Coleman v. Southern Wine & Spirits of California, Inc. et al

Filing 32

ORDER by Judge Samuel Conti granting 16 Motion to Dismiss (sclc1, COURT STAFF) (Filed on 8/2/2011)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6
JASON COLEMAN,

7

Plaintiff,

8
v.

10
For the Northern District of California

United States District Court

9

SOUTHERN WINE & SPIRITS OF
CALIFORNIA, INC.; TEAMSTERS LOCAL
853; and BOB STRELLO,

11
12

Defendants.
13

) Case No. 11-501 SC
)
) ORDER RE: SOUTHERN'S
) MOTION TO DISMISS
)
)
)
)
)
)
)
)

14
15

I.

INTRODUCTION
On October 29, 2010, Plaintiff Jason Coleman ("Plaintiff")

16
17

commenced this action in California Superior Court for the County

18

of Alameda against his former employer, Defendant Southern Wine &

19

Spirits of California, Inc. ("Southern"); his labor union,

20

Defendant Teamsters Local 853 ("Union"); and Union's business

21

representative, Defendant Bob Strello ("Strello") (collectively,

22

"Defendants").

23

Union removed this action to federal court on February 2, 2011,

24

alleging that Plaintiff's fifth cause of action against Union and

25

Strello for breach of the duty of fair representation was in fact

26

an artfully pleaded claim under the National Labor Relations Act

27

("NRLA"), 29 U.S.C. § 151.

ECF No. 1 ("Notice of Removal") Ex. A ("Compl.").

See Notice of Removal ¶ 3.1

28
1

Southern joined in the removal.

Id.

Now

1

Southern moves to dismiss the action under Rules 12(b)(1) and (6)

2

of the Federal Rules of Civil Procedure; neither Union nor Strello

3

have joined Southern's Motion.

4

is fully briefed.

5

following reasons, the Court GRANTS Southern's Motion to Dismiss.

ECF No. 16 ("Mot.").

This Motion

ECF Nos. 23 ("Opp'n"), 25 ("Reply").

For the

6
7

II.

BACKGROUND
Plaintiff, a resident of Alameda County, California,

8
9

identifies himself as "an adult Black male."

Compl. ¶ 3.

United States District Court

For the Northern District of California

10

Plaintiff alleges that he entered into an employment contract with

11

Southern on or about July 21, 2004.

12

full-time for Southern as a warehouse worker.

13

also alleges that he entered into a second contract with Union

14

"whereby Union would represent plaintiff in all matters dealing

15

with his employment while employed by Southern and Does 1-50."

16

¶ 15.

17

limited to" a Collective Bargaining Agreement ("CBA").2

Id. ¶ 14.

Plaintiff worked
Id. ¶ 14.

Plaintiff

Id.

Plaintiff alleges that this contract "included but was not
Id.

18

The CBA contains specific provisions that protect Union

19

employees from wrongful termination and that require "just cause"

20

for termination by Southern.

21

generally may not terminate a Union employee absent both just cause

22

and a prior warning notice, it may discharge a Union employee for

23

an act of dishonesty without a prior warning notice.

24

2

25
26
27
28

CBA § 18.2.1.

While Southern

Id.

Southern attached to its Motion the declaration of Tom Passantino
("Passantino"), who identifies himself as the Director of Human
Resources for Southern. Id. ¶ 1. Passantino attaches to his
declaration an exhibit which he declares is the CBA. A court may
generally consider a document outside the complaint when deciding a
motion to dismiss if the complaint specifically refers to the
document and if its authenticity is not questioned. Townsend v.
Columbia Ops., 667 F.2d 844, 848-49 (9th Cir. 1982). Plaintiff does
not challenge the authenticity of the CBA, and the Court considers
it in ruling upon this Motion.
2

1

The CBA contains a non-discrimination clause:

2

The Employer and the Union agree to comply with
applicable Federal and/or State laws to prevent
discrimination
against
any
employee
or
applicant for employment or union membership on
the basis of race, color, creed, sex, sexual
orientation, marital status, age, disability,
pregnancy,
national
origin,
work-related
injuries, [or] Veteran status, as such are
defined by applicable State or Federal Law.

3
4
5
6
7

Id. § 2.3.1.

