                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                                                              June 13, 2003
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                     _______________________                     Clerk

                         Summary Calendar
                           No. 02-11139
                     _______________________


                        CHARLES E. KERN,

                                               Plaintiff-Appellant,

                             versus


      THE DANNON CO., INC.; CHARLES KUJAWA; BRUCE HORKLEY;
  PATTY HOLDER; DWAYNE TINCHER; JAMES BAKER; DON FALLAVOLLITA;
           DARLENE REFORE; STEVE DALTON; BILL WRIGHT,

                                               Defendants-Appellees.

____________________________________________________ ____________

           Appeal from the United States District Court
     for the Northern District of Texas, Fort Worth Division
                     Docket No. 4:01-CV-213-Y
_________________________________________________________________


Before DAVIS, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

          Charles E. Kern (“Kern”) appeals the district court’s

grant of summary judgment to his employer, the Dannon Company

(“Dannon”), and several of its supervisory employees on a variety




     *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
of state labor law claims.         For the reasons that follow, we affirm

the district court’s judgment.

                                        FACTS

          In    January    1998,        Kern   began    working     as    a   seasonal

employee for Dannon.       At the time, all of Dannon’s hourly full-

time, part-time, and seasonal employees were represented by a

union.   Dannon    and     the    union       were   parties   to    a   collective-

bargaining     agreement    (“CBA”)        that      defined   the       rights    and

responsibilities of Dannon, the union, and Dannon’s employees.

          Kern    alleges        that    shortly       thereafter,       once   Dannon

discovered that he was 50 years old, his supervisors subjected him

to a wide range of discriminatory treatment with the goal of

prompting his resignation.         After filing Charges of Discrimination

with the Texas Commission on Human Rights (“TCHR”) and the Equal

Employment Opportunity Commission (“EEOC”) for age discrimination

in violation of the Texas Commission on Human Rights Act (“TCHRA”)

and retaliation for filing a Charge of Discrimination, and upon

receiving Notices of Right to Sue, Kern filed suit in February 2001

in state court.      He alleged the following state-law causes of

action: (1) age discrimination in violation of the TCHRA, Tex. Lab.

Code Ann. § 21.001 (Vernon 1996); (2) retaliation in violation of

TCHRA, Tex. Lab. Code Ann. § 21.055 (Vernon 1996); (3) negligent

supervision of employees; (4) negligent retention of employees; (5)

negligent investigation of claims of plaintiff; and (6) intentional



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infliction of emotional distress (“IIED”). His pleadings raised no

federal question.

          Dannon removed the case to the federal court, arguing

that the district court had subject-matter jurisdiction to hear the

case because Kern’s state-law claims were preempted by § 301 of the

Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq.

Kern moved to remand the case to state court, but the district

court denied his motion.

          On August 27, 2002 the district court granted Dannon’s

Motion for Summary Judgment.       After finding that there was in fact

a valid CBA — a predicate requirement for preemption under § 301 —

in place at the time of all alleged tortious events, the district

court held that Kern’s first, second, and sixth causes of action —

age discrimination, retaliation, and IIED — were preempted by §

301. It also held that, though the remaining three claims were not

themselves preempted by § 301, the state-law torts of negligent

retention,   hiring,    and   supervision   were   “only   viable   if   the

employer’s   employee    commits    an   underlying   actionable    tort.”

Because no underlying tort remained after the court’s judgment on

actions one, two, and six, the court proceeded to grant summary

judgment to Dannon on these negligence claims as well.                   The

district court additionally found that Kern had failed to plead any

cause of action under § 301.




                                     3
            Kern now appeals the district court’s grant of summary

judgment.



                            STANDARD OF REVIEW

            This court reviews district court grants of summary

judgment de novo.    Thomas v. Barton Lodge 11, Ltd., 174 F.3d 636,

644 (5th Cir. 1999).

                                DISCUSSION

            The district court’s Order is clear and persuasive, we

affirm for essentially the reasons there stated.

            Another point should be made concerning Kern’s basic

misunderstanding of the reach of the well-pleaded-complaint rule in

the context of labor law claims, especially those that occur in the

shadow of a CBA.

            As Kern no doubt recognizes, ascertaining the scope of a

CBA’s preemption of state labor-law claims is not always easy.

While the Supreme Court has repeatedly said that a CBA does not

necessarily    completely    preempt       state-law     actions,   these   same

opinions suggest that the preemption is well nigh unto complete.

See Livadas v. Bradshaw, 512 U.S. 107 (1994); Lingle v. Norge Div.

of Magic Chef, Inc., 486 U.S. 399 (1988); Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202 (1985).            As a result, a determination of

preemption    necessarily    entails       a   careful   examination   of   the

relationship between the elements of the state-law claim and the


                                       4
CBA at issue.   Jones v. Roadway Express, Inc., 931 F.2d 1086, 1089

(5th Cir. 1991).      The district court adequately described this

tension and the method by which federal courts should determine

whether the particular state-law actions asserted by Kern have been

preempted by a CBA.

          Kern, however, repeatedly expresses puzzlement that he

has ended up in federal court, even though his original pleadings

scrupulously avoided reference to federal questions. His complaint

is premised upon two axioms of our law, namely, that a plaintiff is

master of his complaint, Caterpillar, Inc. v. Williams, 482 U.S.

386, 398–399 (1987), and, second, that federal courts are courts of

limited jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377.     These two come together in the “well pleaded

complaint rule,” a Supreme Court interpretation of 28 U.S.C. § 1331

that holds that a non-diverse defendant cannot remove a case to

federal court if the plaintiff declined to plead an issue of

federal law on the face of his complaint.        Gully v. First National

Bank, 299 U.S. 109 (1936).    Kern believes he pled state law claims

and should enjoy the benefit of a state-law forum.

          Unfortunately      for   Kern,   the     Supreme   Court   has

consistently held, since 1957, that with § 301 Congress federalized

all of state labor law.       Textile Workers Union of America v.

Lincoln Mills of Alabama, 353 U.S. 448, 456–57 (1957); see also

Avco Corp. v. Aero Lodge No. 375, 390 U.S. 557, 559–360 (1968).       As



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the Court said in Lincoln Mills: “Any state law . . . will be

absorbed as federal law and will not be an independent source of

private rights.”   353 U.S. at 457.   Even if the CBA turns out not

to preempt a plaintiff’s properly pleaded state-law claim, the

federal court itself still has jurisdiction over the case.   Plead

it how he will, a plaintiff simply cannot avoid removal of a labor-

law claim — even one premised on state law — to federal court.

          Kern might find some solace, all of this notwithstanding,

in the fact that one of the Supreme Court’s brighter minds thought

this interpretation of § 301 misguided.     This court would refer

Kern to Mr. Justice Frankfurter’s dissent in Lincoln Mills, 353

U.S. at 460, a position which, for all its wisdom, has not found

favor with the majority of his brethren. Until such time, however,

as the Supreme Court follows Frankfurter’s logic, or Congress

leaves the field of labor law to the States, plaintiffs like Kern

cannot avoid their cases — in spite of their careful pleading —

from being removed to federal court.

          Judgment AFFIRMED.




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