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United States Court of Appeals,

Fifth Circuit.

No. 97-60104

Summary Calendar.

Bobby L. STAFFORD, Plaintiff-Appellant,

v.

TRUE TEMPER SPORTS, also known as Emhart Industries, a Black and

Decker Company, Defendant-Appellee.

Sept. 25, 1997.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before REYNALDO G. GARZA, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:

This is an appeal from a district court ruling which granted

summary judgment in favor of the Appellee, True Temper Sports

("True Temper"). Upon review of the pleadings, briefs, and the

record on file, we AFFIRM the decision of the district court.

Background

The Appellant, Bobby Stafford ("Stafford") challenges the

summary judgment. Stafford states that the district court erred by

granting summary judgment in favor of True Temper. Stafford states

that the district court erred by precluding him from litigating his

ERISA claims. The district court held that a decision by the

Mississippi Employment Security Commission ("MESC"), which was

reviewed by the Circuit Court of Lee County, Mississippi, had

collateral estoppel effect, thereby preventing Stafford from

relitigating certain issues at the core of his claim. Stafford
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further alleges that the district court erred by granting summary

judgment in favor of True Temper on the pendant state claims.

The background facts and history are as follows. Bobby

Stafford was hired by True Temper in 1990 as an employee in its

Amory, Mississippi facility. Stafford was suspended from his post

and fired in February of 1995. True Temper alleged that Stafford

manipulated factory machinery in order to make it appear that he

worked a greater amount of hours than he actually worked, for the

purpose of receiving more pay. Such an act, aside from being

dishonest, is a violation of company policy, and Stafford was

fired.

Stafford sought unemployment benefits through the MESC.

Stafford was initially disqualified by the claims examiner assigned

to his case, and Stafford appealed. The appeals referee, after

conducting a hearing, reversed the findings of the claims examiner.

Subsequently, a three member board of review concluded that

Stafford intentionally manipulated the machinery to make it appear

that he was working longer hours than he actually had worked, and

reinstated the decision of the claims examiner, disqualifying

Stafford from unemployment benefits. Stafford appealed to the

Circuit Court of Lee County, Mississippi, and he lost there, too.

The Circuit Court affirmed the decision of the board of review.

At the time he was fired, Stafford was three (3) weeks away

from being vested in True Temper's pension plan. Stafford's

daughter suffers from Gaucher's disease, and her medical expenses

(paid for under the company health care plan) are substantial.
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Also, Stafford underwent heart surgery in 1993, surgery which was

expensive and paid for by the company health care plan. Stafford

filed suit alleging that True Temper fired him in retaliation for

his substantial (present and future) medical expenses and to

prevent the vesting of his pension benefits, in violation of True

Temper's duties under ERISA. Stafford also made claims for

intentional infliction of emotional distress and defamation arising

from the allegations made by True Temper, allegations which

Stafford claims were a pretext for his dismissal. The case went

before Judge Glen H. Davidson, United States District Judge for the

Northern District of Mississippi (Eastern Division), and Judge

Davidson, in a succinct and well-drafted opinion, granted summary

judgment in favor of True Temper.

Standard of Review

We review a summary judgment de novo. Thompson v. Georgia

Pacific Corp., 993 F.2d 1166, 1167 (5th Cir.1993). Summary

judgment is appropriate if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." FED.R.CIV.P. 56(c). A mere allegation by the

nonmovant that a dispute over material facts exists between the

parties will not defeat a movant's otherwise properly supported

motion for summary judgment. A dispute about a material fact is

genuine only if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party. Hanks v.
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Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th

Cir.1992).

Discussion and Analysis

The central point in this case is whether Stafford's claims

are precluded under collateral estoppel. If they are, then he will

be unable to relitigate whether the factors surrounding his

termination were true or false. If the decisions of MESC and the

Circuit Court of Lee County are accepted, he really has nothing

left to stand on, because the factors in question are central to

all his claims. True Temper's actions would therefore be

considered to be a nonpretextual, legitimate reason for

termination, and the door would be closed on Stafford's claims.

The federal courts must give an agency's fact finding the

same preclusive effect that they would a decision of a state court,

when the state agency is acting in a judicial capacity and gives

the parties a fair opportunity to litigate. University of

Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226, 92

L.Ed.2d 635 (1986). This is done for the purposes of judicial

economy, and because "a losing litigant deserves no rematch after

a defeat fairly suffered, in adversarial proceedings, on an issue

identical in substance to the one he subsequently seeks to raise."

Astoria Federal S. & L. Assn. v. Solimino, 501 U.S. 104, 107, 111

S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991). However, if Congress

manifests an intent, pursuant to a statutory scheme, that state

administrative decisions have no such preclusive effect, collateral

estoppel is not to be applied. Such intent need not be explicit,
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and can be implied if, for example, Congress created its own

administrative scheme to deal with the matter in question. Id. at

111, 111 S.Ct. at 2171 (in Astoria, the fact that Congress created

the Equal Employment Opportunity Commission ("EEOC") to deal with

the alleged discrimination in question was central to the

analysis). However, as the district court pointed out succinctly,

the instant case is not one of those exceptional cases, because

ERISA is not governed by any scheme enforced by the EEOC or any

like agency, and hence, collateral estoppel can be applied.