It also provides an optional mediation process, id. §

8

19.2, and a mandatory arbitration process, id. §§ 19.3-8.

9

provides for final binding arbitration of "disputes and grievances

It

United States District Court

For the Northern District of California

10

arising hereunder involving interpretation or application of the

11

terms of this Agreement, including any statutory or common law

12

claims of sex, race, age, disability or other prohibited

13

discrimination."

14

with respect to such issues and should the parties fail to reach

15

agreement, such dispute shall be submitted to final and binding

16

arbitration to determine an appropriate remedy under applicable law

17

and this Agreement."

18

or group of employees covered herein shall be subject to an

19

individual agreement separate and apart from this Agreement."

20

§ 1.2.1.

21

Id. § 19.1.1.

It states: "Should a dispute arise

Id. § 19.4.4.

It also provides: "No employee

Id.

Plaintiff alleges that one of Southern's work rules required

22

an employee to notify Southern at least one hour before the

23

scheduled start time if he or she was unable to report for work.

24

Compl. ¶ 18.

25

he or she was required to provide a doctor's note.

26

If an employee was unable to work due to an illness,
Id.

Plaintiff alleges that he was absent from work from November
Id. ¶ 21.

When he returned to work, he provided

27

11 to 17 of 2008.

28

a written medical excuse from his medical provider, Kaiser

3

Id. ¶ 22.3

1

Permanente.

However, Southern suspended Plaintiff from

2

work pending an "investigation" for a "No Call, No Show" for

3

November 11, 12, and 13, 2008.

4

investigation, which Plaintiff claims violated his privacy rights,

5

Southern denied his medical excuse on the basis that Plaintiff was

6

merely trying to cover up an incarceration at the county jail.

7

¶ 30.

8

November 11 to 13, 2008, but claims that notwithstanding his

9

incarceration, he was also ill and had been seen by his doctor and

Id. ¶ 24.

After performing this

Plaintiff does not deny that he was incarcerated from

United States District Court

10
For the Northern District of California

Id.

had returned to work with the note required by company policy.

11

¶ 32.

12

"falsification of employee records."

Id.

On November 25, 2008, Plaintiff was terminated for
Id. ¶ 27.

Plaintiff pursued arbitration of his wrongful termination

13

Id. ¶ 29.

Plaintiff alleges that

14

claim as provided in the CBA.

15

Union and Strello assisted Plaintiff with his grievance "in a

16

perfunctory manner," but opted against pursuing arbitration of his

17

wrongful termination claim.

18

unemployment benefits, and was denied on the basis that Southern

19

had reported that Plaintiff had been terminated for an act of

20

dishonesty under the CBA.

Id. ¶ 40.

Plaintiff applied for

Id. ¶¶ 44, 45.

21

Plaintiff claims that Southern's justifications for

22

terminating him were "false and made as a pretext to terminate

23

plaintiff because of his race."

24

Southern revised its reason for terminating Plaintiff multiple

25

times, initially suspending him for a "no call no show," then

26

terminating him for "conspiring with another employee," and

27

subsequently revising the basis of dismissal to "falsification of

28

Id. ¶ 34.

3

He alleges that

Plaintiff attached what he alleges to be the written medical
excuse to his Complaint as Exhibit 3.
4

1

employee records" and later "falsification of time card."

Id.

2

¶¶ 41, 42.

3

employees differently than Black employees, alleging: "Defendants

4

have allowed plaintiff's supervisors to speak to plaintiff's

5

colleagues in a different language other than English, so that

6

plaintiff and other Black employees could not follow their

7

conversations."

8

effect of alienating and ostracizing plaintiff and the other Black

9

employees," and that "[w]rong acts and other behavior of Hispanic

He claims that Southern and Union treated Hispanic

Id. ¶ 26.

Plaintiff alleges that this "had the

United States District Court

For the Northern District of California

10

employees were kept hidden or instantly corrected since Spanish was

11

not spoken by the Black employees."

12

alleges that "Defendants told plaintiff that they used the internet

13

to spy on him" by checking his "personal files with the County of

14

Alameda" to determine his whereabouts.

Id.

Additionally, Plaintiff

Id. ¶¶ 38, 29.

Plaintiff brings fourteen causes of action.

