FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 8, 2004 

 THOMAS K. KAHN 

 CLERK

*Honorable Maurice M. Paul, United States District Judge for the Northern District of

Florida, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-16393

________________________

D. C. Docket No. 02-00051 CV-2-WDO-5

RONALD BARTHOLOMEW,

BENNY CHILDERS, et al.,

Plaintiffs-Appellants,

versus

AGL RESOURCES, INC.,

ATLANTA GAS LIGHT COMPANY,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(March 8, 2004)

BeforeEDMONDSON,ChiefJudge, COX, Circuit Judge, and PAUL*, District Judge.

COX, Circuit Judge:
2

Five former field service representatives of Atlanta Gas Light Company

(“Atlanta Gas”) appeal the district court’s grant of summary judgment in favor of

AGL Resources, Inc. and Atlanta Gas on their Georgia state-law claims of breach of

contract, intentional infliction of emotional distress, tortious interference with

business relations, and defamation. For the following reasons, we dismiss the appeal

of Charlie Johnson, and as to the other plaintiffs, we affirm in part, vacate in part, and

remand.

I. BACKGROUND & PROCEDURAL HISTORY

The plaintiffs – Ronald Bartholomew, Benny Childers, James Higgins, Lester

Moss, and Charlie Johnson – were employed by Atlanta Gas as Class A Field Service

Representatives in Macon, Georgia. During a statewide reduction in force in March

2000, Bartholomew, Childers, and Higgins were “bumped” out of their positions by

field service representatives with more seniority. These three employees were then

permitted to transfer to other positions held by field service representatives with less

seniority – to “bump” less senior field service representatives – but they declined the

opportunity to do so and were laid off on March 10, 2000. Moss and Johnson, by

contrast, were among the least senior field service representatives, and they did not

have enough seniority to “bump” other field service representatives. As a result,
3

Moss and Johnson were laid off on March 10, 2000, without having been afforded the

opportunity to transfer.

The plaintiffs’ employment with Atlanta Gas was governed by a collective

bargaining agreement between Atlanta Gas and their union. Bartholomew, Higgins,

and Childers complained to their union steward about their layoffs, and they

submitted written grievances. Johnson also complained to his union steward about

his layoff, and Moss complained to an individual whom he believed to be his union

steward about his layoff, but neither Johnson nor Moss submitted written grievances.

Pursuant to Article 13 of the collective bargaining agreement, the union made

a formal request for a grievance meeting on behalf of Bartholomew, Higgins, and

Childers. After the meeting, on May 11, 2000, Atlanta Gas notified the union and

these three employees that their grievances had been denied. Under the terms of

Article 14 of the collective bargaining agreement, the union then had ten days to

submit the employees’ grievances to arbitration, but the union took no further action.

On September 18, 2001, Bartholomew, Higgins, Childers, Moss and Johnson

filed a complaint in Georgia state court. In the four-count complaint, they asserted

claims under Georgia law for breach of contract, intentional infliction of emotional

distress, tortious interference with business relations, and defamation; AGL
1 A third defendant, the chief executive officer of Atlanta Gas, was voluntarily

dismissed by stipulation of the parties. 

4

Resources, Inc. and Atlanta Gas were named as defendants.1

 The defendants removed

the action to the United States District Court for the Northern District of Georgia, and

the action was then transferred to the Middle District of Georgia. The gravamen of

the plaintiffs’ complaint was that the defendants terminated their employment in

violation of the collective bargaining agreement and that the defendants’ management

employees made statements that gave rise to tort liability.

AGL Resources, Inc. and Atlanta Gas filed a motion for summary judgment as

to all of the plaintiffs’ claims. On October 22, 2002, the district court entered an

order granting the defendants’ motion. In its order, the court reached the following

conclusions: (1) the plaintiffs’ state-law claims were preempted by § 301 of the Labor

Management Relations Act (the “LMRA”), 29 U.S.C. § 185; (2) to the extent that the

plaintiffs’ preempted state-law claims could be treated as “hybrid” § 301/fair

representation claims under the LMRA, these claims were barred by the six-month

statute of limitations; and (3) even if the plaintiffs’ state-law claims were not

preempted by the LMRA, Moss and Johnson’s claims were due to be dismissed

because they failed to avail themselves of the grievance procedure established in the
5

collective bargaining agreement and the claims of Bartholomew, Childers, and

Higgins were barred by the one-year state statute of limitations. 

