*Local Rule 47.5.1 provides: “The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession.” Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30436

Summary Calendar

_______________

EARL J. TRAHAN and GEORGETTE TRAHAN,

Plaintiffs-Appellants,

VERSUS

BELLSOUTH TELECOMMUNICATIONS, INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(93-CV-107)

_________________________

November 3, 1995

Before KING, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Earl and Georgette Trahan appeal a summary judgment in favor

of BellSouth Telecommunications, Inc. (“BellSouth”). We affirm.

I.

Earl Trahan began working for BellSouth in 1972. He is also
2

the owner of a trucking business. In 1991, BellSouth security

personnel received several complaints that Trahan was conducting

his trucking business on company time. BellSouth began an

investigation into the complaints, which culminated on June 2,

1992, with an intensive interview of Trahan.

The following day, Trahan reported out sick, claiming he was

suffering from severe depression caused by the interview; he never

returned to work. Trahan received disability benefits until August

28, 1992, when BellSouth determined that he was no longer qualified

for benefits because he was not totally unable to work. On

November 13, 1992, BellSouth terminated Trahan for failure to

return to work without adequate proof of total disability.

Trahan filed this claim in state court, alleging wrongful

discharge, wrongful denial of benefits, defamation, false imprisonment, and intentional infliction of emotional distress. BellSouth

removed the case to federal court. In a series of rulings, the

district court granted summary judgment for BellSouth on each of

the claims.

II.

Trahan’s first objection is that the district court incorrectly found his wrongful discharge claim preempted by § 301 of the

Labor-Management Relations Act, 29 U.S.C. § 185, which preempts

state law claims that are “substantially dependent upon analysis of

the terms of an agreement made between the parties in a labor

contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220
3

(1985). The district court found that Trahan’s wrongful discharge

claim depended upon analysis of the collective bargaining agreement

(“CBA”) between BellSouth and the Communications Workers of

America.

We agree that the wrongful discharge claim falls within the

scope of § 301 preemption. But for the CBA, Trahan would have no

claim for wrongful discharge, because Louisiana law makes employees

terminable-at-will. Gilbert v. Tulane Univ., 909 F.2d 124, 126

(5th Cir. 1990) (declaring employees terminable-at-will under

Louisiana law); Mix v. University of New Orleans, 609 So. 2d 958,

961 (La. App. 4th Cir. 1992) (holding that plaintiff cannot

maintain wrongful discharge claim without contractual exception to

employment-at-will doctrine), writ denied, 612 So. 2d 83 (1993).

The CBA creates an exception to the employment-at-will doctrine by

providing that when "an employee is suspended or discharged, a

charge that the suspension or discharge was without just cause

shall be handled in accordance with the following [grievance

procedure] . . . ." Trahan’s wrongful discharge claim is therefore

dependent upon analysis of the CBA’s “without just cause” provision

and is preempted by § 301.

Trahan argues that preemption is inappropriate because his

claim raises only factual questions. He cites several cases for

the proposition that purely factual disputes that do not require

interpretation of a CBA are not preempted. See Hawaiian Airlines

v. Norris, 114 S. Ct. 2239 (1994); Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399 (1988); Hirras v. Nat’l R.R. Passenger
4

Corp., 44 F.3d 278 (5th Cir. 1995). Trahan fails to note, however,

that all of those cases involved factual disputes about state-law

claims that existed independently of the CBA. See Hawaiian

Airlines, 114 S. Ct. at 2248 (state-law retaliatory discharge

claim); Lingle, 486 U.S. at 406 (state-law claim for retaliatory

discharge for filing worker’s compensation claim); Hirras, 44 F.3d

at 283 (state-law harassment claim). They do not create an

exception to the requirement that a plaintiff must have an

independent state-law claim. In fact, the Hawaiian Airlines Court

noted that when “the employee’s claim [is] firmly rooted in a

breach of the CBA itself,” preemption is proper. 114 S. Ct. at

2246. Thus, we find Trahan’s objection meritless, as his claim

depends completely on the terms of the CBA.

Trahan also seeks to evade preemption by recasting his

wrongful discharge claim as a claim for retaliatory discharge.

