Alfred Hayes et al v. Southern California Permanente Medical Group et al

NOTICE OF MOTION AND MOTION to Dismiss Case ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

C.D. Cal.December 15, 2016

1 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL LINDSAY (CA BAR NO. 110845) mlindsay@nixonpeabody.com ALICIA ANDERSON (CA BAR NO. 260937) acanderson@nixonpeabody.com ERIN HOLYOKE (CA BAR NO. 288137) eholyoke@nixonpeabody.com NIXON PEABODY LLP 300 S. Grand Avenue, 41st Floor Los Angeles, California 90071 Telephone: (213) 629-6000 Facsimile: (213) 629-6001 Attorneys for Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Alfred Hayes, Jay Eiley, Scott Isawa, Josephine Casupanan, Armine Akamakji, Theresa Jade Salas, Leland Ferguson, Leopoldo Galam, Joseph Scarbrough, Marlene Taylor-Hewett, Melvinia Gordon, Vid Keshmiri, Melvin Clemons, Jr., Plaintiff, vs. Southern California Permanente Medical Group, Kaiser Permanente of Southern California, and DOES 1 through 10 inclusive, Defendants. Case No.: 2:16-CV-9117-R-SS DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [Filed Concurrently with Request for Judicial Notice, Proposed Order] Date: January 17, 2017 Time: 10:00 a.m. Courtroom: 8 Judge: Honorable Manuel L. Real Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 1 of 26 Page ID #:154 2 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION TO PLAINTIFFS ALFRED HAYES, JAY EILEY, SCOTT ISAWA, JOSEPHINE CASUPANAN, ARMINE AKAMAKJI, THERESA JADE SALAS, LELAND FERGUSON, LEOPOLDO GALAM, JOSEPH SCARBROUGH, MARLENE TAYLOR-HEWETT, MELVINIA GORDON, VID KESHMIRI, MELVIN CLEMONS, JR. AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, on January 17, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 8 of the United States District Court in and for the Central District of California, located at 312 North Spring Street, Los Angeles, CA 90012, Defendant Southern California Permanente Medical Group (“SCPMG”) will and hereby does respectfully move this Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), for an order dismissing with prejudice the First Amended Complaint (the “FAC”) of plaintiffs Alfred Hayes, Jay Eiley, Scott Isawa, Josephine Casupanan, Armine Akamakji, Theresa Jade Salas, Leland Ferguson, Leopoldo Galam, Joseph Scarbrough, Marlene Taylor-Hewett, Melvinia Gordon, Vid Keshmiri, Melvin Clemons, Jr. (collectively “Plaintiffs”) , because Plaintiffs fail to state a claim upon which relief can be granted. MOTION TO DISMISS Defendants’ Motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6) on the following grounds: (1) Plaintiffs’ state law age discrimination claim is preempted by Labor Management Relations Act section 301 (“Section 301”), 29 U.S.C. § 185, and cannot be converted into Section 301 claims; (2) plaintiffs Hayes, Eiley and Scarbrough’s state law age and race discrimination claims are preempted by Section 301 and cannot be converted into Section 301 claims, and further fail to allege facts sufficient to state a claim that is not preempted by Section 301; Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 2 of 26 Page ID #:155 3 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) Plaintiffs’ state law claim for retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) fails to plausibly allege facts supporting Plaintiff’s unsupported legal conclusion that Plaintiff’s made FEHA-protected “complaints” or suffered retaliation, each required elements to state such a claim; and (4) Plaintiffs’ state common law claim for wrongful termination in violation of public policy violations fails because it is wholly derivative of Plaintiffs failed statutory claims. SCPMG attempted to meet and confer with Plaintiff’s counsel pursuant to Local Rule 7-3 on December 2 and December 8, 2016. SCPMG’s counsel called Plaintiff’s counsel to discuss the removal of the case and anticipated Motion to Dismiss but was unable to reach Plaintiff’s counsel and instead left a voicemail. SCPMG’s counsel was unable to send Plaintiff’s counsel an email because her email address does not appear on the pleadings, is not listed with the California State Bar, and was therefore unknown at the time of the conference. This Motion is based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities and Request for Judicial Notice, as well as the pleadings, files and records on file herein, and such other and further evidence and argument as may be permitted by the Court at the hearing on this matter. Dated: December 15, 2017 NIXON PEABODY LLP By: /s/ Alicia Anderson Michael R. Lindsay Alicia Anderson Erin Holyoke Attorneys for Defendants SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 3 of 26 Page ID #:156 i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION AND STATEMENT OF THE ISSUES TO BE DECIDED ................ 1 II. STATEMENT OF FACTS ................................................................................................. 2 A. The Complaint’s Factual Allegations...................................................................... 2 B. The Omitted Factual Allegations ............................................................................ 4 III. LEGAL ARGUMENT ........................................................................................................ 5 A. Legal Standard on Motion to Dismiss ..................................................................... 5 B. Legal Principles Regarding LMRA Section 301 Preemption ................................. 6 C. Plaintiffs’ First Cause of Action for Age Discrimination in Violation of FEHA is Preempted by LMRA Section 301 ........................................................... 8 1. Because the reclassification of their positions was the direct result of the Settlement Agreement, Plaintiffs’ First Cause of Action for Age Discrimination, which is based on that reclassification, requires interpretation of the Settlement Agreement .................................. 8 2. Plaintiffs’ age discrimination claim cannot proceed as LMRA Section 301 claims because plaintiffs have not and cannot exhaust available grievance procedures and the statute of limitations has run ...... 11 D. Plaintiffs Hayes, Eiley and Scarbrough’s Claims for Age Discrimination (First Cause of Action) and Race Discrimination (Second Cause of Action) is Preempted by LMRA Section 301 or Otherwise Fails to State a Claim ........... 13 1. Because the Settlement Agreement (and CBA) promises assistance to Plaintiffs in applying for alternate positions outside the department, plaintiffs Hayes, Eiley and Scarbrough’ claim that they were denied transfers or promotions is preempted under Section 301 ............................................................................................................. 