* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

Nos. 95-40353 and

95-40354

Summary Calendar

_____________________

MICHAEL MORENO,

Plaintiff-Appellant,

versus

CAMPBELL TAGGART BAKING COMPANIES, INC.,

STEVE BERNHARD, BOB BAHR, and

BOBBY HOWARD,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

(CA-C-93-438 & CA-C-94-52)

_________________________________________________________________ January 19, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

Michael Moreno was fired from his position with Campbell

Taggart Baking Co. (also known as Rainbo Baking Co. or "Rainbo"),

on grounds of insubordination. In two separate suits in state

court, he sued his employer, supervisors, and the company doctor,

alleging wrongful retaliation for filing a worker's compensation

claim, breach of contract, negligen ce, and invasion of privacy.

Immediately before the defendants removed the first suit to federal-2-

court, the state court granted summary judgment to the defendants

on the retaliation claim. The remaining claims were removed by the

d efendants to federal court, and Moreno's motions to remand both

law suits were denied. The district court subsequently granted

summary judgment in favor of the Rainbo defendants and Dr. Howard,

on all claims, and it is from this judgment t hat Moreno appeals.

We affirm.

I

Moreno was a baker's helper with Rainbo. On October 1, 1992,

he injured his heel at work. He called his supervisor the next day

to tell him h e was sick and would not be in. The supervisor

directed Moreno to come to work to complete an injury report form,

and arranged for Moreno to see the company doctor, Dr. Howard, that

afternoon. Another supervisor, Steve Bernhard, told Moreno to call

him after visiting with the doctor. Dr. Howard confirmed the

injury, gave Moreno an excuse from work that day, and directed him

not to report to work until October 4, since October 3 (t he next

day) was Moreno's regular day off. Moreno, however, did not tell

the doctor that he was scheduled to work later that afternoon, or

that light duty work was an option.

After his appointment, Moreno called Bernhard and told him

that Dr. Howard had advised him to stay home until Sunday, October

4. Bernhard told Moreno that he was going to call Dr. Howard and

ask if Moreno could perform light duty work, and that if he could,

he was to report to work that day to answer phones. Bernhard then-3-

called Dr. Howard, who told him that he had not considered light

duty. He further said that there was no reason Moreno could not

p erform work that would not require him to stand. Bernhard then

had another Rainbo employee, Bob Bahr, call Dr. Howard to confirm

what the doctor had said, and Dr. Howard told Bahr the same thing.

While Bernha rd was talking to Dr. Howard, Moreno called the

union's chief steward, Frank Garcia, and told him that he had been

injured, that Dr. Howard had ordered him not to work until October

4, and that Bernhard had ordered him to work light duty. Based on

this information, Garcia told Moreno not to go to work. Shortly

thereafter, Garcia told Bernhard that he had advised Moreno to stay

home, and Bernhard responded that Dr. Howard had cleared Moreno for

light duty. Based on this new information, Garcia told Bernhard

that he agreed that Moreno should perform light duty work. Garcia

said he would call Moreno to tell him to come to work. From about

4:25 p.m. to 10:00 p.m., Bernhard and Garcia tried to call Moreno

to order him to work, but Moreno did not answer his telephone.

When Moreno reported to work on October 4, Moreno told Garcia

that he had not answered his telephone because he knew Bernhard was

trying to call to order him to work, and he did not want to speak

to him. Bernhard then terminated Moreno for insubordination,

including failing to report to work as instructed, and failing to

answer the telephone when he knew Bernhard was going to call him.

Without a request from Moreno, Garcia filed a grievance on Moreno's

behalf, seeking to have Moreno reinstated on the grounds that he-4-

had been terminated without just cause. Garcia later withdrew the

grievance, after he concluded that Rainbo had just cause to

terminate Moreno under the terms of the collective bargaining

agreement between the union and Rainbo.

In his first lawsuit ( Moreno I ), filed in state court, Moreno

alleged a cause of action for wrongful retaliation for filing a

worker's compensation claim, and sued both Rainbo and Bernhard, the

supervisor who fired him. After the defendants filed motions for

summary judgment, Moreno amended his lawsuit to add new claims,

including breach of contract. The defendants then removed the case

to federal court, arguing that the case became removable upon

amendment by Moreno, since the breach of contract claim was

preempted by Section 301 of the Labor Management Relations Act

("Section 301"), 29 U.S.C. § 185(a). Before removal, however, the

state court granted summary judgment for the defendants on the

retaliation claim. After removal of the remaining claims, the

federal court denied Moreno's remand motion. Two weeks after the

removal of Moreno I

, Moreno filed a sec ond suit in state court

(" Moreno II ") against Rainbo, Bah r, and Dr. Howard, alleging

invasion of privacy and negligence. The defendants removed Moreno

II to federal court, again asserting preemption under Section 301.

Moreno's motion to remand Moreno II was also denied.

All defendants in both cases moved for summary judgment. The

district court granted the motions, concluding that resolution of

Moreno's claims, and det ermination of his damages, required-5-

interpretation of the collective bargaining agreement between

Rainbo and the union, and that the claims were therefore preempted

by Section 301. The district court further found that Moreno had

failed to exhaust his administrative remedies under the collective

bargaining agreement, or to show that the union had violated its

duty of fair representation. Thus, Moreno had failed to state a

claim under Section 301, and he had no cognizable claims against

either his employer or the company doctor, Dr. Howard.

