William D. Foy v. Giant Food Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WILLIAM D. FOY,
Plaintiff-Appellant,
v.
GIANT FOOD INCORPORATED; RALPH
DODD; DAVID LARSEN; STEPHEN No. 01-1448 
NEAL, Vice President, Giant Food,
Incorporated; THEODORE R. GARRETT,
JR., Fair Employment Administrator,
Giant Food, Incorporated,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-00-3120-PJM)
Argued: June 4, 2002
Decided: July 25, 2002
Before KING and GREGORY, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by published opinion. Senior Judge Beezer wrote the opin-
ion, in which Judge King and Judge Gregory joined.

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COUNSEL
ARGUED: Marc D. Loud, LOUD & LOUD, Washington, D.C., for
Appellant. Connie Nora Bertram, VENABLE, BAETJER, HOWARD
& CIVILETTI, L.L.P., Washington, D.C., for Appellees.
OPINION
BEEZER, Senior Circuit Judge:
William D. Foy ("Foy") appeals the district court’s dismissal of his
claims of intentional infliction of emotional distress and malicious
prosecution. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
Foy’s complaint was dismissed at the pleading stage. We state the
facts as alleged by the complaint.
Foy worked for Giant Food Inc. ("Giant") at its dairy plant in Lan-
dover, Maryland. He was a member of Milk Drivers and Dairy
Employees Local Union No. 246. The union and Giant have entered
into a collective bargaining agreement governing the terms of Foy’s
employment.
Foy was involved in a workplace altercation with a co-employee
named Ralph Dodd ("Dodd"). Dodd spat in Foy’s face during the
altercation. Foy responded by grabbing and pushing Dodd away to
defend himself. Dodd made an assault complaint against Foy. Giant
terminated Foy for his actions in the altercation but took no action
against Dodd. The assault complaint against Foy was later dismissed.
Giant refused to initiate a new investigation into the altercation and
refused to reinstate Foy to his former position despite learning that the
assault complaint had been dismissed.
Foy filed suit in Maryland state court against Giant, three of its
managers and Dodd. He alleged wrongful termination, breach of the
collective bargaining agreement, malicious prosecution, intentional
infliction of emotional distress and employment discrimination. The
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defendants removed the action to federal court and moved to dismiss
the complaint. Foy voluntarily dismissed the claim of breach of the
collective bargaining agreement but opposed defendants’ motion as to
all other claims.
The district court held that the complaint fails to state a claim and
that, in any event, all of the claims are preempted by § 301 of the
Labor Management Relations Act ("the Act"), 29 U.S.C. § 185(a).
Applying a six-month statute of limitations, the district court held that
Foy was time-barred from refiling his claims under the Act. The dis-
trict court dismissed the complaint with prejudice.
Foy timely appealed. He challenges the dismissal of the claims of
intentional infliction of emotional distress and malicious prosecution.1
We review de novo the district court’s dismissal for failure to state
a claim and legal determination that the claims are preempted. See
Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996)
(reviewing de novo grant of motion to dismiss); Meekins v. United
Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991) (reviewing de
novo district court’s determinations of law).
I
Foy alleges that Giant committed an intentional infliction of emo-
tional distress by reason of terminating him for defending himself in
the altercation and then refusing to reinitiate an investigation and
affirming the termination after learning that the assault complaint
made by Dodd had been dismissed.2 The district court dismissed this
1Foy’s opening brief challenged the dismissal of the wrongful dis-
charge claims in addition to the claims for intentional infliction of emo-
tional distress and malicious prosecution. At oral argument Foy
abandoned his challenge to the dismissal of the wrongful discharge
claims.
2Foy asserted at oral argument that the complaint also includes a sepa-
rate intentional infliction of emotional distress claim against Dodd for
spitting in Foy’s face. We cannot discern such a claim in the complaint.
Its allegations for intentional infliction of emotional distress make no
mention of Dodd or the spitting incident.
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claim for failure to state a claim and on preemption grounds. We
agree that the claim is preempted.
A.
