OPINION
{1} Plaintiffs Marvin J. and Martha J. Weise (Plaintiffs) appeal from the district court’s order granting summary judgment in favor of Defendant Washington Tru Solutions, LLC (WTS). Our resolution of this case requires us to evaluate whether Plaintiffs’ claims are preempted by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 (2000). We hold that two of the claims — intentional infliction of emotional distress (IIED) and defamation — are preempted by the NLRA. Although it is not clear whether Plaintiffs’ third claim — for retaliatory discharge — is preempted, that claim fails under New Mexico law because Marvin Weise (Marvin) was not an at — will employee. Martha Weise’s (Martha’s) claim for loss of consortium also fails because there are no tenable claims from which it could be derived. Accordingly, we affirm.
I. STANDARD OF REVIEW
{2} “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc.,
II. BACKGROUND
{3} We set forth the facts in the light most favorable to Plaintiffs, the non-moving parties. See Celaya,
{4} Several months after the settlement, Marvin was suspended for three days for allegedly violating certain rules of conduct. He filed a grievance based upon the suspension, and the grievance was resolved — in Marvin’s favor — through arbitration, which was required by the CBA. While this grievance was pending, WTS fired Marvin based on allegations that he did not follow certain procedures. Marvin filed another grievance and asserted that his discharge constituted unjust discipline in violation of the CBA. This grievance was resolved through a non-NLRB compromise settlement. Marvin agreed to withdraw the grievance in exchange for a monetary settlement from WTS.
{5} Plaintiffs then filed a complaint against WTS in state court in which Marvin- alleged retaliation for whistle-blowing, defamation, and IIED. In the same complaint, Martha, Marvin’s wife at the time, sought damages for loss of consortium. Both Plaintiffs and WTS filed motions for summary judgment. The district court entered summary judgment in favor of WTS and denied Plaintiffs’ motion for partial summary judgment. The district court determined that all of Marvin’s claims were barred by the doctrine of preemption because the claims fell within the purview of the NLRA. The district court also concluded that Martha’s loss of consortium claim was barred because it was dependent upon the underlying suit. We include additional facts where relevant in discussing Plaintiffs’ claims.
III. DISCUSSION
{6} Plaintiffs make three arguments on appeal: (1) the IIED, defamation, and retaliatory discharge claims are not preempted by federal law; (2) because those claims are not preempted, Martha’s loss of consortium claim is not barred; and (3) the district court improperly denied Plaintiffs’ motion for partial summary judgment, which was based on a collateral estoppel theory. We address each argument in turn, beginning with preemption.
A. Preemption
■{7} 'WTg contends, and the district court agreed, that Plaintiffs’ claims are preempted by Sections 7 and 8 of the NLRA. Plaintiffs argue in response that the NLRA does not preempt their claims and, in addition, that the preemption analysis should be performed under Section 301 of the Labor-Management Relations Act (LMRA). 29 U.S.C. § 185(a) (2000). We first consider whether Plaintiffs’ claims are preempted by the NLRA.
{8} “When an activity is arguably subject to [Section] 7 or [Section] 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted.” San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v. Garmon,
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7];
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ... [or]
(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter[.]
29 U.S.C. § 158(a).
{9} The Garmon preemption doctrine is necessary to ensure a consistent national labor policy. See Garmon,
claims touch “ ‘interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [a court] could not infer that Congress had deprived the States of the power to act.’ ” Farmer v. United Bhd. of Carpenters & Joiners of Am., Local 25,
1. Intentional Infliction of Emotional Distress
{10} In Farmer, the United States Supreme Court applied the preemption exception analysis to a state-law IIED claim and held that a union member’s claim of IIED was not necessarily preempted by the NLRA.
{11} The Farmer Court concluded that the IIED claim before it was not preempted by the NLRA in part based on its “understanding that California law permits recovery only for emotional distress sustained as a result of ‘outrageous’ conduct.” Id. The Court made clear that “undue interference with federal regulation would be intolerable if state tort recoveries could be based on” conduct that “may be commonplace in various labor contexts.” Id. at 305-06,
{12} Plaintiffs alleged in their complaint that WTS (1) refused to schedule medical appointments for Marvin’s work-related injuries, (2) refused to allow Marvin to make doctor visits for those same injuries during work hours, (3) unilaterally changed its past practice of scheduling workers’ compensation-related medical appointments for bargaining unit employees, (4) failed to pay Marvin in accordance with its usual procedure, (5) bypassed Marvin for overtime assignments, (6) wrongfully issued a verbal reprimand for absenteeism contrary to the provisions of the CBA, (7) verbally attacked Marvin’s character, (8) suspended Marvin without just cause for three days, (9) discharged Marvin, and (10) made false statements in order to support the suspension and termination. Plaintiffs elaborated on their IIED claim during discovery and claimed that the retaliatory acts included the following: (1) failing to punish Marvin’s co-workers who allegedly violated procedures, (2) approving unemployment benefits for employees other than Marvin, (3) denying college benefits to Marvin but providing them to other employees, (4) informing Marvin that he would not be paid for time taken for a workers’ compensation injury due to the NLRB charges, (5) verbally attacking Marvin on his production, (6) requiring Marvin to use inadequate equipment, and (7) trying to make Marvin violate procedures. These claims support a conclusion that WTS discriminated against Marvin — not that WTS engaged in outrageous conduct. These discrimination claims represent “exactly the kind of conduct which the NLRA seeks to regulate.” Briggs v. Hotel Corp. of the Pac., Inc.,