On appeal, Moreno contends that the district court improperly

granted summary judgment, arguing (1) that the district court did

not specifically rule that the defendants were in an industry

affecting commerce, so as to come under the purview of Section 301;

(2) that preemption should not have applied because (a) his claims

were against individuals, rather than against the defendant Rainbo,

(b) his lawsuit allegedly involved a written contract independent

of the collective bar gaining agreement, and (c) exhaustion would

have been futile, and consequently he did not need to exhaust his

administrative remedies; (3) that the removal of his case was

improper, because Section 301 did not preempt his claim, but was

merely a federal defense; and, finally, (4) that the state court

erred in granting summary judgment in favor of Rainbo on the

retaliation claim.

II

Because this is a case on appeal from the grant of motions for

summary judgment, we review the record de novo

. Calpetco 1981 v.-6-

Marshall Exploration, Inc.

, 989 F.2d 1408, 1412 (5th Cir. 1993).

Under Rule 56(c) of the Federal Rules of Civil Procedure, we

examine evidence presented to determine that there is "no genuine

issue as to any material fact and that the moving party is entitled

to judgme nt as a matter of law." F E D

. R. C IV

. P. 56(c). Once a

properly supported motion for summary judgmen t is presented, the

burden shifts to the non-moving party to set forth specific facts

showing that there is a genuine issue for trial. A n derson v.

Liberty Lobby, Inc.

, 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91

L.Ed.2d 202 (1986); Brothers v. Klevenhagen

, 28 F.3d 452, 455 (5th

C ir.), cert. denied

, 115 S.Ct. 639 (1994). We must review "the

facts drawing all inferences most favorable to the party opposing

the mo tion." M atagorda County v. Russell Law

, 19 F.3d 215, 217

(5th Cir. 1994).

III

We have reviewed the briefs, record, and s upporting

documentation, and are fully convinced that we must affirm the

district court's grant of summar y judgment in all respects.

Although the district court could have rejected Moreno's state law

tort claims based on the uncontroverted substantive evidence in the

defendants' summary judgment motions, it instead f ound that the

claims were preempted, in their entirety, by Section 301. We

agree. The record establishes that Rainbo is in an industry

affecting commerce, and Moreno's claim to the contrar y (to avoid

applicability of Section 301, and asserted for the first time on1 We also reject Moreno's legally flawed argument that, because

no Section 301 claim appeared on the face of his well-pleaded

complaint, no federal question existed so as to warrant removal of

the two lawsuits. We recently have explained as follows:

-7- appeal), is meritless. Likewise, we agree with the district court

that Moreno's breach of contract claim was inextricably linked to

the collective bargaining agreement between Rainbo and the union,

and was, therefore, also displaced by Section 301. Finally, we

reject Moreno's claim that the state court improperly granted

summary judgment on his claim for retaliation for having filed a

workers' compensation claim. Moreno proffers no evidence of a

causal nex us between his injury and his termination, beyond his

conclusory allegations, and summary judgment was therefore

appropriate.

Because h is state law claims were subsumed by Section 301,

Moreno was required to exhaust his grievance procedures bef ore

filing a claim in court. He filed no grievance, nor requested that

one be filed on his behalf. After his union steward filed--and

then withdrew--a grievance for him, Moreno made no objection. His

futility argument is also without merit, because the c ollective

bargaining agreement that covered Moreno contained a provision for

a neutral arbitrator, and this court has held that the availability

of such arbitration refutes a futility argument as a matter of law.

Parham v. Carrier Corp.

, 9 F.3d 383 (5th Cir. 1993). Moreno simply

failed to exhaust his administrative remedies, and this failure is

fatal to his Section 301 claim. 1Where removal jurisdiction is predicated on the

existence of a federal question, the federal que stion

generally must appear on the face of th e plaintiff's

complaint. C aterpillar, Inc. v. Williams

, 482 U.S. 386,

391, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). The

removing defendant's interjection of a federal defense is

normally insufficient to remove the c ase. I d. at 393,

107 S.Ct. at 2430. One exception to this rule, however,

occurs where an area of sta te law has been completely

preempted by federal law. Id. Controversies involving

collective bargaining agreements, where section 301 of

the LMRA, 29 U.S. C. § 185(a), provides the grounds for

preemption, constitute such an area of preemption. Id.

at 394, 107 S.Ct. at 2430-31.

Baker v. Farmers Elect . Co-op, Inc. , 34 F.3d 274, 278 (5th Cir.

1994).

-8- IV

As Rainbo points out in i ts brief to this court, Moreno set

o ut on a legal quest to turn his $70.00 heel injury into a claim

for actual and punitive damages totalling $30 million. Unable to

find the proper mix of defendants and claims in his first lawsuit,

Moreno filed another, hoping somehow to evade the bar of Section

301 preemption. Having determined that Moreno's efforts have

failed, the judgment of the district court dismissing the complaint

is

A F F I R M E D.