Stafford tries to distinguish the case at bar by stating that

he did not truly have a full and fair opportunity to litigate the

matter, thereby creating separate due process issues, and he makes

certain bare and unsubstantiated allegations about the veracity of

the witnesses. First of all, as the district court pointed out,

Stafford had ample opportunity to litigate his claim before the

MESC, given that he was able to present evidence, be represented by

counsel, and involve himself in the elaborate administrative review

process (which, it should be pointed out, went through many layers

before the matter got to the federal courts). The fact that he may

not have used certain strategies or litigated to the extent that

(in hindsight) he and his attorney now believe he should have is

immaterial. This is just the sort of "defeat fairly suffered"

Justice Souter wrote of in Astoria. Astoria, 501 U.S. at 107, 111

S.Ct. at 2169.

Further, as pointed out by the district court, this decision

comes from a judicially reviewed action by an administrative body,
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and as such, the judgment comes not just from MESC, but from the

Circuit Court of Lee County. Such a judgment is entitled to "the

same full faith and credit in every court of the United States ...

as [it has] by law or usage in courts of such State," and has

preclusive effect. 28 U.S.C. § 1738. State administrative

proceedings which are reviewed by a state court have preclusive

effect and a federal court can apply state rules of issue

preclusion in determining whether a matter litigated in state court

may be relitigated in federal court. Marrese v. Amer. Acad. Ortho.

Surgeons, 470 U.S. 373, 382, 105 S.Ct. 1327, 1332-1333, 84 L.Ed.2d

274 (1985). As far as Mississippi is concerned, the decisions of

MESC have preclusive weight in Mississippi courts, are appealable

through the Mississippi court system, and even have the potential

for review by the United States Supreme Court. Miss.Code Ann. §

71-5-531(1996 Supp.). Any concerns about lack of oversight or lack

of local preclusive effect are misplaced, indeed.

Under Mississippi law, four factors must be shown for a prior

judgment to have a collateral estoppel effect. The party must be

seeking to relitigate a certain issue, that issue must already have

been litigated in a prior action, the issue must have been

determined in the prior suit, and the determination of the issue

must have been essential to the prior action. Raju v. Rhodes, 7

F.3d 1210, 1215 (5th Cir.1993), cert. denied 511 U.S. 1032, 114

S.Ct. 1543, 128 L.Ed.2d 194 (1994). Also, the fact-finding

tribunal should be careful in its decision-making and in its

determination of the findings of fact essential to the issue in
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question for the purposes of application of collateral estoppel, so

as to eliminate any suspicion about the proceedings.M.E.S.C. v.

Philadelphia Mun. Sep. Sch. D., 437 So.2d 388, 397 (Miss.1983). In

the case at bar, the key issue in question is whether Stafford

manipulated his machine to falsely reflect time worked and whether

that was the reason he was fired. Both of these issues were

litigated, in the MESC proceedings and Circuit Court of Lee County,

these issues were determined and essential to the findings, and we

have no reason to doubt the abilities and level of care of the MESC

fact-finders. Stafford claims that the ERISA case was not the

issue litigated, so collateral estoppel does not apply, but the

fact that the ERISA issue presupposes and includes certain

determinations about the machine manipulation issue means that the

primary issue has been previously dealt with and collateral

estoppel applies.

This application of collateral estoppel is fatal to

Stafford's ERISA claim. Under § 510 of ERISA, Stafford has to

establish a prima facie case that True Temper fired him with a

specific discriminatory intent to retaliate for exercising an ERISA

right or to prevent attainment of benefits which he would become

entitled to under the plan. 29 U.S.C.A. § 1140; Rogers v.

International Marine Terminals, Inc., 87 F.3d 755, 761 (5th

Cir.1996); Hines v. Mass. Mutual Life Ins. Co., 43 F.3d 207, 209

(5th Cir.1995); McGann v. H & H Music Co., 946 F.2d 401, 404 (5th

Cir.1991), cert. denied, 506 U.S. 981, 113 S.Ct. 482, 121 L.Ed.2d

387 (1992). The plaintiff in such an ERISA employment
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discrimination test need not prove that the discriminatory reason

was the only reason for discharge, but he must show that the loss

of benefits was more than an incidental loss from his discharge,

and this inference of discrimination can be proven by

circumstantial evidence. Carlos v. White Consol. Indust. Inc., 934

F.Supp. 227, 232 (W.D.Tex.1996). To dispel the inference of

discrimination which would arise from a prima facie case, True

Temper must articulate a non-discriminatory reason for its actions,

and then the burden shifts to Stafford to prove this reason is a

pretext and the real purpose was denial of ERISA benefits. Lehman

v. Prudential Ins. Co. of America, 74 F.3d 323, 331 (1st Cir.1996).

