Clay v. Pacific Bell Telephone Company, et al

Filing 36

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/3/13 RECOMMENDING that Defendants' motions to dismiss 11 28 be granted without leave to amend; and this action be closed. Referred to Judge Garland E. Burrell, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEROME CLAY, JR.,

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No. 2:13-cv-1028 GEB CKD PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

PACIFIC BELL TELEPHONE
COMPANY, INC., et al.,
Defendants.

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Defendants’ motions to dismiss came on regularly for hearing October 2, 2013. Plaintiff

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Jerome Clay appeared in propria persona. Caren Sencer appeared for defendant Communications

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Workers of America District 9 Union AFL-CIO (“Union”). Philip Behrens appeared for

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defendant Pacific Bell Telephone Company (“Pacific Bell”). Upon review of the documents in

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support and opposition, upon hearing the arguments of plaintiff and counsel, and good cause

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appearing therefor, THE COURT FINDS AS FOLLOWS:

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In this action, plaintiff alleges claims that he was discriminated against by his union and

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employer on the basis of race. Plaintiff alleges that a more senior employee returning from a

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disability leave was granted a transfer before plaintiff. Plaintiff asserts claims under the

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California Unruh Civil Rights Act, the California Fair Employment and Housing Act (“FEHA”),

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Title VII, 42 U.S.C. § 1983, the California Unfair Business Practices Act, and breach of contract.
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Pending before the court are motions to dismiss brought by defendant Union and defendant

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Pacific Bell.

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In considering a motion to dismiss for failure to state a claim upon which relief can be

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granted, the court must accept as true the allegations of the complaint in question, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949.

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Plaintiff’s first cause of action is alleged under the Unruh Civil Rights Act, Cal. Civ. Code

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§ 51. Because the more specific provisions of the FEHA govern claims related to discrimination

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in the employment context, plaintiff cannot proceed on a claim under section 51. See Alcorn v.

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Anbro Engineering, Inc., 2 Cal. 3d 493, 500 (1970). Similarly, plaintiff cannot proceed on his

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fifth cause of action under 42 U.S.C. § 1983 because none of the defendants are state actors

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against whom such a claim may be maintained. See West v. Atkins, 487 U.S. 42, 48 (1988)

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(plaintiff must allege defendant was acting under color of state law at the time the complained of

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act was committed); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982).

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Defendants move to dismiss on the grounds that the state law claims are preempted under

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section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Where the

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dispute requires interpretation of the terms of the collective bargaining agreement, the claim is

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preempted. Allis-Chalmers Corporation v. Lueck, 471 U.S. 202 (1985); see also Stallcop v.

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Kaiser Foundation Hospitals, 820 F.2d 1044, 1048 (9th Cir. 1987) (“preemptive force of section
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301 is so powerful as to displace entirely any state cause of action for violation of a collective

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bargaining agreement”); cf. Jackson v. Southern California Gas Co., 881 F.2d 638 (9th Cir. 1989)

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(claim of discrimination and wrongful discharge in violation of public policy not preempted under

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section 301 if not bound up with interpretation of collective bargaining agreement). All of

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plaintiff’s claims are predicated on the factual allegations contained in paragraph 16 of the

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complaint wherein plaintiff alleges that he should have received a transfer from Sonora to

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Stockton but a more senior white employee, Jeff Clark (who was returning from disability leave),

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was given the transfer by Penny Knipp, President of the Local. Plaintiff alleges Penny Knipp’s

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actions were motivated by race because she and Clark are Caucasian and plaintiff is African

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American. Plaintiff also alleges that Area Manager Rick Garcia denied plaintiff’s request to go

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on vacation using accumulated vacation time and required plaintiff to submit “mini transfers” but

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does not allege that any of Garcia’s actions were racially motivated. Plaintiff further alleges that

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the actions underlying his claims were in violation of the collective bargaining agreement

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governing his employment. All of these claims require interpretation of the collective bargaining

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agreement to determine whether the alleged conduct was wrongful. Thus, plaintiff’s second and

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third causes of action under FEHA for racial discrimination and sixth cause of action under

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California Business and Professions Code § 17200 are preempted under section 301.

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With respect to plaintiff’s fourth cause of action under Title VII, defendant Union

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correctly contends plaintiff has failed to exhaust administrative remedies as against the Union.

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See Complaint, Exh. 1 (Right to Sue letter names only employer as respondent); 42 U.S.C. §

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2000e-5(b) (exhaustion of administrative remedies necessary prerequisite to bringing claim under

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Title VII); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). As to the

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defendant employer, the complaint is devoid of race-based allegations regarding the allegedly

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wrongful conduct of defendant’s employee, Rick Garcia. Plaintiff also fails to allege that

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similarly situated employees were treated more favorably than plaintiff because of race. See

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Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (employees must be similarly situated in all

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material respects). Because plaintiff alleges that the employee receiving the transfer had seniority

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over plaintiff, the employees are not similarly situated. See Knight v. Brown, 485 Fed. Appx.
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183 (9th Cir. 2012) (white comparator not similarly situated because he had seniority). Plaintiff

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offers no argument in opposition that suggests he can amend the complaint to allege a prima facie

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case of racial discrimination against the defendant employer and the claim should therefore be

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dismissed.
Plaintiff’s seventh cause of action is for breach of contract. Assuming arguendo that

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plaintiff is attempting to bring this claim under section 301 for breach of the collective bargaining

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agreement, plaintiff cannot prevail on this claim because he did not file a grievance regarding the

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transfer of the more senior employee. See DelCostello v. International Brotherhood of

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Teamsters, 462 U.S. 151, 163 (1983) (employee must exhaust the grievance procedure of the

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collective bargaining agreement in order to bring suit against employer). Nor does plaintiff allege

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that the union breached its duty of fair representation by failing to file a grievance regarding the

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transfer. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th Cir. 2007) (exception to

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general requirement of exhaustion exists where employee demonstrates union breached its duty of

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fair representation). There are no allegations suggesting plaintiff attempted to file a grievance or

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that the defendant Union refused to represent plaintiff fairly in such a grievance. Plaintiff’s

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threadbare allegation that the defendant Union was somehow “negligent” is insufficient to allege

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a breach of the duty of fair representation. See Complaint, ¶ 48; Peterson v. Kennedy, 771 F.2d

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1244, 1253-54 (9th Cir. 1985) (union breaches duty of fair representation when its conduct is

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arbitrary, discriminatory or in bad faith; negligence insufficient to state claim for breach of duty

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of fair representation). Plaintiff is therefore barred from pursuing a claim under section 301.
Plaintiff’s eighth cause of action for “injunctive relief” is derivative of plaintiff’s other

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claims. Because plaintiff’s other claims are all subject to dismissal and plaintiff proffers no

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argument which suggests amendment would be anything other than futile, the motions to dismiss

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should be granted with prejudice.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motions to dismiss (ECF Nos. 11, 28) be granted without leave to amend;

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and
2. This action be closed.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 3, 2013

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 clay1028.57

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