Miller v. Bimbo Bakeries USA, Inc. et al

Filing 15

ORDER REMANDING ACTION TO STATE COURT by Judge Alsup granting 9 Motion to Remand (whalc2, COURT STAFF) (Filed on 4/11/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LESLIE MILLER,

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For the Northern District of California

United States District Court

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No. C 11-00378 WHA

Plaintiff,
v.

ORDER REMANDING ACTION
TO STATE COURT

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BIMBO BAKERIES USA, INC., MARK
MCSWEENEY, and TIM MUCK,

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Defendants.
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INTRODUCTION
In this employment-discrimination action, plaintiff Leslie Miller moves to remand the
action to state court. For the following reasons, the motion to remand is GRANTED.
STATEMENT
Plaintiff Leslie Miller is a Route Sales Representative for defendant Bimbo Bakeries,

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USA. Plaintiff began her employment at Bimbo Bakeries in 2003. In 2007, she was assigned to

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work out of the Bimbo Bakeries Depot in San Rafael. Plaintiff is the only female employee at the

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San Rafael location. Plaintiff alleges that upon transferring to the San Rafael location, she

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immediately began to experience — and continues to experience — sexual harassment from

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multiple male co-workers, including individual defendants Mark McSweeney and Tim Muck.

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The harassing behavior allegedly included: sexual advances and propositions; sabotage of

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plaintiff’s truck seat; removing plaintiff’s work equipment or personal items from her truck or
work cubby; soiling the women’s restroom with urine and feces spread across surfaces such as the

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walls and sink; “pinning in” plaintiff’s vehicle so that plaintiff could not begin her route;

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changing orders for stores in plaintiff’s route, such that excessive amounts of product were

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ordered, and violently shoving equipment at plaintiff. Plaintiff alleges that the behavior has

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created a hostile work environment based on plaintiff’s gender, as plaintiff is the only female

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employee and the only employee subjected to such treatment.

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In March 2009, plaintiff complained to her supervisor and a representative from human

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resources about the harassment. Plaintiff alleges that, in retaliation for her complaint, her route

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was changed, causing her to lose a store on her route. As plaintiff is paid on a commission basis,

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this allegedly resulted in a loss of pay. Plaintiff alleges that the harassment forced her to take a
leave of absence, that when she returned from leave a year later, the harassment resumed, and that

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For the Northern District of California

United States District Court

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the harassment continues unabated.

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In November 2010, plaintiff filed this action in the Superior Court of California, County

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of Marin, alleging four causes of action under the California Fair Employment and Housing Act:

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(1) sexual harassment, (2) sex discrimination, (3) failure to prevent harassment and

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discrimination, and (4) retaliation. Defendants removed the action on the basis that the retaliation

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claim requires interpretation of the collective-bargaining agreement and is therefore preempted

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under the Labor Management Relations Act of 1947. Plaintiff now moves to remand and requests

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attorney’s fees and costs.

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ANALYSIS
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LABOR MANAGEMENT RELATIONS ACT PREEMPTION
District courts have removal jurisdiction over all civil actions that present a claim arising

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under the laws, treaties or Constitution of the United States. 28 U.S.C. 1331, 1441(a)–(b).

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District courts have federal-question jurisdiction over all state-law claims in areas where federal

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law completely preempts state law. Section 301(a) of the Labor Management Relations Act

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completely preempts state causes of action based on alleged violations of contracts between

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employers and labor organizations. See Ramirez v. Fox Television Station, Inc., 998 F.2d 743,

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747 (9th Cir. 1993). The party asserting removal jurisdiction has the burden of persuasion to

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show that the state-law claims are preempted. See Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1526

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n.6 (9th Cir. 1995).

