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

Filing 44

ORDER by Judge Samuel Conti granting 38 Motion to Dismiss (sclc1, COURT STAFF) (Filed on 11/14/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JASON COLEMAN, Plaintiff, v. 10 For the Northern District of California United States District Court 9 11 12 SOUTHERN WINE & SPIRITS OF CALIFORNIA, INC.; TEAMSTERS LOCAL 853; and BOB STRELO, 13 Defendants. 14 ) Case No. 11-00501 SC ) ) ORDER GRANTING DEFENDANTS' ) MOTION TO DISMISS ) ) ) ) ) ) ) ) 15 16 I. INTRODUCTION Now before the Court is Defendants Teamsters Local 853 17 18 ("Union") and Bob Strelo's ("Strelo") (collectively, "Defendants") 19 Motion to Dismiss Plaintiff Jason Coleman's ("Coleman") First 20 Amended Complaint ("FAC"). 21 made pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules 22 of Civil Procedure and is fully briefed. 23 ("Reply"). 24 Defendants' Motion to Dismiss WITHOUT LEAVE TO AMEND. 25 /// 26 /// 27 /// 28 /// ECF No. 38 ("Mot."). The Motion is ECF Nos. 40 ("Opp'n"), 41 For the reasons set forth below, the Court GRANTS 1 II. BACKGROUND 2 A. Factual Background 3 As it must on a Rule 12(b)(6) motion to dismiss, the Court 4 takes all well pleaded factual allegations as true. 5 resident of Alameda County, California, identifies himself as "an 6 adult Black male." 7 that he entered into an employment contract with Southern Wine & 8 Spirits of California, Inc. ("Southern") on or about July 21, 2004. 9 Id. ¶ 14. ECF No. 35 ("FAC") ¶¶ 3-4. Plaintiff, a Plaintiff alleges Plaintiff worked full-time for Southern as a warehouse United States District Court For the Northern District of California Id. Plaintiff alleges that he entered into a second 10 worker. 11 contract with Union "whereby Union would represent plaintiff in all 12 matters dealing with his employment while employed by Southern and 13 Does 1-50." 14 employment, Union and Strelo, a Union representative, promised 15 Plaintiff that they would assist with mediating and/or arbitrating 16 employment issues between Plaintiff and Southern. 17 Plaintiff alleges that his Union contract "included but was not 18 limited to" a Collective Bargaining Agreement ("CBA"). Id. ¶ 15. Plaintiff alleges that, throughout his Id. ¶¶ 8, 20. Id. ¶ 15. Plaintiff alleges that one of Southern's work rules required 19 20 an employee to notify Southern at least one hour before the 21 scheduled start time if he or she was unable to report for work. 22 Id. ¶ 18. 23 or she was required to provide a doctor's note. If an employee was unable to work due to an illness, he Id. Plaintiff alleges that he was absent from work from November 24 25 11 to 17 of 2008. 26 a written medical excuse from his medical provider, Kaiser 27 Permanente. 28 Id. ¶ 21. Id. ¶¶ 22, 25.1 When he returned to work, he provided Plaintiff's supervisor allegedly told 1 Plaintiff attached what he alleges to be the written medical excuse to his FAC as Exhibit 3. 2 1 several of Plaintiff's co-workers that Plaintiff was a "liar" and 2 that his medical excuse was a ruse. 3 Plaintiff's absence, Southern's human resource director allegedly 4 told co-workers that he was incarcerated and encouraged them to "go 5 online" to see for themselves. 6 Id. ¶ 26. Further, during Id. ¶ 24. Southern suspended Plaintiff from work pending an 7 "investigation" for a "No Call, No Show" for November 11, 12, and 8 13, 2008. 9 Plaintiff claims violated his privacy rights, Southern denied his Id. ¶ 27. After performing this investigation, which United States District Court For the Northern District of California 10 medical excuse on the basis that Plaintiff was merely trying to 11 cover up an incarceration at the county jail. 12 Plaintiff does not deny that he was incarcerated from November 11 13 to 13, 2008, but claims that notwithstanding his incarceration, he 14 was also ill and had been seen by his doctor and had returned to 15 work with the note required by company policy. 16 November 25, 2008, Plaintiff was terminated for "falsification of 17 employee records." 18 Id. ¶¶ 29-30. Id. ¶ 25. On Id. ¶ 30. Plaintiff initially sought arbitration as provided in the CBA. 19 Id. ¶¶ 31, 38. Plaintiff alleges that Union and Strelo assisted 20 Plaintiff with his grievance "in a perfunctory manner," but opted 21 against pursuing arbitration. 22 unemployment benefits, and was denied on the basis that Southern 23 had reported that Plaintiff had been terminated for an act of 24 dishonesty under the CBA. Id. ¶ 38. Plaintiff applied for Id. ¶¶ 42-43. 25 Plaintiff claims that Southern's justifications for 26 terminating him were "false and made as a pretext to terminate 27 plaintiff because of his race." 28 Southern revised its reason for terminating Plaintiff multiple Id. ¶ 34. 3 He alleges that 1 times, initially suspending him for a "no call no show," then 2 terminating him for "conspiring with another employee," and 3 subsequently revising the basis of dismissal to "falsification of 4 employee records" and later "falsification of time card." 5 ¶¶ 38, 39. 6 employees differently than Black employees, alleging: "Hispanic 7 employees . . . have both been convicted of felonies and absence 8 from a scheduled work shift without suffering any penalty and 9 certainly not the loss of position at Southern." Id. He claims that Southern and Union treated Hispanic Id. ¶ 35. United States District Court For the Northern District of California 10 Additionally, Plaintiff alleges that "Defendants told plaintiff 11 that they used the internet to spy on him" by checking his 12 "personal files with the County of Alameda" to determine his 13 whereabouts. 14 B. 15 On October 29, 2010, Plaintiff commenced this action in 16 California Superior Court for the County of Alameda against Union, 17 Strelo, Southern, and Does 1 through 50. 18 Removal") Ex. A ("Compl."). 19 court on February 2, 2011, alleging that Plaintiff's claim against 20 Union and Strelo for breach of the duty of fair representation was 21 in fact an artfully pleaded claim under the National Labor 22 Relations Act ("NRLA"), 29 U.S.C. § 151. 23 Id. ¶ 36. Procedural History ECF No. 1 ("Not. of Union removed this action to federal See Not. of Removal ¶ 2. On April 26, 2011, Southern moved to dismiss the claims in the 24 Complaint brought against it. ECF No. 16 ("Southern MTD"). 25 Neither Union nor Strelo joined in the motion. 26 granted Southern's motion to dismiss on August 2, 2011, granting 27 Plaintiff leave to amend some of his claims against Southern. 28 No. 32 ("Aug. 2, 2011 Order") at 17. 4 Id. The Court The Court found that the ECF 1 Complaint failed to give Southern fair notice of Plaintiff's claims 2 against it and that all of Plaintiff's claims concerning racial 3 discrimination on the part of Southern were barred as they were 4 subject to binding arbitration. Id. at 10, 15. On September 1, 2011, Plaintiff filed his FAC, asserting ten 5 6 claims for relief. About two months later, Plaintiff stipulated to 7 the dismissal of his claims against Southern. 8 claims remain against Union and/or Strelo: 9 violation of Article I, Section 8 of the California Constitution ECF No. 43. Seven (1) claim one for United States District Court For the Northern District of California 10 ("Article I, § 8") against Union and Strelo, (2) claim two for 11 discrimination based on race against Union and Strelo, (3) claim 12 three for breach of duty of fair representation against Union and 13 Strelo, (4) claim four for breach of contract against Union, (5) 14 claim five for breach of fiduciary obligation against Union, (6) 15 claim nine for intentional infliction of emotional distress against 16 Union and Strelo, and (7) claim ten for negligent infliction of 17 emotional distress against Union. 18 brief, Plaintiff asks the Court to read into the FAC a claim under 19 42 U.S.C. § 1981 ("Section 1981 claim"). Additionally, in his opposition Now Union and Strelo move to dismiss all claims brought 20 21 against them, with the exception of claim three against Union.2 22 their reply brief, they also urge the Court not to allow Plaintiff 23 to avoid dismissal based on a Section 1981 claim that was not 24 specifically pleaded in the FAC. 25 /// 26 /// 27 /// 28 2 Defendants have moved to dismiss claim three against Strelo. 5 In 1 III. LEGAL STANDARD 2 A. Rule 12(b)(1) 3 When a defendant submits a motion to dismiss under Federal 4 Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of 5 establishing the propriety of the court's jurisdiction. 6 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 7 court of limited jurisdiction, "[a] federal court is presumed to 8 lack jurisdiction in a particular case unless the contrary 9 affirmatively appears." See As a Stock West, Inc. v. Confederated Tribes, United States District Court For the Northern District of California 10 873 F.2d 1221, 1225 (9th Cir. 1989). A Rule 12(b)(1) 11 jurisdictional attack may be facial or factual. 12 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). 13 attack, the defendant challenges the basis of jurisdiction as 14 alleged in the complaint; however, in a factual attack, the 15 defendant may submit, and the court may consider, extrinsic 16 evidence to address factual disputes as necessary to resolve the 17 issue of jurisdiction, and no presumption of truthfulness attaches 18 to the plaintiff's jurisdictional claims. 19 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Thornhill Pub. Co. v. 20 Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). White v. Lee, 227 In a facial Safe Air for Everyone v. 21 B. Rule 12(b)(6) 22 A motion to dismiss under Federal Rule of Civil Procedure 23 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. 24 Block, 250 F.3d 729, 732 (9th Cir. 2001). 25 on the lack of a cognizable legal theory or the absence of 26 sufficient facts alleged under a cognizable legal theory." 27 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 28 1988). "Dismissal can be based "When there are well-pleaded factual allegations, a court 6 1 should assume their veracity and then determine whether they 2 plausibly give rise to an entitlement to relief." 3 Iqbal, 129 S. Ct. 1937, 1950 (2009). 4 court must accept as true all of the allegations contained in a 5 complaint is inapplicable to legal conclusions. 6 recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice." 8 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 9 in a complaint must be both "sufficiently detailed to give fair Ashcroft v. However, "the tenet that a Threadbare Id. (citing Bell Atl. The allegations made United States District Court For the Northern District of California 10 notice to the opposing party of the nature of the claim so that the 11 party may effectively defend against it" and "sufficiently 12 plausible" such that "it is not unfair to require the opposing 13 party to be subjected to the expense of discovery." 14 633 F.3d 1191, 1204 (9th Cir. 2011). Starr v. Baca, 15 16 17 IV. DISCUSSION Union and Strelo argue that claim one fails because Article 1, 18 § 8 does not apply to their conduct; claim two fails because the 19 Court lacks subject matter jurisdiction; claim three fails as to 20 Strelo because union officers and employees are not liable for the 21 duty of fair representation; and claims four, five, nine, and ten 22 are preempted by federal labor law. 23 to meaningfully respond to any of these arguments. 24 has not spent a great deal of time addressing Defendant's Motion, 25 neither will the Court. Mot. at 7-12. Plaintiff fails As Plaintiff 26 A. 27 In his first claim for relief, Plaintiff alleges that the 28 Article 1, § 8 of the California Constitution (Claim One) Union and Strelo violated Article 1, § 8 by "grant[ing] 7 1 preferential treatment to Hispanics and non-Blacks in the 2 management and enforcement of policies and procedures" and by 3 refusing to aid Plaintiff in arbitration even though "they had 4 arbitrated more serious issues for many non-Black union members." 5 FAC ¶¶ 49, 51. 6 7 8 9 Article I, § 8 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. Cal. Const. art. I, § 8. As Defendants argue, this provision only United States District Court For the Northern District of California 10 applies in cases where a plaintiff has been denied entrance into a 11 profession or has been terminated from the same, but does not apply 12 to claims of harassment or discriminatory treatment. 13 v. Southern Cal. Permanente Medical Group, 79 F.3d 859, 872-873 14 (9th Cir. 1996). 15 to terminate or disqualify Plaintiff from his employment, Plaintiff 16 cannot state a claim against them under Article I, § 8. 17 Accordingly, Plaintiff's first claim is DISMISSED as to Union and 18 Strelo. 19 B. 20 As to Plaintiff's second claim for discrimination based on See Strother As neither the Union nor Strelo had the authority Discrimination Based on Race (Claim Two) 21 race, Plaintiff alleges that Union and Strelo violated the 22 California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code 23 § 12940, by: allowing Southern to impose harsher disciplinary 24 standards on him; carelessly and perfunctorily processing his 25 grievance against Southern; imposing harsher standards of 26 representation on him than similarly situated Hispanics and other 27 employees; and "causing a predominate Hispanic and other workforce 28 to persist at Southern." FAC ¶¶ 59, 60, 64. 8 Under FEHA, a plaintiff must exhaust his or her administrative 1 2 remedies by filing a complaint with a state investigatory agency 3 before bringing a civil suit. 4 High Sch. Dist., 47 Cal. App. 4th 1505, 1509-1510 (Cal. Ct. App. 5 1996). 6 requirements, a court lacks jurisdiction to hear the case. 7 Miller v. United Airlines, 174 Cal. App. 3d 878, 890 (Cal. Ct. App. 8 1985). 9 Plaintiff's FEHA claim because he does not allege that he has See Cole v. Antelope Valley Union Where a plaintiff fails to satisfy these procedural See Defendants argue that the Court lacks jurisdiction over United States District Court For the Northern District of California 10 satisfied the administrative exhaustion requirement. Mot. at 8-9. 11 The Court agrees and DISMISSES Plaintiff's second claim for 12 discrimination based on race. 13 C. Duty of Fair Representation (Claim Three) 14 In his third claim, Plaintiff alleges that Union and Strelo 15 violated their duty under the CBA to fairly represent Plaintiff 16 with respect to processing grievances under the CBA. 17 Defendants move to dismiss this claim as to Strelo only. 18 9. 19 individual officers, employees, and members of a union cannot be 20 held liable for breaches of fair representation committed by their 21 union. 22 Cir. 1985). 23 "employed by and the business representative of [Union]." 24 Accordingly, Plaintiff cannot hold Strelo liable for Union's 25 alleged breach of its duty of fair representation. 26 DISMISSES claim three as to Strelo. 27 undisturbed as to Union. 28 /// FAC ¶¶ 68-69. Mot. at As Defendants point out, a number of cases have held that See, e.g., Peterson v. Kennedy, 771 F.2d 1244, 1257 (9th In the instant action, Strelo is alleged to be 9 FAC ¶ 8. The Court Claim three remains 1 D. Preemption (Claims Four, Five, Nine, and Ten) 2 Defendants argue that claims four (breach of contract), five 3 (breach of fiduciary duty), nine (negligent infliction of emotional 4 distress), and ten (intentional infliction of emotional distress) 5 should be recharacterized under the artful pleading doctrine as 6 claims for breach of the duty of fair representation and, as such, 7 are preempted by federal labor law. Section 301 of the Labor Management Relations Act ("LMRA") 8 9 Mot. at 10. preempts state-law claims that are "substantially dependent upon United States District Court For the Northern District of California 10 analysis of the terms of an agreement made between the parties in a 11 labor contract." 12 (1985). 13 state-law claim whose resolution depends upon the meaning of a 14 CBA." 15 federal statutory duty of fair representation also "displaces state 16 law that would impose duties upon unions by virtue of their status 17 as the workers' exclusive collective bargaining representative." 18 Id. 19 must make a showing of additional duties, if they exist, beyond the 20 normal incidents of the union-employee relationship." 21 Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 220 "More specifically, LMRA § 301 will operate to preempt a Adkins v. Mireles, 526 F.3d 531, 539 (9th Cir. 2008). The "To bring a successful state law action, aggrieved workers Id. In the instant action, resolution of Plaintiff's fourth and 22 fifth claims clearly turns on Plaintiff's contractual rights under 23 the CBA and, consequently, these claims are preempted. 24 fourth claim for breach of contract alleges that "Union failed to 25 proceed with Plaintiff's arbitration against Defendant Southern and 26 Does 1-50 as mandated in the CBA which is a clear and patent breach 27 of the CBA." 28 fiduciary duty, Plaintiff alleges that "Union has a contractual and FAC ¶ 74. Plaintiff's As to the fifth claim for breach of 10 1 fiduciary duty for full and adequate representation of the 2 Plaintiff as a union member." 3 DISMISSES Plaintiff's fourth and fifth claims. Id. ¶ 79. Accordingly, the Court Plaintiff's ninth and tenth claims against Union and/or Strelo 4 5 for emotional distress are too poorly pleaded to determine if they 6 are preempted. 