                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                               NOT PRECEDENTIAL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
