
    Joe ALVAREZ, Plaintiff, v. UNITED PARCEL SERVICE CO., d/b/a UPSCO United Parcel Service Co., Defendant.
    No. Civ.A. 304CV2173G.
    United States District Court, N.D. Texas, Dallas Division.
    Oct. 26, 2005.
    
      Raul H. Loya, Matthew B. Abraham, Loya & Associates, Dallas, TX, for Plaintiff.
    John V. Jansonius, Akin Gump Strauss Hauer & Feld, Dallas, TX, Clay A. Hart-mann, Akin Gump Strauss Hauer & Feld, Houston, TX, for Defendant.
   MEMORANDUM OPINION AND ORDER

FISH, Chief Judge.

Before the court is the motion of defendant United Parcel Service Co. (“UPS”) for summary judgment on all of the plaintiffs claims. For the reasons stated below, UPS’s motion is granted.

I. BACKGROUND

This is an employment discrimination case brought by Joe Alvarez (“Alvarez”) against his former employer, UPS, an international package delivery company. Declaration of Steve Huffman (“Huffman”) ¶ 2, located in Appendix in Support of Defendant’s Motion for Summary Judgment and Supporting Brief (“Appendix”) at 55.

Alvarez is a Hispanic male and a resident of Texas. Plaintiffs Original Petition (“Petition”) ¶¶ 1, 9, attached to Notice of Removal. On May 15, 1985, UPS hired Alvarez for the package cars department in Austin, Texas. Petition ¶ 9. But see Oral Deposition of Joe Alvarez (“Alvarez Dep.”) at 26, located in Appendix at 8 (stating that Alvarez was hired by UPS in 1984). Alvarez worked there until 1996, when he joined the feeder department. Petition ¶ 9. He continued in that position until his transfer to the Dallas/Fort Worth Airport (“DFW”) on September 30, 2001. Id.

Local 767 of the International Brotherhood of Teamsters (“IBT”) represents all UPS drivers in north Texas, including Alvarez. Defendant’s Motion for Summary Judgment and Supporting Brief (“Defendant’s Motion”) at 3; Huffman ¶ 3. As an IBT member, Alvarez’s terms of employment were governed by a collective • bargaining agreement known as the National Master United Parcel Service Agreement and Southern Regional Area Supplemental Agreement (collectively, the “CBA”). Huffman ¶ 3. The CBA contained the following provision governing discipline and discharge:

ARTICLE 52 —DISCHARGE OR SUSPENSION
(A) The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one (1) warning notice of a complaint against such employee to the employee, in writing, ... except that no warning notice need be given to an employee before discharge if the cause of such discharge is dishonesty....

Appendix at 44B (“Article 52”).

Article 51 of the CBA outlines the mandatory grievance and arbitration procedures applicable to a UPS employee. Defendant’s Motion at 3. If an employee feels he has been disciplined improperly, he may file a grievance. Huffman ¶ 5. The first step is for the employee’s union steward and supervisor to meet within five days of, the grievance filing to attempt to resolve it. Id. ¶ 6, The next step is the local hearing. Here, the local union business agent meets with UPS’s district labor manager to attempt resolution. Id. If the grievance is not resolved at the local level, the matter is submitted to the Southern Region Area Parcel Grievance Committee (“SRAPGC”), a committee comprised of IBT and UPS representatives. Id. If the SRAPGC is deadlocked, the grievance is submitted to the Southern Region Deadlock Committee. If that panel is deadlocked, the grievance is submitted to a National UPS/Teamsters Panel. Finally, if there is still no resolution, the matter is sent to arbitration. Id.

Documents proffered by UPS reflect that UPS, as an interstate carrier operating large commercial vehicles on public roadways, must comply with Department of Transportation (“DOT”) regulations. Huffman ¶ 7. Such compliance requires that UPS drivers accurately log their driving time for DOT purposes via a database system (“IVIS”). Id. ¶¶7, 11. In addition, drivers must accurately record their time for compensation purposes and to comply with provisions of the CBA governing breaks. Id. ¶ 8. Failure to accurately record driving time for DOT regulations or break time for compensation or CBA purposes (“stealing time”) are violations constituting grounds for immediate discharge for dishonesty under Article 52. Id. ¶ 8.