13 2. To the extent that Hayes, Eiley and Scarbrough intended for their claims founded on the alleged denial of transfers or promotions to be outside Section 301 preemption, plaintiffs fail to allege sufficient facts supporting such a claim .................................................................... 15 E. Plaintiffs’ Fail To State a Claim for Retaliation in Violation of FEHA ............... 16 F. Because Plaintiffs’ Fourth Cause of Action For Public Policy Violations Is Derivative Of The Other Claims, It Fails For The Same Reason ......................... 18 IV. CONCLUSION ................................................................................................................. 18 Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 4 of 26 Page ID #:157 ii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676 (9th Cir. 2006) ............................................................................................. 7 Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010 (9th Cir. 2000) ........................................................................................... 7 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) ......................................................................................................... 6, 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................... 6, 15, 16, 17 Audette v. Intl. Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107 (9th Cir. 1999) .................................................................................. passim Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968) ........................................................................................................... 7 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ............................................................................................. 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................................ 6 Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ........................................................................................................ 6, 7 Dall v. Albertson’s Inc., 234 Fed.Appx. 446 (9th Cir. 2007) .................................................................................. 8 DelCostello v. Int’l Broth. Of Teamsters, 462 U.S. 151 (1983) .................................................................................................... 11, 12 Grant v. McDonnell Douglas Corp., 163 F.3d 1136 (9th Cir. Cal. 1998) ................................................................................ 12 Hawkins v. SimplexGrinnell, L.P., 640 Fed.Appx. 640 (9th Cir. 2016) ................................................................................ 17 Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 5 of 26 Page ID #:158 iii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hotel Employees and Restaurant Employees Local 2 v. Vista Inn Management, Co., 393 F.Supp.2d 972 (ND CA 2005) .................................................................................. 8 Knieval v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ........................................................................................... 7 Kobold v. Good Samaritan Regional Med. Ctr., 832 F.3d 1024 (9th Cir. 2016) .................................................................................. passim Lingle v. Magic Chef, Norge Division, 486 U.S. 399 (1988) ............................................................................................................ 7 Local 3-7, Intern. Woodworkers of Am. v. DAW Forest Products Co., 833 F.2d 789 (9th Cir. 1987) ............................................................................................. 8 Matson v. United Parcel Serv., Inc., 840 F.3d 1126 (9th Cir. 2016) .................................................................................... 10, 11 Papasan v. Allain, 478 U.S. 265 (1986) ............................................................................................................ 6 Parrino v. FHP, Inc. 146 F.3d 699 (9th Cir. 1998), superseded ...................................................................... 7 Republic Steep Corp, v. Maddox, 379 U.S. 650 (1965) .......................................................................................................... 11 Retail Clerks Int’l Ass’n, Local Unions Nos. 128 & 633 v. Lion Dry Goods, Inc., 369 U.S. 17 (1962) ............................................................................................................... 8 Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782 (9th Cir. 1986) ........................................................................................... 17 Sheppard v. David Evans & Assoc., 694 F.3d 1045 (9th Cir. 2012) ......................................................................................... 15 Sidhu v. Flecto Co., Inc., 279 F.3d 896 (9th Cir. 2002) ........................................................................................... 12 Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044 (9th Cir. 1987) .......................................................................................... 12 Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 6 of 26 Page ID #:159 iv DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ........................................................................................... 6 Steelworkers v. Rawson, 495 U.S. 362 (1990) ............................................................................................................ 7 Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996) ............................................................................................. 17 Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) ............................................................................................................ 7 Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) ......................................................................................... 17 OTHER CASES Jennings v. Marralle, 8 Cal. 4th 121 (1994) ......................................................................................................... 18 Rope v. Auto-Chlor Systems of Wash. Inc., 220 Cal. App. 4th 635 (2013) .......................................................................................... 18 Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138 (1997) .............................................................................................. 16 Stevenson v. Superior Court, 16 Cal. 4th 880 (1997) ...................................................................................................... 