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The determinative issue for the instant motion to remand is thus whether Section 301(a)

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preempts plaintiff’s state-law claims. A state-law claim is completely preempted by Section

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301(a) only when application of state law to the claim requires interpretation of a

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collective-bargaining agreement. If a state-law dispute only tangentially involves a provision of a

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union contract, it is not preempted by Section 301(a). These preemption rules “promote the

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peaceable, consistent resolution” of collective-bargaining agreements. Lingle v. Norge Div. of

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Magic Chef, Inc., 486 U.S. 399, 404, 413 n.12 (1988). The complaint itself must require
interpretation of the contract. Preemption does not arise when interpretation is required only by a

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For the Northern District of California

United States District Court

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defense. See Caterpillar Inc. v. Williams, 482 U.S. 386, 398–99 (1987). In short, two things are

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required for preemption: (1) the complaint depends upon a contractual provision subject to more

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than one plausible construction and (2) the claim cannot be resolved on the merits without

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choosing the correct interpretation of the contract and its application to the claim.

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The parties agree that plaintiff’s claims for sexual harassment, sex discrimination, and

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failure to prevent harassment are grounded in state law. The primary issue is whether plaintiff’s

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fourth claim for retaliation requires interpretation of the collective-bargaining agreement between

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Bimbo Bakeries and plaintiff’s union. If so, defendants argue, the claim is preempted by Section

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301 of the Labor Management Relations Act of 1947.

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Plaintiff’s retaliation claim alleges that by changing plaintiff’s route: “Defendant

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retaliated against plaintiff in response to plaintiff’s ongoing opposition towards the illegal

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discrimination and harassment occurring in the workplace against her. Defendant retaliated in

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response to plaintiff’s request that Defendant take action to prevent the discrimination and

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harassment from continuing to occur” (Compl. ¶ 64).

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On its face, plaintiff’s complaint does not present a federal question because it presents a

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state law cause of action and makes no reference to the collective-bargaining agreement.

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Defendants argue, however, that in order to resolve the retaliation claim, a jury would have to

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interpret Section 12 of the CBA which stated: “Route reorganization and transfers will be done

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because of good faith business reasons and will not be used to retaliate against any employee.”

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Defendants argue that the pleading is “artfully pled” to omit reference to the CBA and that

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removal is proper because plaintiff’s retaliation claim is “substantially dependent upon

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interpretation of the collective bargaining agreement” (Opp. 4). Relying on Olguin v. Inspiration

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Consolidated Copper Co., defendants state that even if plaintiff’s claim does not evoke a federal

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question on its face, the Court may still determine that plaintiff is “in reality” pursuing violations

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of the agreement. 740 F.2d 1468, 1470 (9th Cir. 1984). Olguin holds that where, as here, the

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CBA provides for arbitration as the exclusive remedy for employee grievances, “employees
frequently attempt to avoid federal law by basing their complaint on state law, disclaiming any

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For the Northern District of California

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reliance on the provisions of the collective bargaining agreement.” Id. at 1472.

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To determine whether a complaint is artfully pleaded, the Court may, in addition to

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considering the facts in the complaint, “look elsewhere to ascertain facts that would appear in a

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‘well pleaded’ complaint.” Id. at 1473. No such facts exist here, however. The mere existence

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of a collective-bargaining agreement does not compel preemption of plaintiff’s state-law

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retaliation claim. “When the meaning of the terms of a collective bargaining agreement are not

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disputed, the mere fact that a collective bargaining agreement will be consulted in the course of

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state law litigation does not require preemption.” Niehaus v. Greyhound Lines, Inc., 173 F.3d

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1207, 1212 (9th Cir. 1999).

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Defendants argue that parties cannot use jury trials in state court to side-step or alter the

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negotiated terms of a labor contract (Opp. 6). This order finds that plaintiff is not “side-stepping”

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the CBA, because the retaliation claim can be adjudicated without interpreting the CBA. The

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retaliation claim is an independent claim that does not rely upon the CBA. As Lingle v. Norge

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held:

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[E]ven if dispute resolution[]pursuant to a collective-bargaining agreement, on the
one hand, and state law, on the other, would require addressing precisely the same
set of facts, as long as the state-law claim can be resolved without interpreting the
agreement itself, the claim is “independent” of the agreement for § 301
pre-emption purposes.
486 U.S. at 4009–10. So too here.
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Defendants argue that plaintiff’s claim turns on Bimbo’s alleged failure to act with good

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faith business reasons and thus resolution of the issue requires interpretation of Section 12 and

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“review of the overall organization plan of early 2009” (Opp. 9). This argument fails.