15

First, against

16

Southern, he alleges discrimination based on race.

17

Second, against all Defendants, he alleges violation of article I,

18

section 8 of the California Constitution4, alleging Defendants

19

"willfully and intentionally preferred a predominant Hispanic and

20

other non-Black workforce," and "granted preferential treatment to

21

Hispanics and other non-Blacks in the hiring, management and

22

enforcement of policies and procedures."

23

against Union and Strello, he alleges discrimination based on race.

24

Id. ¶¶ 67-77.

Fourth, against Southern, he alleges retaliation.

25

Id. ¶¶ 78-80.

Fifth, against Union and Strello, he alleges breach

26

of the duty of fair representation, alleging that Union and Strello

27
28

4

Id. ¶¶ 51-59.

Id. ¶¶ 52- 66.

Third,

Article I, section 8 of the California Constitution provides: "A
person may not be disqualified from entering or pursuing a
business, profession, vocation, or employment because of sex, race,
creed, color, or national or ethnic origin."
5

1

had failed to honor "an obligation under the CBA to fairly

2

represent plaintiff with respect to process any grievances under

3

the CBA."

4

of contract, claiming Union failed to pursue arbitration on behalf

5

of Plaintiff as provided in the CBA.

6

alleges breach of fiduciary obligation, alleging Union owed

7

Plaintiff "a contractual and fiduciary duty for full and adequate

8

representation," and that Union breached that duty by failing to

9

"pursue and/or represent Plaintiff in his wrongful termination

Id. ¶¶ 81-86.

Seventh, against Union, he

United States District Court

10
For the Northern District of California

Id. ¶¶ 93, 94.

Sixth, against Union, he alleges breach

claim."

11

alleges "fraud/misrepresentation," claiming they "made

12

representations, promises, material omissions and conducted

13

themselves in a deceptive manner" and "misrepresent[ed] the true

14

reason of Defendants termination of Plaintiff."

15

Ninth, against Southern, Plaintiff alleges wrongful termination "in

16

violation of well-established public policies, as set forth in

17

various statutes and Constitutional provisions including, but not

18

limited to, [California] Government Code § 12940, § 12948, [and] §

19

12926."

20

brings a claim for intentional infliction of emotional distress

21

("IIED").

22

Plaintiff brings a claim for negligent infliction of emotional

23

distress ("NIED").

24

Plaintiff brings a defamation claim, alleging that "Defendants made

25

public false and unprivileged oral and written statements of and

26

concerning plaintiff" that damaged Plaintiff.

27

Thirteenth, against all Defendants, Plaintiff alleges invasion of

28

privacy, claiming Defendants made "public, false and unprivileged

Id. ¶ 103.

Eighth, against Southern and Union, he

Id. ¶¶ 98, 99.

Tenth, against all Defendants, Plaintiff

Id. ¶¶ 107-12.

Eleventh, against all Defendants,

Id. ¶ 113-17.

Twelfth, against all Defendants,

6

Id. ¶¶ 118-23.

to injure plaintiff in respect to his profession by imputing him

3

general disqualifications and characteristics that employment

4

requires."

5

that he falsified employment and time records as such a statement.

6

Id.

7

"invasion of privacy -- false light," alleging that Southern

8

published information about Plaintiff which was "without merit and

9

false in its context," which "led to the recipients of the

10

United States District Court

oral and/or written statements that directly injured and continues

2

For the Northern District of California

1

information to assume false conclusions about plaintiff."

11

133.

12

Id. ¶ 126.

Plaintiff identifies Southern's statement

Finally, against Southern, Plaintiff brings a claim for

Id. ¶

Southern moves to dismiss all of Plaintiff's claims as

13

preempted by section 301 of the Labor Management Relations Act

14

("LMRA") or, alternatively, as insufficiently pleaded under Twombly

15

and Iqbal.

See Mot.

16
17

III. LEGAL STANDARD

18

A.

Rule 12(b)(1)

19

When a defendant submits a motion to dismiss under Federal

20

Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of

21

establishing the propriety of the court's jurisdiction.

22

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

23

court of limited jurisdiction, "[a] federal court is presumed to

24

lack jurisdiction in a particular case unless the contrary

25

affirmatively appears."