18 Thomas v. Dep’t of Corrections, 77 Cal.App.4th 507 (2000) .............................................................................................. 18 FEDERAL STATUTES Labor Management Relations Act § 301, 29 U.S.C. § 185(a) ............................... passim STATE STATUTES Cal. Gov’t Code § 12940(h) .................................................................................................. 17 RULES Federal Rule of Civil Procedure 8(a) .................................................................................... 6 Federal Rules of Civil Procedure, Rule 12(b)(6) ........................................................... 2, 5 Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 7 of 26 Page ID #:160 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF THE ISSUES TO BE DECIDED This action arises from defendant Southern California Permanente Medical Group’s (“SCPMG”) employment of plaintiffs Alfred Hayes, Jay Eiley, Scott Isawa, Josephine Casupanan, Armine Akamakji, Theresa Jade Salas, Leland Ferguson, Leopoldo Galam, Joseph Scarbrough, Marlene Taylor-Hewitt, Melvinia Gordon, Vid Keshmiri and Melvin Clemons, Jr. (collectively, “Plaintiffs”). Plaintiffs filed an initial complaint against SCPMG1 in Los Angeles County Superior Court on September 13, 2015, and a First Amended Complaint (“FAC”) on November 3, 2016. SCPMG removed the action on December 8, 2016, on grounds that some or all of Plaintiffs’ claims were preempted by Section 301 of the Labor Management Relations Act (“LMRA”). SCPMG brings this motion to dismiss on the grounds that Plaintiffs’ claims against it are preempted by Section 301 of the LMRA, and that Plaintiff otherwise fails to allege facts to state a claim for relief that is not preempted by Section 301. Plaintiffs’ FAC alleges that SCPMG’s reclassification of Plaintiffs’ jobs in March 2015 (from Laboratory Assistant IIIs to Laboratory Assistant IIs) was pretext for discrimination based on age. However, reclassification of Plaintiffs’ jobs was a direct result of a settlement agreement with Plaintiffs’ union; as such, any claim disputing a provision of the settlement agreement necessarily requires the Court to interpret the settlement agreement. Thus, any claims Plaintiffs have related to the reclassification of their position is preempted by Section 301 and cannot otherwise be converted into a valid claim. Plaintiffs Hayes, Eiley and Scarbrough also allege that unidentified job transfers and promotions were denied to them on the basis of age and race. 1 Plaintiffs’ lawsuit also names as a defendant “Kaiser Permanente of Southern California,” which is not a known legal entity by SCPMG, and unnamed Does 1-10. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 8 of 26 Page ID #:161 2 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, in addition to the reclassification of Plaintiffs’ positions, the settlement agreement also provided for assistance to Plaintiffs in securing positions outside of the Reference Laboratory. Moreover, the CBA between Plaintiffs’ union and SCPMG provides for assistance to employee affected by job reclassification in securing alternate employment. Thus, to the extent that these plaintiffs’ applications for transfers to other position was promised to them in the settlement agreement (or, alternatively, the union-seniority provisions of Plaintiffs’ collective bargaining agreement), Plaintiffs’ claim that transfers were denied to them amounts to a Section 301 claim for breach of the CBA. Plaintiffs have not stated sufficient factual allegations to state a claim for discrimination that is not preempted. Plaintiffs hardly offer any actual factual allegations in support of their remaining claims, relying almost exclusively on bare conclusions and recitals of the legal elements of their claims. All Plaintiffs allege that they suffered unidentified “retaliation and harassment” after making unidentified “complaints” about discrimination or harassment to their employer. Plaintiffs allegations fail to satisfy even the most basic pleading requirements under Rule 12(b)(6). Plaintiffs’ also allege a derivative common law claim for violation of public policy that is fails for the same reasons that their other claims fail. Plaintiffs’ claims are preempted by Section 301, and Plaintiffs have failed to allege sufficient facts to make out any claims that are not preempted by Section 301. Accordingly, Plaintiffs’ claims should be dismissed pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) because they fail to state a claim upon which relief can be granted. Defendant’s Motion to Dismiss should be granted. II. STATEMENT OF FACTS A. The Complaint’s Factual Allegations The Complaint alleges that the Plaintiffs are all currently employed by SCPMG as Laboratory Assistant IIs in its Bacteriology Department, Regional Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 9 of 26 Page ID #:162 3 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reference Laboratory. (FAC ¶ 1.) Prior to March 2015, Plaintiffs were all employed by SCPMG as Laboratory Assistant IIIs. (FAC ¶ 15.) Laboratory Assistant IIIs and IIs are non-certificate or licensed positions. Plaintiffs’ allege that their job positions were reclassified from Laboratory Assistant IIIs to Laboratory Assistant IIs in or around March 2015. (FAC ¶ 15.) Plaintiffs’ purported claim for age discrimination in violation of FEHA is derived from their allegation that that SCPMG “demoted” Plaintiffs from Laboratory Assistant IIIs to Laboratory Assistant IIs with approximately 27% reduction in Plaintiffs’ wages. (FAC ¶ 15.) Plaintiffs’ allege that the “demotion” was a result of a Reduction in Force (“RIF”) that was formulated and implemented by SCPMG’s managing agents from September 2013 and continuing through March 2015. (FAC ¶ 18.) The alleged RIF “was intended to force, or had the effect of forcing, SCPMG’s older employees to retire and/or alternatively accept lower pay.” (FAC ¶ 19.) Plaintiffs allege that SCPMG intended to hire younger employees and replace the older employees. (FAC ¶ 20.) The FAC further alleges that SCPMG continuously trained and hired individuals for the position of Laboratory Assistant II to replace the older, higher paid employees and replacing them with less qualified and less experienced individuals. (FAC ¶ 22.) Plaintiffs are all over the age of 40. (FAC ¶ 17.) In addition to the discriminatory effect and/or intent of the “demotion,” Plaintiffs Hayes, Eiley and Scarbrough allege they were denied unspecified transfers or promotions to other positions with SCPMG on the basis of their age, race and national origin. (FAC ¶¶ 24, 37.) All three plaintiffs are over the age of 40 and are