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Plaintiff must prove retaliation. To answer this charge, defendants may try to show non-

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retaliatory motives, such as a good-faith business reason. This could be done (and would be an

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expected litigation avenue) whether or not the CBA referenced such a notion. Plaintiff’s

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retaliation claim is anchored in California state law that is independent of the CBA. No CBA can

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immunize conduct that is illegal under state law. See Ramirez, 998 F.2d at 749.

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Audette v. International Longshoremen’s and Warehousemen’s Union is distinguishable.
195 F.3d 1107 (9th Cir. 1999). In Audette, plaintiff union employees alleged a settlement

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For the Northern District of California

United States District Court

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agreement between their union and employer was breached in retaliation and based on gender

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discrimination. The court held the claims were preempted because determining whether the

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settlement agreement was breached would require interpretation of the CBA. The settlement

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agreement provided that the defendants did not need to perform certain terms of the agreement as

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long as they had a legitimate business justification for why performance should not take place.

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Here, there is no such reliance on the union contract. Audette, therefore, does not control.

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Defendants attempt to distinguish the instant action from Miller v. AT & T Network

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Systems on the grounds that “no contract terms are described in Miller” (Opp. 9). 850 F.2d 543

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(9th Cir. 1988). This minor distinction cannot turn the tide.

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Defendants also cite several non-binding decisions, none of which this order finds

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persuasive. See Chissie v. Winco Foods, LLC, No. 2:09-cv-02915-MCE-KJM, 2010 WL 580987

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(E.D. Cal. Feb. 12, 2010); Dep’t of Fair Emp’t & Hous. v. Verizon Cal., Inc., 108 Cal. App. 4th

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160 (2003); McGowen v. Nestle Food Co., No. 1:06cv01212 AWI DLB, 2007 WL 173768 (E.D.

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Cal. Jan. 19, 2007).

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Lastly, defendants argue that recent Supreme Court precedent and federal labor policy

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“bolster the case for LMRA preemption.” Defendants base this argument on 14 Penn Plaza LLC

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v. Pyett, 129 S.Ct. 1456 (2009). While previous decisions prevented unions and employers from

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agreeing to arbitrate discrimination claims, Penn Plaza found that a labor contract that clearly and
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unmistakably waived the right to sue in court for statutory violations was enforceable. Id. at

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1474. All true, but our question here is not arbitration vel non but whether plaintiff’s retaliation

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claim can be properly resolved without interpreting the collective-bargaining agreement. This

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order finds that it can. The motion to remand is therefore GRANTED.

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B.

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ATTORNEY’S FEES
Plaintiff’s motion for attorney’s fees and costs in bringing the motion remains. Plaintiff

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requests $1072.50 in attorney’s fees and costs. A district court may grant plaintiff attorney’s fees

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and costs associated with bringing a motion to remand. 28 U.S.C. 1447(c). “[A]bsent unusual

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circumstances, attorney’s fees should not be awarded when the removing party ha[d] an
objectively reasonable basis for removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 136

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For the Northern District of California

United States District Court

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(2005). Plaintiff does not argue that any unusual circumstances exist in the instant action; nor

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does plaintiff argue that the reason for removal was unreasonable. The request for attorney’s fees

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and costs is therefore DENIED.

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CONCLUSION

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The motion to remand is GRANTED. The request for attorney’s fees is DENIED. The

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Clerk shall remand this action to the Superior Court of California, County of Marin.

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IT IS SO ORDERED.

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Dated: April 11, 2011

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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