Laura BROWN, Plaintiff, v. AMERICAN AXLE & MANUFACTURING, INC., Defendant, 396 F. Supp. 2d 810

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO REMAND DUGGAN, District Judge. On February 8, 2005, Plaintiff filed a four-count complaint against Defendant in Wayne County Circuit Court. Specifically, Plaintiff alleged claims of discrimination and retaliation arising under Michigan’s Elliott-Larsen Civil Rights Act (“Elliott-Larsen”), Mich. Comp. Laws Ann. §§ 37.2101-2804. On March 14, 2005, Defendant removed Plaintiffs complaint to this Court pursuant to 28 U.S.C. § 1331, asserting that Plaintiffs claims are preempted by

Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). In its Notice of Removal, Defendant states that “Plaintiff, as a bargaining unit employee, makes allegations, the resolution of which will involve construction/interpretation of the collective bargaining agreement between the parties ...” Now pending before the Court is Plaintiffs motion to remand the complaint to state court, filed September 7, 2005. In her motion, Plaintiff argues that resolution of the claims in her complaint do not require

interpretation of a collective bargaining agreement and therefore her state law claims are not preempted by federal law. The Court held a hearing on Plaintiffs motion on October 20, 2005. Factual Background Plaintiff is an African-American female who has worked for Defendant since November 7, 1994. See Compl. ¶¶ 7-8. According to Defendant, Plaintiff became a member of Local 262 of the United Auto Workers shortly after she was hired and has remained a member throughout her employment. See Resp. at 2.

Defendant and the national and local union are parties to collective bargaining agreements which govern the terms and conditions of Plaintiffs employment. See id. & Ex. A & B. In 1996, Plaintiff applied for a position with Defendant as a Hi-Lo driver. See Compl. ¶ 9. At that time, Defendant did not employ any female Hi-Lo drivers on the day shift. See id. ¶ 10. Plaintiff claims Defendant told her she was not being considered for the Hi-Lo position, even though she had the most seniority of all the job applicants. See id. ¶ 11.

After Plaintiff complained to a civil rights representative that she was being discriminated against based on her sex, Defendant offered Plaintiff a position as a Hi-Lo driver. See id. ¶¶ 12-13.

Plaintiff claims she thereafter has been subjected to less favorable treatment than male Hi-Lo drivers because that she has been denied overtime in favor of male Hi-Lo drivers, has received less favorable job assignments than male Hi-Lo drivers, has been denied promotional opportunities, has been improperly written up, and has been treated unfairly with regard to the approval of medical leave and time off to attend medical appointments. See id. ¶¶ 14-20.

Plaintiff asserts that despite her complaints to the company through her union representative and to the Michigan Department of Civil Rights, her work environment has not improved. See id. § 25. Applicable Law Defendant removed Plaintiffs complaint to federal court asserting federal-question jurisdiction under 28 U.S.C. § 1331. Pursuant to

Section 1331, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” To determine whether federal-question jurisdiction exists, the courts look to the plaintiffs complaint: “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of plaintiffs properly pleaded complaint ...

The rule makes the plaintiff the master of the claim; he or she may avoid the federal jurisdiction by exclusive reliance on state law.” Smolarek v. Chrysler Corp., 879 F.2d 1326, 1329 (6th Cir.1989)(en banc)(quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987)). It is well established, however, that state law claims arising from a breach of a collective bargaining agreement (“CBA”) are preempted by

Section 301 of the LMRA and may be removable to federal court regardless of whether the plaintiff actually alleges federal claims on the face of his or her complaint. Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2429 (citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936)). But it also is “settled law” that a federal defense may not be the basis of removal to federal court. See id.

A court’s determination of whether a state law claim is preempted by the LMRA focuses on whether the state law “confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985).