The district court rightly determined that while the evidence

does allow for a prima facie case, True Temper articulated a

perfectly appropriate non-discriminatory reason for its actions,

and Stafford failed to prove that this is a pretext. Stafford does

nothing more than make bare allegations and attempt to argue that

a few minor discrepancies in the record constitute proof of

improper motive. This simply will not suffice, and because

collateral estoppel precludes Stafford from relitigating the matter

of his manipulation of the machinery in the plant, the district

court properly granted summary judgment for True Temper on this

issue.

As both parties pointed out in their briefs, the district

court did not rule on whether the pendant state claims of

intentional infliction of emotional distress and defamation were

preempted by § 301 of the Labor Management Relations Act ("LMRA").
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29 U.S.C.A. § 185. The record does not show any evidence that

either party brought this fact to the district court's attention

after the summary judgment was granted. Upon consideration of the

arguments put forth by the parties, we find that the pendant state

claims in this case are preempted.

Regarding intentional infliction of emotional distress, this

Circuit has stated that the "LMRA preempts state-law emotional

distress claims if those claims are related to employment

discrimination." Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292,

300 (5th Cir.1994). The emotional distress claim is clearly part

of the same matter as the employment discrimination claim, and

would likely never have come into existence but for the original

dispute over whether Stafford manipulated the machinery, and is far

from peripheral to the central employment issue, so preemption is

warranted. Brown v. Southwestern Bell Tele. Co., 901 F.2d 1250,

1256 (5th Cir.1990). As the Fourth Circuit pointed out in

McCormick v. AT & T Technologies, 934 F.2d 531, 538 (4th

Cir.1991)(en banc), cert. denied, 502 U.S. 1048, 112 S.Ct. 912, 116

L.Ed.2d 813 (1992), in situations such as this, it is appropriate

for a court to look at the collective bargaining agreement to see

if an employer's actions are reasonable. The collective bargaining

agreement empowers True Temper to direct and manage its employees,

which includes the investigation of employee misconduct and allows

for discharge of employees for proper cause. The company's

Employee Guide, which is incorporated by reference in the

collective bargaining agreement, clearly states that the actions
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Stafford was accused of are subject to immediate suspension and

discharge. Thus, True Temper's actions are consistent with the

collective bargaining agreement, and because this matter is

intertwined with the employment issue, the state law claim is

preempted and properly dismissed.

Regarding the defamation issue, once again the state law

claim is preempted under the LMRA. Stafford claims that the reasons

given for his termination constitute defamation. The reasons given

for his dismissal arose under the employment relationship between

Stafford and True Temper, were a part of the investigation into the

appropriateness of his dismissal, and were in accordance with the

terms of the collective bargaining agreement. Bagby v. General

Motors Corp., 976 F.2d 919, 921 (5th Cir.1992). Therefore, as in

the matter of the emotional distress claim, the matter is under the

LMRA and preempted, and dismissed.

At any rate, even if there was no preemption, Stafford loses

these claims under Mississippi law anyway. First of all, the fact

that Stafford is precluded from relitigating the issue of whether

he actually did what True Temper accused him of doing causes his

case on the state claims to fail. All Stafford has claimed to

overcome this is a bare statement that the issue is whether the

witnesses are telling the truth, and that is enough to survive

summary judgment. The truthfulness of a witness can always be

questioned, and if simply stating that a person may not be telling

the truth (without any hard evidence proving that assertion) is the

standard to overcome summary judgment, no summary judgment would
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ever be proper, so this argument fails.

Further, under Mississippi law, Stafford must show that True

Temper's actions were "extreme and outrageous," and "beyond all

possible bounds of decency" to win a claim of intentional

infliction of emotional distress. Burroughs v. FFP Operating

Partners, L.P., 28 F.3d 543, 546 (5th Cir.1994); Leaf River Forest

Prods. v. Ferguson, 662 So.2d 648, 658 (Miss.1995). Firing someone

for dishonesty and tampering with equipment for the purpose of

getting undeserved income is hardly outrageous or indecent. Given

the above, and the fact that Stafford cannot relitigate the issue,

Stafford loses on this claim.

Similarly, regarding defamation, an essential element of the

claim of defamation is the falsity of the statement. Blake v.

Gannett Co., 529 So.2d 595, 603 (Miss.1988); Fulton v. Mississippi

Publishers Corp., 498 So.2d 1215, 1217 (Miss.1986). Here, the

allegation is dishonesty and cheating, both of which were proven in

the MESC hearings, affirmed by the Circuit Court of Lee County, and

are precluded from relitigation due to collateral estoppel. Once

again, Stafford loses, and we would dismiss even if there were no

preemption.

Conclusion

For these reasons, we AFFIRM the district court's grant of

summary judgment in favor of the Appellant, True Temper.

AFFIRMED.