{13} Marvin may have suffered distress as a result of WTS’s actions, but “[e]very employee who believes he has a legitimate grievance [has] some emotional anguish occasioned by his belief that he has been wronged.” Buscemi v. McDonnell Douglas Corp.,
{14} Plaintiffs’ brief in chief cites twenty opinions that apply the Farmer exemption rule. See, e.g., Carter v. Sheet Metal Workers’ Int’l Ass’n,
{15} A number of the cases cited by Plaintiffs dismissed the claim for IIED because the Farmer criteria were not met. In Carter,
{16} By comparison, in those cases cited by Plaintiffs in which the courts allowed IIED claims to go forward, the plaintiffs alleged wrongful behavior that was much more egregious than the discriminatory treatment alleged by Plaintiffs in this case. For example, in Keehr v. Consolidated Freightways of Delaware, Inc.,
{17} In these cases, the plaintiffs were not “seeking damages based on the fact of discriminatory treatment”; instead, they limited their claims to damages that flowed from the employer’s outrageous conduct or the manner adopted by the employer to carry out the wrongful treatment. Keehr,
{18} Plaintiffs also rely on English v. General Electric Co.,
{19} The harm suffered by Marvin resulted from the alleged actions of discrimination, discipline, and discharge and not the manner in which the alleged wrongful actions were conducted. Marvin protested these allegedly wrongful actions by filing charges with the NLRB and filing grievances with WTS. Plaintiffs failed to show that WTS’s actions constituted outrageous behavior. Consequently, the Farmer exception to NLRA preemption does not apply in the present case, and Plaintiffs’ IIED claim is therefore preempted by federal law. We further observe that regardless of the federal preemption analysis, the district court would have properly granted summary judgment to WTS because Plaintiffs failed to allege facts that would support an IIED claim under New Mexico law, which also requires conduct to be outrageous in order for an IIED claim to succeed. See Baldonado,
2. Defamation
{20} The United States Supreme Court has also considered state defamation claims in the context of labor disputes. In Linn v. United Plant Guard Workers of America, Local 114,
{21} Although Plaintiffs generally claim that Marvin was defamed, the amended complaint does not specifically identify which statements defamed Marvin. See Andrews v. Stallings,
{22} As we explained above, in order to avoid NLRA preemption, Plaintiffs were required to establish that defamatory statements were circulated with malice and that the statements caused particular harm. Linn,
3. Retaliatory Discharge
{23} In their amended complaint, Plaintiffs also asserted a claim for wrongful discharge for whistle-blowing and alleged that Marvin was first disciplined and then terminated in retaliation for complaining about safety violations and refusing to perform unsafe practices. Specifically, Marvin claims that WTS retaliated against him for complaining about and refusing to operate or “sign off” on dangerous equipment and for filing a safety grievance regarding an unsafe condition. He claimed to have raised these safety issues (1) out of concern that WTS was not following prescribed safety requirements in its operation and handling of waste and (2) out of concern for the welfare and safety of co-workers and the public.
{24} The United States Supreme Court has not yet considered whether claims for retaliatory discharge are preempted by the NLRA. Some courts have held that retaliatory discharge claims are not preempted. See, e.g., Paige v. Henry J. Kaiser Co.,
{25} The employment-at-will doctrine permits an employer to terminate an employee at will in the absence of an express contract limiting the employer’s right to do so. See Silva v. Am. Fed’n of State, County & Mun. Employees,
{26} It is undisputed that Marvin was not an at-will employee. The CBA governed the relationship between Marvin and WTS, and it included provisions stating that WTS could only “hire, suspend, discharge or discipline employees for just cause.” The CBA also provides for a grievance procedure if an employee believes he was terminated or disciplined unfairly. Marvin availed himself of that procedure after he was suspended and then terminated by WTS. As Marvin could only be terminated for cause under the CBA, he cannot recover for the tort of retaliatory discharge under New Mexico law. See Barreras v. State of N.M. Corr. Dep’t,
{27} Plaintiffs claim that WTS waived this defense because it failed to raise Marvin’s employment status as an affirmative defense. We disagree. “An affirmative defense ordinarily refers to a state of facts provable by defendant that will bar [the] plaintiffs recovery once a right to recover is established.” Beyale v. Ariz. Pub. Serv. Co.,
4. Section 301 of the LMRA
{28} We next turn to Plaintiffs’ claim that the district court should have conducted the preemption analysis under Section 301 of the LMRA. Section 301 identifies the proper venue for suits brought pursuant to a collective bargaining agreement. See Paige,
{29} First, we note that Plaintiffs cite no authority to support this proposition. Therefore, we need not even consider this argument. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t,
B. Loss of consortium
{30} The district court concluded that because the loss of consortium claim was dependent on Marvin’s claims, once summary judgment was entered on those claims, Martha’s claim for loss of consortium was also barred. We agree. “Loss of consortium derives from the underlying cause of action in the physically-injured spouse.” Archer v. Roadrunner Trucking, Inc.,
C. Collateral Estoppel
{31} Plaintiffs also argue that the district court improperly denied their motion for partial summary judgment. The motion contended that the findings of fact made by the arbitrator during the grievance proceedings should be given preclusive effect in the state court proceedings against WTS. Based on our decision to affirm the district court’s grant of summary judgment to WTS on all of Plaintiffs’ claims, we need not address the merits of Plaintiffs’ motion for summary judgment based on collateral estoppel.
IV. CONCLUSION
{32} We affirm the district court’s order granting summary judgment in favor of WTS on all of Plaintiffs’ claims.
{33} IT IS SO ORDERED.