Opinion
No. C 01-1603 SI
July 9, 2001
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On July 6, 2001, the Court heard argument on defendant's motion to dismiss counts eight and nine of Plaintiff's complaint or, alternatively for partial summary judgment. Having carefully considered the arguments of the parties and the papers submitted, the Court hereby GRANTS defendant's motion for the reasons set forth below.
BACKGROUND
Plaintiff Daniel Montoya ("Montoya") sued his former employer Owens-Brockway Glass Container Inc. ("Owens") for wrongful termination alleging several causes of action, including state law claims for breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress. Complaint at ¶¶ 44-50.
Owens employed Montoya on May 13, 1992 as a machine operator at its Hayward, California plant. Complaint at ¶ 10. While employed at Owens, Montoya was a member of the Glass. Molders. Pottery, Plastics Allied Workers International Union, Local 167 ("the GMP Union"). Declaration of Pam Fernandez ("Fernandez Decl.") at ¶ 3. The GMP Union has a collective bargaining agreement ("CBA") with Owens which was effective during the events leading up to and including Montoya's discharge. Id. at ¶ 4. Exh. A.
On July 20, 2000, Montoya suffered a rib injury while off duty and was placed on medical leave until August 10, 2000, Complaint at ¶ 11-12. Montoya allegedly contacted Owens three times the day after his injury leaving messages of his injury and work restriction on his employer's voice-mail. Id. at ¶ 14. On August 1, 2000, Pam Fernandez ("Fernandez"), Industrial Relations Director of Owens, forwarded Montoya a letter terminating his employment with Owens for alleged excessive absenteeism. failing to call in, and failing to report to work. Fernandez Decl. at ¶ 4. Montoya claims he provided Fernandez with a copy of his medical work restriction, and attempted to discuss the nature of his injury and work restriction with Owens. but the termination decision was not reversed. Complaint at ¶ 15.
On February 13, 2001, Montoya filed charges with the California Department of Fair Employment and Housing ("DFEH"), and the Equal Employment Opportunity Commission ("EEOC"). Id. at ¶ 17. He received right-to-sue letters from both agencies on February 26, 2001. Id. at ¶ 18.
Presently before this Court is Owens' motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, counts eight and nine of Montoya's Complaint for breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress ("IIED"), respectively. Alternatively, Owens moves for partial summary judgment on counts eight and nine.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint fit fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).
In answering this question. the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
DISCUSSION
Owens contends that counts eight and nine of the Complaint are state law claims preempted by Section 301 of the Labor Management Relations Act ("LMRA"), as amended, 29 U.S.C. § 185 (a). Montoya has conceded that count eight, his claim for breach of the implied covenant of good faith and fair dealing, is preempted by LMRA and has withdrawn this count. However, Montoya maintains that count nine for IIED is not preempted under Section 301 of the LMRA.
Section 301(a) of the LMRA provides federal jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. § 185 (a). A suit for breach of a CBA is governed exclusively by the federal law under Section 301. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2953 (1983). The Supreme Court has held IS that the LMRA preempts state law causes of action that are "substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract." Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1916 (1985). The Ninth Circuit has also found that state law claims that are "inextricably intertwined" with consideration of the terms of the collective bargaining agreement ("CBA") are preempted. Miller v. AT T Network Sys., 850 F.2d 543, 550 (9th Cir. 1988); Evangelista v. Inlandboatmen's Union of Pacific, 777 F.2d 1390, 1401 (9th Cir. 1985).
"Not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement." however, is preempted. Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. at 1911. Where a state law articulates an independent standard that is not inextricably intertwined with the interpretation of the terms in the CBA. it is not preempted by the LMRA. See e.g., Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993) (finding state law claims of national origin discrimination are not preempted); Livadas v. Bradshaw, 512 U.S. 107, 122, 114 S.Ct. 2068, 2078-79 (1994) (holding that Section 301 of the LMRA does not preempt nonnegotiable rights conferred on individual employees as a matter of state law that are independent of the terms of the CBA). The LMRA also does not preempt state laws where the factual inquiry under state law "does not turn on the meaning of any provision of a [CBA]." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882 (1988). The Court may look to facts outside of the complaint to determine whether an "artfully pleaded" state claim is actually a Section 301 claim for breach of a CBA. Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1349-50 (9th Cir. 1985); see also Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1473 (9th Cir. 1984), overruled on other grounds by Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916 (1985).
The Ninth Circuit has held that state tort claims for IIED are preempted when they arise out of an employee's discharge or the conduct of the defendants in the investigatory proceedings leading up to the discharge. See Scott v. Machinists Auto. Trades Dist. Lode No. 190 of Northern Cal., 827 F.2d 589, 594 (9th Cir. 1987). IIED claim is not preempted, however, where the validity of an employee's conduct leading to his her discharge does not require the court to resort to interpretation of the CBA. See id. at 594 (finding that planitiff's IIED claim, which arose from his supervisor's statements regarding plaintiff's poor work performance and subsequent termination, should have been dismissed as preempted by Section 301 "because [it] concern[ed] working conditions and disciplinary' procedures covered by the [CBA]."); but see, Tellez v. Pacific Gas Elec. Co., Inc., 817 F.2d 536, 539 (9th Cir. 1987) (finding that plaintiff's claim of IIED was not preempted because the CBA at issue was "silent on work conditions, and vague on disciplinary formalities" that would have provided guidelines for defendant's behavior leading up to planitiff's suspension. and the CBA's grievance mechanism was not equipped to redress plaintiff's behavior).
