JOHN GREENLY, Plaintiff, v. SARA LEE CORPORATION; GORDON MAYBERRY; and Does 1 through 10, inclusive, Defendants.
Case 2:06-cv-01775-WBS-EFB
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 15, 2006
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE
Document 29 Filed 12/15/06 Page 1 of 22
Plaintiff John Greenly brought this action against his former employer, defendant Sara Lee Corporation (“Sara Lee“), as well as his former supervisor, defendant Gordon Mayberry, alleging harassment and rights violations under state and federal statutes and common law. Defendants move to dismiss various claims for failure to state a claim pursuant to
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At all times relevant to this action, plaintiff John Greenly was employed by defendant Sara Lee as a Foreman in Bun Production. (Compl. ¶ 10; Req. for Judicial Notice Ex. 1 (“EEOC Complaint“).) Plaintiff worked under the supervision of Production Manager defendant Gordon Mayberry. (Compl. ¶ 12.) Throughout the course of his employment, plaintiff was a member of the Bakery, Confectionery, Tobacco Workers and Grain Millers’ International Union, Local Union No. 85 (“Union“). (First Mot. to Dismiss Ex. 1.) At all times, plaintiff‘s employment was governed by a collective bargaining agreement (“CBA“), negotiated between the Union and Sara Lee. (Id.)
According to plaintiff, beginning in 1990, he was subjected to a pattern of sexual and physical harassment, denial of promotions, retaliation, and discrimination on the basis of a work-induced disability. (Compl. ¶ 14; EEOC Complaint.) Based on this conduct, plaintiff filed a complaint on May 19, 2005, against Sara Lee with the Equal Employment Opportunity Commission (“EEOC“) alleging sexual harassment by Mayberry. (EEOC Complaint.) On June 19, 2006, the EEOC indicated that it was terminating its processing of the complaint, and issued to plaintiff a “right to sue” letter. (Req. for Judicial Notice Ex. 3.)
On July 13, 2006, plaintiff filed a complaint in state court, which defendants removed to this court because it involved various questions of federal law. (Compl.) The complaint
On August 17, 2006, defendants filed a motion to dismiss pursuant to
II. Discussion
A. Legal Standard
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cruz v. Beto, 405 U.S. 319, 322 (1972). The
In general, the court may not consider material other than the facts alleged in the complaint when deciding a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) (“A motion to dismiss . . . must be treated as a motion for summary judgment . . . if either party . . . submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials.“). However, the court may consider materials of which it may take judicial notice, including matters of public record. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988);
Additionally, “a district judge may generally consider a document outside the complaint when deciding a motion to dismiss if the complaint specifically refers to the document and if its authenticity is not questioned.” Inlandboatmens Union of Pac. v. Dutra Group, 279 F.3d 1075, 1083 (9th Cir. 2002) (citing Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th Cir. 1982)) (upholding a District Court‘s consideration of a collective bargaining agreement, referred to in the complaint, on a motion to dismiss). When claims in a complaint require consideration of a collective bargaining agreement, a plaintiff cannot artfully plead so as to avoid mentioning the agreement, thereby avoiding federal preemption issues. Inlandboatmens Union, 279 F.3d at 1083; Young v. Anthony‘s Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987) (“The district court, however, properly looked beyond the face of the complaint to determine whether the contract claim was in fact a section 301 claim for breach of a collective bargaining agreement . . .“).
In this case, plaintiff concedes that a collective bargaining agreement was in place. (FAC ¶¶ 111, 120, 126, 136, 144.) Thus, this court may properly consider the CBA, submitted as an exhibit to defendants’ first motion to dismiss, without converting this motion into a motion for summary judgment.
B. Labor Management Relations Act
1. Preemption under § 301
Defendant argues that plaintiff‘s ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, sixteenth, seventeenth, twentieth, twenty-first, and twenty-second claims are all preempted under the LMRA. (Second Mot. to Dismiss 4-9.) It is well established that § 301 of the LMRA,
However, not all claims stemming from conduct in the workplace are necessarily preempted by the LMRA. See Allis-Chalmers, 471 U.S. at 211-212 (noting that “not every dispute concerning employment, or tangentially involving a provision of a
2. State Law Claims
a. Claims Twenty, Twenty-One, Twenty-Two
Claims twenty and twenty-one are for breach of contract and breach of implied covenant of good faith and fair dealing, respectively. Both of these claims directly relate to an interpretation of the CBA contract, for that is what was purportedly breached. Claim twenty-two is for failure to pay wages and provide rest breaks, which is founded on rights created by, and only by, the CBA. (CBA Section 4 (“hours“), Section 7 (“wages“).) Analysis of these claims cannot be accomplished without looking to the CBA, therefore these four claims are preempted by the LMRA. Allis-Chalmers, 471 U.S. at 213.
