MARY MATSON, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
No. 13-36174
United States Court of Appeals for the Ninth Circuit
November 4, 2016
D.C. No. 2:10-cv-01528-RAJ
Before: Susan P. Graber, Marsha S. Berzon, and Mary H. Murguia, Circuit Judges. Opinion by Judge Berzon
FOR PUBLICATION
Argued and Submitted May 3, 2016 Seattle, Washington
Filed November 4, 2016
SUMMARY*
Labor Law / Preemption
The panel reversed the district court‘s preemption ruling; held that the district court erred in holding that an employee‘s state law gender-based hostile work environmental claim was preempted under
The panel noted the two-part test used to determine whether a state lаw claim is preempted under
The panel held that adjudication of the employee‘s hostile work environment claim did not require interpretation of a provision of the CBA, and preemption under
The panel held that because the district court‘s conclusion that the jury‘s damages award was “grossly excessive” rested in part on its erroneous preemption ruling, that determination was also reversed, and the panel remanded for reconsideration of the damages question.
COUNSEL
Donald H. Mullins (argued) and Jacob D.C. Humphreys, Badgley Mullins Turner PLLC, Seattle, Washington, for Plaintiff-Appellant.
Eric D. Miller (argued), Tobias S. Piering, Javier F. Garcia, and Michael T. Reynvaan, Perkins Coie LLP, Seattle, Washington, for Defendant-Appellee.
BERZON, Circuit Judge:
We once again address whether a state employment claim can go forward where the employee‘s terms and сonditions of employment are covered by a collective bargaining agreement. See Kobold v. Good Samaritan Reg‘l Med. Ctr., 832 F.3d 1024 (9th Cir. 2016).
This case, unlike any of the three appeals consolidated in the recent Kobold opinion, concerns a state equal employment claim alleging a hostile work environment. Mary Matson brought suit against her employer, United Parcel Service, Inc. (“UPS“), asserting, among other claims, a state law gender-based hostile work environment claim. A jury returned a verdict for Matson on that claim, but her victory was short-lived. The district court granted UPS‘s motion for a new trial on the ground that the claim was preempted under
I.
Mary Matson worked for UPS at its Boeing Field International hub in Seattle from 2002 to 2010. During most of that time Matson was employed as a “combination worker,” meaning that she was responsible both for unloading and sorting packages that arrived on airplanes and for delivering them locally. Matson was part of a unit of employees represented by the International Brotherhood of Teamsters, Local 174 (“Teamsters“). The terms and conditions of her employment were governed by a collective bargaining agreement (“CBA“) between UPS and the Teamsters.
Matson frequently complained during her employment that, because of her gender, she was subject to unfair and demeaning treatment in the workplace. Among other examples of such treatment, she alleged, her supervisors routinely favored
Unsatisfied with the results of the grievances, Matson in 2008 filed an employment discrimination and retaliation complaint with the Washington State Human Rights Commission (“WSHRC“), alleging, among other matters, that UPS “has a pattern and practice of favоring male employees by offering extra work to them.” The commission denied the complaint. Matson also filed a similar charge with the Equal Employment Opportunity Commission, which adopted the findings of the WSHRC.
“Extra work” is not a defined term in Matson‘s CBA. The term appears just once, in a “Sort Addendum” that applies only to “Sorters, Pre-Loaders, Clerks, Car Washers, and all other Inside Employees.” The Sort Addendum does not define “extra work,” but provides that UPS “recognizes that the principles of seniority shall be given prime consideration for extra work.” A separate addendum to the CBA provides generally that UPS “recognizes that the principles of seniority shall be given prime consideration in the every day operation of the business.”
In February 2010, UPS fired Matson for “proven dishonesty,” relying on the results of an investigation into whether Matson had falsified delivery records. Matson initially contested her discharge by filing a grievance in accord with the procedures outlined in her CBA.1 A joint Teamsters/UPS labor panel affirmed her discharge, so her case was not sent to arbitration.
