Opinion
No. C-04-0997 JCS.
March 16, 2005
I. INTRODUCTION
Plaintiff, a former employee of Safeway, is asserting claims for intentional interference with economic advantage, slander, assault, and intentional infliction of emotional distress against his former supervisor, store manager Joe Mascitto. In his Motion for Summary Judgment (the "Motion"), Defendant seeks an order granting summary judgment in his favor on all four claims. A hearing was held on Friday, March 11, 2005, at 1:30 p.m. For the reasons stated below, the Motion is GRANTED as to Plaintiff's federal claims, which are dismissed with prejudice. Plaintiff's remaining claims shall be remanded to California State Court for disposition.
II. BACKGROUND
Unless otherwise indicated, the Court relies on facts that it finds to be undisputed. The parties were unable to agree on a joint statement of undisputed facts.
Plaintiff Ronald Squaglia worked at the Noriega Safeway Store (the "Noriega Safeway") from 1998 or 1999 until March 1, 2003. Declaration of Ronald Squaglia ("Squaglia Decl.," ¶ 3). Within a few months of the commencement of his employment with Safeway, Squaglia became a member of the United Food Commercial Workers Union Local 648 (the "Union" or "Local 648"). Declaration of Mark J. Rogers in Support of Defendant's Motion for Summary Judgment ("Rogers Decl."), Ex. A (Deposition of Ronald Squalia ("Squaglia Depo.")) at 44. As such, the terms of Squaglia's employment were governed by the Collective Bargaining Agreement between Safeway and Local 648, and by Safeway Store Rules. Declaration of Penny Schumacher in Support of Defendants' Motion for Summary Judgment ("Schumacher Decl.") at ¶ 2 Ex. A (Collective Bargaining Agreement), Ex. B (Store Rules).
In July 2002, Defendant Joe Mascitto became the store manager of the Noriega Safeway. Declaration of Joe Mascitto in Support of His Motion for Summary Judgment ("Macitto Decl.") at ¶ 2. In the fall of 2002, Mascitto transferred Squaglia from his position as a food clerk to the produce department. Id. at ¶¶ 2, 8.
On January 30, 2003, Mascitto issued a written warning to Squaglia for clocking in late on January 23 and 26 and failing to show up for his shift on January 29, 2003. Mascitto Decl., Ex. B (1/30/03 Employee Warning Notice). On February 4, 2003, Mascitto issued another written warning to Squaglia for failing to show up for his scheduled shift on February 2, 2003, suspending Squaglia without pay for three work days. Mascitto Decl., Ex. C (2/4/03 Employee Warning Notice).
Sometime in late February, 2003, Squaglia and Mascitto had an encounter that Squaglia has characterized as "violent." Squaglia Decl., ¶ 9. According to Squaglia, the encounter began when Mascitto "scream[ed] at the top of his lungs" "`what the hell have you been doing the last four hours.'" Squaglia Decl., ¶ 8. Mascitto then told Squaglia to come to the back room. Id. Squaglia describes the confrontation in the back room as follows:
According to Squaglia, the encounter occurred on February 27, 2004. Squaglia Decl., ¶ 8. Mascitto describes the encounter as occurring on February 22, 2003. Mascitto Decl., ¶ 17.
When I got to the back room the defendant walked through a wall of boxes on my dolly; all the while he was kicking boxes, he stepped over the dolly and stood within ½ inch of my face. It was a violent confrontation, the defendant screaming at the top of his lungs, his veins were bulging through his neck and his fists were clenched and aimed at me. I was told that the defendant used to fight either professionally or as amateur and was capable of causing injury. I was fearful of imminent attack.Id. According to Squaglia, when he told Mascitto that he was going to complain to the Union, Mascitto told him "point blank" that he would "retaliate against [Squaglia] and make [his] life miserable." Id., ¶ 10.
Mascitto, on the other hand, describes the encounter quite differently. According to Mascitto, Squaglia became agitated when Mascitto asked him about an empty grape bin in the produce department. Mascitto Decl., ¶ 17. Mascitto states in his declaration that Squaglia told him in a loud voice that Tom Warren, the produce department manager, was not doing his share of work. Id. When Squaglia became more agitated, Mascitto asked him to come to the back room to discuss the matter further. Id. While Mascitto loaded a dolly with grapes, he states, Squaglia continued to complain about Warren and said he was going to complain to the Union about the situation. Id. Mascitto told Squaglia that he was free to complain to the Union and Squaglia left to fill the grape bins. Id. Mascitto testified in his deposition that he was an amateur boxer. Opposition, Ex. 18 (Mascitto Depo.) at 71.