Section 301 of the Labor Management Relations Act establishes
federal subject matter jurisdiction over employment disputes covered
by a collective bargaining agreement and directs federal courts to
fashion a uniform body of federal common law applicable to such dis-
putes. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985). The
"preemptive force of § 301 is so powerful as to displace entirely any
state cause of action for violation of contracts between an employer
and a labor organization." Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 23 (1983) (internal quotation marks omit-
ted).
A state law claim is preempted when resolution of the claim "re-
quires the interpretation of a collective-bargaining agreement," Lingle
v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988), or
is "inextricably intertwined with consideration of the terms of the
labor contract." Lueck, 471 U.S. at 213; see also IBEW, AFL-CIO v.
Hechler, 481 U.S. 851, 863 n.5 (1987) (noting that a state law claim
is preempted when "[t]he nature and scope of the duty of care owed
Plaintiff is determined by reference to the collective bargaining agree-
ment"). "[T]he bare fact that a collective bargaining agreement will
be consulted in the course of state-law litigation plainly does not
require [preemption]." Livadas v. Bradshaw, 512 U.S. 107, 124
(1994).
B.
A claim of intentional infliction of emotional distress requires
proof that the defendant engaged in conduct that is extreme and outra-
geous. See Tavakoli-Nouri v. State, 779 A.2d 992, 999 (Md. Ct. Spec.
App. 2001). Foy alleges that Giant engaged in extreme and outra-
geous conduct when it terminated him for defending himself and later
refused to reinstate him after learning that the assault complaint had
been dismissed.
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Foy essentially alleges that the termination and Giant’s actions
underlying the termination are wrongful and unauthorized. Giant’s
conduct could not otherwise be extreme and outrageous conduct.
"[W]hether an actor’s behavior is ‘outrageous and intolerable,’ and
therefore punishable as intentional infliction of emotional distress,
requires an inquiry into whether the actor was legally entitled to act
as he or she did." McCormick v. AT&T Techs., Inc., 934 F.2d 531,
537 (4th Cir. 1991); see also Childers v. Chesapeake & Potomac
Telephone Co., 881 F.2d 1259, 1267 (4th Cir. 1989) (holding
employer did not commit extreme and outrageous conduct when its
actions in disciplining employee were authorized). Whether an
employer’s actions in dealing with and terminating an employee are
wrongful is determined not in the abstract but necessarily by reference
to the collective bargaining agreement which governs the employment
relationship. We stressed this point in McCormick, where a former
employee alleged that AT&T, his employer, committed intentional
infliction of emotional distress by disposing of the employee’s per-
sonal belongings after terminating him. McCormick, 934 F.2d at 533.
We observed that, to demonstrate extreme and outrageous conduct,
the employee must "demonstrate not that [AT&T’s] conduct was
wrongful in some abstract sense, but wrongful under the circum-
stances." Id. at 535-36. "The circumstances that must be considered
in examining management’s conduct are not merely factual, but con-
tractual, and the collective bargaining agreement is a crucial compo-
nent of these circumstances." Id. at 536; see also Douglas v. Am. Info.
Techs. Corp., 877 F.2d 565, 572 (7th Cir. 1989) (holding that employ-
er’s actions in terminating an employee did not constitute extreme and
outrageous conduct because collective bargaining agreement autho-
rized employer’s actions).
As in McCormick, whether Giant’s actions are wrongful can be
determined only by interpreting the collective bargaining agreement.
Article IV of the collective bargaining agreement authorizes Giant to
terminate an employee for cause subject to certain guidelines and pro-
cedures. Article XII establishes that Giant has a right to manage and
control its work force. These articles determine whether Giant was
authorized to terminate Foy and not Dodd for their respective actions
in the altercation. They also determine whether Giant properly refused
to reinstate Foy after learning that the assault complaint had been dis-
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missed. Foy’s claim of intentional infliction of emotional distress
requires interpreting the collective bargaining agreement.3
Our conclusion comports with that of other courts faced with simi-
lar state law claims. In Burgos v. Southwestern Bell Telephone Co.,
20 F.3d 633, 634 (5th Cir. 1994), a former employee sued Southwest-
ern Bell for intentional infliction of emotional distress based on
Southwestern Bell’s conduct leading up to and including termination.