As the Supreme Court subsequently explained, a state law is not preempted by the LMRA if “resolution of the state-law claim does not require construing the collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988). Using this approach, the Supreme Court and the Sixth Circuit consistently have held that an employee’s state law claims of retaliation and civil rights violations are not preempted by

Section 301 of the LMRA. See, e.g., Lingle, 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (holding that the factual questions underlying the tort of retaliatory discharge for filing a worker’s compensation claim, including whether the employer had a non-retaliatory reason for the discharge, would not require a court to interpret any term of the collective bargaining agreement); Harper v.

AutoAlliance Int’l, Inc., 392 F.3d 195, 209-10 (6th Cir.2004)(holding that employee’s retaliatory discharge claims under Michigan Workers’ Disability Compensation Act and Elliot-Larsen Civil Rights Act were not “inextricably intertwined” with the terms of the CBA and therefore were not preempted); Smolarek, 879 F.2d at 1331— 33 (relying on Lingle to hold that the employee’s claims for retaliatory discharge under Michigan Workers’ Disability Compensation Act and for discrimination under Handicappers’ Civil Rights Act were not preempted by the LMRA).

Analysis In the present case, Plaintiff alleges that Defendant violated Elliott-Larsen by discriminating against her on the basis of sex and retaliating against her for complaining about this treatment to the company and the union. As the Sixth Circuit has held, “Michigan employees have the right not to be discriminated against on the basis of age or handicap without regard to the collective bargaining agreement’s language about an employee’s rights.” OShea v. Detroit News, 887 F.2d 683, 687 (6th Cir.1989).

Similarly, Elliotb-Larsen grants Michigan employees the right not to be retaliated against based on their complaints regarding discrimination. See Harper, supra. Thus the Court concludes that Elliott-Larsen “confers nonnegotiable state-law rights on employers or employees independent of any right established by contract ...” Lueck, 471 U.S. at 213, 105 S.Ct. at 1912.

Defendant argues that Plaintiffs state law claims are preempted because each claim requires, as an essential element, proof that Plaintiff suffered an “adverse employment action.” According to Defendant, the actions Plaintiff claims were adverse are subjects of the CBA and thus the Court must interpret the CBA to determine Plaintiffs rights on these subjects. Plaintiff, however, is arguing that she was treated differently than male employees with respect to these subjects (overtime, job assignments, promotional opportunities, medical leave).

In order to make this determination, it is not necessary to interpret the CBA. Defendant may allege as a defense that it had a legitimate non-discriminatory reason for treating Plaintiff differently — i.e. its treatment of Plaintiff was dictated by the terms of the CBA; however, as set forth previously, the Sixth Circuit consistently has held that a defendant’s defense that certain treatment was permitted or required by a CBA does not support removal to federal court.

See, e.g., Smolarek, 879 F.2d at 1333 (stating that “[t]he assertion of a defense requiring application of federal law, however, does not support removal to federal court”); O’Shea, 887 F.2d at 687 (stating that “[i]t is irrelevant to the preemption question whether or not the employer can defend by showing it had the right under the collective bargaining agreement to do what it did.”) The Court therefore holds that Plaintiffs state law claims are not preempted by the LMRA.

As Defendant does not assert that this Court otherwise has subject matter jurisdiction over Plaintiffs complaint, the matter shall be remanded to Wayne County Circuit Court. The Court should note that it is irrelevant that Plaintiff only filed her motion to remand “over seven months after this case was removed from Wayne County Circuit Court,” see Resp. at 1, as a court can remand a case for lack of subject matter jurisdiction at any time, even on appeal. See, e.g., Roddy v. Grand Trunk W.

R.R., Inc., 395 F.3d 318 (6th Cir.2005)(reversing district court’s decisions denying the plaintiffs motion to remand and granting

summary judgment to the defendant, finding that the plaintiffs state law claim in fact was not preempted by federal law and district court therefore lacked subject matter jurisdiction). Accordingly, IT IS ORDERED, that Plaintiffs Motion to Remand is GRANTED; IT IS FURTHER ORDERED, that Plaintiffs complaint shall be REMAND to the Wayne County Circuit Court. . The Court assumes that it lacks subject matter jurisdiction based on diversity of citizenship. See 28 U.S.C. § 1332.