26

873 F.2d 1221, 1225 (9th Cir. 1989).

27

jurisdictional attack may be facial or factual.

28

F.3d 1214, 1242 (9th Cir. 2000) (citation omitted).

See
As a

Stock West, Inc. v. Confederated Tribes,

7

A Rule 12(b)(1)
White v. Lee, 227
In a facial

1

attack, the defendant challenges the basis of jurisdiction as

2

alleged in the complaint; however, in a factual attack, the

3

defendant may submit, and the court may consider, extrinsic

4

evidence to address factual disputes as necessary to resolve the

5

issue of jurisdiction, and no presumption of truthfulness attaches

6

to the plaintiff's jurisdictional claims.

7

Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Thornhill Pub. Co. v.

8

Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

9

United States District Court

For the Northern District of California

10

B.

Safe Air for Everyone v.

Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure

11

12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

12

Block, 250 F.3d 729, 732 (9th Cir. 2001).

13

on the lack of a cognizable legal theory or the absence of

14

sufficient facts alleged under a cognizable legal theory.

15

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

16

1990).

17

should assume their veracity and then determine whether they

18

plausibly give rise to an entitlement to relief."

19

Iqbal, 129 S. Ct. 1937, 1950 (2009).

20

court must accept as true all of the allegations contained in a

21

complaint is inapplicable to legal conclusions.

22

recitals of the elements of a cause of action, supported by mere

23

conclusory statements, do not suffice."

24

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

25

allegations made in a complaint must be both "sufficiently detailed

26

to give fair notice to the opposing part of the nature of the claim

27

so that the party may effectively defend against it" and

28

sufficiently plausible such that "it is not unfair to require the

Dismissal can be based

"When there are well-pleaded factual allegations, a court

8

Ashcroft v.

However, "the tenet that a

Threadbare

Iqbal, 129 S. Ct. at 1950
The

1

opposing party to be subjected to the expense of discovery."

2

Starr

v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011).

3
4

IV.

DISCUSSION
Of the fourteen causes of action pleaded in the Complaint, ten

5
6

are brought against Southern: discrimination based on race;

7

violation of article I, section 8 of the California Constitution;

8

retaliation; fraud/misrepresentation; wrongful termination; IIED;

9

NIED; defamation; invasion of privacy; and invasion of privacy -See Compl.

Southern argues that all should be

United States District Court

For the Northern District of California

10

false light.

11

dismissed with prejudice as preempted by section 301 of the LMRA

12

or, alternatively, dismissed as insufficiently pleaded under

13

Twombly and Iqbal.

14

A.

Failure to State a Claim

15

Southern argues that none of Plaintiff's claims are pleaded

16

with the specificity required by Twombly and Iqbal.

17

possible exception of Plaintiff's discrimination and wrongful

18

termination claims, the Court agrees.

19

retaliation, Plaintiff does not identify the protected activity he

20

engaged in that caused Southern to retaliate.5

21

together a series of legal conclusions: he claims that he suffered

22

injury "[a]s a direct and proximate result of the retaliation and

23

discrimination perpetrated against plaintiff by defendants," and

24

claims that punitive damages are appropriate because "Defendants

With the

In pleading a claim for

Instead, he strings

25
26
27
28

5

The elements of the claim for retaliation are "(1) the employee's
engagement in a protected activity, that is, opposing any practices
forbidden under the statute; (2) retaliatory animus on the part of
the employer; (3) an adverse action by the employer; (4) a causal
link between the retaliatory animus and the adverse action; (5)
damages; and (6) causation." Mamou v. Trendwest Resorts, Inc., 165
Cal. App. 4th 686, 713 (Ct. App. 2008).
9

1

acted fraudulently, maliciously, and oppressively with the intent

2

to injure plaintiff."

3

"fraud/misrepresentation" is devoid of facts that would support a

4

plausible claim against Southern; furthermore, as a claim sounding

5

in fraud, this claim is subject to -- and fails to satisfy -- the

6

heightened pleading standard of Federal Rule of Civil Procedure

7

9(b).

8

promises, material omissions and conducted themselves in a

9

deceptive manner," but fails to identify who made these statements

Compl. ¶¶ 78- 80.

