Lorene Diehl v. Opinion International Truck and Engine Corporation

*The Honorable Harold A. Ackerman, United States District Judge for the District of New
Jersey, sitting by designation.
1The original complaint also named Peg Engle, an alleged employee of International, as a
defendant in this case. However, in its opinion below, the district court noted that Plaintiffs
conceded that Peg Engle had never been served with the complaint and therefore was not a party to
this action.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0407n.06
Filed: May 17, 2005
NO. 03-4320
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LORENE DIEHL and ) ON APPEAL FROM THE
BARBARA KING, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
Plaintiffs-Appellants, ) DISTRICT OF OHIO
)
v. )
) OPINION
INTERNATIONAL TRUCK AND )
ENGINE CORPORATION, )
)
Defendant-Appellee. )
______________________________)
Before: SUHRHEINRICH and GILMAN, Circuit Judges; and ACKERMAN, District Judge.*
HAROLD A. ACKERMAN, District Judge. Plaintiffs, Lorene Diehl and Barbara
King, filed a complaint against their employer, International Truck and Engine Corporation
(“International”),1 alleging causes of action for (i) gender discrimination pursuant to Ohio Rev.
Code Ann. § 4112; (ii) fraud and/or fraud in the inducement; (iii) breach of contract; (iv) breach
of custom, practices, and policies resulting in breach of contract; and (v) negligence. Plaintiffs
were both hired by International in January 1972 at its plant in Fort Wayne, Indiana. Plaintiffs

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held clerical/technical positions at Fort Wayne. As such, the terms and conditions of Plaintiffs’
employment were governed by the collective bargaining agreement between International and
the international union, United Automobile, Aerospace & Agricultural Implement Workers of
America (the “Union”), covering clerical and technical employees (the “Main Labor Contract”).
On May 20, 1983, Plaintiffs were laid off because the Fort Wayne plant where they worked was
being closed. Essentially, Plaintiffs claim that they were not recalled from layoff in accordance
with their seniority and the applicable recall practices.
Prior to the Fort Wayne plant closing, International and the Union entered into an
agreement (the “Master Recall Letter”) whereby laid-off employees would be placed on a Master
Recall List and would be subject to recall. In the Master Recall Letter, International and the
Union agreed upon eligibility requirements for laid-off employees to be placed on the Master
Recall List and procedures to be followed in recalling employees from the Master Recall List.
Ten years later, in early 1993, International and the Union entered into a Plant Closing
Agreement, which incorporated the earlier Master Recall Letter and set forth certain terms and
conditions to apply to the discontinuance of operations at the Fort Wayne plant. Under the Plant
Closing Agreement, all employee recall rights were temporally limited by the Main Labor
Contract, Article XVI, Section 2(e), which states that recall rights last for three years or the
length of the employee’s seniority, whichever is greater. At the time of the layoff, Plaintiffs
worked as Data Entry Equipment Operators. International placed Plaintiffs on the Master Recall
List for Clerical and Technical employees as defined by the Main Labor Contract, and both
elected International’s Springfield, Ohio facility as one of the locations to which they were
willing to be recalled. Plaintiffs were not recalled to work at the Springfield facility while they

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were on the Master Recall List. By force of the Main Labor Contract’s limitation on recall
rights, Plaintiff Diehl was taken off the Master Recall List on September 9, 1994. Thereafter,
Plaintiff King lost her recall rights on October 7, 1994.
In 1997, King saw an advertisement to fill an open Material Analyst position at
International, applied for it, and was hired on March 28, 1998. In June 1997, Diehl saw an
advertisement soliciting applications to work in production positions in International’s
Springfield facility. She applied for the position, and on September 3, 1997, was hired as a
Production Worker. Diehl continued submitting applications for other, more desirable open
positions at the Springfield plant, and on February 9, 1998, was hired as a Material Analyst.
After returning to work for International, Plaintiffs learned of other individuals who were
recalled from the Master Recall List, while Plaintiffs were not. On November 28, 1998, King
wrote a letter to International’s Human Resources Director alleging that the company violated
the Master Recall List by not giving her first consideration when she applied for rehire. King
also protested to the Union, which investigated her claims, but did not find any evidence that
International violated any contractual requirements with respect to recall or rehire. King
continued to pursue the issue, and on January 14, 2000, the Union filed a grievance on King’s
behalf alleging contractual violations and requesting that King’s original seniority date be
reinstated. International denied the grievance. Thereafter, International and the Union met to
discuss and review the relevant documentation regarding King’s grievance. Sometime in
September 2000, the Union withdrew King’s grievance for lack of merit.
On March 20, 2001, King filed a charge against the Union with the National Labor
Relations Board (the “NLRB”), alleging that the Union breached its duty of fair representation in