7 emotional distress, Plaintiff lumps Union and Strelo together with 8 Southern and Does 1-50 and alleges that their acts "were extreme 9 and outrageous and an abuse of their authority." In his ninth claim for intentional infliction of Id. ¶ 105. United States District Court For the Northern District of California 10 Plaintiff makes substantially similar allegations against Union in 11 his tenth claim for negligent infliction of emotional distress. 12 See id. ¶¶ 110, 111. 13 referring to other than Union and Strelo's conduct towards 14 Plaintiff in their capacity as his union representative. 15 extent that Plaintiff's claims are based on such conduct, they are 16 preempted. 17 tenth claims.3 It is unclear what acts Plaintiff is To the Accordingly the Court DISMISSES Plaintiff's ninth and 18 E. Section 1981 Claim 19 In his opposition brief, Plaintiff contends that federal labor 20 law would not preempt a claim brought under Section 1981. 21 5-6. 22 Section 1981 claim, but asks the court to read one into the FAC 23 since it purportedly alleges sufficient facts to state such a 24 3 25 26 27 28 Opp'n at Plaintiff concedes that he has not specifically pled a The Court would normally be inclined to grant Plaintiff leave to amend to cure such poorly pleaded claims. However, the Court identified similar defects in Plaintiff's claims for emotional distress in its August 2, 2011 Order on Southern's motion to dismiss. Aug. 2, 2011 Order at 16. The Court warned that these claims were "extremely susceptible to preemption," but granted Plaintiff leave to amend to clarify. Id. Although Plaintiff was on notice about the weakness of these claims, his FAC provides little more clarity than his Complaint. 11 1 claim. Id. The Court finds that allowing Plaintiff to convert his 2 claims into a Section 1981 action would deprive Defendant of fair 3 notice. 4 not an opposition brief. 5 Section 1981 claim into the FAC. A Section 1981 claim should be asserted in a complaint, Accordingly, the Court declines to read a Plaintiff also asks that, in the event the Court finds a 6 7 Section 1981 claim has not been properly pled, the Court grant 8 leave to amend so that Plaintiff may specifically allege a Section 9 1981 claim. Opp'n at 6. The Court finds that granting additional United States District Court For the Northern District of California 10 leave to amend at this stage is inappropriate. Plaintiff has 11 already been granted leave to amend once and was on notice of the 12 defects in his Complaint after the Court's August 2, 2011 Order on 13 Southern's motion to dismiss. 14 15 V. CONCLUSION 16 For the foregoing reasons, the Court GRANTS Defendants 17 Teamsters Local 853 and Bob Strelo's Motion to Dismiss Plaintiff 18 Jason Coleman's First Amended Complaint. 19 • The Court DISMISSES WITHOUT LEAVE TO AMEND Plaintiff's first 20 claim for violation of Article I, Section 8 of the California 21 Constitution as to Teamsters Local 853 and Strelo; second 22 claim for discrimination based on race as to Teamsters Local 23 853 and Strelo; third claim for breach of duty of fair 24 representation as to Strelo; fourth claim for breach of 25 contract as to Teamsters Local 853; fifth claim for breach of 26 fiduciary obligation as to Teamsters Local 853; ninth claim 27 for intentional infliction of emotional distress as to 28 Teamsters Local 853 and Strelo; and tenth claim for negligent 12 infliction of emotional distress as to Teamsters Local 853. 1 2 • against Teamsters Local 853 shall remain undisturbed. 3 4 5 The third claim for breach of duty of fair representation • The Court DENIES Plaintiff's request for leave to amend to allege a claim under 42 U.S.C. § 1981. 6 The hearing scheduled for November 18, 2011 is hereby VACATED. 7 set forth in the Court's August 23, 2011 Order, the parties are to 8 appear before the Court for a case management conference on 9 December 9, 2011 at 10:00 A.M. in Courtroom 1, 17th Floor at 450 United States District Court For the Northern District of California 10 Golden Gate Avenue, San Francisco, California. 11 file with the Court a single joint case management statement at 12 least seven days prior to that date. The parties are to 13 14 IT IS SO ORDERED. 15 16 17 Dated: November 14, 2011 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 13 As

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