Even if we allowed Trahan to raise a retaliatory discharge claim

for the first time on appeal——he did not raise such a claim in

district court——he could not prevail. Like other wrongful

discharge claims, a claim for retaliatory discharge is subject to

preemption unless it rests on an independent state-law foundation.

Cf. Lingle, 486 U.S. at 406 (“Illinois courts have recognized the

tort of retaliatory discharge for filing a worker’s compensation

claim . . . .”); Jones v. Roadway Express, Inc., 931 F.2d 1086,

1089 (5th Cir. 1991) (holding that state-law tort for retaliatory

discharge that existed independently of CBA is not preempted).

Trahan alleges that he was discharged in retaliation “for the
 

 

1 The lack of any independent state-law basis for Trahan’s claim is

highlighted by the fact that this section of his brief fails to cite a single

Louisiana case or statute.

 

 

2 Trahan also makes this claim on appeal. We address it below.

5

allegedly fraudulent submission of medical claims.” Yet he fails

to identify any Louisiana law, independent of the CBA, that

prohibits discharge in retaliation for submitting fraudulent

medical claims.1 We therefore conclude that § 301 preempts

Trahan’s wrongful discharge claim.

 III.

Following the June 2 interview, Trahan claimed that he was

severely depressed and unable to return to work. As a participant

in the BellSouth Sickness and Accident Disability Plan (“the

Plan”), he began receiving disability benefits. The plan

administrator terminated those benefits on August 28, 1992,

however, on the ground that Trahan was not totally unable to work.

In his complaint, Trahan alleged that the decision to terminate

benefits was arbitrary and capricious.2 The district court granted

BellSouth’s motion for summary judgment on this question.

At issue here is the admissibility of Exhibit B to the motion

for summary judgment, which exhibit contained a diary report

compiled by a member of the benefit administrator’s staff and

voluminous notes, memos, faxes, and reports pertaining to Trahan’s

condition. Also attached to the motion for summary judgment was an

affidavit from Nancy Carlisle, BellSouth’s Manager of Benefits
6

Administration, which indicated that, except for certain documents

removed by court order, Exhibit B was “the complete record of Mr.

Trahan’s disability claim and appeal.”

We conclude that Exhibit B was properly admissible under FED.

R. EVID. 803(6), which allows the admission of a “data compilation

. . . if kept in the course of a regularly conducted business

activity.” It is the task of BellSouth’s Benefits Administration

to administer benefits, and “the complete record of [a] disability

claim and appeal” is a data compilation “kept in the course of a

regularly conducted business activity.” Trahan does not argue that

the record is inadmissible under rule 803, but merely asserts that

the record contains hearsay prohibited by FED. R. EVID. 802.

Because rule 803 expressly contains exceptions to rule 802, we find

no merit in Trahan’s contention.

Trahan also asserts that Exhibit B was inadmissible under FED.

R. CIV. P. 56, which requires that any documents offered in support

of a motion for summary judgment be sworn and certified. Caparelli

v. Proceeds of Freight, 390 F. Supp. 1345, 1351 (S.D.N.Y. 1974).

In this instance, BellSouth sought to submit documents on which the

plan relied in administering Trahan’s disability claim to show that

the claim was not administered in an arbitrary and capricious

manner. The authenticity of the documents was established by Nancy

Carlisle’s affidavit, in which which she swore that the documents

were the complete record of Trahan’s disability claim and appeal.

The requirements of rule 56 were met.
7
 The district court’s conclusion that the administrator did not act in

an arbitrary and capricious manner is contained in the Memorandum Ruling

entered on March 17, 1994. Its conclusion with respect to the defamation and

intentional infliction of emotional distress claims appears in the Memorandum

Ruling entered April 5, 1995, at 7-13.

8

IV.

Trahan raises two additional issues on appeal. First, he

contends that the plan administrator’s decision to terminate

benefits was arbitrary and capricious. Second, he argues that his

claims for defamation and intentional infliction of emotional

distress should not have been dismissed on summary judgment. With

respect to these issues, Trahan does not raise any arguments that

the district court did not sufficiently address in its opinion.3

The judgment is AFFIRMED.