The plaintiffs timely filed a notice of appeal, and the notice includes all five

plaintiffs: Bartholomew, Childers, Higgins, Moss, and Johnson. But Johnson was not

named on the appellants’ initial brief, nor was he listed in the certificate of interested

persons. The omission of Johnson was brought to the appellants’ attention by the

defendants in their answer brief, but the appellants’ reply brief again failed to list

Johnson and it did not mention Johnson’s omission. We are left to conclude that

Johnson has not filed a brief in this appeal, and as a consequence, we dismiss his

appeal for failure to prosecute. See 11th Cir. R. 42-1(b). 

II. ISSUES ON APPEAL & STANDARDS OF REVIEW

The only issue on appeal is whether the district court erred when it granted

summary judgment in favor of AGL Resources, Inc. and Atlanta Gas as to all of the

plaintiffs’ claims. We review a district court’s grant of summary judgment de novo,

and we view the evidence in the light most favorable to the nonmoving party. Artistic

Entm’t, Inc. v. City of Warner Robins, 331 F.3d 1196, 1203 (11th Cir. 2003).

Summary judgment is proper only when “there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). Whether the LMRA preempts a state-law claim is a question of law
6

which we review de novo. Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1556

(11th Cir. 1995). 

III. PREEMPTION DISCUSSION

Section 301(a) of the Labor Management Relations Act 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, without respect to the amount in controversy

or without regard to the citizenship of the parties. 

29 U.S.C. § 185(a). This section grants jurisdiction to federal courts to adjudicate

employment disputesinvolvingcollective bargaining agreements, and it embodies the

policy that federal law, fashioned from national labor law, should provide the

substantive law that applies in § 301(a) suits. See Textile Workers Union of Am. v.

Lincoln Mills of Ala., 353 U.S. 448, 456, 77 S. Ct. 912, 918 (1957); Lightning, 60

F.3d at 1556. 

Accordingly, § 301 provides the foundation for the preemption doctrine that

the Supreme Court concisely summarized in Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399, 108 S. Ct. 1877 (1988):

[I]f 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
7

principles – necessarily uniform throughout the Nation – must be

employed to resolve the dispute.

Id. at 405-06, 108 S. Ct. at 1881. This preemption doctrine exists to “ensure uniform

interpretation of collective-bargaining agreements, and thus to promote the peaceable,

consistent resolution of labor-management disputes,” id. at 404, 108 S. Ct. at 1880,

but it is important to note that “not every dispute concerning employment, or

tangentiallyinvolving a provision of a collective-bargaining agreement,is pre-empted

by § 301 . . . .” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S. Ct. 1904,

1911 (1985). The Supreme Court has instructed that a state-law claim is preempted

by § 301 of the LMRA if “evaluation of the tort claim is inextricably intertwined with

consideration of the terms of the labor contract,” or, stated another way, “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,” the state-law claim has

been preempted. Id. at 213, 220, 105 S. Ct. at 1912, 1916. 

In light of these principles of § 301 preemption, we now turn our attention to

each of the plaintiffs’ four state-law claims to determine whether these claims have

been preempted by the LMRA. If one or more of the plaintiffs’ claims have not been

preempted, we must then consider the alternative grounds for affirmance asserted by

the defendants on appeal.
8

A. Breach of Contract

In Count I, the plaintiffs assert a state-law breach of contract claim against

AGL Resources, Inc. and Atlanta Gas. In particular, they allege that “[b]y entering

into the collective bargaining agreement with the plaintiffs, Defendants have

expressly assumed contractual and fiduciary obligations to the plaintiffs.” (R.1-1 ¶

12.) Moreover, the plaintiffs allege the defendants “have violated their contractual

obligations by termination of these Plaintiffs’ employment in manners contrary to the

terms of the collective bargaining agreement.” (Id. ¶ 13.) It is undisputed that the

plaintiffs’ breach of contract claim refers solely to the collective-bargaining

agreement that governed the plaintiffs’ employment with the defendant. 

The elements of a right to recover for a breach of contract under Georgia law

are simply “the breach and the resultant damages to the party who has the right to

complain about the contract being broken.” Budget Rent-A-Car of Atlanta, Inc. v.

Webb, 469 S.E.2d 712, 713 (1996). To determine whether the defendants breached

the collective-bargaining agreement, there is no doubt that we would be called upon

to consider the terms of the labor contract. Because the plaintiffs’ state-law breach

of contract claims are substantially dependent upon an analysis of the collective

bargaining agreement, they are preempted by § 301 of the LMRA, and we affirm the
9

district court’s grant of summary judgment in favor of AGL Resources, Inc. and

Atlanta Gas as to Count I of the complaint.

