* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PAUL J. HERNANDEZ,

Plaintiff-Appellant,

v. THE DENVER POST, a Colorado corporation; THOMAS F. McCARTHY, Senior Customer Service Manager,

Defendants-Appellees, and RYAN McKIBBEN, LORA KREAGER, and THE DENVER NEWSPAPER GUILD, LOCAL 74, AFL-CIO, Defendants. No. 98-1302 (D.C. No. 96-WM-2644) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and BRISCOE , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Paul J. Hernandez appeals the district co urt’s judgment in favor of all defendants on his claims for breach of contract , interference with contractual relations, conspiracy against probationary employee s, and negligence. We affirm the judgment entered in favor of defendants The Den ver Post and Thomas McCarthy, but remand for modification of the judgme nt to reflect the district court’s dismissal of the other defendants without p rejudice. From August 13, 1996, to October 10, 1996, plaintif f was employed by The Denver Post as a probationary employee. Thomas McC arthy was his supervisor. When hired, plaintiff was given a training manual c ontaining department policies and procedures, including The Denver Post’s policie s regarding absenteeism and tardiness. On September 12, 1996, plaintiff was gi ven a warning because he was absent three times during his first month of employ ment. Plaintiff then sought and received a copy of the collective bargaining ag reement between his union and The Denver Post. On September 28, 1996, plaintiff was required to read and sign a form containing The Denver Post’s tardiness and absenteeism policies. On-3-

October 10, 1996, the Denver Post terminated plaint iff because of excessive absenteeism and poor performance. Plaintiff originally brought this action in state c ourt against defendants The Denver Post, Thomas McCarthy, Ryan McKibben, the De nver Newspaper Guild, and Lora Kreager. Over his objection, the case was removed to federal court. In June 1997, plaintiff voluntarily dismissed his clai ms against Ryan McKibben, the Denver Newspaper Guild, and Lora Kreager, and on Ju ly 7, 1997, the district court entered an order dismissing the case against these three defendants “without prejudice.” R. I, doc. 71. On August 5, 1998, the district court granted The D enver Post’s and McCarthy’s motions to dismiss, holding that plainti ff’s state law claims were preempted by § 301 of the Labor Management Relation s Act (LMRA), 29 U.S.C. § 185, and that the claims could not be treated as § 301 claims because plaintiff had not exhausted his administrative remedies. The court’s order noted that only the claims against these two defendants remained af ter its earlier dismissal of the other defendants. See R. II, doc. 102 at 1-2. The court’s judgment, how ever, purported to enter in favor of all five defendants, including Ryan McKibben, Denver Newspaper Guild, and Lora Kreager. See id. , doc. 103. On appeal, plaintiff argues the case should not hav e been removed from state court, that his claims were not preempted by the LMRA, and that all five of-4-

the original defendants are parties to this appeal. We review both the district court’s removal decision and its preemption decision de novo. See Leffall v. Dallas Indep. Sch. Dist. , 28 F.3d 521, 524 (5th Cir. 1994) (removal); Mount Olivet Cemetery Ass’n v. Salt Lake City , 164 F.3d 480, 486 (10th Cir. 1998) (preemption). Section 1441(a) of Title 28 authorizes the removal of “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” Actions arising under § 30 1 of the LMRA are within the federal court’s original jurisdiction. See Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace Workers , 390 U.S. 557, 559-60, 562 (1968) (holding claim under collective bargaining agreement was within “original jurisdiction”of federal court as used in removal st atute); 29 U.S.C. § 185(a). Further, § 301 preempts any state claim alleging th e violation of a collective bargaining agreement or requiring an ana lysis of the terms of such an agreement. See Allis-Chalmers Corp. v. Lueck , 471 U.S. 202, 210-13 (1985) (holding § 301 preempts both state contract claims arising under a collective bargaining agreement and state tort claims that are “inextricably intertwined with consideration of the terms of the labor contract”); Saunders v. Amoco Pipeline
Co. , 927 F.2d 1154, 1155 (10th Cir. 1991) (“When resol ution of a state law claim-5-

