                    United States Court of Appeals,

                                Fifth Circuit.

                                 No. 93-8424.

           Patricia BURGOS, et al., Plaintiffs-Appellants,

                                      v.

         SOUTHWESTERN BELL TELEPHONE CO., Defendant-Appellee.

                                May 11, 1994.

Appeal from the United States District Court for the Western
District of Texas.

Before ALDISERT*, REYNALDO G. GARZA and DUHÉ, Circuit Judges.

     PER CURIAM:

     The Burgos family appeals the district court's grant of

summary judgment in favor of Southwestern Bell Telephone Co. on the

basis that section 301 of the Labor Management Relations Act

("LMRA"),    29   U.S.C.   §§    141-187,     preempts   their   intentional

infliction of emotional distress claim.             Finding no error, we

AFFIRM.

                                   I. FACTS

     Oscar Burgos was employed by Southwestern Bell Telephone Co.

("Southwestern Bell") for over nineteen years. In 1989, Burgos was

a non-management employee with the title Communications Technician.

He was a member of the labor organization Communications Workers of

America, which was a party to a collective bargaining agreement

with Southwestern Bell.         The agreement covered the conditions of

employment of Burgos and other employees similarly situated.             In

     *
      Circuit Judge for the Third Circuit, sitting by
designation.

                                      1
August, 1989, Burgos was found to be suffering from a heart

condition known as idiopathic, congestive cardiomyopathy.                         After a

period of hospitalization, he recovered sufficiently to return to

work in October, 1989, on a restricted basis, the restriction being

that he was forbidden to lift anything heavier than twenty-five

pounds.     With this restriction, Burgos was apparently able to

perform the duties of a Communications Technician, at least for a

few months.        He was assigned to a group known as the Special

Services Group.

     In March, 1990, Southwestern Bell made a management decision

to transfer the work being done by the Special Services Group in El

Paso to     the    Dallas   office.     Under     the    collective            bargaining

agreement then in effect, Burgos had three options:                        (1) move to

Dallas with the Special Services Group;                      (2) seek and obtain

another   position     with    the    company    in     El    Paso,       or    (3)     take

termination,       which    entitled    the     employee       to     a    termination

allowance.    Burgos advised the company that his doctor advised him

not to move to Dallas with the Special Services Group.                      Rather than

taking termination, he decided to apply for another position with

the company in El Paso.        Pursuant to the Job Vacancy Article of the

collective     bargaining      agreement,     Burgos         took    four       tests    to

determine    his    qualifications     for    alternative           positions      within

Southwestern Bell.         He failed all four tests, which the appellants

specifically attribute to his worsening medical condition.

     On July 7, 1990, a position became available in network

switching and Burgos was placed in this position.                         Although his


                                        2
title of Communications Technician continued, his duties were

changed significantly.      He was sent to Dallas to attend a course in

electronic switching known as the "511A Training Course."           Burgos

proceeded to fail a segment of this course, and he was deemed by

Southwestern Bell to have failed the entire course.         As a result,

he was "retreated" back to El Paso to his former position in

Special Services.    His continued efforts to obtain a new position

with Southwestern Bell in El Paso were unsuccessful.         Finally, on

August 17, 1990, Burgos notified Southwestern Bell that he would

take termination.    Accordingly, his employment was terminated and

he received termination pay of about $30,000.00.        After this, his

heart condition worsened, and he was hospitalized.          On October 3,

1990, Burgos died while awaiting a heart transplant.

                          II. PROCEDURAL HISTORY

     The widow and children of the deceased, Oscar Burgos, brought

a civil action in the El Paso County Court, alleging negligence,

breach   of   contract,    and   intentional   infliction   of   emotional

distress.     Southwestern Bell filed a notice of removal to the

Western District of Texas on the basis of diversity of citizenship

and federal question.        The Burgos family abandoned all claims

except for their intentional infliction of emotional distress

claim.   The district court granted summary judgment in favor of

Southwestern Bell on the basis that section 301 of the LMRA

preempted the Burgos family's tort claim.            The Burgos timely

appealed to this court.

                             III. DISCUSSION


                                     3
      The   sole   issue   on   appeal       is   whether       the   district   court

properly granted summary judgment on the basis that federal law,

via the LMRA, preempts the Burgos' intentional infliction of

emotional distress claim.

A. Standard of Review

       This court reviews the district court's rulings on motions

for summary judgment de novo.            FDIC v. Laguarta, 939 F.2d 1231,

1236 (5th Cir.1991).        A motion for summary judgment should be

granted only where competent evidence establishes the absence of a

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.                   See, Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d

265   (1986).      A   defendant   moving         for     summary     judgment   must

affirmatively      demonstrate   that        there   is    no    genuine   issue   of

material fact concerning each element of the plaintiff's claims for

relief.     See, Id. at 323, 106 S.Ct. at 2552.                         An issue is

"material" if it involves a fact that might affect the outcome of

the suit under the governing law.             See, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202

(1986).     This court is required to resolve all reasonable doubts

and draw all reasonable inferences in favor of the non-movant, and

then determine whether the movant is entitled to judgment as a

matter of law.      Wells v. General Motors Corp., 881 F.2d 166, 169

(5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109

L.Ed.2d 321 (1990).

