees' schedules and seniority rights under the CBA. Kaiser has consistently treated plaintiff's request for accommodation in this manner despite plaintiff's insistence that she had not requested a schedule change and had not, in her existing schedule, encountered a situation when needed help was not available. Further, in view of plaintiff's undisputed statement that the hospital "no lift" policy required all employees to obtain assistance before moving patients, it remains unclear why Kaiser treated plaintiffs request "not to work alone" as impliedly necessitating schedule changes. Yet, when Kaiser determined that the potentially accommodating schedule changes it suggested could not be granted without impinging on CBA rights of other employees, it appears not to have considered any other options for accommodating plaintiff in the CT/Rad technologist position. Furthermore, although Kaiser has identified a handful of CBA provisions that pertain to employee scheduling and seniority rights, there is no showing that plaintiff ever contested Kaiser's interpretation of those terms or asserted other CBA terms bearing on her request.
This case appears to present strong circumstantial evidence that Kaiser, given the links it went to to contrive an inability to accommodate Paul's disability. It appears that Paul's "Request for Accommodation"did nothing other than provide some notice to the hospital that a problem could be created for it and her if the hospital put her in a position where it could not honor its own safety policythat required all employees to obtain assistance before lifting a patient. So in reality Paul did not request anything new, different or special be done for her; her "Request for Accomodation" in reality merely serve to emphasize the importance of following a prudent safety rule. And yet Kaiser stretching out over a period of many months contrived to make Paul's request be for something else, that something else being always something it claimed it could not do because of the CBA and other employees'rights under it.
A similar preemption argument was raised by the employer in Isham v. ABF Freight, a case where the employer asserted CBA terms as a defense to the employee's state law claims. Like the federal District Court in Paul's case, the Fayette Circuit Court erroneously bought the preemption argument. But the Kentucky Court of Appeals reversed using the same type of analysis as did the Sixth Circuit in Paul's case. You can read Isham's Brief, Reply Brief and the Kentucky Court of Appeals opinion.