b. Claims Sixteen and Seventeen
Claims sixteen and seventeen are for negligent and/or intentional interference with existing contractual relationships and negligent and/or intentional interference with prospective economic advantage, respectively. Both of these theories are state common law causes of action based on protecting
As against Sara Lee, it is well established that a party to a contract cannot be found liable under either of these theories of law. Id. (“[A] party to the plaintiff‘s contract cannot be liable under any of the four theories. If the defendant is a party to the contract, the plaintiff is relegated to a cause of action for breach of that contract.“) (citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 514 (1994). Indeed, these causes of action must be reconciled with the longstanding “prohibition against liability of contracting parties.” Applied Equipment, 7 Cal.4th at 513-514. Therefore, the court will dismiss these claims as against Sara Lee.
c. Claims Nine and Ten
Claims nine and ten are for intentional and negligent infliction of emotional distress, respectively. The claim for intentional infliction of emotional distress is brought solely against Mayberry, based on his “harassing, hostile, and discriminatory treatment” of plaintiff, while the negligence claim is brought against both defendants based on the failure to
Plaintiff‘s allegations in claims nine and ten include accusations that Greenly was “denied Saturday shift differential pay and work breaks, denied promotions,” and that he was “demoted in retaliation for [his] complaints.” (FAC ¶ 14.) From this, as well as other “harassment,” plaintiff asserts he was harmed. (FAC ¶¶ 83, 93, 98, 101.) All of these accusations, however, involve work conditions explicitly covered by the CBA. (CBA Sections 3 (seniority in promotions), 4 (hours), 7 (wages).) Therefore, in order to assess whether defendants’ conduct in this regard was “outrageous,” the court must consider the CBA. Miller v. AT & T Network Sys., 850 F.2d 543, 550 (9th Cir. 1988) (“Actions that the collective bargaining agreement permits might be deemed reasonable in virtue of the fact that the CBA permits them.“). Claims nine and ten are therefore preempted.
d. Claims Eleven and Twelve
Claims eleven and twelve are for negligence and negligence per se. These two claims are brought against both defendants, and like claim ten, are based on the failure to provide a non-hostile, non-harassing, and non-discriminatory work environment. A claim based on negligence requires an inquiry into the reasonableness of defendants’ conduct, within the context of duties owed plaintiff. See e.g., Gdowski v. Louie, 84 Cal.App.4th 1395 (2000) (“reasonableness is . . . at the heart of
e. Claim Thirteen
Claim thirteen is brought against Sara Lee, alleging negligence in the hiring, training, supervision, and retention of Mayberry. (FAC ¶¶ 104-107.) Any decision to hire, discipline, or ultimately fire an employee is clearly one which is governed by the provisions and procedures of the CBA. (CBA Section 3 (dismissals).) Thus, any inquiry into the reasonableness of Sara Lee‘s conduct regarding such decisions would necessitate an interpretation of the CBA. Therefore, this claim is preempted.
f. Claim Fourteen
Claim fourteen is for invasion of privacy, and is based on Mayberry‘s supposed disclosure of private facts about Greenly as well as Mayberry‘s “intrusion into plaintiff‘s home.” California‘s right to privacy requires both that an individual have a “personal and objectively reasonable expectation of privacy” and that the expectation “has been infringed by an unreasonable . . . intrusion.” Alarcon v. Murphy, 201 Cal.App.3d 1, 5 (1988). The Ninth Circuit has clarified that for a privacy right to be so inextricably intertwined with a collective bargaining agreement so as to result in preemption, the agreement must contain a waiver or some other explicit mention of those
By contrast, in this situation there is nothing in the CBA that acts to affect plaintiff‘s right to privacy or to be free from intrusion. Indeed, there is nothing in the CBA even arguably related to this claim. It is not enough that such topics might be the subject of a provision in the CBA--an actual provision must exist. Id. (preemption is proper where an “existing provision of a CBA . . . can reasonably be said to be relevant to the resolution of the dispute“) (emphasis added). Nor is it sufficient that the invasions of privacy happened to take place in the work context. Lingle, 486 U.S. at 407 (“[T]hese purely factual questions pertain[] to the conduct of the employee and the conduct and motivation of the employer. Neither . . . requires a court to interpret any term of a collective-bargaining agreement.“) (emphasis added). Because, in this context, plaintiff‘s right to privacy is a “nonnegotiable state law right,” this claim is not preempted. Id. at 697.
2. Exhaustion under § 301
When the LMRA preempts a state law claim, that claim may be effectively re-characterized as one brought under § 301 for breach of the collective bargaining agreement. Young, 830 F.2d at 997. Finding a state-law claim completely pre-empted effectively “supplants it with a federal claim.” Id. at 998. All of the state-law claims preempted above by the LMRA will therefore be considered by this court as a claim under § 301.