Caucasion, Black, and non-Asian. (FAC ¶¶ 13, 36.) Plaintiffs Hayes, Eiley and Scarbrough further allege that SCPMG engaged in actions that had a negative impact on the treatment of its employees who were non-Asians. (FAC ¶ 34.) Specifically, Plaintiffs allege that SCPMG failed to consider the applications of Hayes, Eiley and Scarbrough for unidentified “higher-rated positions” for which Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 10 of 26 Page ID #:163 4 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they were allegedly qualified. (FAC ¶ 37.) Instead, SCPMG allegedly considered hiring Asians who were less qualified and less experienced over plaintiffs. (FAC ¶ 37.) Plaintiffs also allege that they made unidentified complaints of discrimination based on their age, race and national origin and, as a result, SCPMG retaliated against them in violation FEHA. (FAC ¶ 45.) Other than stating that they made “complaints,” Plaintiffs do not allege any specific facts about the “complaints,” including when or to whom they complained, or the substance of the specific complaints. (FAC ¶ 45.) Moreover, Plaintiffs do not allege the manner in which they were retaliated, or identify any adverse employment action or harassment taken against them. (FAC ¶ 45.) Finally, Plaintiffs claim for violation of public policy is based entirely on their allegations in the first three causes of action. (FAC ¶ 51.) B. The Omitted Factual Allegations Plaintiffs’ allegations omit two crucial facts. First, Plaintiffs are, and throughout the relevant period were, members of a collective bargaining unit represented by Service Employees International Union, United Healthcare Workers West (hereafter, “SEIU-UHW”), a labor organization as defined in the National Labor Relations Act. (See National and Local Agreements,2 attached as Exhibit A & B to the Declaration of Alicia Anderson in support of Defendant’s Request for Judicial Notice (“RJN”).) Second, and more importantly, in October 2014, SCPMG and SEIU-UHW, entered and executed a Settlement Agreement, in response to a grievance filed by SEIU-UHW, in which SCPMG and SEIU-UHW, on behalf of its members (including, but not limited to, Plaintiffs), agreed to reclassify Laboratory Assistant 2 The provision recognizing SEIU-UHW as the exclusive bargaining representative for plaintiffs is set forth in the Local Agreement, Article II, Section 1, and Attachment 1 thereto. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 11 of 26 Page ID #:164 5 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III employees to Laboratory Assistant II positions, step for step, effective at the end of March 2015. ( RJN, Exh. C.) Plaintiffs were covered by this agreement3 and the reclassification of their positions in March 2015 was made pursuant to the Settlement Agreement. (Id.) The Settlement Agreement also allotted a lump sum payment of $23,000.00, reduced by applicable taxes and withholdings, to the Laboratory Assistant IIIs whose positions were reclassified to Laboratory Assistant IIs. (Id.) Moreover, for a period of ninety (90) days from the date the lump sum payment was issued, SCPMG agreed to assist Laboratory Assistant IIIs desirous of securing positions outside of the Reference Laboratory. (Id.) In consideration for the arrangement, SEIU-UHW and SCPMG agreed that all outstanding matters in connection with the reclassification, including contractual issues, were fully vindicated and resolved. (Id.) III. LEGAL ARGUMENT A. Legal Standard on Motion to Dismiss Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the Court to dismiss a claim that fails to state a cause of action upon which relief can be granted. “Dismissal can be based on the 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. 1990). Although a court generally must accept allegations as true, this legal tenet “is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). A 3 In fact, at least three of the Plaintiffs’ names appear as signatories on the Settlement Agreement between SCPMG and their union - Leland Ferguson, Jay Eiley and Melvinia Gordon. (See Settlement Agreement, attached as Exhibit C to the Declaration of Alicia Anderson in support of Defendant’s Request for Judicial Notice.) Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 12 of 26 Page ID #:165 6 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. As the Ninth Circuit more recently held, “factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). To survive a motion to dismiss, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Federal Rule of Civil Procedure 8(a) “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. The rule “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-679. Accordingly, a complaint merely offering “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. B. Legal Principles Regarding LMRA Section 301 Preemption The preemptive effect of Section 301 of the LMRA, 29 U.S.C. § 185(a), reaches all state law causes of action that are (1) founded on rights created by a collective bargaining agreement, Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 394 (1987), or (2) substantially dependent on the analysis of a collective bargaining agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214-20 (1985). Section 301 is not a mere grant of jurisdiction or venue. Rather, the Supreme Court has held that it requires the federal courts to adopt, interpret and apply a federal common labor law. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 450-51 (1957). Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 13 of 26 Page ID #:166 7 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Succinctly put, “[w]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, see Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968) (emphasis added), or dismissed as pre- empted by federal labor-contract law.” Lueck, 471 U.S. at 220 (holding that section 301 preempts tort action for breach of the duty of good faith) (emphasis added); accord Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1014 (9th Cir. 2000) (affirming grant of summary judgment to breach of contract and fraud claims because “Section 301 of the LMRA preempts state law claims that are based directly on rights created by a collective bargaining agreement, and also preempts claims that are substantially dependent on an interpretation of a collective bargaining agreement”). Plaintiffs cannot avoid preemption by simply avoiding mention of the collective bargaining agreement in their Complaint, as the LMRA preempts any claim that is substantially dependent upon an analysis of the terms of such a labor agreement. See Caterpillar, 482 U.S. at 394; Lingle v. Magic Chef, Norge Division, 486 U.S. 399, 410 (1988); Steelworkers v. Rawson, 495 U.S. 362, 366 (1990). As such, the court may also consider on a motion to dismiss any documents that are “integral” to a plaintiff’s claims, even if the documents are not explicitly incorporated by reference or explicitly alleged in the Complaint. Parrino v. FHP, Inc. 