Nabisco Disability Suit Sent to State Court

     (CN) - Claims that Kraft and Nabisco failed to accommodate a 35-year employee whose hand was crushed by a machine will be heard in Pennsylvania state court, a federal judge ruled.
     Trina Palmer was operating a machine for Nabisco when her right hand was crushed and permanently injured on June 21, 2002, according to the complaint in Philadelphia Federal Court.
     Palmer had worked for Nabisco since August 1979, and is a member of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union.
     About three months after Palmer returned to work on April 25, 2005, she was assigned to fill in for a material handler out on vacation or sick leave.
     Palmer claimed that due to her injury she could not perform one of her new tasks - "flour-blowing" - i.e. attaching a heavy hose to a machine that pumps supply cars full of flour.
     After Palmer gave Nabisco a medical note stating that she could not flour-blow, the company accommodated her for about three years.
     It stopped accommodating her in 2008, requiring her to flour-blow whenever she was the junior material handler on a shift, the complaint states.
     Palmer filed a complaint for disability discrimination with the Philadelphia Commission on Human Relations on Sept. 17, 2008.
     Months later, Nabisco refused to hire Palmer as a permanent material handler, and instead gave the job to five less senior workers, Palmer said in her lawsuit.
     Nabisco allegedly told Palmer it could not accommodate her for a permanent job after having done so for her temporary one, even after she provided a second doctor's note.
     Palmer filed a second complaint with the city Commission on Human Relations, claiming disability discrimination and retaliation for filing her first complaint.
     Then she sued Nabisco and Kraft Foods Global in state court on Sept. 11, 2012, alleging violations of Philadelphia's Fair Practices Ordinance.
     Nabisco and Kraft removed the case to Federal Court on Oct. 25, 2013, arguing that Palmer's claims are preempted by the Labor Management Relations Act of 1947.
     The defendants claimed their alleged failure to accommodate Palmer was based on Kraft's collective bargaining agreement (CBA) with the union.
     U.S. District Judge Michael Baylson granted Palmer's motion to remand on Jan. 29. Baylson found: "No part of plaintiff's complaint relies on a clause in the CBA."
     The court tossed the claim that Palmer's complaint implicitly refers to the CBA's procedures and terms.
     "Defendant provides no indication where in the complaint plaintiff refers to the CBA or to what provisions in the CBA plaintiff allegedly is referring," Baylson wrote. "There is not a single word of text quoted from the CBA in the record."
     Kraft did not even supply the court with a copy of the CBA, according to the ruling.
     "The most relevant evidence defendant cites in support of its argument that the CBA is completely preempted by the LMRA is a declaration by a human resources manager stating that one of plaintiff's requests for relief would breach the CBA if granted," Baylson wrote. "This of course is a bald legal conclusion that is unsupported anywhere else in the record."
     The judge added: "The record does not mention to what extent - if any - the CBA governs disability claims, what allowances the CBA may allow for union members with disabilities, or whether the CBA constrains the availability of discrimination remedies. Instead, defendant offers only indirect references to the CBA. These vague references fail to provide the court with any basis with which to evaluate the CBA."