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handling her grievance. The NLRB refused to issue a complaint against the Union on the ground
that King’s charge was untimely, having been filed more than six months after she had learned
that the Union intended to withdraw her grievance. King attempted to appeal the Union’s
decision to withdraw her grievance to the international union, but on June 4, 2001, King was
notified by the Union that she had exhausted all internal appeals.
Unlike King, Diehl did not notify the Union that she believed International had violated
the Master Recall procedures. In addition, Diehl never asked the Union to file a grievance on
her behalf, and never notified anyone within International about her concerns.
On January 17, 2002, Plaintiffs Diehl and King filed a five-count Complaint in the Clark
County Court of Common Pleas, Clark County, Ohio against their employer, International.
Plaintiffs alleged sex discrimination, fraud, breach of contract, breach of employment contract,
and negligence. International removed the case to federal court on February 22, 2002, claiming
that each of Plaintiffs’ claims was pre-empted by the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 185(a).
On June 30, 2003, Plaintiffs filed a motion to remand. International subsequently filed a
motion for summary judgment on July 31, 2003. The district court denied Plaintiffs’ motion to
remand and granted summary judgment for International in an Opinion and Order dated
September 10, 2003. The district court concluded that resolution of each of the Plaintiffs’ claims
was dependent on an analysis of the Master Labor Contract, a collective bargaining agreement,
between the Union and International. As such, the district court deemed all claims pre-empted
by the LMRA. In addition, the district court granted summary judgment to International based
on findings that Diehl had inexcusably failed to exhaust the grievance procedures available to

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her to resolve her claims against International and that King’s claims were time-barred because
she failed to file her complaint within the six-month statute of limitations. This timely appeal
followed.
After carefully considering the record on appeal, the briefs of the parties, and the
applicable law, and having had the benefit of oral argument, we conclude that the district court
did not err in denying Plaintiffs’ motion to remand to state court. Because the reasoning that
supports the judgment has been clearly articulated by the district court in a thorough and
comprehensive 18-page decision, the issuance of a detailed written opinion by us would be
unduly duplicative. We only pause for a moment to note two issues.
First, we conclude that, on appeal, Plaintiffs have failed to present any legal argument
demonstrating that the district court erred in granting International’s motion for summary
judgment. In so doing, the Plaintiffs have waived that issue on appeal. Booker v. GTE.net LLC,
350 F.3d 515, 517 (6th Cir. 2003). However, even if this Court did not find this issue waived,
we would agree with the district court’s conclusions that (1) Plaintiff Diehl failed to exhaust her
administrative remedies, Terwillinger v. Greyhound Lines, Inc., 882 F.2d 1033, 1039 (6th Cir.
1989) (citing Hines v. Anchor Motor Freight, 424 U.S. 554, 563 (1976)), and (2) Plaintiff King
failed to file her complaint within the six-month statute of limitations period, Robinson v. Cen.
Brass Mfg. Co., 987 F.2d 1235, 1238 (6th Cir. 1993) (citing DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 171 (1983)).
In addition, we note that Plaintiffs raise, for the first time in their Reply Brief, the
argument that International’s removal to federal court was defective, and thus, the district court
should have remanded this matter back to state court. However, this Court will not consider

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arguments raised for the first time in a rebuttal brief that were not properly considered by the
district court below. United States v. Demjanjuk, 367 F.3d 623, 637 (6th Cir. 2004).
Accordingly, the judgment rendered by the Honorable Thomas M. Rose, United States District
Court Judge for the Southern District of Ohio, is AFFIRMED on the basis of the reasoning
detailed in his Order dated September 10, 2003.

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