Plaintiff's claim for

Plaintiff states: "Defendants made representations,

United States District Court

For the Northern District of California

10

or omissions, what made them false, or when they were made.

In

11

bringing IIED and NIED claims, Plaintiff states Southern's actions

12

in terminating his employment were "extreme and outrageous" without

13

providing facts to support this legal conclusion.

14

defamation and two invasion-of privacy claims, Plaintiff states,

15

"Defendants made public false and unprivileged oral and written

16

statements of and concerning plaintiff," but does not identify

17

these allegedly damaging statements, the individuals who made them,

18

or the parties to whom they were communicated.

In pleading his

Plaintiff's Complaint must give Southern fair notice of the

19
20

nature of the claim so that Southern can effectively defend against

21

it.

22

improper pleading generally only justifies dismissal with leave to

23

amend and preemption under section 301 of the LMRA is a basis for

24

dismissal with prejudice, the Court continues its analysis below.

25

///

26

///

27

///

28

///

Starr, 633 F.3d at 1204.

It fails to do this.

10

Because

1

B.

Preemption

2

Southern argues that Plaintiff's claims are preempted by

3

section 301 of the LMRA.6

4

include an express statutory preemption provision, the Supreme

5

Court has long held that section 301(a) preempts state law to

6

ensure Congress's goal of creating a uniform doctrine of federal

7

labor law.

8

This preemptive effect "extend[s] beyond suits alleging contract

9

violations."

Mot. at 4.

While the LMRA does not

Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962).

Allis-Chalmers Corp. v Lueck, 471 U.S. 202, 210

United States District Court

For the Northern District of California

10

(1985).

This ensures that the LMRA "will be frustrated neither by

11

state laws purporting to determine questions relating to what the

12

parties to a labor agreement agreed . . . . nor by parties' efforts

13

to renege on their arbitration promises by relabeling as tort suits

14

actions simply alleging breaches of duties assumed in collective-

15

bargaining agreements."

16

(1994) (internal quotation marks and citation omitted).

Livadas v. Bradshaw, 512 U.S. 107, 122–23,

To determine if a claim is preempted under section 301, a

17
18

court must first determine whether the cause of action involves a

19

right conferred upon an employee by virtue of a CBA.

20

v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).7

21

"[S]tate-law rights and obligations that do not exist independently

See Burnside

22
23
24
25
26
27
28

6

Southern argues that this supports dismissal under Rule 12(b)(1)
for lack of subject matter jurisdiction. The Court finds this
argument perplexing; Southern cites no law supporting its argument
that federal preemption is a jurisdictional matter. As such, the
Court evaluates Southern's argument under Rule 12(b)(6), and
determines whether, in light of federal preemption, Plaintiff has
failed to state a claim upon which relief can be granted.
7

The Ninth Circuit in Burnside characterized this as a "two-step"
analysis. Id. As the Court will discuss, in 14 Penn Plaza LLC v.
Pyett, 129 S. Ct. 1456 (2009), the Supreme Court subsequently
abrogated Allis-Chalmers Corp. v Lueck, 471 U.S. 202 (1985),
effectively adding an intermediary step between these two steps.
11

1

of private agreements, and that as a result can be waived or

2

altered by agreement of private parties, are pre-empted."

3

Chalmers, 471 U.S. at 213.

4

the court must determine whether the CBA identifies the claim and

5

contains a provision that clearly and unmistakably requires its

6

binding arbitration.

7

1474 (2009).

8

right, the Court lacks jurisdiction to hear the claim.

9

right is neither conferred by the CBA nor subject to binding

Allis-

If a right is not conferred by the CBA,

14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456,

If so, absent an effective waiver of the arbitration
Id.

If the

United States District Court

For the Northern District of California

10

arbitration, the court must determine whether the cause of action

11

is "substantially dependent on analysis of a collective-bargaining

12

agreement."

13

v. Williams, 482 U.S. 386, 394 (1987)).

14

court to "interpret," rather than merely "look to," the CBA, then

15

the claim is substantially dependent on the CBA and is preempted by

16

section 301(a).

17
18

1.

