## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1429

___________ Andrew Johnson, * * Appellant, * * Appeal from the United States v. * District Court for the Western * District of Missouri. * AGCO Corporation, * * Appellee. *

___________ Submitted: September 21, 1998 Filed: October 21, 1998

___________ Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Andrew Johnson was an assembly line worker at AGCO Corporation, a manufacturer of combines and large farm equipment. His repeated and continuous use of an air gun to tighten bolts eventuall y led to repetitive trauma injury for which he filed a worker 's compensation claim. While that claim was pending, he suffered anothe r injury, this time to his lower back, as he was lifting a tub of building parts. He received medical treatment for both conditions and temporary total disability payments for the-2-

low er back injury. Shortly after the second incident, AGCO's doctor release d Mr. Johnson to return to work with no res trictions, and he worked regularly for the next year. Meanwhile, AGCO offered to settle Mr. John son's worker's compensation claims arising fromthe repetitive trauma injury, but not those arising from the injury to hi s low er back. He rejected this offer, and two subsequent ones, and sought a secon d medical opinion on the extent of his disa bilities. Mr. Johnson sent AGCO a copy of the doctor's report and a new demand for settlement based on it. Within two weeks of this communication, AGCO told Mr. Johnson to take an unpaid leave of ab sence because the level of disability that he was claiming would most likely restrict his ability to work; any possible work restrictions, AGCO said, would have to be evaluated, and in the meantime Mr. Johnson was to remain on leave.
Mr. Johnson then sued AGCO in state court under Mo. Rev. Stat. § 287.780 , which provides a civil cause of action to employees who have been "discharge[d] or in any way d iscriminate[d] against" for exercising any of their rights under Missour i worker's co mpensation law. He claimed that he was placed on an unpaid leave o f absence because he sought a more generous worker's compensation settlement fro m AGCO.
AGCO rem oved the case to federal court on the basis of diversity and federa l question jurisdiction. AGCO asserted that the district court had origin al jurisdiction over th e case because the outcome would depend on an interpretation of the collectiv e bargaining agreement in effect a t AGCO, and that state-law claims that require analysis of a collective bargaining agreement are completely preempted by § 301 of the Labo r Management Relations Act (LMRA), see 29 U.S.C. § 185. Mr. John son then moved for aremand of the case to the state court and AGCO moved to dismiss the action on the ground that Mr. Johnson had not exhausted the mandatory arbitration procedure s required by the collective bargaining agreement. The district court denied-3-

Mr. Johnson's motion to remand the case to state court, and granted AGCO's motion to dismiss , not on the ground suggested by AGCO, but in accordance with the holding of Allis-Chalme rs Corp. v. Lueck , 471 U.S. 202, 220 (1985), that when § 301 of th e LMRA completely preempts a state claim, the plaintiff must be a ble to state it as a § 301 claim or the court must dismiss it as preempted.
We hold tha t Mr. Johnson's claim under Mo. Rev. Stat. § 287.780 was no t preempted by § 301 of the LMRA and that the district court thus did not have removal jurisdiction over

the case on that ground. We further hold that the district court should have granted Mr. Johnson's motion for remand.
I. We have previously held that the doctrine of complete preemption does not apply to a retaliatory discharge claim under Mo. Rev. Stat. § 287 .780 so as to give it the status of a § 301 claim from the beginning. See Humphrey v. Sequentia, Inc. , 58 F.3d 1238, 1244 (8th Cir. 1995). The facts in Humphreywere virtuall y identical to those before us; in that case, the plaintiff was injured on the jo b, was given disability leave, and received wor ker's compensation benefits. On the day when he returned to work, he allegedl y made a rac ial remark to a truck driver for which he was suspended pending a n investigation. He then sued, claiming that his employer had discriminated against him in violation of Mo. R ev. Stat. § 287.780, and the employer removed the case to federal court on th e ground that the claim was preempted by § 301. Id. at 1240. Relying o n Lin gle v. Norge Div. of Magic Chef, Inc. , 486 U.S. 399 (1988), we held that since the plaintiff's claim was not based on the collective bargaining agreement in effect, § 301 did not preempt it and the case was thus not removable to a federal court.
The district court apparently thought that the present case was distinguishabl e from Humphrey because analysis of the collective bargaining agreement would b e re quiredto assess AGCO's defense that it had a non-retaliatory reason for removin g Mr. Johnson from his position, namely, that his disability rendered him unable to-4-

pe rform his job. The district court reasoned that AGCO's argument was based on th e provisions of the collective bargaining agreement concerning job requirements, ability, and fitness for duty, and could not theref ore be evaluated without a determination of the meaning of those provisions. But this is exactly the same kind of argument that wa s advanced and rejected in Humphrey

. Th e fact that AGCO's defense to Mr. Johnson's claim might require a court t o construe the collective bargaining agre ement is not enough to confer federal jurisdiction onthe ground of complete preemption. Complete preemption occurs only when a plaintiff's claim itself is based on rights created directly by, or substantially dependent on an ana lysis of, a collective bargaining agreement. "[T]he presence of a federa l question, e ven a § 301 question, in a defensive argument" does not render a caus e removable: "a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated" (emphasis in orig inal). Caterpillar, Inc. v. Williams , 482 U.S. 386, 398-99 (1987); see als o Humphrey , 58 F.3d at 1244.
II. As we already indicated, AGCO originally cited diversity of citizenship as a n additional ba sis for the exercise of federal jurisdiction in this case. We note, however, that 28 U.S.C. § 1445(c) prevents removal of cases "arising under" state worker' s compensatio n law even where there is diversity of citizenship between the parties, and we have previously held that a retaliatory discharge claim pursuant to Mo. Rev. Stat

. § 287.780 "arises under" Missouri worker's com pensation law. See Humphrey , 58 F.3d at 1246. Mr. Johnson's case could be removed to federal court only if his claim wa s completely preempted by federal law and thus could not have "arisen under" a worker's compensati onlaw. Since we have already held that Mr. Johnson's action was no t completely preempted by § 301 of the LMRA, it was not removable even if there was diversity of citizenship between the parties.-5- III. Mr. Johnson a sked for sanctions in the district court pursuant to Fed. R. Civ. P. 11(c) and 28 U.S.C. § 1447(c), the latter of which provides that an order "remanding the case may require payment of just costs and any actua l expenses, including attorney fees, incurredas a result of the removal." The district court did not rule on this request but denied it implicitly when it granted AGCO's motion to d ismiss. On appeal, Mr. Johnson again requests an award of attor ney's fees and costs incurred as a result of the improper removal. We direct the district court to revisit this q uestion before it remands the matter to the state court for further proceedings.
IV. For the reasons indicated, we reverse the district court's denial of Mr. Johnson's motion to rem and. We remand the case to the district court, with directions that it rule on the matter of Mr. Johnson's fees and costs and then re mand the case to the state court from which it was removed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.