Matson then filed suit against UPS in Washington state court, asserting several state law causes of action: (1) race and gender discrimination; (2) a race- and gender-based hostile work environment; (3) discrimination аnd retaliatory termination based on Matson‘s opposition to unlawful labor practices; and (4) wrongful termination, based on the filing of a workers’ compensation claim.2 UPS removed the case to federal court on the basis of diversity of citizenship. See
UPS then moved for summary judgment. The district court granted the motion on the merits with respect to Matson‘s claims for race discrimination, race-based hostile work environment, and wrongful discharge in violation of public policy, but denied summary judgment with respect to Matson‘s claims of gender discrimination, gender-based hostile work environment, and discrimination on the basis of opposition to unlawful practices. With regard to Matson‘s gender-based hostile work environment claim, UPS maintained that the claim was preempted under
The case proceeded to trial. At trial, Matson testified that, in her view, what she termed “extra work” should have been assigned to her but was, instead, performed by male employees with less seniority. She testified that she would be “humiliated in front of [her] coworkers” and treated as “some kind of troublemaker just because [she was] asking for extra work.”
In addition to her allegations regarding work assignments, Matson testified to numerous other incidents that, she contended, contributed to a hostile work environment including:
- A supervisor and other employees refused to help her lift a 150-pound package, and laughed at her as she struggled to do it alone. During that incident, one supervisor acted in an intimidating manner, as he “clenched up his fists, put them behind his back, and stepped right into [Matson‘s] face, gritted his teeth.” Matson was forced to seek out another coworker to help her lift the package. Matson‘s effort to lift the package resulted in a serious back injury that caused her to miss more than a year of work.
- Various UPS managers disregarded her complaints of workplace hostility and threatened to file charges against her if she continued to make what they called “false statements.”
- A male coworker screamed at her and “began to choke [her]” after she had playfully tapped his knee. In response to this incident her supervisors did nothing.
- Matson‘s supervisors assigned her a less desirable package car rather than а van. All of the male employees, many of whom had less seniority than Matson, were given vans.
- In the meeting in which she was terminated, she was confronted by seven men, all of whom were “very hostile.” Matson was accused of both lying and stealing time, while a man involved in the same activity was not charged with stealing time.
At the close of Matson‘s case-in-chief, UPS moved for judgment as a matter of law, arguing once more that Matson‘s hostile work environment claim was preempted under
UPS then presented witnesses who disputed Matson‘s claim that the additional package deliveries constituted extra work. One UPS employee stated that such deliveries were “really what I called part of normal dispatch.”
After hearing UPS‘s witnesses, the district court denied UPS‘s motion for judgment as a matter of law. It explained that “preemption is not mandated simply because defendant refers to the CBA in mounting its defense.” The court specifically noted that Matson had presented evidence “that work was given to men instead of her.” That fact, along with the other incidents of hostility she described, “in theory, support a hostile work environment claim without reference to the CBA.” Finally, the court noted that for the purposes of Matson‘s claim, “extra work, seniority, and prime consideration are simply a reference point that elucidates her claims. Whether or not seniority was actually given prime consideration is not necessary for determination of these claims.”
Matson next offered rebuttal testimony in which she disagreed with UPS‘s evidence
The jury found for UPS on Matson‘s discrimination and retaliation claims. The jury returned a verdict for Matson, however, on her hostile work environment claim and awarded $500,000 in damages for emotional distress. The district court‘s jury instruction regarding Matson‘s hostile work environment claim did not use the term “extra work” or “seniority” or refer to the CBA; it simply stated the elements of the claim that Matson had the burden of proving.3
Following the verdict, UPS filed a renewed motion for judgment as a matter of law under
In so ruling, the district court concluded that Matson‘s rebuttal testimony acknowledged that the definition of “extra work” was “a very muddy area” and so “put the interpretation of extra work under the CBA directly in dispute.” The court went on to hold that Matsоn‘s hostile work environment claim “with respect to ‘extra work’ assignments is substantially dependent on analysis of the CBA because the court would have to interpret the meaning of ‘extra work.‘” The court ordered a new trial, holding that jury questions remained regarding whether Matson had suffered a hostile work environment on the basis of incidents she had described that were unrelated to the assignment of “extra work.” The court further held that, in light of its preemption ruling, the jury‘s award of $500,000 was “grossly excessive” and, “[a]ccordingly, the question of damages must be tried again as well.”
After the second trial, the jury returned a verdict for UPS. This appeal followed.4
Sеction 301 provides that “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties.”
