John Garibaldi v. Lucky Food Stores, Inc.

Plaintiff, John Garibaldi, an employee suing for damages in connection with an alleged wrongful discharge, appeals from a summary judgment in favor of his employer, defendant Lucky Food Stores. We reverse on the grounds that the action was improperly removed from state court and that the district court lacked jurisdiction. The case turns on whether plaintiff’s claims are preempted.

I

FACTUAL BACKGROUND

Garibaldi was employed by Lucky Food Stores beginning in October 1969 as a box-boy. After a three-year leave of absence for military service from 1970 to- 1973 he returned as a journeyman clerk. In April, 1977 he was transferred to the position of truck driver, in which position he continued until he was discharged in October 1980.

Garibaldi alleges that his discharge was wrongful and was the culminating act of a pattern of harassment arising out of an incident that occurred on March 27, 1979. Garibaldi noticed that the load of milk he was delivering was spoiled. He reported this to his employer, who instructed him to go ahead and deliver the milk. Instead, he notified the local health department, which condemned the milk and ordered that it not be delivered.

At all times…