The Fifth Circuit reasoned that, "[i]n order to determine whether
Southwestern Bell acted wrongfully in the way it . . . effectuated [the
plaintiff’s] termination, an analysis of Southwestern Bell’s obligations
under the collective bargaining agreement is necessary." Id. at 636;
see also Brown v. Southwestern Bell Telephone Co., 901 F.2d 1250,
1255 (5th Cir. 1990) (holding preempted claim that employer’s
actions in discharging employee amounted to intentional infliction of
emotional distress because claim required evaluating propriety of
employer’s conduct under collective bargaining agreement to deter-
mine if the conduct was extreme and outrageous); Miller v. AT&T
Network Sys., 850 F.2d 543, 550-51 (9th Cir. 1988) (same).
The district court properly held that Foy’s claim of intentional
infliction of emotional distress is preempted.
3Contrary to Foy’s contention, this case is not analogous to Owen v.
Carpenters’ Dist. Council, 161 F.3d 767 (4th Cir. 1998). Owen involved
a claim of wrongful discharge in violation of public policy brought by
an employee after she was fired for rejecting and complaining of her
supervisor’s sexual advances. Owen was required to show that her dis-
charge was motivated by sex discrimination. Id. at 775. Resolution of the
claim involved purely factual determinations, not an interpretation of the
collective bargaining agreement. Id. Owen’s claim was not preempted
even though it may have involved determining whether her employer had
just cause for the discharge. Id. "[T]he fact that the just cause provision
of the [collective bargaining agreement] may be referred to or consulted
during the course of the resolution of Owen’s wrongful discharge claim
does not militate in favor of finding § 301 preemption." Id. By contrast,
proof of extreme and outrageous conduct in this case requires evaluating
whether Giant’s actions are authorized under the collective bargaining
agreement.
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II
Foy maintains that both Dodd and Giant are liable for malicious
prosecution. Foy alleges that Dodd is liable for malicious prosecution
by making a false complaint of assault and that Giant is liable by rea-
son of adopting and ratifying the complaint. The district court dis-
missed the claim against Dodd for failure to state a claim. The court
dismissed the claim against Giant for failure to state a claim and on
preemption grounds. We agree with the district court.
A.
Under Maryland law a claim of malicious prosecution requires
proof that the defendant instituted or continued a criminal prosecution
against the plaintiff without probable cause and with malice. Mont-
gomery Ward v. Wilson, 664 A.2d 916, 922 (Md. 1995). To prevail
on his claim against Dodd, Foy must prove that Dodd did not have
knowledge of sufficient facts to support probable cause for an assault
complaint and that he made the complaint with malice. Proof of
Dodd’s subjective knowledge and motive does not involve interpret-
ing the collective bargaining agreement. The claim against Dodd is
not preempted.4
Foy’s claim against Dodd nevertheless fails because the allegations
do not show that Dodd lacked probable cause to file an assault com-
plaint. Dodd made a complaint of second degree assault against Foy
for grabbing and pushing him during their altercation. Second degree
assault involves an intentional, harmful physical contact with the vic-
tim that is not legally justified. Cooper v. State, 737 A.2d 613, 617
(Md. Ct. Spec. App. 1999). Foy does not deny that he committed an
4Whether the claim against Dodd is preempted does not turn on the
fact that Dodd is not a signatory to the collective bargaining agreement.
See Int’l Union, UMWA v. Covenant Coal Corp., 977 F.2d 895, 899 (4th
Cir. 1992); Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 283-84 (5th
Cir. 1994) ("In cases involving claims against fellow employees where
the question of section 301 preemption has arisen, courts have governed
their determinations on the preemption by the necessity of referring to a
[collective bargaining agreement] for resolution of the claim rather than
by the individual status of the defendant.").
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intentional, harmful physical contact. He argues that he was legally
justified to commit the contact.