We have fashioned a two-part test to determine whether a state law claim is preempted under
At step two, “to determine whether a state law right is ‘substantially dependent’ on the terms of a CBA,” we ask “whether the claim can be resolved by ‘look[ing] to’ versus interpreting the CBA.” Burnside, 491 F.3d at 1060 (alterations in original) (quoting Caterpillar, 482 U.S. at 394; Livadas, 512 U.S. at 125). “If the latter, the claim is preempted; if the former, it is not.” Id. “We have stressed that . . . the term ‘interpret’ is defined narrowly [in this context]—it means something more than ‘consider,’ ‘refer to,’ or ‘apply.‘” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). Merely “alleging a hypothetical connection between the claim and the terms of thе CBA is not enough to preempt the claim,” nor is “[a] creative linkage between the subject matter of the claim and the wording of a CBA provision.” Cramer, 255 F.3d at 691–92. Moreover, preemption is warranted only where “the need to interpret the CBA . . . inhere[s] in the nature of the plaintiff‘s claim. If the claim is . . . based on state law,
As we recently observed, the ”Burnside factors reflect two driving concerns of preemption doctrine.” Kobold, 832 F.3d at 1033. Mandating preemption when a purported state law claim is founded on a
Because the second step of the Burnside test is centrally concerned with safeguarding the role of the contractual grievance/arbitration system, “there is no basis for scuttling the state law cause of action if any necessary CBA interpretation can in some fashion be conducted via the appropriate grievance/arbitration forum.” Kobold, 832 F.3d at 1033. As we explained in Kobold, “[t]o allow such scuttling disadvantages employees covered by CBAs, as they lose state law protections because of an embedded CBA issue possibly peripheral to their core cause of action. The interеst in sending substantial CBA issues through grievance/arbitration does not justify creating this disadvantage unless the interest cannot be otherwise accommodated.” Id.
Against this doctrinal backdrop we turn to the present case.
III.
The thrust of UPS‘s argument for preemption is that because Matson‘s hostile work environment claim focused in part on her allegation that UPS improperly gave “extra work” assignments to male employees with less seniority, that claim cannot be resolved without interpreting the term “extra work,” as used in the CBA, to determine whether Matson was in fact entitled to the work she claimed. More specifically, UPS maintains that “tо prove that particular work was improperly assigned because of her gender, Matson first had to establish that she, as opposed to other employees, was entitled to the work under the CBA.” UPS‘s premise is wrong, for several reasons.
As an initial matter, we reject UPS‘s suggestion that Matson‘s claim is nothing more than a repackaged “contractual dispute” over the assignment of extra work. This assertion mischaracterizes her claim. Matson‘s claim included the allegation that UPS systematically assigned men work to which they were not entitled by seniority, but only as one element of a pervasively hostile work environment. The hostile environmеnt, Matson maintained, was also characterized by intimidation and derision having nothing to do with work assignments. Matson‘s right not to work in a gender-based hostile work environment is a “nonnegotiable state-law right[] . . . independent of any right established by contract.” Lueck, 471 U.S. at 213. The claim, therefore, is not preempted under the first Burnside factor, as it is not grounded in any right created by the CBA.
Nor does anything “in the nature of” Matson‘s hostile work environment claim require interpretation of the CBA. Cramer, 255 F.3d at 691. As the district court instructed, “[t]o find for plaintiff, the jury had to find that ‘there was conduct that
Even were we to grant that Matson‘s hostile environment claim rested on the allegedly discriminatory assignment of certain work assignments to men, and, further, that whether the CBA gave Matson a seniority-based right to that work requires interpretation of the CBA, Matson‘s hostile work environment claim still would not require interpretation of any contractual provision.
We note, first, that the only CBA provision that uses the term “extra work” applies to “[i]nsidе employees,” and so does not apply to the deliveries here in dispute. In using the term “extra work,” with regard to outside deliveries, Matson was not relying on that provision. Instead, she was more colloquially referring to sporadic work not covered by pre-set assignments.
Matson could have a viable hostile environment claim whether or not the CBA actually requires assignment of that work based on seniority. Contrary to UPS‘s assumption, nothing in Matson‘s argument depends on her having been contractually entitled to the disputed work. Even if she did not have a right to the work under the CBA, management‘s systematic favoring of men in assigning the disputed work could contribute to a hostile work environment. The correct interpretation of the CBA, in other words, is purely peripheral to the relevant question with respect to assigning work. That question was whether UPS showed systematic favoritism toward men in making its work assignments, thereby contributing to a hostile work environment for Matson and other women.
Put differently, Matson‘s contention is not that UPS created a hostile work environment by violating her contractual seniority rights. Rather, her position is that failing to assign her the work despite her seniority is evidence of UPS‘s hostility toward her because of her gender. Matson‘s central contention was that she should have been awarded thе disputed work on any of the usual rationales for work assignment—seniority, proximity to the location where the work was to begin, or temporal availability—and that all those usual criteria were disregarded.5 As UPS did not assign the work on the basis of any of those criteria, Matson
maintained, hostility toward her because of her sex is the likely explanation for the failure to assign her the work.
Additionally, to the extent UPS chose to emphasize its interpretation of the CBA to dispute Matson‘s right to the work as part of its defense, that defense does not undermine
Further, even if any interpretаtion of the CBA had been required, the relevant interpretive issues were addressed in formal settlements after invocation of the grievance procedure. For example, following one of Matson‘s grievances, the parties reached a settlement according to which UPS agreed that “[t]he Company will recognize that the principles of seniority be given prime consideration in the assigning of extra work to unassigned geographic delivery areas of the combination air delivery drivers dispatched out of the [Boeing Field International] facility.” The record includes fifteen other grievances filed by Matson. Of these, seven were ultimately withdrawn. Three were resolved when UPS agreed to compensate Matson for lost work. One was settled when UPS agreed to “use by seniority Monday through Friday air drivers for the Saturday air shuttles when needed.” Four were settled when UPS agreed to “abide by” or “consider” Matson‘s seniority in the “day to day dispatching of [early morning] routes.”
One could view these agreements as agreed-upon CBA interpretations on the very issue that UPS contends remains disputed: that work Matson complained about was supposed to be assigned in accord with seniority principles. Or one could view them as independent lаbor-management agreements, which would also be covered by
However the settlements are viewed, the jury was not asked to interpret the CBA differently from the representations UPS made when settling Matson‘s grievances, and nothing in the elements of the hostile work environmеnt claim required it to do so. As we recognized in Kobold, “there is no basis for scuttling the state law cause of action if any necessary CBA interpretation can . . . be conducted via the appropriate grievance/arbitration forum.” Kobold, 832 F.3d at 1033. Here, use of that forum resulted in resolutions consistent with Matson‘s partial reliance on work assignment patterns to support her hostile work environment claim.
Finally, contrary to UPS‘s argument, Perugini v. Safeway Stores, Inc., 935 F.2d 1083 (9th Cir. 1991) does not control the result here. In Perugini, the plaintiff charged her employer with intentional infliction of emotional distress (“IIED“) in part based on its refusal to assign her to light duty while she was pregnant. To establish
By contrast, here, even if UPS‘s “managerial freedom is not constrained in any material way by the CBA“—i.e., if Matson had no contractual right to the disputed work assignments—for the company consistently to assign the work to men rather than to equally eligible, or mоre eligible, women was evidence of a gender-based hostile environment. Matson‘s gender-based hostile work environment claim was thus viable even if UPS had complete “managerial freedom” over the assignment of the disputed work under the CBA.
Notably, the IIED preemption analysis in Perugini did not concern a sex discrimination or hostile work environment claim.6 If it had, then the existence of employer discretion under the CBA would not have been dispositive, or even pertinent; discriminatory exercise of that discretion would still be actionable.
IV.
For all these reasons, the “adjudication of [Matson‘s] claim [does not] require interpretation of a provision of the CBA,” and
Kobold noted that “although
In this instance, however “muddy” the CBA was concerning the assignment of the disputed work, the questions for the jury—to the extent it considered the assignment issue at all—were not whether the disputed assignments were “extra work” as the term is used in the CBA, or whether the CBA required that they be awarded by seniority. Rather, the jury‘s focus was directed to whether the assignments were discriminatory in that men were systematically favored over similarly situated women. Making that determination did not require the jury to decide what any provision of the CBA requires. And the jury had the resolutions of Matson‘s grievances as evidence that, in fact, seniority was usuаlly or often considered.
We therefore reverse the decision of the district court that Matson‘s claims were preempted to the extent they relied on her allegations regarding UPS‘s extra work
REVERSED AND REMANDED.
Notes
To establish her claim of hostile work environment on the basis of gender, Ms. Matson has the burden of proving each of the following propositions: (1) That there was conduct that occurred because of Ms. Matson‘s gender; (2) That this conduct was unwelcome in the sense that Ms. Matson regarded the conduct as undesirable and offensive, and did not solicit or incite it; (3) That this conduct was so offensive or pervasive that it altered the conditions of Ms. Matson‘s employment; and (4) That management knew, through complaints or other circumstances, of this conduct, and UPS failed to take reasonably prompt and adequate corrective action reasonably designed to end it.
If you find from your consideration of all of the evidence that each of these propositions has been proved, then your verdict should be for Ms. Matson on this claim. On the other hand, if any of these propositions has not been proved, your verdict should be for UPS on this claim.