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006)(a district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested and upon which the plaintiff’s complaint necessarily relies); see also Knieval v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Such documents include collective bargaining agreements. Hotel Employees and Restaurant Employees Local 2 v. Vista Inn Management, Co., 393 F.Supp.2d 972, 979 (ND CA 2005). Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 14 of 26 Page ID #:167 8 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notable to this case, settlement agreements entered into between an employer and a union entitled to recognition as the exclusive bargaining representatives of employees are independent labor-management agreements and are therefore covered by Section 301 of the LMRA. See Retail Clerks Int’l Ass’n, Local Unions Nos. 128 & 633 v. Lion Dry Goods, Inc., 369 U.S. 17, 26-28 (1962)(holding that a strike-settlement agreement is a ‘contract’ for Section 301 purposes); Dall v. Albertson’s Inc., 234 Fed.Appx. 446, 447 (9th Cir. 2007)(settlement agreements between employers and labor unions are included within Section 301 preemption); Local 3-7, Intern. Woodworkers of Am. v. DAW Forest Products Co., 833 F.2d 789, 792 (9th Cir. 1987). C. Plaintiffs’ First Cause of Action for Age Discrimination in Violation of FEHA is Preempted by LMRA Section 301 Plaintiff’s First Cause of Action for age discrimination in violation of FEHA is preempted by LMRA section 301 because (1) Plaintiffs’ claim requires interpretation of a collective bargaining agreement; and (2) Plaintiffs’ claim cannot proceed as a LMRA section 301 claim because Plaintiffs have not and cannot exhaust available grievance procedures and the statute of limitations has expired. 1. Because the reclassification of their positions was the direct result of the Settlement Agreement, Plaintiffs’ First Cause of Action for Age Discrimination, which is based on that reclassification, requires interpretation of the Settlement Agreement. Courts have held that discrimination claims arising under state law may be preempted by the LMRA if adjudication of the claim is substantially dependent on analysis of the collective bargaining agreement. See Kobold v. Good Samaritan Regional Med. Ctr., 832 F.3d 1024 (9th Cir. 2016); Audette v. Intl. Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107 (9th Cir. 1999). Whether a claim is substantially dependent on analysis of the collective bargaining agreement turns on whether the claim can be resolved by “looking to” versus “interpreting” the collective bargaining agreement. Kobold , 832 F.3d. at 1033 (citing Burnside v. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 15 of 26 Page ID #:168 9 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kiewit Pacific Corp., 491 F.3d 1053, 1059 (9th Cir. 2007)).4 The Ninth Circuit’s analysis in Audette is instructive here. In Audette, the employees alleged that the employer retaliated and discriminated against them in violation of Washington’s discrimination law when the employer failed to promote them. 195 F.3d at 1110-13. The procedure for the promotion was outlined in a settlement agreement entered into between the employer and union after a grievance was filed regarding the same issue. Id. at 1110. When the employer failed to promote the employees after entering the settlement agreement, the employees alleged discrimination. Id. The Ninth Circuit noted that because of the settlement agreement, the employers did not have a free-standing claim of discrimination. Id. at 1113. Rather, the court would have to interpret the provisions of the settlement agreement and intentions of the parties in order to assess whether the employer’s alleged failure to promote was motivated by retaliation or discrimination. Id. The court held that plaintiffs’ claims were therefore preempted by the LMRA because “resolution of the discrimination and retaliation claim turns on defendants’ offer of a ‘legitimate nondiscriminatory reason’ requiring interpretation of the collective bargaining agreement.” Id. 4 In Kobold, the Ninth Circuit consolidated three cases-which all involved employees represented by labor unions who had sued seeking remedies under various state law against their employers-for the purpose of developing and demonstrating the two-step inquiry for the resolution of LMRA section 301 preemption of state law claims (as discussed above). In the first consolidated lawsuit, Kobold itself, the Ninth Circuit held that an employee’s state law claims for unpaid premium wages for extra shifts were preempted because a court could not calculate the total amount the employee was owed without first determining which of the shifts she worked qualified for premium pay. Kobold, 832 F.3d at 1035-36. Whether a shift qualified for premium pay required an interpretation of the CBA. In the second consolidated lawsuit, Barr, the Ninth Circuit distinguished the outcome in the first consolidated case, because, in Barr, an interpretation of the CBA was not required due to the CBA unambiguously specifying the time limits regarding CBA-authorized paycheck deductions and/or its complete silence on the time limits at issue in the employee’s state law claim. Id. at 1039-40. Thus there was no dispute regarding terms of the CBA and thus no interpretation was necessary. Id. at 1040. As the Ninth Circuit explained, where mere reference to a CBA’s terms was all that was required, interpretation was not necessary and Section 301 preemption did not apply. Id. at 1033. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 16 of 26 Page ID #:169 10 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In comparison, in Matson v. United Parcel Serv., Inc., 840 F.3d 1126 (9th Cir. 2016), when applying the two-step analysis, the Ninth Circuit found that the employee’s state law claims were not preempted by Section 301, because neither a review nor an interpretation of the CBA was required. In Matson, the employee brought a state law claim for equal employment alleging a hostile work environment. Id. at *1. As part of her effort to demonstrate discrimination, the employee in Matson alleged that her employer discriminated in assigning extra work. Id. at 6. Because the terms of employment were governed by a CBA, the employer in Matson argued that the term “extra work” needed interpretation. Id. The Matson court held that the issue was not whether the disputed work assignments were extra work as the term was used in the CBA, or whether the CBA required that they be awarded by seniority. Id. at 9. Rather, the issue the employee was presenting was whether the assignments were being made in a discriminatory fashion, e.g., that men were systematically favored over similarly situated women. Id. While in Matson there were settlement agreements reached between the employer and employee as a result of grievances on a similar issue, the settlement agreements did not resolve the state law harassment claim because the settlement agreements only dictated the employer’s behavior moving forward and the employee’s complaint was for conduct that occurred prior to the settlement agreements. Id. at 7-8. Here, Plaintiffs’ state law cause of action for age discrimination requires interpretation of the Settlement Agreement and is therefore preempted by the LMRA. Plaintiffs allege that SCPMG demoted or reclassified their positions with the goal of discriminating against individuals over the age of 40. (FAC at ¶¶ 15, 19.) Thus, the discriminatory action alleged by Plaintiffs was the reclassification of their positions from Laboratory Assistant IIIs to Laboratory Assistant IIs. However, unlike in Matson, this reclassification of Plaintiffs’ positions was made pursuant to the Settlement Agreement between SEIU-UHW and SCPMG. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 17 of 26 Page ID #:170 11 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Therefore, similar to Audette, to succeed on their claim, Plaintiffs must demonstrate that the Settlement Agreement itself was entered into with the intent to discriminate against Plaintiffs. The only way the Court will be able to do this is by interpreting the provisions of the Settlement Agreement and the intent of SCPMG and SEIU- UHW when they reached the agreement. In this instance, therefore, the Settlement Agreement created the allegedly discriminatory act, and therefore the parties’ dispute is a creature of the agreement. Unlike Matson, where the employee was allegedly harassed prior to and independent of the settlement agreement, here the Plaintiffs’ were reclassified pursuant to the Settlement Agreement. In this case, the alleged discriminatory conduct was a direct result of the Settlement Agreement and Plaintiffs are now challenging the outcome of the Settlement Agreement. There is no way the Court can evaluate Plaintiffs’ claims without interpreting the Settlement Agreement. Because Plaintiffs’ state-law claim for age discrimination will require interpretation of the Settlement Agreement, the claim is preempted under the LMRA. 2. Plaintiffs’ age discrimination claim cannot proceed as LMRA Section 301 claims because plaintiffs have not and cannot exhaust available grievance procedures and the statute of limitations has run. While it may be appropriate at times for a court to convert a preempted state- law claim into a LMRA Section 301 claim, this Court need not do so here because Plaintiffs have not exhausted available grievance procedures, and because Plaintiffs’ claims are barred by the applicable statute of limitations. See DelCostello v. Int’l Broth. Of Teamsters, 462 U.S. 151, 163-165 (1983); Republic Steep Corp, v. Maddox, 379 U.S. 650 (1965); Kobold, 832 F.3d at 1034. Before an employee can sue his employer under Section 301, the “employee must first exhaust the grievance procedures established by the CBA.” Sidhu v. Flecto Co., Inc., 279 F.3d 896, 898 (9th Cir. 2002); see Kobold, 832 F.3d at 1036 (affirming district court and holding plaintiff’s state law claims were preempted by Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 18 of 26 Page ID #:171 12 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 301 and she could not sue under Section 301 because she failed to exhaust available grievance procedures). Here, Plaintiffs have not and do not allege that they have exhausted their available grievance procedures. Alternatively, employees may bring suit against their employer, notwithstanding the outcome or finality of the grievance or arbitration proceeding, only if they plead a claim for breach of the collective bargaining agreement against the employer and a claim against their union for breach of the union’s duty of fair representation. DelCostello, 462 U.S. at 163-165; Kobold, 832 F.3d at 1036. This type of claim is not considered a straightforward breach of contract suit under Section 301 of the LMRA, but a hybrid Section 301/fair representation claim. Id. The hybrid claim recognizes that the claims are interdependent and that, to prevail against either the employer or the union, the employee must not only show that there was a breach of the collective bargaining agreement but that the union acted in a such a way that it breached its duty of fair representation in representing the employees’ interests. Id. Here, Plaintiffs do not make any claim against their union for frustrating their grievance/arbitration rights, nor have they named their union as a party, which would be a pre-requisite to such a “hybrid suit.” Furthermore, Plaintiffs cannot maintain a Section 301 claim at this point because their claims would be time barred. “A Section 301 claim is governed by a six-month statute of limitations.” Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. Cal. 1998) (citing Del Costello v. International Broth. of Teamsters, 462 U.S. 151, 169 (1983)). Nor can Plaintiff bring a hybrid section 301 and fair representation claim, which also carries a six month statute of limitations. Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1049 (9th Cir. 1987). Plaintiffs’ claims as to the reclassification of their position arose, at the latest, in March 2015 when their positions were reclassified pursuant to the Settlement Agreement between Plaintiff and their union. (FAC ¶ 15.) Thus, Plaintiffs’ statute of limitations expired in September 2015. Plaintiffs will therefore be unable to Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 19 of 26 Page ID #:172 13 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 convert their claims into valid Section 301 or hybrid claims. Therefore, Plaintiffs’ First Cause of Action must be dismissed as pre-empted by federal labor-contract law. D. Plaintiffs Hayes, Eiley and Scarbrough’s Claims for Age Discrimination (First Cause of Action) and Race Discrimination (Second Cause of Action) is Preempted by LMRA Section 301 or Otherwise Fails to State a Claim Plaintiff’s Hayes, Eiley and Scarbrough allege another basis for their claim of age discrimination (First Cause of Action) - that they were denied unidentified transfers or promotions to other positions with SCPMG on the basis of their age - and further allege, in a separate claim for race/national origin discrimination under FEHA (Second Cause of Action ), that they were denied unidentified transfers or promotions to other positions with SCPMG on the basis of their race/national origin (i.e. not Asian). Plaintiffs Hayes, Eiley and Scarbrough’s claims are preempted by LMRA section 301 because their claims require an interpretation of a collective bargaining agreement and plaintiffs have not and cannot exhaust available grievance procedures. Plaintiffs’ claims further fail because Plaintiffs have not alleged facts sufficient to state a claim that is not preempted by Section 301. 