B. LMRA Preemption


                                         4
      The Burgos family argues that the district court erred in

holding that their claim of intentional infliction of emotional

distress is preempted by section 301(a) of the LMRA.                    They argue

that their claim is based on the conduct of the agents and

employees of Southwestern Bell who, with knowledge of Mr. Burgos'

serious heart condition, placed Mr. Burgos under such extreme

emotional distress that his physical condition deteriorated to the

point where    he     was   forced   to       take   voluntary    termination   and

succumbed to an untimely death soon thereafter.                  The Burgos family

argues that they do not complain of the particular Southwestern

Bell policies which set this course of harassment and stress into

effect.     They    further   argue    that      their   claim     of   intentional

infliction of emotional distress does not require any analysis of

the collective bargaining agreement.                 They conclude, therefore,

that their state-law claim is not preempted by section 301(a) of

the LMRA.

     Southwestern Bell, in contrast, argues that the Burgos' tort

claim is nothing more than an attack on their procedures in

declaring     force     adjustments,           filling    job     vacancies,    and

effectuating terminations.            Southwestern Bell claims that the

entire process through which Oscar Burgos passed in the spring and

summer of 1990 was the effectuation of their force adjustment

decision pursuant to the collective bargaining agreement.                   As the

Burgos' tort claim is only another way of complaining about that

process and Oscar Burgos' ultimate termination from employment,

their claim is substantially dependent upon an analysis of the


                                          5
collective bargaining agreement.             Southwestern Bell concludes,

therefore, that the Burgos' tort claim is preempted by section

301(a) of the LMRA.

      Section 301(a) of the LMRA states:

      Suits for violation of contracts between an employer and a
      labor organization representing employees in an industry
      affecting commerce as defined in this chapter, or between any
      such labor organizations, may be brought in any district court
      of the United States having jurisdiction of the parties,
      without respect to the amount in controversy or without regard
      to the citizenship of the parties.

29 U.S.C. § 185(a).

      In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399,

405-06, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988), the U.S.

Supreme Court held:

      if the resolution of a state-law claim depends upon the
      meaning of a collective-bargaining agreement, the application
      of state law (which might lead to inconsistent results since
      there could be as many state-law principles as there are
      States)     is    pre-empted     and    federal     labor-law
      principles—necessarily uniform throughout the Nation—must be
      employed to resolve the dispute.

Prior   to   Lingle,    the   U.S.    Supreme   Court,      in   Allis-Chalmers

Corporation v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85

L.Ed.2d 206 (1985), 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 be either treated as a § 301 claim, [authority omitted], or

dismissed as pre-empted by federal labor-contract law."

      In Brown v. Southwestern Bell Telephone Co., 901 F.2d 1250,

1253 (5th Cir.1990), an employee was told by his personal physician

that he was completely disabled and should not return to work.


                                        6
Southwestern Bell, however, informed the employee that if he did

not return to work by a certain date, he would be terminated.                         Id.

The    employee   brought      a    claim        for   intentional    infliction      of

emotional distress based on the fact that Southwestern Bell forced

him to chose between his job and his doctor's advice.                        Id.     This

court held that the employee's claim was essentially that his

absence from work pursuant to doctor's orders did not constitute a

just cause for discharge under the collective bargaining agreement.

Id. at 1255.       Thus, the court reasoned, his claim required an

interpretation of the collective bargaining agreement and was

preempted by section 301 of the LMRA.                    Id. at 1255-56.

       The Fourth Circuit, in McCormick v. AT & T Technologies, Inc.,

934 F.2d 531 (4th Cir.1991) (en banc), cert. denied, --- U.S. ----,

112 S.Ct. 912, 116 L.Ed.2d 813 (1992), dealt with a similar

situation.        In   McCormick,       the       plaintiff      brought    claims    for

intentional and negligent infliction of emotional distress, as well

as    other   claims   based       on   AT    &    T's    removal   and     discard   of

plaintiff's personal belongings from his locker.                     Id. at 533.      The

Fourth Circuit held that the plaintiff had the burden of proving

wrongful conduct and that he must demonstrate not that the conduct

was wrongful      in   some    abstract          sense,    but   wrongful    under    the

circumstances.     Id. at 535-36.            The court went on to state that the

circumstances that must be considered in examining management's

conduct are not merely factual, but contractual, and the collective

bargaining agreement is a crucial component of these circumstances.

Therefore, plaintiff's intentional infliction of emotional distress


                                             7
claim was preempted by section 301 of the LMRA.          Id. at 536.

      We agree with the reasoning in Brown and McCormick.        In order

to determine whether Southwestern Bell acted wrongfully in the way

it transferred Mr. Burgos from one section to another, required him

to    take   different   tests,     and   ultimately    effectuated     his

termination, an analysis of Southwestern Bell's obligations under

the   collective   bargaining     agreement   is   necessary.   Since    an

analysis of the collective bargaining agreement is necessary, the

Burgos' intentional infliction of emotional distress claim is

preempted by section 301 of the LMRA.

      Therefore, we find that the district court properly granted

summary judgment in favor of Southwestern Bell.

                            IV. CONCLUSION

      For the foregoing reasons, the district court's grant of

summary judgment is AFFIRMED.




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