B. Intentional Infliction of Emotional Distress

In Count II, the plaintiffs assert a state law claim for intentional infliction of

emotional distress. Their complaint includes only the most general allegations

regarding this claim. For instance, they allege in Count II that the defendants “have

behaved in an extreme and/or outrageous manner,” and that this conduct “gave rise

to intense feelings of anxiety, depression, and extreme outrage.” (R.1-1 ¶ 15.) In the

“Factual Background” of the complaint, the plaintiffs allege that they “have been

placed under tremendous stress and economic pressures as a direct result of the

actions and omissions of [the defendants],” and the plaintiffs further allege that they

“have suffered loss of weight, unable [sic] to sleep, . . . high blood pressure, feelings

of humiliation, depression and severe mortification.” (Id. ¶ 10.) Although the

plaintiffs’ complaint does not specify the outrageous or extreme conduct that provides

the foundation for their intentional infliction of emotional distress claims, it is clear

from the record and the briefs on appeal that their claims are based on their belief that
2 For instance, the plaintiffs assert that their opportunity to transfer was not

“meaningful,” (Appellants’ Br. at 2), and that they were “terminated without notice in an egregious

and harassing manner,” (id.). Moreover, they assert that “[t]he very manner of the terminations was

done in a manner that insulted, humiliated and embarrassed each of the plaintiffs due to their longterm employment and caused all the factual elements of a state law cause of action for intentional

infliction of emotional distress.” (Id. at 3.)

10

they were not provided with proper notice of their termination and that they were not

allowed a meaningful opportunity to consider their option to transfer.2 

Under Georgia law, a plaintiff must prove four elements to sustain a claim for

intentional infliction of emotional distress: “(1) [t]he conduct must be intentional or

reckless; (2) [t]he conduct must be extreme and outrageous; (3) [t]here must be a

causal connection between the wrongful conduct and the emotional distress; and (4)

[t]he emotional distress must be severe.” Northside Hosp., Inc. v. Ruotanen, 541

S.E.2d 66, 68-69 (2000); see also Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835,

837 (1991). For us to determine whether the defendants’ conduct in terminating the

plaintiffs was “extreme and outrageous,” we necessarily must consider the terms of

the collective-bargaining agreement that governs the plaintiffs’ employment. As a

consequence, we conclude that our evaluation of the plaintiffs’ intentional infliction

of emotional distress claims would be substantially dependent upon an analysis of the

labor agreement, and we hold that these claims are preempted by the LMRA.
3 This result is wholly consistent with this court’s prior holding in Lightning v.

Roadway Express, Inc., 60 F.3d 1551 (11th Cir. 1995). In Lightning, we concluded that the

plaintiff’s claim for intentional infliction of emotional distress was not preempted by the LMRA. 

Id. at 1557. In that case, however, the intentional infliction of emotional distress claim was

predicated upon the verbal and physical abuse that was brought to bear upon the plaintiff, and the

court concluded that it could evaluate the allegedly “extreme and outrageous” conduct of the

defendant without considering the collective-bargaining agreement. Id. Notably, in Lightning, this

court acknowledged that analyzing an intentional infliction of emotional distress claim may well

require consideration of the terms of a collective-bargaining agreement. Id. We conclude, in this

case, that it does.

11

Accordingly, we affirm the district court’s grant of summary judgment in favor of

AGL Resources, Inc. and Atlanta Gas as to Count II of the complaint.3 

C. Tortious Interference with Business Relations

In the third count of the complaint, the plaintiffs assert a claim for tortious

interference with business relations. The plaintiffs allege that the chief executive

officer of Atlanta Gas and other agents of AGL Resources, Inc. “took affirmative

actions to jeopardize the business opportunities of Plaintiffs.” (R.1-1 ¶ 17.) More

specifically, according to the plaintiffs, the defendants tortiously interfered with their

“contracts of employment with potential subsequent employers,” and the chief

executive officer “made defamatory comments over the last year as to the status and

capabilities” of the plaintiffs. (Id.) The plaintiffs allege that the defendants’

representatives made statements, both before and after their termination,that hindered

the plaintiffs in their subsequent attempts to obtain employment; for example, the
12

plaintiffs contend that a representative of Atlanta Gas told contractors that they

should not hire employees who had been laid off by Atlanta Gas. 

