Opinion
No. C 01-2287 JL
December 13, 2002
ORDER OF DISMISSAL
The motion of Defendants California Federation of Teachers and Mary Bergan ( "CFT" or "Defendants") to dismiss the complaint of Plaintiff Ray L. Kemp ("Plaintiff') came on for hearing on September 25, 2002. Plaintiff appeared pro se and Defendants were represented by Nicole M. Phillips, VAN BOURG, WEINBERG, ROGER AND ROSENFIELD. The court considered the moving and opposing papers, the argument of counsel and of Plaintiff and the record in this case. The court granted Plaintiff's request to file an opposition to Defendant's motion and set a deadline of October 30, 2002, and a new hearing date of December 4th Plaintiff failed to file any papers.
This court finds it must dismiss Plaintiff's complaint for failure to state a claim for which relief may be granted as provided by Fed.R.Civ.P. 12(b)(6), because, as a matter of law, even if Plaintiff could amend his complaint to present a factual basis for his claims of racial and disability discrimination, these claims are barred by Ninth Circuit and Supreme Court decisions. Both the United States Supreme Court and the U.S. Court of Appeals for the Ninth Circuit have held that an employer may require that an employee submit to arbitration any dispute related to his employment, including claims for discrimination under federal statutes. Consequently, Plaintiff may not bring such a claim before this court. Further, Plaintiff's claims are also barred by the doctrines of res judicata and collateral estoppel, because they have been fully arbitrated and were fully adjudicated when the arbitrator's decision was confirmed by the Alameda County Superior Court. (Exc. 3 to Defendants' Request for Judicial Notice)
FACTUAL BACKGROUND
Ray Kemp started work for Defendant California Federation of Teachers on August 19, 1997, as a clerk in the Oakland Office. As of October 5, 1998, he had been employed for more than a year and was therefore a regular employee, working part-time. As such, he was a member of Office and Professional Employees International Union, Local 29. (Ex. B to Defendants' Request for Judicial Notice-Opinion and Award in Arbitration). There were two full time and two part time clerical employees in the office.
On October 5, 1998, Plaintiff did not report to work. His mother called the office to say he was having a personal crisis. On October 8, CFT Assistant to the President Elaine Johnson sent a letter to Plaintiff's home address requesting information regarding his absence. It was returned after three attempts at delivery.
On October 12, Plaintiff's physician, Dr. Frances Herb, sent a fax to the CFT office stating that Plaintiff was under stress, losing sleep and weight, and that she recommended that he be placed on a leave of absence for two months. The letter was accompanied by a Visit Verification form stating that Plaintiff was ill and unable to work from October 1 through October 18, suffering from "Acute situational stress and an acute viral upper respiratory infection," and able to return to work with no restrictions on December 1. Johnson was confused by this, since Plaintiff had worked October 1 and 2, and she spoke with Dr. Herb, who confirmed that Plaintiff was too ill to work.
Plaintiff continued to communicate with the office regarding his condition. On October 27, Ms. Johnson sent Plaintiff a check for nine days' sick pay along with a memo verifying his available sick leave and that after October 28 he would have no paid leave time remaining. Johnson asked Plaintiff to call her after his next doctor's appointment "to update me as to her evaluation of your condition and her recommendation of when you should return to work." Dr. Herb sent an additional Verification of Visit form stating that Plaintiff was ill and unable to work from October 1 through November 15 and releasing him to work with no restrictions November 16. Plaintiff left a voicemail message for Ms. Johnson on November 2 confirming these dates. Ms. Johnson sent Plaintiff a final paycheck on November 2, along with a memorandum that he had exhausted all sick vacation, personal and floating days. The memo also informed him that the employer had mistakenly calculated his sick leave based on full-time rather than part-time status, and had corrected the error.
Dr. Herb notified CFT that it was necessary to extend Plaintiff's leave to November 23 and then to November 30. Plaintiff returned to work on November 30 and continued to work until January 19, 1999, when he was laid off because of lack of work. Plaintiff was given two weeks' pay in lieu of the contractually required ten working days' notice and told he would be notified by March 19 of any intent to recall him.
CFT has an annual convention which in 1999 occurred in March. It offered Plaintiff the opportunity to work at the convention, which he declined, stating by voicemail that he would be out of town from March 11 through 14, celebrating the sixty year wedding anniversary celebration of his grandparents. Plaintiff was due to return to work March 20. On March 19 Dr. Herb's office sent CFT a fax stating that Plaintiff needed an additional three months off from work for follow-up treatment and care and that he could return to work in July.
CFT hired temporary personnel to perform Plaintiff's duties as well as additional work. It was ultimately determined that the office clerk position in the Oakland office should be eliminated and a new higher level office assistant position created.
On April 21 and again on May 17, CFT sent Plaintiff a letter informing him that it could not extend the terms and conditions of his temporary layoff until July and that unless he could return to work on May 19 he would be terminated. He was sent a letter May 20 stating that he was terminated effective May 20, 1999.
Plaintiff grieved his termination through his union and the arbitrator, Jerrilou H. Cossack, found that the employer, Defendant CFT, had indeed created the new office assistant position in late December 1999 or early January 2000, with the union's agreement as part of the new contract. The arbitrator concluded that Plaintiff was entitled to six months' unpaid leave for verified illness, and that the union had asserted that right on his behalf when union representative Rubyn spoke with Ms. Johnson on May 18, prior to Plaintiff's termination.
