United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2333

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Edward Dunn, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Astaris, LLC, *

* [UNPUBLISHED]

Appellee. *

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Submitted: July 1, 2008 

Filed: August 27, 2008

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Before BYE, SMITH, and BENTON, Circuit Judges.

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PER CURIAM.

Edward Dunn appeals the district court’s order denying his motion to remand

to state court his retaliatory-discharge action against his former employer, Astaris,

LLC. The district court also granted Astaris judgment on the pleadings. We vacate

the district court’s judgment.

A district court’s denial of a motion to remand is reviewable in an appeal from

final judgment, see Morgan v. Kroger Grocery & Baking Co., 96 F.2d 470, 472 (8th

Cir. 1938), and we review the denial de novo, see Schuver v. MidAm. Energy Co.,

154 F.3d 795, 798 (8th Cir. 1998) (standard of review).
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Dunn, whose employment by Astaris was governed by a collective bargaining

agreement (CBA), was injured on the job in February 2001. He filed a Missouri

workers’ compensation claim. Due to the injury, Dunn took a leave of absence in

October 2001, and in April 2002 he began his leave under Astaris’s long-term

disability plan. In February 2005 Dunn’s long-term disability benefits were

discontinued after he failed to provide requested information; thereafter, Astaris

terminated Dunn. Dunn, in turn, sued Astaris in state court under Mo. Rev. Stat.

§ 287.780 (no employer shall discharge or discriminate against employee for

exercising rights under workers’ compensation act), claiming that he should have been

allowed to return to work in April 2002 when he reached maximum medical

improvement, but that he was denied the opportunity solely because he had filed a

workers’ compensation claim a year earlier.

Astaris removed the case to federal court arguing that Dunn’s suit was

preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185

(LMRA), because resolution of Dunn’s claim depended on interpretation of Article

11, Section 8, of the CBA, which governed the return to work of employees on

medical leave. The provision states in relevant part that an employee who becomes

“physically unfit” to continue in his job “will by mutual agreement” be placed in a job

he can handle. Astaris asserted that Dunn would need to show his filing of a workers’

compensation claim was the sole cause of his discharge, and that to determine whether

he could do so, the fact finder would have to interpret Article 11, Section 8. The

district court agreed with Astaris and concluded that Dunn’s wrongful-discharge claim

was preempted because the CBA provision was implicated: the fact finder would

have to determine such things as whether Dunn was unfit to perform his job when he

sought to return to work, and what the phrase “will by mutual agreement” meant. The

court thereafter granted Astaris’s motion for judgment on the pleadings, finding that

Dunn’s claim was time-barred because it was outside section 301’s six-month

limitations period.
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To determine if Dunn’s claim is preempted, we must find that interpretation of

a specific provision of the CBA is required, or that the claim is inextricably

intertwined with the CBA. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 405-06, 410 (1988) (there is no preemption unless state-law claim itself is based

on, or is dependent on analysis of, relevant CBA); Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 213 (1985) (if state law claim is based on CBA or is “inextricably

intertwined” with contents of CBA, claim is subject to § 301 preemption). Some of

our cases have applied Lingle in a rather broad way. See Johnson v. Anheuser Busch,

Inc., 876 F.2d 620, 624 (8th Cir. 1989). Nevertheless, we find the line of cases that

has taken a narrower approach to LMRA preemption--asking only whether the claim

itself, regardless of probable defenses, is necessarily grounded in rights established

by the CBA--is the better approach. See Bogan v. General Motors Corp., 500 F.3d

828, at 832 (8th Cir. 2007); Meyer v. Schnucks Markets, Inc., 163 F.3d 1048, 1050-52

(8th Cir. 1998) (court is free to choose which line of cases to follow when faced with

conflicting precedents; there is no preemption unless state-law claim itself is based on,

or is dependent on analysis of, relevant CBA).

Our analysis begins with what Dunn must prove to be successful: (1) he was

an employee of Astaris before the injury; (2) he exercised his rights under the

workers’ compensation act; (3) Astaris refused to allow him to return to work in April

2002; and (4) an exclusive causal relationship existed between Dunn’s actions and

Astaris’s actions. See Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273,

275 (Mo. 1984). If Astaris had a valid, non-pretextual reason to refuse to allow Dunn

to return to work, then Dunn cannot prove the workers’ compensation claim was the

exclusive cause of his termination. See Bloom v. Metro Heart Group of St. Louis, 440

F.3d 1025, 1029 (8th Cir. 2006).

It appears to us that the question of a causal relationship between Dunn’s claim

and Astaris’s refusal to allow him to return to work turns on purely factual questions

about Astaris’s conduct and motives rather than on the scope of Astaris’s contractual
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authority to refuse to reinstate Dunn to his position. See Meyer, 163 F.3d at 1050-52

(state-law retaliatory discharge claims were not preempted by LMRA because cases

turned on purely factual questions about employer’s conduct and motives rather than

on scope of employer’s contractual authority to discharge employees). Astaris’s

reliance on Article 11, Section 8, in defense of Dunn’s claim does not render the case

removable. See Johnson v. AGCO Corp., 159 F.3d 1114, 1115-17 (8th Cir. 1998)

(presence of federal question, even § 301 question, in defensive argument does not

render cause removable; employer’s non-retaliatory reason to discharge employee

based upon provisions in CBA--that employee’s disability rendered him unable to

perform--was not enough to confer federal jurisdiction based on complete

preemption); Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1244 (8th Cir. 1995) (fact

that defense to claim relied upon CBA--employer asserted there was “just cause” for

discharge under CBA--held not to create basis for LMRA preemption). In sum, we

cannot say that Dunn’s claim is necessarily grounded in rights established by the

CBA, or that the claim is “inextricably intertwined” with consideration of the CBA.

Accordingly, we vacate the district court’s judgment and we remand for entry

of an order remanding the case to state court.

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