1. Because the Settlement Agreement (and CBA) promises assistance to Plaintiffs in applying for alternate positions outside the department, plaintiffs Hayes, Eiley and Scarbrough’s claim that they were denied transfers or promotions is preempted under Section 301. As discussed further above, discrimination claims arising under state law may be preempted by the LMRA if adjudication of the claim is substantially dependent on analysis of the collective bargaining agreement. See supra, section III.B.1; Kobold, 832 F.3d 1024; Audette, 195 F.3d 1107. Plaintiffs Hayes, Eiley and Scarbrough’s state law claims for discrimination based on the denial of their applications for job transfers require interpretation of the Settlement Agreement and/or the Local Agreement. Plaintiffs allege generally that Hayes, Eiley and Scarbrough applied for job transfers and promotions that were denied, but Plaintiffs Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 20 of 26 Page ID #:173 14 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fail to identify what jobs they applied for, when they were denied, or the reason they were given for the denial. (FAC ¶¶ 23-24, 37.) Plaintiffs further allege, in an entirely conclusory manner, that they were qualified for the position they applied for (FAC ¶¶ 23, 37), and that the reason given to them for the denial of the applications (which Plaintiffs fail to identify) was somehow pretext for discrimination based on age or race/national origin (FAC ¶¶ 24, 38). The FAC provides no further details from which the circumstances of Plaintiffs’ alleged applications for job transfer occurred. However, the Settlement Agreement, in addition to the reclassification of Plaintiffs’ positions, contains a provision promising that the employer would provide assistance to Plaintiffs “desirous of securing positions outside the Reference Laboratory.” (RJN Ex. C.) Furthermore, the terms of the CBA between Plaintiffs’ union and SCPMG further address employees whose positions are reclassified (RJN Ex. B, Article XIII, Section 4, Performing Work in Another Classification) and also makes various agreements relating to the provision of assistance to employees affected by such workforce adjustments in securing alternate employment. (Id., Article XVI, Seniority, Sections 3 and 4.) To the extent that Plaintiffs’ claims are based on SCPMG’s failure to provide assistance in securing alternate provisions, as promised in the CBA and the Settlement Agreement, Plaintiffs’ claim is based on a right conferred on them by virtue of a union contract, and therefore amounts to a claim for breach of the collective bargaining agreement under Section 301. Kobold , 832 F.3d. at 1032-3 (citing Burnside, 491 F.3d at 1032) (“If the right exists solely as a result of the CBA, then the claim is preempted, and the analysis ends there.”) Alternatively, if Plaintiffs’ job applications were made in connection with the reclassification of their position and during the period that they were entitled to special “assistance” by their employer, Plaintiff’s claims could be preempted because, as was the case in Audette, 195 F.3d. at 1113, resolution of their claim requires an interpretation of Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 21 of 26 Page ID #:174 15 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their union contract and are therefore preempted by Section 301.5 2. To the extent that Hayes, Eiley and Scarbrough intended for their claims founded on the alleged denial of transfers or promotions to be outside Section 301 preemption, plaintiffs fail to allege sufficient facts supporting such a claim. Plaintiffs Hayes, Eiley and Scarbrough have not alleged sufficient facts supporting a claim for discrimination based on the alleged denial of transfers or promotions that exists independently of the CBA, but is not preempted by Section 301. Plaintiffs’ allegations in support of their claim for discrimination do not extend beyond mere conclusory statements and threadbare recitals of the legal elements, and as such are wholly inadequate.6 Iqbal, 552 U.S. at 678. It is therefore proper for the Court to dismiss plaintiffs Hayes, Eiley and Scarbrough’s claims on this ground. To sufficiently state a claim for discrimination, plaintiffs Hayes, Eiley and Scarbrough must each allege sufficient facts to make out a prima facie case. See Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (age discrimination under the federal Age Discrimination in Employment Act). Thus, under FEHA, Plaintiffs must allege: (1) they belong to a protected class; (2) they applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite their qualifications, their applications were rejected; and (iv) 5 To the extent that plaintiffs’ Hayes, Eiley and Scarbrough’s claims based on applications for transfer to alternate positions are preempted by Section 301, dismissal of the claims is proper because, for the reasons discussed further in Section II.C.2, supra, Plaintiffs have not exhausted the grievance and arbitration procedures and the statute of limitations on such claims have run. 6 In Iqbal, the Supreme Court established two principles for determining whether allegations are sufficient to survive a motion to dismiss. First, courts should identify the allegations in the complaint that are not entitled to deference “because they are no more than conclusions.” Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, courts should consider any factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. Under these principles, plaintiffs fail to state a claim once the pure legal conclusions are filtered out. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 22 of 26 Page ID #:175 16 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 similarly situated individuals outside their protected class were treated more favorably, or other circumstances that gives rise to an inference of discrimination. See Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138 (1997) (claim for national origin discrimination under FEHA where a part time employee claimed she was not hired to a full time position). It is impossible to determine, based on Plaintiff’s bare and conclusory pleading of facts in the FAC, what positions SCPMG was seeking to fill that Hayes, Eiley and Scarbrough applied for, when they applied for the positions, whether they were qualified for the positions, or whether, after their rejection, the position remained open and their employer continued to seek alternate applicants. Neither do Plaintiffs sufficiently allege any other facts that give rise to an inference of discrimination. Plaintiffs fail to identify the reason that their employer gave for the denial of their application, apart from summarily concluding that the reason they were given was pretext for discrimination. In connection with their race claim, they fail to even allege that the position was given to a less qualified individual - instead, their attenuated complaint appears to be that Defendants “considered” hiring less qualified and experienced Asians. These allegations are not sufficient to make clear that Plaintiffs have stated a claim for discrimination, much less a claim that can survive outside the preemptive effect of Section 301. Thus, their claims are properly dismissed. E. Plaintiffs’ Fail To State a Claim for Retaliation in Violation of FEHA Plaintiffs base their Third Causes of Action on the alleged legal conclusions that they were retaliated against for complaints they made regarding alleged discrimination or harassment. Plaintiffs’ claim fails under Iqbal7 because they fail to allege facts sufficient to demonstrate the necessary elements of the claims. Iqbal, 7 See supra, fn. 6. Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 23 of 26 Page ID #:176 17 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 552 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim. Iqbal, supra, 552 U.S. at 678. To state a claim for retaliation in violation of FEHA, Plaintiffs must allege that they (1) engaged in protected activity, (2) SCPMG subjected them to adverse employment decisions, and (3) there is a causal link between the protected activity and the employer’s actions. Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 868 (9th Cir. 1996); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987); Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir. 1986). Plaintiffs fail to sufficiently plead the first and second elements of retaliation - that they engaged in protected activity and an adverse employment action was taken against them. Plaintiffs only allege that “their Complaints about discrimination because of their age, race and national origin were factors in SCPMG’s retaliation and harassment.” (FAC ¶ 45.) That is not sufficient. First, a complaint is only considered “protected” under FEHA if it puts the employer on notice that the employee was expressing opposition to conduct prohibited under FEHA. See Hawkins v. SimplexGrinnell, L.P., 640 Fed.Appx. 640, 642 (9th Cir. 2016); Cal. Gov’t Code § 12940(h). Plaintiffs fail to sufficiently plead facts supporting a conclusion that they made a protected complaint under the statute. Instead, Plaintiffs only allege that they made unidentified “complaints” about discrimination. They do not allege any additional facts. At the very least, Plaintiffs are required to plead facts describing the nature of the complaints, including when or to whom they complained, so that SCPMG and the Court may evaluate whether the complaints support a claim for violation of law. Second, Plaintiffs fail to sufficiently plead that SCPMG subjected them to an adverse employment action in retaliation for making complaints. They identify no adverse employment they were subjected to by SCPMG. To support a FEHA claim, an employer’s action must “result in a material change in the terms of Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 24 of 26 Page ID #:177 18 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment, impair [the] the employment in some cognizable manner or show some other employment injury.” Thomas v. Dep’t of Corrections, 77 Cal.App.4th 507, 577 (2000). Plaintiffs make no such allegation; instead, Plaintiffs merely substitute the legal conclusion that retaliation and harassment occurred in place of t factual allegations which are required to adequately plead the claim. Specifically, Plaintiffs fail to plead that SCPMG’s actions in response to their alleged complaints of discrimination resulted in a material change in their employment or that they suffered some employment injury. (FAC ¶ 45.) As a result, Plaintiffs claim for retaliation in violation of FEHA fails to state a cognizable claim and must be dismissed. F. Because Plaintiffs’ Fourth Cause of Action For Public Policy Violations Is Derivative Of The Other Claims, It Fails For The Same Reason Plaintiffs duplicate their statutory discrimination and retaliation claims and allege no unique facts in their Fourth Cause of Action for common law public policy violations. (FAC 49-54.) Although discrimination and retaliation under FEHA can support a claim for violations of public policy in California, see Rope v. Auto-Chlor Systems of Wash. Inc., 220 Cal. App. 4th 635, 660 (2013), because Plaintiffs’ statutory claims fail, their public policy claim fails for the same reasons. Stevenson v. Superior Court, 16 Cal. 4th 880, 904 (1997)(When a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition); Jennings v. Marralle, 8 Cal. 4th 121, 135-36 (1994). IV. CONCLUSION SCPMG requests this Court to grant its motion to dismiss with prejudice to Plaintiffs’ entire Complaint because the claims are non-exhausted, time-barred, preempted claims under LMRA Section 301 and because Plaintiffs fail to state any cognizable claims. While Plaintiffs are apparently dissatisfied with the Settlement Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 25 of 26 Page ID #:178 19 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreement their union entered into, they have no basis to challenge the substance of their union’s agreements with SCPMG, and certainly cannot do so through preempted California FEHA claims. For all these reasons, dismissal with prejudice is appropriate here. Dated: December 15, 2016 NIXON PEABODY LLP By:___/s/ Alicia Anderson__________________ Michael Lindsay Alicia Anderson Erin Holyoke Attorneys for Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP Case 2:16-cv-09117-R-SS Document 10 Filed 12/15/16 Page 26 of 26 Page ID #:179 Case 2:16-cv-09117-R-SS Document 10-1 Filed 12/15/16 Page 1 of 2 Page ID #:180 Case 2:16-cv-09117-R-SS Document 10-1 Filed 12/15/16 Page 2 of 2 Page ID #:181