To establish a cause of action for tortious interference with business relations

under Georgia law, a plaintiff must show that the defendant, (1) acting improperly

and without privilege (2) and acting purposely and with malice with the intent to

injure, (3) induced a third party or parties not to enter into or continue a business

relationship with the plaintiff (4) for which the plaintiff suffered some financial

injury. Perimeter Realty v. GAPI, Inc., 533 S.E.2d 136, 144-45 (2000). To the extent

that the plaintiffs’ tortious interference with business relations claims are based upon

statements made prior to their termination or during the grievance process, we

conclude that their claims are preempted by the LMRA. In such a circumstance, to

determine whether the defendants’ alleged statements were “improper” and “without

privilege,” we necessarily would need to consider the terms of the collectivebargaining agreement, including, for instance, the Management Rights clause of that

agreement. However, to the extent that the plaintiffs base their tortious interference

with business relations claims on statements made by company representatives to

prospective employers after their layoff and after the grievance procedure was

concluded, we hold that their claims are not preempted. In evaluating such a claim,
4 First, the defendants contend that the plaintiffs offered only inadmissible hearsay at

the summary judgment stage regarding the post-termination statements. Because the district court

did not address this argument in its order, we decline to do so here and remand for further

consideration. 

Second, the defendants contend that the plaintiffs waived their argument that the posttermination statements were made outside of the collective-bargaining agreement, and thus were not

preempted by the LMRA. Having reviewed the record, we conclude that the argument was not

waived. (R.2-31 at 7-8.)

Third, the defendants contend that even if a company representative made an admissible

statement following the plaintiffs’ termination that could give rise to a tortious interference claim,

their claims would still be preempted by the LMRA. In support of this contention, the defendants

point to Turner v. American Fed’n of Teachers Local 1565, 138 F.3d 878 (11th Cir. 1998). In

Turner, we held that a tortious interference with employment claim was preempted by the LMRA.

Id. at 884. But Turner is distinguishable. The plaintiff in Turner had been terminated from her

position with the American Federation of Teachers (“AFT”), and she brought suit against AFT. In

her suit, she alleged that AFT (and two former executive officials of AFT) tortiously interfered with

her employment with AFT, which was governed by a collective bargaining agreement. In holding

that her tortious interference with employment claim was preempted by the LMRA, we noted that

resolution of her state-law claim would depend upon the terms of the collective bargaining

agreement because her claim was “based solely upon her theory of wrongful discharge.” Id. at 884

n.14. By contrast, in this case, Count III does not allege that the plaintiffs were wrongfully

discharged from Atlanta Gas. Instead, the plaintiffs contend that the defendants interfered with their

relationship with a prospective employer. As a consequence, we are not compelled by Turner to

conclude that the plaintiffs’ tortious interference with business relations claims are preempted by the

LMRA. 

5 On appeal, the defendants contend that even if § 301 of the LMRA does not preempt

the plaintiffs’ tortious interference claims, the defendants are nonetheless entitled to summary

judgment as to these claims because they fail as a matter of law. But the district court did not reach

the merits of the state-law claims asserted by the plaintiffs. Because the district court did not

address their argument in the first instance, we decline to do so here. 

13

we need not consult the collective-bargaining agreement.4

 As a consequence, the

district court erred when it granted summary judgment in the defendants’ favor on the

ground that all of the plaintiffs’ tortious interference with business relations claims

were preempted.5
14

D. Defamation

In the final count of the complaint, the plaintiffs assert a state-law claim of

defamation. The plaintiffs allege that the defendants “made charges against the

plaintiffs in reference to their trade and profession calculated to injure” them. (R.1-1

¶ 20.) Although the complaint again is silent regarding the facts that underlie this

claim, it is clear following our review of the record and the briefs on appeal that the

plaintiffs base their defamation claim on essentially the same statements that form the

foundation of their tortious interference with business relations claim. In particular,

the plaintiffs’ defamation claims are based on alleged statements by a company

official that the plaintiffs “were laid off for a reason.” (R.2-25 at 140-141; R.2-29 at

84-87; R.2-30 at 245.)