No grievance was filed on Squaglia's behalf based on this incident. See Schumacher Decl., ¶ 4. However, Squaglia called his Union representative, Michael Sharpe, who met with Squaglia and Mascitto to discuss the incident. Supplemental Declaration of Ronald Squaglia ("Squaglia Supp. Decl."), ¶ 2. Mascitto confirms in his declaration that a meeting with Mike Sharpe occurred soon after the confrontation discussed above. Mascitto Decl., ¶ 18. According to Mascitto, Squaglia, Mascitto and Sharpe met on February 24 to discuss Squaglia's position at the Noriega Safeway and Mascitto said he had no problem with moving Squaglia out of the produce department. Id. Mascitto further states that at the time of the February 24, 2003 meeting, he was unaware that Squaglia had clocked in late on February 19 and 23, 2003. Id. When he became aware of these infractions, Mascitto states, he instructed assistant manager Toomey to "discipline Mr. Squaglia appropriately in light of Mr. Squaglia's recent suspension and documented history of time and attendance violations." Id. On March 1, 2003, Squaglia was suspended indefinitely for clocking in late on February 19, 2003, and February 23, 2003. Rogers Decl., Ex. A (Squaglia Depo.), Ex. K thereto.
On March 4, 2003, Mascitto's car was stolen from his home. Mascitto Decl., ¶ 21. In August 2003, Mascitto's new car was vandalized while parked in the Noriega Safeway parking lot. Id. Sometime thereafter, Barbara Goodrich, a floral department manager, told Mascitto that Squaglia had given her a ride home after he stopped working at the Noriega Safeway and that while driving Squaglia told her he had stolen Mascitto's car. Id., ¶ 22. According to Mascitto, he passed this information on to two of his assistant managers, John Toomey and Bill Knutson. Id. at ¶ 23. Mascitto states in his declaration that he told Toomey because Toomey's car had recently been vandalized and further, that he "wanted to make sure that Messrs. Toomey and Knutson were aware of the situation involving a former employee who was regularly seen in the area." Id.
It is not clear from the declaration whether Mascitto is saying that he told others about the stolen car in March 2003, or after his new car was vandalized, in August 2003.
On March 10, 2003, the Union filed a grievance on Squaglia's behalf regarding the March 1, 2003 suspension pending termination. Schumacher Decl., ¶ 5. The grievance was settled on April 4, 2003, under an agreement whereby Squaglia, in lieu of termination, would be allowed, following his disciplinary suspension, to return to work at Safeway's Bay Street Store on a "last chance basis." Id. Under the agreement, any further time and attendance violations would result in Squaglia's termination. Id.; see also Rogers Decl., Ex. A (Squaglia Depo.), Ex. H thereto (4/4/03 Letter from Penny Schumacher to Michael Sharpe). There is no evidence in the record that Squaglia signed the agreement. According to Squaglia, he did not sign the agreement. Opposition, Ex. 17 (Declaration of Ronald Squaglia ("Squaglia Decl.")) at ¶ 17.
The letter agreement from Schumacher to Sharpe contains signature lines for both Sharpe and Squaglia. Rogers Decl., Ex. A (Squaglia Depo.), Ex. H thereto (4/4/03 Letter from Penny Schumacher to Michael Sharpe). The copy of the letter agreement provided by Defendant, however, does not include the signatures of either Sharpe or Squaglia. Id.
On April 4, 2003, Squaglia began working at the Bay Street Store. Schumacher Decl., ¶ 6. On April 17, 2003, Squaglia arrived at work thirty minutes late. Rogers Decl., Ex. A (Squaglia Depo.) at 318. Upon arrival, Squaglia was suspended indefinitely. Declaration of Steven Ng in Support of Defendant's Motion for Summary Judgment ("Ng Decl."), ¶¶ 4-5. On April 24, 2003, Squaglia was notified by Safeway's District Manager, Douglas Lobsinger, that he had been terminated for failure to adhere to Safeway policies. Declaration of Douglas Lobsinger in Support of Defendant's Motion for Summary Judgment ("Lobsinger Decl."), ¶ 5, Ex. A (Termination Letter).