Burnside, 491 F.3d at 1059 (quoting Caterpillar, Inc.
If the claim requires the

See id. at 1060.
Claims Involving a Right Conferred by the CBA

Because of the pleading deficiencies in Plaintiff's Complaint,

19

it is difficult for the Court to determine, at this juncture,

20

whether Plaintiff's claims involve rights conferred by the CBA.

21

the extent that Plaintiff alleges that he was denied the benefits

22

of the CBA -- such as by alleging that Southern terminated him

23

absent just cause or without regard for the procedure provided for

24

in the CBA -- Plaintiff's claims are preempted.

25

however, that none of Plaintiff's claims involve rights conferred

26

upon Plaintiff by the CBA -- his racial discrimination,

27

retaliation, fraud, defamation, and invasion of privacy claims

28

could possibly be raised even if no CBA existed.

12

To

It appears,

As such, the

1

Court tentatively finds that, as currently pleaded, none of

2

Plaintiff's claims involve a right conferred by the CBA.

3
4

2.

Claims Subject to Binding Arbitration

Southern argues that Plaintiff's retaliation, wrongful

5

termination, and two discrimination claims should be dismissed

6

because the CBA contains a provision requiring arbitration of such

7

claims, citing Pyett.

8

that "a collective-bargaining agreement that clearly and

9

unmistakably requires union members to arbitrate ADEA claims is

Mot. at 6.

In Pyett, the Supreme Court held

United States District Court

For the Northern District of California

10

enforceable as a matter of federal law."

11

noted that the Second Circuit had wrongly interpreted its opinion

12

in Alexander v. Gardner-Denver Co., 415 U.S. 36, 58 (1974) to

13

forbid the enforcement of CBAs requiring arbitration of statutory

14

rights related to equal employment opportunities.

15
16
17
18
19
20

129 S. Ct. at 1474.

It

Id. at 1466-67.

Here, the CBA provides:
It is the desire of both parties to this
Agreement that disputes and grievances arising
hereunder
involving
interpretation
or
application of the terms of this Agreement,
including any statutory or common law claims of
sex, race, age, disability or other prohibited
discrimination, shall be settled amicably or if
necessary, by final and binding arbitration as
set forth herein.

21

Id. § 19.1.1 (emphasis added).

The Court finds that this language

22

clearly and unmistakably requires arbitration of Plaintiff's claims

23

premised on racial discrimination.

24

discrimination claim and claim under article I, section 8 of the

25

California Constitution are preempted.

26

Plaintiff's retaliation and wrongful termination claims are

27

premised on Southern's alleged discrimination on the basis of race,

28

these claims are also preempted.

13

As such, Plaintiff's racial

To the extent that

1

Plaintiff makes four arguments that Pyett should not apply:

2

(1) Plaintiff is no longer an employee of Southern; (2) Plaintiff

3

sought arbitration and Union refused to represent him in

4

arbitration proceedings; (3) Pyett concerned a violation of ADEA

5

rather than state law claims of race discrimination; and (4)

6

Plaintiff was "intentionally prevented from exercising and

7

protecting his rights."

8
9

Opp'n at 7.

As to Plaintiff's first argument, Plaintiff cites no law that
suggests his termination from employment with Southern frees him

United States District Court

For the Northern District of California

10

from his obligations under the CBA.

11

that he sought arbitration and was refused -- is considered and

12

rejected in Pyett.

13

control over the manner and extent to which an individual grievance

14

is presented" and the possibility that "a union may subordinate the

15

interests of an individual employee to the collective interests of

16

all employees in the bargaining unit."

129 S. Ct. at 1472 (citing

17

Gardner-Denver, 415 U.S. at 58, n.19).

The Court determined that

18

this potential conflict of interest did not render arbitration

19

provisions unenforceable, and noted a union's decision to not

20

pursue a grievance on behalf of one of its members for

21

discriminatory reasons could give rise to an action under the NLRA

22

by the employee against the union.

23

Plaintiff's second argument --

The Court acknowledged "the union's exclusive

Id. at 1473.

Third, Plaintiff's argument that Pyett in inapposite because
While Pyett concerns a

24

it concerns an ADEA claim lacks merit.

25

claim of age discrimination rather than racial discrimination, it

26

clearly and unequivocally limited the Court's earlier decision in

27

Gardner-Denver forbidding enforcement of provisions requiring the

28

arbitration of an employee's statutory claims under the Civil

14

1

Rights Act.