For essentially the same reasons articulated above regarding the tortious

interference with business relations claims, the plaintiffs’ defamation claims are not

preempted by the LMRA to the extent that they are based upon defamatory statements

that occurred after their termination. Under Georgia law, an oral defamation action

lies when (1) a defendant makes charges against the plaintiff in reference to his trade,

office, or profession, if such charges are calculated to injure him therein; (2) the

charge is false; (3) the charge is made with malice; and (4) the communication is not

privileged. Ga. Code Ann. §§ 51-5-4(a)(3), 51-5-5, 51-5-6, 51-5-7. Because the
6 The defendants contend that even if the defamation claims are not preempted by the

LMRA, they are still entitled to summary judgment because the defamation claims fail as a matter

of law. Again, the district court did not reach this argument. Accordingly, we leave this issue to the

district court to consider in the first instance.

15

plaintiffs’ defamation claim is based upon alleged statements made by an Atlanta Gas

official to a contractor after they were terminated, our analysis of their defamation

claims under Georgia law is not substantially dependent upon the terms of the

collective-bargaining agreement. Simply stated, the elements of the plaintiffs’ posttermination defamation claim do not turn upon the terms of their labor contract with

the defendants. Accordingly, we hold that the district court also erred when it granted

summary judgment in the defendants’ favor on the ground that all of the plaintiffs’

defamation claims were precluded by the LMRA.6

E. “Hybrid” Section 301/Fair Representation Claim 

The district court, having concluded that the plaintiffs’ state-law claims were

preempted by the LMRA, apparently heeded the Supreme Court’s invitation in AllisChalmers and treated the plaintiffs’ state-law claims as claims under § 301. See AllisChalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S. Ct. 1904, 1916 (1985) (noting

that when the resolution of a state-law claim is substantially dependent upon the

terms of a collective bargaining agreement, the claim should be dismissed as

preempted or treated as a § 301 claim). But to prevail on their § 301 claims against
7 Of course, Moss never filed a grievance with the union, and therefore he was barred

from asserting a claim under § 301. DelCostello, 462 U.S. at 163, 103 S. Ct. at 2290.

16

AGL Resources, Inc. and Atlanta Gas, the plaintiffs must show both that the employer

violated the terms of the collective-bargaining agreement and that the union breached

its duty of fair representation. Chauffeurs, Teamsters & Helpers, Local No. 391 v.

Terry, 494 U.S. 558, 564, 110 S. Ct. 1339, 1344 (1990). As a consequence, although

the plaintiffs’ complaint only names their employer, the district court properly

characterized the plaintiffs’ § 301 claims as “hybrid” § 301/fair representation claims.

See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 103 S. Ct. 2281 (1983)

(noting that the employee may sue the employer, the union, or both, but that the case

he must prove is the same in all circumstances). Because the plaintiffs’ preempted

state-law claims are properly construed as hybrid § 301/fair representation claims, the

six-month statute of limitations from § 10(b) of the National Labor Relations Act

applies. Id. at 169, 103 S. Ct. at 2293. The court did not err when it concluded that

the statute of limitations began to run when the plaintiffs were informed that the

union would not submit their grievances to arbitration, which occurred no later than

May 16, 2000.7 Because the complaint in this case was filed on September 18, 2001,

the court held that the plaintiffs’ hybrid § 301/fair representation claims were barred

by the six-month statute of limitations, and we agree. 
17

IV. CONCLUSION

Because Johnson failed to file a brief on appeal, we DISMISS his appeal for

failure to prosecute. As to the appeals brought by Bartholomew, Childers, Moss, and

Higgins, we AFFIRM IN PART, VACATE IN PART, and REMAND. We AFFIRM

the district court’s grant of summary judgment in favor of AGL Resources, Inc. and

Atlanta Gas as to the plaintiffs’ state-law breach of contract claims and their

intentional infliction of emotional distress claims. Likewise, we AFFIRM the district

court’s grant of summary judgment in favor of the defendants’ as to the plaintiffs’

claims under § 301 of LMRA. But we hold that the plaintiffs’ state-law claims for

tortious interference with business relations and defamation are not preempted by the

LMRA to the extent that these claims are based upon the defendants’ conduct

following the plaintiffs’ termination and unrelated to the grievance process.

Accordingly, we find that the district court erred when it granted summary judgment

in favor of AGL Resources, Inc. and Atlanta Gas as to Bartholomew’s, Childers’s,

Moss’s, and Higgins’s state-law claims for tortious interference with business

relations and defamation, and we VACATE the district court’s judgment as to these

claims and REMAND for further proceedings. 
18

APPEAL OF CHARLIE JOHNSON DISMISSED FOR FAILURE TO

PROSECUTE; REMAINING APPEALS AFFIRMED IN PART, VACATED IN

PART, AND REMANDED.