On May 2, 2003, the Union filed a grievance on Squaglia's behalf regarding his termination. Schumacher Decl., ¶ 4, 7. Pursuant to the terms of the collective bargaining agreement, a Board of Adjustment was convened between Safeway and Union representatives on July 22, 2003 to discuss the grievance. Id. Squaglia attended the meeting and presented his position. Id. According to Squaglia, at the meeting he testified that: 1) Tom Warren was making Squaglia do a lot of his work; 2) that Mascitto yelled at him and told Squaglia that if he complained to the Union, Mascitto would retaliate against him; 3) that he was "very stressed" over the deaths of his grandparents and his uncle; and 4) he had not agreed to work at the Bay Street Store on a "last chance basis." Rogers Decl., Ex. A (Squaglia Depo.), Ex. H thereto (Declaration of Ronald Squaglia on Board of Adjustment Hearing "Squaglia Board of Adjustment Decl.") at ¶ 6. Squaglia states that on the question of whether he agreed to work on a last chance basis, Union representative Michael Sharpe testified that Squaglia had orally agreed to this condition. Id. Squaglia further states that Safeway's Penny Schumacher said that Union representative Bert Lysen had agreed on Squaglia's behalf to the "last chance basis" as a condition of returning to work. Id.
Safeway rejected the explanations offered by Squaglia for his time and attendance violations and concluded that there was good cause for termination. Schumacher Decl., ¶ 7. As a result, the grievance was not resolved. Id. This decision was held in abeyance for twenty business days to allow the Union to decide how to proceed. Id. On July 23, 2003, the Union notified Squaglia that it would not pursue the matter because, based on the evidence provided to the Union, there was "no reasonable chance . . . to prevail before an arbitrator." Rogers Decl., Ex. A (Squaglia Decl.), Ex. H thereto (7/23/03 Letter).
Squaglia appealed the Union's decision to its Executive Board and a meeting of the Executive Board was held on August 7, 2003. Rogers Decl., Ex. A (Squaglia Depo.), Ex. H thereto (Declaration of Ronald Squaglia Executive Board Meeting ("Squaglia Executive Board Decl.") at ¶ 1. According to Squaglia, the Executive Board went through all of his "write-ups" with him. Id., ¶ 3. Squaglia told the Executive Board that with respect to his failure to show up for work or call one day, he had called the night before and told the night manager that he had the flu. Id., ¶ 4. Squaglia also told the Executive Board that he was very upset about the loss of his grandmothers and an uncle. Id., ¶ 7. At the end of the meeting, Union president Marcy Chambers told Squaglia that the Executive Board wanted more information and that another meeting would be held to address Squaglia's appeal. Id., ¶ 7. However, Union representative Bert Lysen then stated that Squaglia had agreed that when he returned to work at the Bay Street Safeway, it would be on a "last chance basis." Id., ¶ 8. No further meetings of the Executive Board were convened. Id. Squaglia states, "I feel that if Mr. Bert Lysen had not said this, that there would have been another Executive Board Meeting as Ms. Mary Chambers had advised me." Id., ¶ 9. Squaglia goes on to state that "I feel that my union representative did not properly represent me." Id., ¶ 10. On August 11, 2003, Squaglia was notified that the Executive Board had affirmed the decision of the Board of Adjustment not to take the grievance to arbitration. Rogers Decl., Ex. A (Squaglia Depo.), Ex. H thereto (8/11/03 Letter from Bert Lysen to Squaglia).
On January 20, 2004, Squaglia filed a charge against the Union for unfair labor practices in violation of the National Labor Relations Act. Declaration of Harry Tom Miller in Opposition to Defendant's Motion for Summary Judgment ("Miller Decl.") ¶ 9 Ex. 8 (1/20/04 Letter and Charge). On March 1, 2004, the Regional Director of the National Labor Relations Board notified Squaglia that the charge had been rejected. Id., Ex. 11 (3/1/04 Letter). Squaglia appealed the rejection to the General Counsel of the National Labor Relations Board, and the appeal was denied on May 18, 2004. Id., ¶¶ 13-14, Exs. 12 (Notice of Appeal) and 13 (5/18/04 Denial).
B. Procedural History
Plaintiff initiated this action in the Superior Court of the State of California on February 9, 2004, alleging claims for intentional interference with economic advantage, slander, assault and intentional infliction of emotional distress. Defendant removed the action to this Court on the basis that Plaintiff's claims were preempted under § 301 of the Labor Management Relations Act ("LMRA") and therefore raised a federal question under 28 U.S.C. § 1331. Defendant then brought a Motion to Dismiss, and Plaintiff, in turn, brought a Motion to Remand.