Id.

The Court distinguished its holding from the

2

holding of Gardner-Denver on the grounds that the CBA in that

3

action did not "expressly reference" the statutory claim at issue,

4

whereas the CBA in Pyett "clearly and unmistakably" provided for

5

arbitration of ADEA claims.

6

Gardner-Denver and its progeny: "Since the employees there had not

7

agreed to arbitrate their statutory claims, and the labor

8

arbitrators were not authorized to resolve such claims, the

9

arbitration in those cases understandably was held not to preclude

Id. at 1468.

The Court wrote of

United States District Court

For the Northern District of California

10

subsequent statutory actions."

11

Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991)).

12

Id. (citing Gilmer v.

Finally, Plaintiff cites no law -- and makes no colorable

13

argument -- that Pyett is inapposite due to his allegation that

14

Southern and Union "intentionally prevented [him] from exercising

15

and protecting his rights."

16

For these reasons, the Court finds that all of Plaintiff's

17

claims concerning racial discrimination on the part of Southern are

18

subject to binding arbitration.

19

PREJUDICE Plaintiff's first claim for discrimination based on race;

20

second claim for violation of Article I, section 8 of the

21

California Constitution; fourth claim for retaliation; and ninth

22

claim for wrongful termination in violation of public policy.

23
24

3.

As such, the Court DISMISSES WITH

Claims Requiring Interpretation of the CBA

Southern argues that all of Plaintiff's claims are preempted

25

"because they are based on Southern's investigation and termination

26

of Plaintiff," and thus "depend wholly upon an interpretation of

27

what investigatory and disciplinary actions Defendant was

28

authorized to take under the CBA."

15

Mot. at 4.

As stated supra, the Plaintiff's claims are too poorly pleaded

1
2

to determine if interpretation of the CBA is required.

However,

3

the Court determines that the bulk of Plaintiff's claims are

4

extremely susceptible to preemption on this ground.

5

that Plaintiff's claims are premised on Southern's actions in

6

investigating Plaintiff's absence and terminating his employment,

7

they require interpretation of the CBA and are preempted.

8

Newberry v. Pac. Racing Ass'n, 854 F.2d 1142, 1149-50 (9th Cir.

9

1988) (preempting plaintiff's emotional distress claim arising out

To the extent

See

United States District Court

For the Northern District of California

10

of her discharge and employer's conduct in the investigation

11

leading up to it).

12

premised on Southern's investigation and subsequent termination of

13

Plaintiff.

14

his privacy by investigating his absence, such a claim would be

15

preempted.

16

made in accordance with the investigation and termination, his

17

claim is likely preempted.

18

F.2d 536, 538-39 (9th Cir. 1987).

Many of Plaintiff's claims appear to be

For example, if Plaintiff alleges that Southern invaded

If Plaintiff's defamation claim concerns statements

See Tellex v. Pac. Gas & Elec. Co., 817

As such, the Court DISMISSES, WITHOUT PREJUDICE, the remaining

19
20

claims against Southern.

Plaintiff is granted thirty (30) days

21

leave to amend his complaint.

22

complaint within this time frame, the Court will dismiss all claims

23

against Southern WITH PREJUDICE and dismiss Southern from this

24

action.

25

Union and Strello.

26

///

27

///

28

///

Should Plaintiff fail to amend his

This Order leaves untouched Plaintiff's claims against

16

1

V.

CONCLUSION
For the above reasons, the Court GRANTS Defendant Southern

2
3

Wine & Spirits of California, Inc.'s Motion to Dismiss, DISMISSING

4

Plaintiff Jason Coleman's claims against Southern as follows:

5

•

Plaintiff's first claim for discrimination based on race;

6

second claim for violation of Article I, section 8 of the

7

California Constitution; fourth claim for retaliation; and

8

ninth claim for wrongful termination in violation of public

9

policy are DISMISSED WITH PREJUDICE.

United States District Court

For the Northern District of California

10
11

•

Plaintiff's remaining claims against Southern are DISMISSED
WITH LEAVE TO AMEND.

12
13

IT IS SO ORDERED.

14
15
16

Dated:

August 2, 2011
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28

17