116 Lab.Cas. P 10,280,
7 Indiv.Empl.Rts.Cas. 1767
Joseph Christopher COOK; Dorothy Cook, Plaintiffs-Appellants,
v.
LINDSAY OLIVE GROWERS, and Does 1 through 25, inclusive,
Defendants-Appellees.
No. 88-15741.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 14, 1990.
Decided Aug. 10, 1990.
Richard J. Papst, Chain, Younger, Lemucchi, Noriega, Cohn, Stiles & Rodriguez, Bakersfield, Cal., for plaintiffs-appellants.
Michael Jens F. Smith and Thomas M. Zulim, Jory, Peterson & Sagaser, Fresno, Cal., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of California.
Before BOOCHEVER, WIGGINS and NOONAN, Circuit Judges.
BOOCHEVER, Circuit Judge:
Joseph Christopher Cook (Cook) and his wife Dorothy Cook appeal from the district court's grant of summary judgment to Lindsay Olive Growers (LOG). Cook argues that his claims for wrongful termination, breach of the covenant of good faith and fair dealing, intentional and negligent infliction of emotional distress, and employment discrimination on the basis of religion are not preempted by Sec. 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185(a) (1982). He also argues that his common-law claims are not precluded by California's statutory remedy for religious discrimination, and that the district court erred in finding that LOG had reasonably accommodated his religious beliefs. We affirm.
FACTS
In August of 1980, Cook began work as a boiler operator in LOG's olive processing plant. Cook was a member of General Teamsters Local 94, and a collective bargaining agreement (CBA) between the Teamsters and LOG was in effect throughout his employment.
As a member of the Worldwide Church of God, Cook was required to observe the sabbath and abstain from working from sunset Friday to sunset Saturday. This religious observance did not present a problem during his first four years of employment. The Lindsay plant operated seven days a week, twenty-four hours a day, and Cook was able to work a Sunday through Thursday night shift. In 1984, however, LOG changed its olive processing operations, and the plant began to operate on a five-day work week. Because no Sunday work was available, Cook was assigned to a standard night shift, Monday through Friday from 10 p.m. to 6 a.m. The Friday night work conflicted with his religious observance, but LOG did not require him to work that night. Two other boiler operators voluntarily covered Cook's Friday shift on a rotating basis; under the terms of the CBA, they could not receive overtime pay for the Saturday work following the Friday night shift. Cook thus worked only four shifts a week.
In September of 1986, the two other boiler operators informed LOG they were no longer willing to substitute for Cook on Friday nights. LOG responded by attempting to locate someone else at the plant qualified to operate the boiler on Cook's Friday night shift. LOG also called the Teamsters to discuss possible solutions, and contacted the California Employment Development Department (CEDD) to locate a one-day-per-week boilermaker to work Cook's Friday night shift. When these efforts failed, LOG reviewed the openings at the processing plant for cannery mechanic positions for Cook, but there were none. For economic reasons, LOG decided against paying overtime to the other boiler operators to cover Cook's Friday night shift.
Finally, LOG transferred Cook to a general laborer position, Monday through Friday, 7 a.m. to 3 p.m., a schedule allowing Cook to observe his sabbath. The pay was $.80 less per hour than what Cook had been earning. Because Cook would have worked five rather than four shifts per week, however, his gross weekly pay would have increased by about forty dollars. Cook received notice of the transfer on October 10, 1986. He took personal leave from October 14 to 26. When he failed to report to work or call in on October 27 and five consecutive days thereafter, he was fired.
PROCEDURE
Cook filed a grievance with the Teamsters. After a hearing on November 7, 1986, the grievance committee found that LOG was justified in firing Cook for refusing the work transfer and for not calling in prior to his shift for six days.
Eight months later, Cook and his wife Dorothy filed a complaint in California state court on July 9, 1987, alleging five causes of action: wrongful termination, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, employment discrimination based on religious beliefs, and as to both Cook and his wife Dorothy, negligent infliction of emotional distress. LOG removed the action to federal district court, and Cook filed a first amended complaint there, deleting all references to the CBA and stating his fourth cause of action as for employment discrimination under Cal.Gov't Code Sec. 12940 (West Supp.1990). After discovery was complete, LOG filed a motion for summary judgment. Following a hearing, the district court granted the motion.
The district court held that the basis of Cook's complaint was a breach of the CBA, and as a result all his claims were preempted by Sec. 301 of the LMRA. Summary judgment was awarded because Cook did not bring his action within the six-month federal statute of limitations governing suits against an employer for breach of a CBA. The court also ruled that even if the claims were not preempted, Cal.Gov't Code Sec. 12940 provided an exclusive remedy displacing all common law remedies. Finally, it found that LOG reasonably accommodated Cook's religious observance as a matter of law.
ISSUES
This court reviews de novo a grant of summary judgment, determining "whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court applied the relevant substantive law." Tzung v. State Farm Fire & Casualty Co.,
Section 301 of the LMRA provides federal jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. Sec. 185(a). Federal law exclusively governs a suit for breach of a CBA under Sec. 301, whose broad preemptive scope entirely displaces any state cause of action based on a CBA, as well as any state claim whose outcome depends on analysis of the terms of the agreement. Young v. Anthony's Fish Grottos, Inc.,
I. WRONGFUL DISCHARGE
A. Preemption under Sec. 301
Cook's complaint alleges that he had
an oral contract of employment as modified by certain policies, practices, assurances and other statements, both oral and in writing.... for an indefinite term.... [D]ischarge, if any, would only be for good cause proven and then would be carried out only in accordance with the stated written policies of the employer.
The complaint explains Cook's sabbath observance and the accommodations made to it, and then alleges he was fired when "defendant breached its agreement with plaintiff by demanding that plaintiff report for work after dusk on Friday in direct conflict with plaintiff's religious beliefs and observances." Cook characterizes this claim as one for wrongful discharge in violation of public policy, and argues that it thus escapes federal preemption.
Section 301 does not preempt [a claim] if it poses no significant threat to the collective bargaining process and furthers a state interest in protecting the public transcending the employment relationship. A claim is preempted, however, if it is not based on any genuine state public policy, or if it is bound up with interpretation of the collective bargaining agreement and furthers no state policy independent of the employment relationship.
Young,
There is no doubt that Sec. 12940(a) establishes a California public policy against religious discrimination in the workplace. Nor would enforcement of the California statute require interpretation of the CBA. Although Sec. 17(b) of the CBA provides "[t]here shall be no discrimination based upon ... religion ... as provided in Federal and State Laws," it does not follow that any allegation of discrimination requires an interpretation of the agreement. "[T]he mere fact that a broad contractual protection against discriminatory ... discharge may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state law violation dependent upon the terms of the private contract." Lingle v. Norge Div. of Magic Chef, Inc.,
B. Preemption by Cal.Gov't Code Sec. 12940
Although Cook's claim of wrongful discharge in violation of public policy survives federal preemption, it does not escape preemption by Cal.Gov't Code Sec. 12940. California courts have held that there is no common law cause of action for discrimination under the California Fair Employment and Housing Act, Cal.Gov't Code Secs. 12900-12996, because the California legislature intended the statute to be the exclusive remedy for a discriminatory wrongful discharge. Strauss v. A.L. Randall Co.,
Federal courts have acknowledged this preemption. See, e.g., Salgado v. Atlantic Richfield Co.,
II. BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
Where the collective bargaining agreement contains terms governing job security, this breach of the covenant of good faith and fair dealing cause of action is preempted. Jackson v. Southern California Gas Co.,
III. EMOTIONAL DISTRESS
An emotional distress claim is not preempted when it can be resolved without examination or interpretation of the CBA. Tellez v. Pacific Gas & Elec. Co.,
The offending behavior Cook complains of is LOG's demand that he report for work on Friday evening or accept a different job classification, and his termination. Here, as is often the case, the terms of the collective bargaining agreement must be examined and interpreted to determine whether LOG's behavior was extreme and outrageous. See Miller,
By contrast, in Tellez the employee had been suspended following a report that he bought drugs on the job. A grievance panel concluded that the suspension was without just cause, awarded Tellez lost wages with interest, and ordered that the suspension order be expunged. Tellez,
Unlike Tellez, the basis of Cook's emotional distress claim is wrongful discharge, and requires evaluation of actions central to the employment relationship: a work transfer and Cook's eventual discharge for refusing the transfer and failing to call in. For this court to determine whether LOG acted outrageously in firing him would require us to evaluate, as the grievance committee did, whether LOG complied with the terms of the CBA regulating seniority and work transfers. See Miller,
IV. RELIGIOUS DISCRIMINATION IN EMPLOYMENT UNDER CAL.GOV'T CODE Sec. 12940(a)
A. Preemption under Sec. 301
To decide whether a state law claim is preempted under Sec. 301, we consider
(1) whether the CBA contains provisions that govern the act giving rise to a state claim, and if so, (2) whether the state has articulated a standard sufficiently clear that the state claim can be evaluated without considering the overlapping provisions of the CBA, and (3) whether the state has shown an intent not to allow its prohibition to be altered or removed by private contract.
Miller,
The answer to the second question is also yes; California in Sec. 12940(a) has articulated a clear standard that does not require interpretation of the CBA. As cited above in the discussion of Cook's claim for wrongful discharge in violation of public policy, "[t]he mere fact that a broad contractual protection against discriminatory ... discharge may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state law violation dependent upon the terms of the private contract." Lingle,
California's statute confers upon employees certain rights not to be discriminated against.... That right is defined and enforced under state law without reference to the terms of any collective bargaining agreement. [The employee's] state-law claim is consequently independent of the agreement. That [he] might also have separate remedies under the bargaining agreement makes no difference.
Ackerman,
Finally, the right not to be discriminated against on the basis of religion cannot be removed by private contract. Section 12940 confers a right that is nonnegotiable and applies to unionized and nonunionized workers. Ackerman,
We note that this conclusion is consistent with our finding that Cook's claim for emotional distress is preempted. Unlike his emotional distress claim, Cook's Sec. 12940 claim does not require us to decide whether LOG's actions were reasonable under the CBA. Even when an employer acts according to a policy applied reasonably to other individuals with different religious beliefs, it might nevertheless violate Sec. 12940(a); no discriminatory motive is required. See Best v. California Apprenticeship Council,
B. Reasonable Accommodation
We now must determine whether LOG reasonably accommodated Cook's religious beliefs under Cal.Gov't Code Sec. 12940(a). Federal precedent applies to provisions of the California Fair Employment and Housing Act analogous to Title VII. Mixon v. Fair Employment and Housing Comm'n,
An employer must make reasonable accommodations of the religious needs of its employees, short of undue hardship. Trans World Airlines, Inc. v. Hardison,
Cook asserts that summary judgment on the issue of whether these efforts were reasonable accommodation was inappropriate because a factual inquiry was necessary to determine whether the cost of paying overtime would be an undue hardship for LOG. As the district judge pointed out, however, the issue is not whether LOG can show that the overtime payment would be an undue hardship, but whether its attempts to accommodate Cook's sabbath were reasonable.
[A]ny reasonable accommodation by the employer is sufficient to meet its accommodation obligation.... Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship.
Ansonia Bd. of Ed. v. Philbrook,
LOG's other attempts to accommodate Cook's religious observance were reasonable. Allowing lateral transfers or changes of job assignments constitutes a reasonable accommodation. See Hudson v. Western Airlines, Inc.,
CONCLUSION
Section 301 preempts Cook's claims of breach of the covenant of good faith and fair dealing and intentional and negligent infliction of emotional distress. The claims therefore are barred by the six-month statute of limitations. Cal.Gov't Code Sec. 12940 preempts his wrongful discharge claim. Finally, Cook's claim for religious discrimination in employment under Sec. 12940(a) fails because LOG reasonably accommodated Cook's religion as a matter of law. We therefore AFFIRM the district court's grant of summary judgment.
Notes
We reject Cook's related argument that he was discharged in violation of an independent agreement with LOG about the way in which LOG would accommodate his sabbath. "[I]ndividual employment contracts are not inevitably superseded by any subsequent collective agreement covering an individual employee.... [A] plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement ... so long as the contract relied upon is not a collective-bargaining agreement." Caterpillar Inc. v. Williams,
This court, however, has held that Caterpillar 's exception to federal preemption does not apply when the job that is the subject matter of the purportedly independent contract is covered by the CBA, as in this case. Young,
This circuit twice has held that claims of wrongful discharge and statutory claims of discrimination under Sec. 12940 can survive federal preemption, without discussing whether the common law claims are preempted by the California statute. See Jackson v. Southern California Gas Co.,