Due to the time-sensitive nature of UPS’s delivery business, feeder drivers are expected to make their runs each day within a prescribed amount of time. Id. ¶ 9. When drivers do not make their run within the time allotted, they are considered “overallowed.” Id. While being “ov-erallowed” is permissible from time to time, UPS will take corrective and/or disciplinary action if it occurs on an excessive basis. Id. ¶ 10.

In January 2002, Phil Russell (“Russell”) became supervisor of the DFW feeder department. Petition ¶ 10. It was at this time that Alvarez felt he was being harassed about his race, but pretextually about his job performance. Id. In particular, Alvarez felt his co-workers received preferential treatment, Alvarez Dep. at 68-78; Petition ¶ 10; that Russell had an “aggressive” attitude towards Alvarez, Alvarez Dep. at 90; Defendant’s Motion at 11; and that Russell referred to another employee as a “fucking Mexican.” Alvarez Dep. at 92-95. In late 2002, Russell and Alvarez had an altercation regarding unpaid wages, in which Alvarez threatened to file a grievance against Russell. Petition ¶ 11; Defendant’s Motion at 14-15 (citing Alvarez Dep. at 144-45).

In the regular course of monitoring feeder driver performance, management noticed that Alvarez was consistently over-allowed for January 2003. Defendant’s Motion at 5. This prompted an audit of his IVIS records, which revealed Alvarez making regular stops exceeding his allowed break time. Declaration of Steve Walton (“Walton”) ¶¶ 3-5, located in Appendix at 66-68. In addition, UPS discovered that Alvarez had a pattern of parking his rig while DOT records showed him driving. Id. ¶ 5.

To confirm the discrepancies and overal-lowances, Steve Walton (“Walton”) and Rick Blakey (“Blakey”), feeder supervisors at UPS’s DFW hub, followed Alvarez on his route for three days in late January of 2003. Petition ¶ 12; Walton ¶ 6. Besides not logging out non-driving time as breaks or properly recording breaks for DOT purposes, Alvarez charged UPS for over four hours of “unworked time” in the three days he was observed. Defendant’s Motion at 6-7 (citing Alvarez Dep., Huffman, and Walton). Subsequent to this surveillance, Alvarez was terminated from his position at UPS under Article 52 for “stealing time” and falsifying DOT logs. Id. at 7; Walton ¶ 11; Huffman ¶ 13. Alvarez filed a grievance challenging this termination. Alvarez Dep. at 150; Appendix at 39, 53. This grievance was heard on February 18, 2003, before a panel of UPS and IBT representatives, and was ultimately denied. Defendant’s Motion at 8 (citing Alvarez Dep. at 70-71,152).

Alvarez filed charges of racial discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”) and received notice of right to sue. Petition ¶¶ 24, 32; EEOC Dismissal and Notice of Rights, attached to Petition as Exhibit A. On September 2, 2004, Alvarez filed a civil action against UPS in the 160th Judicial District Court of Dallas County, Texas. Notice of Removal ¶2; Petition. The case was removed to this court on October 6, 2004, on the basis of federal question jurisdiction. Notice of Removal. In his petition, Alvarez asserted claims of racial discrimination, in violation of the Texas Commission on Human Rights Act, Tex. Lab.Code § 21.051 (the “TCHRA”); retaliation, in violation of the TCHRA; violations of 42.U.S.C. § 1981 and Title VII; intentional infliction of emotional distress; and negligent supervision of UPS’s employees. See generally Petition. On August 26, 2005, UPS filed this motion for summary judgment. Docket Sheet; Defendant’s Motion. Alvarez did not respond to the motion.

II. ANALYSIS

A. Evidentiary Burdens on Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c).

Once the movant makes this showing, the nonmovant must then direct the court’s attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. To carry this burden, the “opponent must do more than simply show ... some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The nonmovant cannot survive a motion for summary judgment by merely resting on the allegations in his pleadings. Isquith for and on Behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

Although the court may not enter a default summary judgment by virtue of Alvarez’s failure to respond, it may accept as undisputed the facts described in support of UPS’s motion. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir.1988). Summary judgment is proper if, after adequate time for discovery, the affidavits, depositions, answers, and admissions on file fail to establish the existence of an element essential to Alvarez’s case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-323, 106 S.Ct. 2548.