The arbitrator also found that Plaintiff's termination was in violation of the collective bargaining agreement. The arbitrator found that Plaintiff would have been available to return to work on July 19, and that the new office assistant position was not formally created until September 30, 1999, effectively eliminating the office clerk position which Plaintiff had held. The arbitrator found that "Since Grievant [Plaintiff] was entitled to return to work when released by his doctor to do so if there was a position available for him, he shall be reimbursed for wages lost between July 19 and September 30, 1999." (Opinion and Award in Arbitration Pursuant to a Collective Bargaining Agreement at page 13, ¶ 4, Ex. B to Defendants' Request for Judicial Notice).
PROCEDURAL BACKGROUND
In the case at bar Plaintiff submitted his claim for wrongful termination to arbitration, as mandated by the terms of the collective bargaining agreement between his union and his employer. The arbitrator found that he had been wrongfully terminated, but that his employer had legitimately eliminated his job. Consequently the arbitrator awarded him back pay for the period between his availability to return to work and the date his job was eliminated. Plaintiff then filed this lawsuit seeking additional damages for the same grievance.
Defendants move to dismiss Plaintiff's complaint under FRCP 12(b)(6) on the grounds that he has not pled any facts in support of his claim for discrimination. Plaintiff contends that this court must grant him leave to amend on the basis of race and disability. Plaintiff claims in his papers opposing the motion to dismiss that he is the only African-American who has been hired by his employer in ten years, that he is HIV-positive, and that his supervisor — when he requested medical leave, — asked inappropriate and intrusive questions, reflecting an intent to discriminate against him due to his HIV-positive status. He therefore claims causes of action for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12202 et seq. . .
ANALYSIS
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
A court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980) (finding that the complaint must be read in the light most favorable to the plaintiff). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981).
Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991). A court may, however, consider exhibits submitted with the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986). For all of these reasons, it is only under extraordinary circumstances that dismissal is proper under Rule 12(b)(6). United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
The court must grant the motion to dismiss on the grounds that Plaintiff pursued his claim for wrongful termination pursuant to a collective bargaining agreement, sought and obtained relief under that agreement, and the agreement waived his right to bring a cause of action under either Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act. The court finds that, as a matter of law, Plaintiff waived his rights to pursue a cause of action for employment discrimination under either Title VII or the ADA.
The court relies on the Ninth Circuit decision in the Luce Forward case. In that case the law firm of Luce, Forward, Hamilton Scripps LLP ("Luce Forward") refused to hire Donald Scott Lagatree ("Lagatree") as a full-time legal secretary because he would not sign an agreement to arbitrate claims arising from his employment. On behalf of Lagatree, the Equal Employment Opportunity Commission ("EEOC") sued Luce Forward for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12203(b), the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(d), and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 215(a)(3). The EEOC sought make-whole relief for Lagatree and a permanent injunction forbidding Luce Forward from requiring that employees sign arbitration agreements as a condition of employment. The district court declined to award make-whole relief and rejected EEOC's request for an injunction based on the ADA, the ADEA, or the EPA. Relying on Duffield v. Robertson Stephens Co., 144 F.3d 1182 (9th Cir. 1998), however, the district court enjoined Luce Forward from requiring applicants to arbitrate Title VII claims and from enforcing existing agreements to arbitrate those claims.
In Circuit City Stores v. Adams, 532 U.S. 105 (2001), the Supreme Court implicitly overruled the Ninth Circuit's decision in the Duffield case. Accordingly, the Ninth Circuit reversed the district court and held that employers may require employees to sign agreements to arbitrate Title VII claims as a condition of their employment. E.E.O.C. v. Luce, Forward, Hamilton Scripps, 303 F.3d 994 (9th Cir. 2002).
In the case at bar, the collective bargaining agreement between Plaintiff's union and his employer required that all claims regarding employment be submitted to the grievance procedure and arbitration. Plaintiff in fact availed himself of this procedure, prevailed, and received an award of two months' back pay. This decision and the award were confirmed by the Alameda County Superior Court. Therefore, Plaintiff has no claim remaining to bring before this court and his complaint must be dismissed without leave to amend.
Defendants also raise the defenses of res judicata and collateral estoppel to Plaintiff's claims.
In the case at bar, the collective bargaining agreement required Plaintiff to submit to arbitration any claims of discrimination in his employment with Defendants, the same claims articulated in his Complaint. Wright v. Universal Maritime Service Corp., 525 U.S. 70, 80 (1998); Safrit v. Cone Mill Corp., 248 F.3d 306, 308 (4th Cir. 2001). Consequently, res judicata requires this court to refrain from re-adjudicating Plaintiff's claims.
Because the issue of his right to employment has already been adjudicated, Plaintiff is also collaterally estopped from bringing litigation in this court alleging the same claims as violations of his civil rights under federal statutes. Storzier v. General Motors Corp., 635 F.2d 424 (5th Cir. 1981).
CONCLUSION
Under the Ninth Circuit's ruling in the Luce Forward case, which applied the decision of the U.S. Supreme Court in the Circuit City case, this court finds that Plaintiff's claims for discrimination under Title VII and the ADA were subject to the arbitration provision of the collective bargaining agreement between his union and his employer (Ex. A to Defendants' Request for Judicial Notice) and that he therefore has no remedy available in this court. This court is compelled to grant Defendants' motion to dismiss for failure to state a claim for which relief may be granted. Plaintiff has no cognizable legal theory under which he may bring his claims.
Furthermore a state court has already adjudicated his claims by confirming the arbitrator's award, thus precluding relief in this court under the doctrine of res judicata.
Since Plaintiff's claims have been adjudicated this court may not re-adjudicate them under the principle of collateral estoppel.
For all the above reasons, Plaintiff's case is dismissed pursuant to Fed.R.Civ.P. 12(b), for failure to state a claim for which relief may be granted.