Owens argues that Montoya's IIED claim is preempted by Section 301 of the LMRA because resolution of the claim is inextricably intertwined with the terms of the CBA. Owens alleges that Montoya was justifiably terminated for disciplinary reasons, including excessive absenteeism, failing to call in, and failing to report to work after his rib injury, which constituted conduct in violation of the terms of the CBA. See Fernandez Decl. at ¶ 4.
The CBA between Owens' and the GMP Union states in pertinent part:
If an employee cannot report for work, he shall notify the Company one (1) day in advance, or in an emergency. as soon as possible. stating the intended day for his return to work in accordance with the local reporting procedures.
Fernandez Decl. at ¶ 4. Exh. A. Though Montoya does not allege compliance with the CBA, he does claim that the day after his rib injury, he called in and notified his employer about his injury and work restriction by leaving three messages on the employer's voice-mail. Complaint at ¶ 14. Montoya therefore claims that his subsequent termination amounted to "outrageous. wicked, wanton and reckless conduct" by Owens. which caused Montoya emotional distress. Complaint at ¶¶ 46-50.
A court must make a preliminary determination as to what constitutes "extreme and outrageous conduct" by the defendant in determining whether a plaintiff has established a prima facie case for IIED. See Miller v. Nat'l Broad, Co., 187 Cal.App.3d 1463, 1487 (1986). Conduct is outrageous if it exceeds all bounds usually tolerated by a decent society. See Miller v. Fairchild, 797 F.2d 727, 736 (9th Cir. 1986). Thus in order to evaluate Montoya's IIED claim, the Court must determine whether his conduct was improper according to the CBA and whether Owens' conduct was outrageous in response to Montoya's alleged breach of the CBA. See Newberry v. Pacific racing Ass'n, 854 F.2d 1142, 1149-50 (9th Cir. 1988) (holding that a determination of the validity of plaintiff's emotional distress claim resulting from her discharge will "require [the court] to decide whether her discharge was justified under the terms of the collective bargaining agreement. Her claim therefore cannot be decided without interpreting or analyzing the terms of the agreement."); see also Truex, 784 F.2d at 1350 (finding that because provisions of the CBA between the parties "expressly specify a just cause standard for termination, appellants' claim that [defendant] is attempting to terminate them is of necessity a claim that defendant is engineering a breach of the [CBA] without just cause.").
Under California law governing IIED, Montoya must establish: (1) extreme and outrageous conduct by the defendant with the intention of causing. or reckless disregard for the probability of causing, emotional distress, (2) plaintiff suffered severe or extreme emotional distress, and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. See, e.g., Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996); see also Wilkins v. Nat'l Broad, Co. Inc., 71 Cal.App.4th 1066, 1087 (1999); Miller v. Nat'l Broad. Co., 187 Cal.App.3d 1463, 1487 (1986).
Montoya relies on Kisesky v. Carpenters' Trust for Southern Cal., 144 Cal.App.3d 222 (1983), for the proposition that Section 301 of the LMRA neither preempts nor is the exclusive remedy for an IIED claim. However, Kisesky does not support Montoya's assertions because the case did not involve IIED resulting from conduct arising from an employment relationship governed by a CBA. but rather alleged harassment by a union against the plaintiff to coerce the plaintiff to enter a CBA. Kisesky, 144 Cal.App.3d at 233. The court in Kisesky found the LMRA did not preempt plaintiff employer's IIED claim, but only after expressly noting that its holding was not based on conduct arising under any employment relationship between the union and the plaintiff. See id.
Montoya also relies on Tellez v. Pacific Gas Elec., 817 F.2d 536 (9th Cir. 1987) for the proposition that his federal and state anti-discrimination statutory claims provide an independent basis supporting a claim of IIED and thus the claim is not preempted. The court in Tellez, however, does not support Montoya's assertion, but only held that an IIED claim avoids preemption when the dispute involves "state rules proscribing conduct or establishing rights and obligations independent of a labor contract" and only "tangentially involve[s] a collective bargaining agreement." Tellez, 817 F.2d at 537. Furthermore, the case law does not allow a plaintiff to avoid preemption of an IIED claim merely by also asserting anti-discrimination statutory claims. See Wood v. Pacific Gas Elec. Co., No. C-00-0052 THE, 2000 WL 502850, *3 (N.D. Cal. 2000) (finding that plaintiff's emotional distress claim was preempted by LMRA, but he was still allowed to bring a disability discrimination claim under LMRA.
Because the resolution of Montoya's IIED claim is substantially dependent upon analysis of the terms of the CBA. the LMRA preempts the claim. Accordingly, Montoya's IIED claim is dismissed with leave to amend his complaint to allege a cause of action under the LMRA.
CONCLUSION
For the reasons stated above, defendant's motion to dismiss is GRANTED with leave to amend. Plaintiff shall file his amended complaint, if any, on or before July 20, 2001. [Docket No. 8]
IT IS SO ORDERED.