B. Alvarez’s Discrimination and Retaliation Claims

“[T]he law governing claims under the TCHRA and Title VII is identical.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir.1999). In addition, in cases involving race discrimination, the same analysis applies to claims arising under 42 U.S.C. § 1981. See La-Pierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir.1996). Therefore, to avoid unnecessary repetition, the court will analyze all claims utilizing the case law construing Title VII. See Shackelford, 190 F.3d at 403 n. 2.

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir.1997). Title VII also prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).

1. Discrimination

Prior to the Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), courts analyzed discrimination cases using a shifting burden framework as articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and developed in subsequent cases. Proof of discrimination was available in two ways — direct evidence or by an indirect or inferential method of proof — which resulted in different methodologies. Discrimination could be shown indirectly by following the “pretext” method set out in McDonnell Douglas, but if the plaintiff produced direct evidence of discrimination, and the employer asserted that the same adverse employment decision would have been made regardless of discrimination, the mixed-motive analysis set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), applied.

In Desert Palace, the Supreme Court unanimously held that in the context of Title VII, as amended by Congress in 1991, “direct evidence of discrimination is not required in mixed-motive cases.... ” 539 U.S. at 101-102, 123 S.Ct. 2148. See also Stegall v. Citadel Broadcasting Company, 350 F.3d 1061, 1066-67 (9th Cir.2003) (applying Desert Palace after summary judgment was granted on the plaintiffs Title VII and state law discrimination claims, and analyzing the plaintiffs case under both mixed-motive and single-motive (pretext) theories). As the court in Louis v. East Baton Rouge Parish School Board, 303 F.Supp.2d 799 (M.D.La.2003), observed, “[bjecause the direct evidence requirement has been removed from mixed-motive[s] cases, it is now harder to draw a distinction between McDonnell Douglas and mixedmotive[s] cases.” 303 F.Supp.2d at 803-04.

The Fifth Circuit has adopted use of a “modified McDonnell Douglas approach” in cases where the mixed-motive analysis may apply. Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir.2005) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004)) (emphasis added). Under this framework,

the plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, “the plaintiff must then offer sufficient evidence to create a genuine issue of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another “motivating factor” is the plaintiffs protected characteristic (mixed-motive[s] alternative).’ ”

Rachid, 376 F.3d at 312 (quoting Rishel v. Nationwide Mutual Insurance Company, 297 F.Supp.2d 854, 865 (M.D.N.C.2003)).

Therefore, the first step for either pretext or mixed motive analysis requires that the plaintiff establish a prima facie case of discrimination. Id.; Keelan, 407 F.3d at 341. If the plaintiff presents a prima facie case, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir.1993). This prima facie case requires a showing that the plaintiff (1) was a member of a protected group, Hispanic; (2) was qualified for his position; (3) was dismissed or suffered an adverse employment action; and (4) the defendant sought to replace him with a similarly qualified white employee. See, e.g., Ward v. Bechtel Corporation, 102 F.3d 199, 202 (5th Cir.1997). That is, Alvarez must prove that “an employee outside of his protected class received better treatment on circumstances nearly identical to his.” Bowers v. Principi, 70 Fed.Appx. 157, 2003 WL 21554567, at *1 (5th Cir. July 3, 2003) (per curiam) (citation omitted); see also Bryan v. McKinsey & Company, Inc., 375 F.3d 358, 360 (5th Cir.2004) (rephrasing the fourth factor to be whether plaintiff “was replaced by someone outside the protected class, or, in the case of disparate treatment, shows that other similarly situated employees were treated more favorably”).

Alvarez has not sustained this burden. Specifically, he has produced no evidence that similarly situated non-Hispanic co-workers received better treatment in nearly identical circumstances. In his deposition, Alvarez identified three coworkers who he claimed received more favorable treatment in nearly identical circumstances. Alvarez Dep. at 68-78. However, the evidence in the record indicates that the circumstances of these other employees were not similar. Defendant’s Motion at 9-10. How Kiv (“Kiv”), an Asian employee, was terminated under Article 52, but for involvement in an unreported accident, not dishonesty. Alvarez Dep. at 69-70.' In contrast to Alvarez, Kiv successfully challenged his termination via grievance procedures prescribed by the CBA. Alvarez claimed that a white employee, Jeffrey Bellieu (“Bellieu”), drove too slowly in an effort to increase the time he was paid while driving for UPS. Id. at 77-78. Bellieu’s behavior, however, is not identical to Alvarez’s, for there is no indication in the record that Bellieu falsified DOT documentation. Finally, Alvarez claimed that Merik Kolinko (“Kolinko”), a white co-worker, took breaks while on duty. Id. at 76. Alvarez has submitted no evidence in support of this allegation, however, and UPS management had no information that Kolinko was dishonest. Huffman ¶ 15. In addition to clarifying the behavior of the comparators cited by Alvarez, UPS has identified several white feeder drivers who were terminated upon discovery of conduct identical to Alvarez’s. Id. ¶ 14 (listing five individuals). Given this evidence, Alvarez has not established a prima facie case to make out a Title VII claim of racial discrimination. Summary-judgment will therefore be entered in favor of UPS on Alvarez’s claim of racial discrimination.

2. Retaliation

A charge of retaliation follows a burden-shifting analysis similar to racial discrimination. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir.1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996). To establish a prima facie case of unlawful retaliation under Title VII, Alvarez must demonstrate that (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between participation in the protected activity and the adverse employment action. See Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 540 (5th Cir.1998); Sherrod, 132 F.3d at 1122 n. 8; Long, 88 F.3d at 304; Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir.1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 968, 117 L.Ed.2d 133 (1992).

Once the plaintiff establishes his prima facie case, the defendant has the burden of production to articulate a legitimate nondiscriminatory reason for the adverse employment action. Winter v. Bank of America, N.A., No. 3:02-CV-1591-L, 2003 WL 23200278, at *10 (N.D.Tex. Dec.12, 2003). If the defendant meets this burden, the ultimate question becomes whether “ ‘but for’ the protected activity, the [adverse employment action] would not have occurred, notwithstanding the other reasons advanced by the defendant.” Vadie v. Mississippi State University, 218 F.3d 365, 374 (5th Cir.2000) (quoting McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983), cert. denied, 531 U.S. 1113, 121 S.Ct. 859, 148 L.Ed.2d 772 (2001)); see also Long, 88 F.3d at 305 n. 4 (“even if a plaintiffs protected conduct is a substantial element in a defendant’s [adverse employment] decision ..., no liability for unlawful retaliation arises if the [same decision would have been made] even in the absence of the protected conduct”). The requirement of showing “but for” causation is more stringent than the minimal causation required to make the plaintiffs prima facie case. Hall v. Pitney Bowes, Inc., No. 3:02-CV-2756-B, 2004 WL 389093, at *10 (N.D.Tex. Feb.27, 2004)

Alvarez has, for reasons similar to the analysis above on the claim of racial discrimination, failed to establish a prima facie case of retaliation. Alvarez bases his claim of retaliation on his discharge following an altercation between himself and his supervisor, Russell. Defendant’s Motion at 14; Petition ¶ 30. However, Alvarez admits that at no point during this altercation did he allege discrimination based on race or any other protected classification. Defendant’s Motion at 14-15; Alvarez Dep. at 144-45. But see Petition ¶ 30 (“Defendants illegally retaliated against Plaintiff by ... firing Plaintiff solely because he had confronted Russell about the racial harassment of himself and other minority employees.”). Instead, this disagreement resulted , from the fact that Russell refused to pay Alvarez for a half hour of work that Alvarez was allegedly owed. Alvarez Dep. at 141-42. Alvarez stated that he would file a grievance against Russell for harassment due to this nonpayment, not because he was being harassed for being Hispanic. Defendant’s Motion at 14-15 (quoting Alvarez, Dep. at 144-45). This does not constitute protected activity, thereby preventing the establishment of a prima facie case of retaliation. See, e.g., Moore v. United Parcel Service, Inc., No. 04-11403, 2005 WL 2436922, at *4 (5th Cir. Oct.4, 2005) (per curiam) (filing grievance that UPS violated agreement with union did not constitute protected activity under Title VII because employee did not oppose/protest racial discrimination or any unlawful employment practice); Watts v. Kroger Company, 170 F.3d 505, 511 (5th Cir.1999) (complaint to superior in which plaintiff merely mentioned comments about her “personal life” and did not make reference to sexual harassment did not constitute protected activity under Title VII); Callahan v. Bancorpsouth Insurance Services of Mississippi, Inc., 244 F.Supp.2d 678, 683-84 (S.D.Miss.2002) (finding that an employee’s complaints about wages did not constitute protected activity because her statements did not “sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner”), aff'd, 61 Fed.Appx. 121 (5th Cir.2003). Accordingly, UPS is entitled to summary judgment in its favor on Alvarez’s retaliation claim.

C. Alvarez’s Remaining State Law Claims

UPS contends that Alvarez’s intentional infliction of emotional distress and negligent supervision claims are preempted by § 301 of the Labor Management Relations Act (“LMRA”). Section 301 provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a).

Congress passed § 301 to allow “federal courts to fashion a body of federal law for the enforcement of ... collective bargaining agreements.” Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). The Supreme Court has thus determined that if a state law cause of action arising out of contract or tort is inextricably intertwined with interpretation of the terms of the collective bargaining agreement, the state law claim is preempted by § 301. United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 369, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988); Allis-Chalmers Corporation v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir.1996) (citing Thomas v. LTV Corporation, 39 F.3d 611, 616 (5th Cir.1994); Jones v. Roadway Express, Inc., 931 F.2d 1086, 1089 (5th Cir.1991); Baker v. Farmers Electric, 34 F.3d 274 (5th Cir.1994)). In those cases where resolution of the state law claim does not require an interpretation of the collective bargaining agreement, the claim is deemed “independent,” and is not preempted. See Roadway Express, 931 F.2d at 1089; see also Lingle, 486 U.S. at 410, 108 S.Ct. 1877 (“as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes”). But see Medrano v. Excel Corporation, 985 F.2d 230, 233 (5th Cir.) (holding that “[ujnlike the plaintiffs claim in Roadway Express ..., [plaintiff]’s claim is indeed inextricably intertwined with a consideration of the terms of the CBA”), cert. denied, 510 U.S. 822, 114 S.Ct. 79, 126 L.Ed.2d 47 (1993).

1. Intentional Infliction of Emotional Distress

A plaintiff pursuing a claim against his employer for intentional infliction of emotional distress has the burden of proving wrongful conduct by that employer. See Dancy v. Fina Oil & Chemical Company, 921 F.Supp. 1532, 1536 (E.D.Tex.1996) (citing Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633 (5th Cir.1994)). “The plaintiff must establish not that the defendant’s conduct was wrongful in some abstract sense, but wrongful under the circumstances.” Id. “[T]he collective bargaining agreement is a crucial component of'these circumstances.” Id. Because emotional distress claims normally require an analysis of an extant CBA, in this circuit the LMRA has been held to preempt state law emotional distress claims that are related to employment discrimination. See Barrow v. New Orleans Steamship Association, 10 F.3d 292, 300 (5th Cir.1994); Thomas, 39 F.3d at 619; Reece v. Houston Lighting & Power Company, 79 F.3d 485, 487 (5th Cir.), cert. denied, 519 U.S. 864, 117 S.Ct. 171, 136 L.Ed.2d 112 (1996); Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir.1997).

The conduct of which Alvarez complains and upon which he bases his claim for emotional distress undoubtedly relates to employment discrimination. See Alvarez Dep. at 156-57 (discussion of facts giving rise to emotional distress claim as a result of alleged discriminatory discharge). Here, as in Stafford, “[t]he emotional distress claim is clearly part of the same matter as the employment discrimination claim, and would likely never have come into existence but for the original dispute ... and is far from peripheral to the central employment issue.” Stafford, 123 F.3d at 296. Accordingly, the LMRA preempts Alvarez’s state law claim for intentional infliction of emotional distress.

2. Negligent Supervision

Alvarez’s final claim is that UPS was negligent in supervising and controlling Russell and other supervisors or employees who engaged in the allegedly discriminatory conduct. Petition ¶¶ 50-61. To prevail on this claim, Alvarez must show that UPS hired and retained these individuals who were incompetent or unfit for the job “as a result of a failure to make a reasonable inquiry into the individual’s competence and qualifications.” Sanders v. Casa View Baptist Church, 898 F.Supp. 1169, 1179 (N.D.Tex.1995), aff'd, 134 F.3d 331 (5th Cir.), cert. denied sub nom. Baucum v. Sanders, 525 U.S. 868, 119 S.Ct. 161, 142 L.Ed.2d 132 (1998).

Any duty to effectively supervise employees, or breach of such duty, is inextricably intertwined with the issue of discipline. Todd v. Safeway, Inc., No. 3:98-CV-02369, 1998 WL 556577 at *5-6 (N.D.Cal. Aug.28, 1998). Here, the CBA does specifically address the issue of discipline and related procedures. See generally Article 52. Thus, in determining whether UPS had a duty and/or breached any duty of proper supervision, it would be necessary to consider the disciplinary provisions of the CBA. Consequently, the claim is preempted by § 301 of the LMRA. See also Busey v. P.W. Supermarkets, Inc., 368 F.Supp.2d 1045, 1053 (N.D.Cal.2005) (finding that § 301 preempted a negligent supervision claim based upon the defendant’s failure to train its employees “to adhere to ‘company principles with respect to reviewing and/or disciplining employees and communicating professionally with other company personnel’ ”).

3. Disposition of Claims

Based on the summary judgment record, Alvarez’s state law claims are not independent of conduct covered by the collective bargaining agreement, i.e., UPS’s disciplinary procedures and Alvarez’s discharge under Article 52. The state law claims of intentional infliction of emotional distress and negligent supervision require a determination under the collective bargaining agreement of whether the termination was wrongful and whether UPS adhered to its disciplinary procedures.

Therefore, the court finds that Alvarez’s claims for intentional infliction of emotional distress and negligent supervision are preempted by § 301. UPS is entitled to summary judgment on these claims.

D. Attorney’s Fees

UPS seeks to recover its attorney’s fees and costs in defending Alvarez’s claims. Defendant’s Motion at 20. In Title VII and TCHRA claims, a prevailing defendant is entitled to recover attorney’s fees only if it is shown that the plaintiffs claim is frivolous, unreasonable or without foundation. Harris v. Plastics Manufacturing Company, 617 F.2d 438, 440 (5th Cir.1980). The court finds that Alvarez’s claims, while insufficient to survive summary judgment, were not frivolous, unreasonable, or without foundation. Therefore, the court denies UPS’s request for attorney’s fees and costs.

III. CONCLUSION

For the reasons set forth above, UPS’s motion for summary judgment is GRANTED. Judgment will be entered that Alvarez take nothing from UPS on his claims in this case.

SO ORDERED. 
      
      . Alvarez originally filed this case against UPS and Phil Russell, his supervisor. However, the. claims against Russell were dismissed by the court after Alvarez failed to show cause for his failure to effect service on Russell. Order, February 22, 2005.
     
      
      . Title VII is not mentioned in the petition. Attached to the petition, however is a notice of right to sue, issued by the EEOC, granting Alvarez the right to bring this private suit under Title VII. EEOC Dismissal and Notice of Rights, attached to Petition as Exhibit A. UPS addresses Alvarez's claims as falling under Title VII, Section 1981, and the TCHRA. Defendant's Motion at 8 n. 8. Therefore, in an abundance of caution, the court will analyze Alvarez's claims as seeking relief under all three statutes.
     
      
      . The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir.1986).
     
      
      . The Fifth Circuit has explicitly reserved the question whether the mixed-motive analysis, as explicated in Rachid, applies to retaliation claims. See Septimus v. University of Houston, 399 F.3d 601, 607 n. 7 (5th Cir.2005). While some district courts have found the analysis inapplicable, Funai v. Brownlee, 369 F.Supp.2d 1222, 1227-28, 1234 (D.Haw.2004), other courts have chosen to utilize it. Calmat Company v. U.S. Department of Labor, 364 F.3d 1117, 1123 n. 4 (9th Cir.2004); Warren v. Terex Corporation, 328 F.Supp.2d 641, 646 (N.D.Miss.2004); Bergen v. Continental Casualty Company, 368 F.Supp.2d 567, 572-73 (N.D.Tex.2005) (Sanders, J.); Cones v. Duke Energy Corporation, 367 F.Supp.2d 1092, 1100 (S.D.Tex.2005); Knighten v. State Fair of Louisiana, No. 5:03-CV-01930, 2005 WL 1629933, at *4 (W.D.La. July 1, 2005). Because this case can be decided gn other grounds, the court refrains from making any determination whether the modified McDonnell Douglas analysis applies to retaliation claims.
     