It is well established, however, that an “employee seeking a remedy for an alleged breach of the collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act.” Clayton v. Int‘l Union, United Auto., Aerospace, and Agr. Implement Workers of Am., 451 U.S. 679, 681 (1981) (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653 (1965)). Moreover, because the grievance procedures6 contained in most collective bargaining agreements mandate that any decisions are final and binding, in order for an employee to recover under § 301 he must also show that his union breached its duty of representation. Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990); DelCostello v. Int‘l Bd. of Teamsters, 462 U.S. 151, 163-164 (1983).
In this case, the CBA at issue contains detailed procedures to be pursued in the case of an employee grievance, and provides that any decisions by the Board are “final and binding on all parties.” (CBA Section 25 (“Adjustment Board and Procedure“).) When plaintiff filed his original complaint in
Under the liberal federal standards, these general allegations are sufficient at the pleading stage to allow the recharacterized § 301 claim to go forward. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 515 (2002) (unanimous Court holding that ”
3. Statute of Limitations
Defendants contend that, even if plaintiff‘s claims are recharacterized under federal law, plaintiff would be time-barred from bringing a § 301 claim. (Mot. to Dismiss 10.) The Supreme
The FAC, however, states that plaintiff filed a second complaint with the EEOC on July 17, 2006, alleging additional and more recent violations. Moreover, plaintiff does not specifically confine his factual allegations in the FAC to any particular time period, but instead contends that the hostile behavior continued up until his August, 2006, dismissal. (FAC ¶ 14; Opp‘n to Mot. to Dismiss 5.) For the purposes of this motion, the court accepts these assertions as true. Balistreri, 901 F.2d at 699.; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n.15 (1968). The simple fact that incidents of harassment also occurred outside of the six-month period does not bar suit for continuing violations. See e.g., Anthony v. County of Sacramento, 898 F. Supp. 1435, 1443 (E.D. Cal. 1995) (“hostile environment harassment . . . by its nature involves an ongoing course of conduct rather than a single discrete act“). Therefore, plaintiff has sufficiently alleged that defendants’ conduct occurred within the six-month period prior to filing the complaint.
4. Section 301 Claims Against Mayberry
By definition, a suit by an employee under § 301 can be
C. FEHA Claims
Plaintiff brings four claims under FEHA.7 FEHA prohibits unlawful employment discrimination on the basis of sex, disability, and other protected classifications.
In order for an administrative complaint to be timely, it must be filed within “one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.”
1. Exhaustion of Administrative Remedies
Defendants argue that all four FEHA claims must be dismissed because plaintiff failed to exhaust his administrative remedies in a timely manner, based on the fact that: 1) plaintiff‘s second FEHA complaint was filed four days after the instant lawsuit; 2) plaintiff fails to allege that this second FEHA complaint was timely; and 3) plaintiff fails to allege against whom the second FEHA complaint, and subsequent “right-to-sue” notice, were directed. (Mot. to Dismiss 10-13.)
Defendants are correct that a “right to sue” notice must be received before a lawsuit may be filed.9 Indeed,
In this case there is nothing to indicate that the EEOC was precluded from performing its administrative functions as a result of the premature suit. Because a premature lawsuit is always subject to a motion to dismiss at any time before a “right to sue” letter is received, it is unlikely that allowing plaintiff to “cure” a premature filing will encourage parties to
2. Claim Seven as Against Mayberry
Defendants additionally contend that, as a matter of law, claim seven (failure to prevent unlawful sexual discrimination) cannot be brought against Mayberry, because he was the actual perpetrator of the harassment at issue.11
The “failure to prevent” cause of action originates in
Plaintiff‘s reasoning would extend liability under FEHA to an illogical conclusion, whereby an individual could be found directly liable for harassing an employee as well as for the failure to prevent his own harassing conduct. Plaintiff may, of course, bring a direct action against Mayberry for harassment, which he successfully alleges in claim five, but the present claim is improper. The court will therefore dismiss claim seven against Mayberry.
D. California Labor Code § 132a
In fact, the California Supreme Court in Moorpark clarified that for a plaintiff alleging disability
IT IS THEREFORE ORDERED that:
(1) defendants’ motion to dismiss claim seven as against defendant Mayberry, and claims sixteen and seventeen as against defendant Sara Lee be, and the same hereby is, GRANTED;
(2) defendants’ motion to dismiss claim twenty-three be, and the same hereby is, GRANTED;
(3) defendants’ motion to dismiss claims nine, ten, eleven, twelve, thirteen, sixteen (as against defendant Mayberry), seventeen (as against defendant Mayberry), twenty, twenty-one, and twenty-two be, and the same hereby is, GRANTED. Plaintiff is hereby given thirty days from the date of service of this order to amend his complaint eliminating these preempted claims and stating instead a claim against defendant Sara Lee under § 301 of the LMRA, consistent with the requirements set forth herein.
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DATED: December 13, 2006
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE