Opinion
Case Number C 09-2484 JF (PVT).
July 20, 2009
[re: doc. nos. 4, 10, 13, 27, 29]
Plaintiff Sharon A. Marbley ("Marbley"), proceeding pro se, filed the instant action in the Santa Clara Superior Court on April 13, 2009. Defendants Kaiser Foundation Health Plan ("Kaiser Health"), Kaiser Permanente Medical Group ("Kaiser Medical"), and The Permanente Medical Group ("TPMG") filed a notice of removal on June 4, 2009. The caption of the operative complaint lists the following claims for relief: (1) violation of the California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code §§ 12900 et seq.; (2) wrongful termination in violation of public policy; (3) breach of implied covenant of good faith and fair dealing; (4) intentional infliction of emotional distress ("IIED"); (5) violation of Cal. Labor Codes 201 203; (6) breach of implied covenant to terminate only for cause; and (7) conspiracy to defame/defamation. However, the body of the complaint does not contain any allegations concerning defamation.
Defendants move to dismiss the complaint for failure to state a claim upon which relief may be granted. Defendants also move for a more definite statement. Marbley opposes the motions and seeks remand of the instant action to the Santa Clara Superior Court. For the reasons set forth below, the motion to dismiss for failure to state a claim will be granted in part without leave to amend, and the remaining claims will be remanded to the Santa Clara Superior Court. The motion for a more definite statement and Marbley's request for ECF access will be terminated as moot.
Marbley also has filed a motion requesting that the Court not exclude a late briefing caused by a filing error. That motion will be granted, and the Court has considered and reviewed all papers filed prior to the hearing date.
I. BACKGROUND
Marbley was employed by Defendant TPMG from 1991 until January 14, 2008. See Compl. at 2, ¶ 5 and Pl.'s Opp. Ex. VI(a). During that time, she held several positions, including receptionist, floating clerk, and "Service Team Specialist." Compl. at 2, ¶ 5. At all relevant times, Marbley was a member of the Service Employees' International Union ("SEIU") Local 250. Pl.'s Opp. at 5, 7. From the lengthy allegations set forth in the complaint, it appears that Marbley's relationship with her employer began to deteriorate in 2003. She alleges, inter alia, that during a period of several years she was subject to denial of benefits (Compl. ¶ 3); that Defendant TMPG made unexpected and/or unauthorized changes in her hours or other working conditions ( id. ¶¶ 2, 16); and that she was the victim of multiple false accusations, including theft ( id. ¶ 6), throwing a chair ( id. ¶ 10), embezzlement ( id. ¶ 17), unauthorized waiving of co-payments ( id.), and poor attendance ( id. ¶ 28). The complaint also contains a number of generalized allegations of harassment. Marbley alleges that TPMG's actions were motivated at least in part by her race and her physical disability. Marbley names several of her former supervisors as participants in the aforementioned acts, including Deborah Scarini and Beth Shafran-Makai. While neither of these individuals is a named party, the body of the complaint occasionally labels them as defendants.Marbley's allegations were memorialized at least in part through a series of complaints filed with the United States Equal Employment Opportunity Commission ("EEOC") and the California Department of Fair Housing and Employment ("DFEH"). In addition, Marbley lodged at least several grievances with her union. The ultimate disposition of the grievances filed through her union is not apparent from the face of the complaint or from her opposition to Defendants' motions, although at some point Marbley became dissatisfied with SEIU, as evidenced by at least one complaint filed with the EEOC against her union. Marbley has submitted copies of her correspondence with the EEOC and DFEH; it appears that the DFEH issued at least two right-to-sue letters in response to her complaints. See Pl. Opp. Ex. VII.
Defendant TMPG terminated Plaintiff on January 14, 2008. The written notice of termination characterized Marbley's workplace demeanor as "unprofessional and unacceptable." Pl.'s Opp. Ex. VI(a). The termination notice described several precipitating acts by Marbley, including the alleged use of a racial slur and an altercation with the security department at the hospital. Id. The letter also stated that the union had intervened at least once on Marbley's behalf. Id.
II. LEGAL STANDARD
A. Fed.R.Civ.P. 12(b)(6)A complaint may be dismissed for failure to state a claim upon which relief can be granted for either a lack of (1) a cognizable legal theory or (2) sufficient facts to support a cognizable legal theory. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). Allegations of material fact must be taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1997). See also Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). However, the Court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561 (2007) ("a wholly conclusory statement of [a] claim" will not survive motion to dismiss).
On a motion to dismiss, the Court's review is limited to the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) ; N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). However, under the "incorporation by reference" doctrine, the Court also may consider documents which are referenced extensively in the complaint and which are accepted by all parties as authentic. In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999).
The pleading of a pro se litigant is held to a less stringent standard than a pleading drafted by an attorney, and is to be afforded the benefit of any doubt. Haines v. Kerner, 404 U.S. 519, 520 (1972); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Further, a pro se litigant must be given leave to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). Leave to amend should be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. See id. When amendment would be futile, dismissal may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). B. Removal and Remand
Pursuant to 28 U.S.C. § 1441(a), often referred to as "the removal statute," a defendant may remove an action to federal court if the plaintiff could have filed the action in federal court initially. 28 U.S.C. § 1441(a); see also Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir. 1988). A party may file an action in federal court if there is diversity of citizenship among the parties or if the action raises a substantial federal question. Ethridge, 861 F.2d at 1393. The party invoking the removal statute bears the burden of establishing federal jurisdiction. Id. The removal statute is construed strictly against removal. Id. The matter therefore should be remanded if there is any doubt as to the existence of federal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 565 (9th Cir. 1992).
III. DISCUSSION
A. Applicability of the Collective Bargaining Agreement and Federal Preemption
At oral argument, Marbley conceded that she was a member of SEIU during the period in question. The Collective Bargaining Agreement ("CBA") between Defendant TPMG and the union provided that "[n]o employee shall be disciplined or discharged without cause." Gabel Decl. Ex. A ¶ 1069. The CBA also required that "[a]ll disputes in other matters of controversy coming within the scope of this Agreement will be settled by the procedure hereinafter provided." Id. ¶ 1082. "Disputes" include "every dispute concerning interpretation and application of this Agreement and/or any dispute concerning wages, hours, or working conditions. All such disputes shall be subject to the grievance procedure." Id. ¶ 1085.
Defendants argue that at least several of Marbley's claims (breach of implied covenant of good faith and fair dealing, breach of implied covenant to terminate for cause, IIED) are preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Generally, "[a] federal law defense to a state-law claim does not confer jurisdiction on a federal court, even if the defense is that of federal preemption and is anticipated in the plaintiff's complaint." Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005). However, the jurisdictional grant of § 301 is an exception to this rule. See id. ("[The] Supreme Court has interpreted [§ 301] to compel the complete preemption of state law claims brought to enforce collective bargaining agreements."). This exception is not absolute: "[a] claim brought in state court on the basis of a state-law right that is `independent of rights under the collective-bargaining agreement,' will not be preempted, even if `a grievance arising from "precisely the same set of facts" could be pursued.'" Id. at 1076 (quoting Livadas v. Bradshaw, 512 U.S. 107, 123 (1994)). See also Humble v. Boeing Co., 305 F.3d 1004, 1007 (9th Cir. 2002) ("the Supreme Court has repeatedly admonished that § 301 preemption is not designed to trump substantive and mandatory state law regulation of the employee-employer relationship; § 301 has not become a `mighty oak' that might supply cover to employers from all substantive aspects of state law.").
Marbley alleges that Defendant TPMG "breached [the] implied duty of good faith and fair dealing . . . through [their] conduct in (a) subjecting Plaintiff to termination after serving for longevity. (b) Failing to pay Plaintiff either straight time or overtime . . . (c) subjecting Plaintiff to discrimination and retaliation . . . (d) terminating Plaintiff's employment without cause. (e) Unpaid suspension." Compl. ¶ 59. In California, a claim for the breach of the implied covenant of good faith and fair dealing "is necessarily based on the existence of an underlying contractual relationship, and the essence of the covenant is that neither party to the contract will do anything which would deprive the other of the benefits of the contract." Milne Employees Ass'n v. Sun Carriers, 960 F.2d 1401, 1411 (9th Cir. 1991). The theory underlying a claim for breach of the implied covenant was developed to protect employees who lacked the job security created by a collective bargaining agreement. See id. Individuals protected by a collective bargaining agreement thus often need not resort to state law claims to obtain relief. As a result, "section 301 preempts the California state cause of action for breach of the implied covenant of good faith and fair dealing when an employee enjoys comparable job security under a collective bargaining agreement." Id. In the instant case, any allegation that TPMG's conduct violated the CBA will require interpretation of the agreement. Accordingly, Marbley's claim for breach of the implied covenant of good faith and fair dealing is preempted by § 301.
While the header for this claim is entitled "Failure to Engage in the Interactive Process" and "Wrongful Termination in Violation of Public Policy," see Compl. at 17, the actual allegations appear to describe a claim for breach of the implied covenant of good faith and fair dealing. See id.
For essentially the same reasons, Marbley's claim for breach of the implied covenant to terminate only for cause also is preempted. See Jackson v. Southern California Gas Co., 881 F.2d 638, 645 (9th Cir. 1989) (claims relating to wrongful discharge are preempted by § 301 where collective bargaining agreement contains provisions governing termination for cause). In addition, tort claims, such as Marbley's IIED claim, may be preempted when the claims rely upon allegations of harassment or misrepresentations about an employee's demeanor, and the applicable collective bargaining agreement "contains detailed provisions governing the types of activities alleged" in support of the claim. See id. at 646. In the instant case, the CBA contains provisions governing such aspects of the employer-employee relationship. See, e.g., Gabel Decl. Ex A at 1 (setting forth rights and obligations relating to "Courteous and Responsible Relationships"). Accordingly, as currently pled the IIED claim also is preempted. See Jackson, 881 F.2d at 646.
Marbley also alleges a claim for wrongful termination in violation of public policy, violations of several provisions of FEHA, and violation of Cal. Labor Code §§ 201 203. Depending on the factual allegations, such claims may be preempted, either in whole or in part. See Harper v. San Diego Transit Corp., 764 F.2d 663, 668 (9th Cir. 1985) ("wrongful termination in violation of state public policy . . . survives federal preemption."); Detabali v. St. Luke's Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007) ("FEHA employment discrimination claims are not ipso facto preempted by § 301 of the LMRA."); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 991-92 (9th Cir. 2007) (suggesting that applicable provisions of California labor code may be subject to preemption if wage calculations require interpretation of a collective bargaining agreement); Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1112 (9th Cir. 2000) (rights conferred under California Labor Code not subject to complete preemption). Likewise, if Marbley were to plead a claim for defamation properly, such a claim might not be preempted. See Jackson, 881 F.2d at 645 (defamation claim not preempted where it "neither asserts rights deriving from the collective bargaining agreement, nor requires interpretation of the agreement's terms. California's defamation law establishes nonnegotiable rights and obligations independent of any labor contract. One can sue for defamation regardless of employment status or union membership."). However, and as set forth in further detail below, the Court need not consider these remaining claims because they may be considered by the state court upon remand. B. Removal and Motion to Remand
Marbley's statutory claims under FEHA and the California Labor Code, as well as her claim for wrongful termination in violation of public policy, are not facially preempted because such claims are based upon rights independent of the CBA. See, e.g., Detabali, 482 F.3d at 1203 ("FEHA employment discrimination claims are not ipso facto preempted by § 301 of the LMRA."); Balcorta, 208 F.3d at 1112 (rights conferred under California Labor Code not subject to complete preemption); Jackson, 881 F.2d at 646 (claim for wrongful termination in violation of public policy not preempted).
"[I]f a state law claim is completely preempted by a federal statute such as section 301, the state law cause of action necessarily becomes a federal one and can be removed." Milne Employees Ass'n v. Sun Carriers, 960 F.2d 1401, 1406 (9th Cir. 1991). As discussed above, § 301 preempts several of Marbley's claims and thus removal of the case was proper. See id. at 1411; Jackson, 881 F.2d at 646 ("The case was properly removed to federal court because [plaintiff's] breach of contract claim is preempted by section 301 of the LMRA. The district court had jurisdiction over the remaining claims under the doctrine of pendent jurisdiction.").
Marbley's motion to remand appears to be based on her belief that Defendants' basis for removal was a claim against Doe defendants under 42 U.S.C. § 1983. This assertion is incorrect, as the complaint does not contain a claim for relief under § 1983 or name any Doe defendants. Instead, § 301 of the LMRA provides the basis for federal jurisdiction and removal.
At oral argument, Marbley agreed that the CBA governs certain claims, and she acknowledged that claims arising out of conduct governed by the CBA are preempted by § 301 of the LMRA. She also expressed her desire to have her state law claims heard in the Santa Clara Superior Court and that she was willing to dismiss the preempted claims in order to have the instant action remanded. Accordingly, Marbley's preempted claims will be dismissed with prejudice, and her remaining claims will be remanded to the state court. See Romero v. San Pedro Forklift, Inc., 266 Fed. Appx. 552, 557-58 (9th Cir. 2008) (remand proper where remaining claims are not preempted by § 301).
While an employee generally may not bring an action for breach of a collective bargaining agreement prior to exhausting the grievance procedures provided for therein, a plaintiff may obtain judicial review if she "can show that the union breached its duty of fair representation." Jackson, 881 F.2d at 646. Marbley has not pled that the SEIU breached its duty of fair representation, although at least one of the complaints filed with the EEOC was made against the union, not her employer. In addition, any claim arising under the LMRA is subject to a six-month statute of limitations. Cook v. Lindsay Olive Grower, 911 F.2d 233, 237 (9th Cir. 1990); LMRA § 301. It appears from the face of the complaint any potential LMRA claim is time-barred. However, the Court need not determine whether an LMRA claim would be untimely because Marbley has not asserted such a claim.
As stated by the Court at oral argument, to avoid preemption Marbley must only allege claims for discrimination based on her race or her physical disability and that do not require interpretation or application of the CBA. Indeed, she still may allege a viable claim for IIED, but the alleged misconduct cannot be acts governed by CBA (and thus subject to preemption). For example, such claims cannot relate to the grievance procedure (such as false statements made in performance reports), or to acts occurring in the workplace (such as changing her shift without notice) that would require interpretation of the CBA to determine in the first instance if there was any misconduct.
IV. ORDER
Good cause therefor appearing, Defendants' motion to dismiss is GRANTED in part, without leave to amend, and the motion for a more definite statement is TERMINATED AS MOOT. Marbley's motion to remand is GRANTED, and her request for access to the ECF system is TERMINATED AS MOOT. The action is remanded to the Santa Clara Superior Court for lack of federal subject matter jurisdiction. The Clerk of the Court shall close the file.IT IS SO ORDERED.