Foy alleges that he grabbed and pushed Dodd to defend against
being a victim of Dodd’s expectoration. Self defense is a recognized
legal justification for a physical contact that would otherwise be an
assault. Richardson v. McGriff, 762 A.2d 48, 56 (Md. 2000). But self
defense is available only if the defendant used no more force than rea-
sonably necessary in the circumstances. Balt. Transit Co. v. Faulkner,
20 A.2d 485, 487 (Md. 1941) ("One who seeks to justify an assault
on the ground that he acted in self-defense must show that he used no
more force than the exigency reasonably demanded.").
It is at least arguable that Foy’s actions do not qualify as self
defense. Foy and Dodd were not engaged in a fist fight or any sort
of violent physical confrontation. Foy alleges that he grabbed and
pushed Dodd only to prevent Dodd from further spitting on his face,
not to prevent some physical threat. A less invasive but equally effec-
tive response would be to walk away. It is reasonable to conclude that
Foy was not legally justified to grab and push Dodd in these circum-
stances. Dodd had probable cause to make an assault complaint
against Foy. See One Thousand Fleet Ltd. P’ship v. Guerriero, 694
A.2d 952, 956 (Md. 1997) (holding that probable cause means "a rea-
sonable ground for belief in the existence of such state of facts as
would warrant institution of the suit or proceedings complained of").
Dodd did not lack probable cause to make an assault complaint
against Foy. Foy fails to state a claim of malicious prosecution against
Dodd.
B.
Giant did not initiate the assault complaint against Foy. Foy main-
tains, however, that Giant is liable for malicious prosecution because
it adopted and ratified Dodd’s assault complaint by reason of relying
on the complaint both in originally terminating Foy and in reaffirming
the termination.
Giant can be liable for malicious prosecution if it voluntarily aided
or participated in the prosecution of the assault complaint, and did so
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with malice and a lack of probable cause. Nance v. Gall, 50 A.2d 120,
125 (Md. 1947). Foy’s allegations do not show though that Giant vol-
untarily aided or participated in the prosecution of the assault com-
plaint. Foy alleges only that Giant used the complaint as grounds for
his termination. He does not allege that Giant or any of its agents
encouraged or aided Dodd in making the complaint, provided assis-
tance in any ensuing investigation or participated in judicial proceed-
ings. Cf. id. at 124-25 (finding liability for malicious prosecution
where defendant provided police with facts leading to arrest and testi-
fied at judicial hearing).
Assuming that Giant did aid or participate in the prosecution, the
malicious prosecution claim against Giant would be preempted. Proof
that Giant acted with malice would require interpreting the collective
bargaining agreement. Malice in this context means "actuated by an
improper motive." Guerriero, 694 A.2d at 956. Giant could not act
with an improper motive if it was authorized to terminate Foy as a
result of the assault complaint. Ascertaining whether Giant was so
authorized would require interpreting the collective bargaining agree-
ment.
Foy fails to state a claim of malicious prosecution against Giant
and, in any event, the claim would be preempted.
III
Foy contests the district court’s dismissal of his claims with preju-
dice. The district court held that Foy could not refile the claims as an
action under the Labor Management Relations Act because the appli-
cable six-month statute of limitations has expired. Foy argues that a
three-year statute of limitations would apply to his labor claims.
The Supreme Court holds that a six-month statute of limitations
applies to actions under the Act brought by an employee against his
employer for breach of a collective bargaining agreement. DelCos-
tello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 171-72 (1983). The gra-
vamen common to all of Foy’s claims is that Giant acted improperly
in terminating Foy. In other words, Foy alleges that Giant breached
the collective bargaining agreement. The six-month statute of limita-
tions for breach of a collective bargaining agreement applies to Foy’s
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claims. See Smith v. United Parcel Serv., Inc., 776 F.2d 99, 100 (4th
Cir. 1985) (applying six-month statute of limitations to action under
the Act alleging that employer breached collective bargaining agree-
ment in discharging employee).
The district court properly applied a six-month statute of limita-
tions and dismissed Foy’s claims with prejudice.
IV
The district court properly dismissed with prejudice Foy’s claims
of intentional infliction of emotional distress and malicious prosecu-
tion.
AFFIRMED
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