depends upon analysis of the terms of a labor agree ment, section 301 will preempt that claim.”). Here, plaintiff’s complaint alleged that defendants violated the collective bargaining agreement by failing to give him reasonable advance notice of his performance weaknesses, by terminating him without sufficient cause, and by ignoring his challenge to the policy of providing t axi money for female employees but not for males. See R. I, doc. 1, attached complaint at 3-4. He alleg ed also that his employment contract consisted of both the collective bargaining agreement and The Denver Post’s company policies, that defendants breached this contract by dismissing him on pretextual grounds, that defendant McCarthy conspired to breach plaintiff’s employment contractand interfere with plaintiff’s contractual relations by dismissing him without cau se, and that defendant The Denver Post was negligent in failing to prevent thi s conspiracy or protect the rights of probationary employees by fully explainin g the collective bargaining agreement and company policies. See id. at 4-6. As these allegations directly implicated the collective bargaining agreement betw een the union and The Denver Post, defendants were entitled to remove the case to federal court. See Caterpillar, Inc. v. Williams , 482 U.S. 386, 399 (1987) (“When a plaintiff invok es a right created by a collective-bargaining agreemen t, the plaintiff has chosen to1 We note that plaintiff, as a probationary employee, was not entitled to

grieve his termination. Even if we assume this lim itation somehow excused his (continued...) -6- plead what we have held must be regarded as a feder al claim, and removal is at the defendant’s option.”). Plaintiff argues that his complaint referenced the collective bargaining agreement only to show that the agreement was repud iated by The Denver Post’s training manual, and that therefore his state claim s did not arise under the collective bargaining agreement. A careful reading of plaintiff’s complaint does not support this argument, however. Instead, plaintiff expressly relied on the terms of the collective bargaining agreement to est ablish his breach of contract and tort claims. When a party’s state law claims are preempted under§ 301, the court must either dismiss the claims as preempted or treat them as arising under § 301. See Allis-Chalmers Corp. , 471 U.S. at 220-21. Here, the district court hel d that plaintiff’s claims could not be treated as § 301 cl aims because he failed to exhaust the grievance procedures set out in the col lective bargaining agreement. As plaintiff does not challenge this ruling on appe al, we will assume it is correct.
See GFF Corp. v. Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1387-88 (10th Cir. 1997) (holding appellant’s failure to ad dress district court’s alternative ground was tantamount to conceding the ruling was correct). 11 (...continued)

duty to exhaust, plaintiff cannot maintain an actio n under § 301 because he had no enforceable rights under the collective bargaini ng agreement. The agreement specifically withheld tenure rights from probationary employees, thereby permitting their termination without cause. See R. I, doc. 88, attached collective bargaining agreement at 6-7. One of the very provi sions relied upon by plaintiff, in fact, requiring “reasonable advance notice” of p erformance weaknesses to probationary employees, clarified that the requirem ent did not create tenure rights or the right to grieve a termination. See id. As § 301 does not create rights beyond those contained in the collective bargaining agreement, plaintiff may not obtain relief under the statute. Plaintiff’s lack of remedy does not affect the remo val analysis, however, because his suit to enforce rights under the collec tive bargaining agreement is preempted by § 301 regardless of whether he actuall y has a remedy under the statute. See, e.g. , Avco Corp. , 390 U.S. at 560-61 (holding § 301 case properly removed even if requested remedy not available upon removal); Chmiel v. Beverly Wilshire Hotel Co. , 873 F.2d 1283, 1287 (9th Cir. 1989) (holding § 30 1 preempted employee’s state claims and case was prop erly removed even if he was not entitled to a “for cause” standard or access to the grievance procedures under the collective bargaining agreement). This ensures the primacy of the bargainedfor procedures to be used in disputes under the col lective bargaining agreement, even if the employee’s remedy is thereby eliminated

. -7- Plaintiff has asked us to reinstate his claims agai nst defendants Ryan McKibben, the Denver Newspaper Guild, and Lora Krea ger, and to treat them as parties to this appeal. Although such relief wouldbe inappropriate, we agree that the district court erred in entering judgment in favor of these three defendants. Therefore, the case must be remanded with direction s to correct the judgment to reflect the district court’s dismissal of the claim s against these defendants “without prejudice.”-8-

Plaintiff’s motion for in forma pauperis status is GRANTED. The judgment of the United States District Court for th e District of Colorado is AFFIRMED as to defendants The Denver Post and Thoma s McCarthy, and the case is REMANDED for correction of the judgment.

Entered for the Court

Wade Brorby Circuit Judge