The Court denied the Motion to Remand, finding that Plaintiff's claim for interference with economic relations was preempted by the LMRA. See Order Denying Motion to Remand and Granting in Part and Denying in Part Motion to Dismiss, filed June 2, 2004 ("June 2, 2004 Order"). The Court then granted in part and denied in part the Motion to Dismiss. Specifically, the Court dismissed the interference with economic relations claim on the basis that that claim, as pled, was untimely under the LMRA and there were no allegations showing the limitation period had been tolled. Id. at 8. The Court also noted that Plaintiff failed to allege that he had exhausted the Union's grievance procedures or alternatively, that the Union had breached its duty of fair representation. For the same reasons, the Court also dismissed Plaintiff's claim for intentional infliction of emotional distress to the extent that claim was based on the claim for interference with economic relations. Id. The Court concluded that the remaining claims for assault, slander, and intentional infliction of emotional distress, to the extent that claim was based on the assault and slander claims, were not preempted by the LMRA. However, the Court dismissed the slander claim on the basis that it was barred under the one-year statute of limitations that applies to slander claims under California law. Id. at 9. The Court let stand Plaintiff's claim for assault, rejecting Defendant's argument that it was barred by the exclusivity rule of the Workers' Compensation Act ("WCA"). Id. at 9-10.
The Court gave Plaintiff leave to amend, and Plaintiff filed a First Amended Complaint on June 30, 2004. In the First Amended Complaint, Plaintiff asserts the same four claims against Defendant but adds allegations regarding exhaustion of the Union grievance procedure and equitable tolling. Defendant now seeks summary judgment in his favor on Plaintiff's claims.
C. The Motion
Defendant argues that he is entitled to summary judgment on all of Plaintiff's claims. With respect to the first claim, for intentional interference with economic relations, Defendant argues that this claim is the same as the claim in Squaglia's original complaint for intentional interference with economic relations, which the Court concluded was preempted by the LMRA. See June 2, 2004 Order. Accordingly, Defendant asserts, this claim too is preempted by the LMRA.
Defendant argues further that to the extent Plaintiff's claim for interference with economic relations is a claim for breach of the collective bargaining agreement, the claim fails because: 1) Mascitto is not a party to the agreement and cannot be held individually liable under the LMRA; 2) Squaglia failed to exhaust the Union's grievance-arbitration procedures as to most of Mascitto's alleged acts; 3) to the extent that the claim is based on the March 1, 2003 suspension, the claim accrued when Squaglia went back to work, on April 4, 2003, and therefore, the six month statute of limitations under the LMRA expired long after Plaintiff filed this action; and 4) in any event, Plaintiff cannot show that the Union breached its duty of fair representation and the employer breached the collective bargaining agreement, as is necessary to prevail on a hybrid claim under the LMRA.
With respect to the slander claim, Defendant contends that he is entitled to summary judgment because his statements concerning the theft of his car by Squaglia are privileged. In particular, Defendant points to the privilege that exists under California law for communications made without malice to others with a common interest. See Cal. Civ. Code § 47(3).
Defendant argues that Plaintiff's assault claim fails for two reasons. First, he asserts that the claim is preempted by the LMRA and therefore, like the claim for interference with economic relations, is barred because Plaintiff failed to exhaust the Union grievance procedure. Second, Defendant asserts that the claim is barred under the exclusivity provision of the Workers Compensation Act ("WCA"), which provides the exclusive remedy for intentional torts where the subject matter of the dispute involves the work itself.
Similarly, Defendant argues that Plaintiff's claim for intentional infliction of emotional distress fails because it is preempted under the LMRA (and thus barred either for failure to exhaust or as untimely) and because it falls within the WCA exclusivity provision. In addition, Defendant asserts that he is entitled to summary judgment on this claim because Plaintiff cannot show that Defendant's conduct was "outrageous" or that he suffered severe emotional distress.
In his Opposition, Plaintiff argues that none of his claims are preempted by the LMRA and even if they are, the claims are timely because his NLRB charge tolled the six-month limitation period under the LMRA. With respect to the assault claim, Plaintiff argues that Defendant's actions showed an intent to injure and therefore should survive summary judgment. Plaintiff argues further, in connection with his claim for intentional infliction of emotional distress, that WCA exclusivity does not apply because Defendant's actions were wilful, unprovoked, and violent. He also asserts the evidence shows both outrageous conduct and resulting emotional distress. With respect to the slander claim, Plaintiff does not dispute that Defendant and other employees of the Noriega Safeway had a common interest with respect to the allegation that Squaglia stole Mascitto's car. He asserts, however, that summary judgment is inappropriate because there is evidence that the statements were made with malice.
In his Reply, Defendant asserts that the NLRB charge did not toll the six-month limitation period under the LMRA.
III. ANALYSIS
A. Legal Standard
Rule 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Nissan Fire Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir. 2000). Once the movant has made this showing, the burden shifts to the party opposing summary judgment to "designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 323.
"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).
B. Preemption
In its June 2, 2004 Order, the Court concluded, based on the allegations in Plaintiff's complaint, that Plaintiff's claim for interference with economic relations was preempted under the LMRA. The Court further held that to the extent Plaintiff's claim for intentional infliction of emotion distress ("IIED") was based on his claim for interference with economic relations, that claim also was preempted. Conversely, the Court held that the claims for slander and assault, as well as the IIED claim to the extent that claim was based on theories other than interference with economic relations, were not preempted by federal law. Defendant now asks the Court to revisit this issue in light of the evidence, arguing that all of Plaintiff's claims in his First Amended Complaint are preempted. The Court does not agree.
The claims in Plaintiff's First Amended Complaint are substantially the same as the claims in the original complaint, except for the addition of allegations regarding exhaustion of administrative remedies and equitable tolling. Defendant has not pointed to any evidence in the record (or absence thereof) that suggests that the Court should revise its conclusions regarding preemption as to any of the four claims. Accordingly, the Court concludes that Plaintiff's claim for interference with economic relations, and his IIED claim to the extent it is based on the interference claim, are preempted under the LMRA. Plaintifff's remaining claims — including the IIED claim to the extent it is based on theories other than interference with economic relations — are not preempted.
C. Interference With Economic Relations and the LMRA
Defendant asserts that Plaintiff's interference with economic relations claim must be dismissed because an individual supervisor who is not a party to a collective bargaining agreement may not be sued under the LMRA for interference with economic relations. The Court agrees.
The majority of courts have adopted a bright-line rule that there is no subject matter jurisdiction under the LMRA over claims against non-parties to a collective bargaining agreement. See Int'l Union, United Mine Workers of Am. v. Covenant Coal Corp., 977 F.2d 895, 897 (4th Cir. 1992) (discussing Circuit split on issue). The Ninth Circuit, however, has declined to adopt this rule. See Painting and Decorating Contractors Ass'n of Sacramento v. Painters and Decorators Joint Comm. of the E. Bay Counties, Inc., 707 F.2d 1067 (9th Cir. 1983). In Painters and Decorators, the Ninth Circuit held that jurisdiction under § 301 of the LMRA is not dependent on the parties to the suit but rather, on whether it is "based on an alleged breach of contract between an employer and a labor organization and . . . the resolution of the lawsuit [is] focused upon and governed by the terms of the contract." Id. at 1071. Accordingly, the court held that there was subject matter jurisdiction over a joint committee that was established pursuant to a collective bargaining agreement to enforce the agreement where a multi-employer trade association was suing the union for breached the collective bargaining agreement. Id.
While some courts in other Circuits have interpreted the decision in Painters and Decorators as allowing claims for tortious interference with economic relations under the LMRA, see, e.g., Int'l Union, United Mine Workers of Am. v. Covenant Coal Corp., 977 F.2d at 897, this Court is not persuaded that such a reading of Painters and Decorators is correct. Indeed, although the court concluded in that case that the LMRA gave rise to subject matter jurisdiction over a non-party, it did not hold that the LMRA authorized tortious interference claims against third parties. Moreover, the Court can find no other Ninth Circuit case that suggests such a claim may be brought against a non-party under the LMRA. See Wynn v. Nat'l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1118-1124 (C.D. Cal. 2002) (holding that under Ninth Circuit authority, the LMRA does not allow claims for tortious interference with economic relations and therefore dismissing tortious interference claims against supervisors that court found were preempted).
The Court finds the reasoning in Wynn to be persuasive. Accordingly, Plaintiff's claim for interference with economic relations fails under the LMRA. For the same reason, Plaintiff's IIED claim fails to the extent it is based on the interference with economic relations claim. Both claims are DISMISSED with prejudice.
D. State Law Claims
Having determined that Plaintiff's federal law claims fail on summary judgment, the Court declines to exercise jurisdiction over Plaintiff's state law claims. This Court has original jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331. In addition, the court has supplemental jurisdiction over state law claims "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). However, the court may decline to exercise supplemental jurisdiction where it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c). Further, rather than dismiss the action, the Court may remand the remaining claims to state court pursuant to 28 U.S.C. § 1441(c). See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351-352 (1988). Therefore, the Court remands to state court Plaintiff's claims for assault, slander, and IIED to the extent that claim is based on theories other than interference with economic relations.
IV. CONCLUSION
For the reasons stated above, the Motion is GRANTED with respect to Plaintiff's claim for interference with economic relations and IIED to the extent that claim is based on a theory of interference with economic relations. Those claims are dismissed with prejudice. As to Plaintiff's remaining claims — which the Court concludes are not preempted under the LMRA — the Court declines to exercise supplemental jurisdiction, and therefore REMANDS those claims to California state court pursuant to 28 U.S.C. § 1441(c).
IT IS SO ORDERED.