Leaea v. United Airlines Inc.

Filing 47

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT 40 . (Illston, Susan) (Filed on 8/9/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

FRISCO LEAEA,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 18-cv-00749-SI

v.
UNITED AIRLINES INC.,
Defendant.

ORDER DENYING DEFENDENT’S
MOTION TO DISMISS FIRST
AMENDED COMPLAINT
Re: Dkt. Nos. 40, 43, 44

12
13

On June 29, 2018, the Court held a hearing on defendant United Airlines, Inc.’s motion to

14

dismiss plaintiff Frisco Leaea’s first amended complaint. For the reasons set forth below, the

15

Court DENIES defendant’s motion.

16
17

BACKGROUND

18

Defendant United Airlines, Inc. (“United”) employed plaintiff as a Ramp Service

19

Employee at San Francisco International Airport, beginning May 2012. First Amended Complaint

20

(“FAC”) ¶ 6 (Dkt. No. 29). While employed, plaintiff “performed his job duties in an exemplary

21

manner.” Id. at ¶ 7. On August 19, 2015, plaintiff injured his left big toe “at work.” Id. at ¶ 8.

22

About five days later, plaintiff was treated at defendant’s “Airport Clinic” and an X-ray

23

examination revealed “a fracture to Plaintiff’s left big toe.” Id. at ¶ 10. Subsequently, plaintiff’s

24

personal doctor “deemed Plaintiff temporarily and totally disabled.” Id. Plaintiff “requested a

25

leave of absence” from August 26, 2015 to October 12, 2015, “as a reasonable accommodation for

26

his disability.” Id. Plaintiff alleges that “when Plaintiff returned to work in or around October

27

2015, following his leave of absence related to his August 2015 disability, Defendant counted as

28

occurrences under its no-fault attendance policy the time Plaintiff was absent from work due to his

1

disability, and terminated Plaintiff’s employment for violation of its attendance policy.” Id. ¶ 11.

2

Plaintiff alleges that “Defendant discriminated against Plaintiff on account of his disability by

3

terminating Plaintiff’s employment for time Plaintiff could not work due to his disability and/or

4

terminated Plaintiff’s employment in retaliation for his need for a leave of absence

5

accommodation because of his disability and/or as the result of its failure to accommodate

6

Plaintiff’s disability.” Id. ¶ 12.
Defendant’s Attendance Policy is contained in a Collective Bargaining Agreement

8

(“CBA”) between United and the International Association of Machinists & Aerospace Workers.

9

Dkt. No. 6-2 (Attendance Policy).1 The Attendance Policy defines “absence” as: “[a]ny single

10

specific period of continuous time away from work for a single reason.” Id. at 2. The Attendance

11
United States District Court
Northern District of California

7

Policy defines “points” as: “[a] unit of measurement used to track absence and tardiness.” Id. at 3.

12

The Attendance Policy also provides that: “[a]bsence from duty of the following reasons will not

13

be assessed a point: Minor Tardy; AUTO; Vacations; Holidays; Trade Days Off; Personal

14

Emergency Leave; FMLA—Any absence covered by the Company’s Family and Medical Leave

15

policy; Jury Duty; Approved Leaves of Absence; Occupational Injury Time (OI); and Company

16

Declared Adverse Weather Day (officially declared by management.)” Id.

17

Conversely, the Attendance Policy will assign points for the following absences:

18
19
20
21
22
23
24
25
26

Leaving work without notification to
immediate supervisor
No Call, No Show

Up to Termination – Hearing

**1st Occurrence in a 12 month period
of failure to report for an assigned
overtime shift or leaving work early
with notification to management but
without approval
2nd or subsequent occurrence of failure
to report for assigned overtime or
leaving work with notification to
management, but without approval
Contact Center: Inadvertently leaving

1 point

3 points

3 points

1 point

27
1

28

In ruling on defendant’s motion to dismiss the original complaint, the Court took judicial
notice of the CBA. Dkt. No. 27 at 6 n.2.
2

2
3

work without notification for any type
of flex shift or additional shift time.
Late Reported Personal Absence

2 points

Reported Personal Absence

1 point

Tardy

1

½ point

4
5
6
7
8
9
10

United States District Court
Northern District of California

11

Id. at 5. The Attendance Policy provides a discipline policy and guidelines for tracking absences
that accrue attendance points:
Management will track attendance points on a rolling 12 months of active service. .
. . Attendance points will be frozen while an employee is on an unpaid or inactive
status and be re-activated once the employee returns to paid/active status. The 12
month calendar will then be re-activated. Notwithstanding the rolling 12 month
calendar, if an employee reaches the level of Termination Warning, the employee
will remain at Termination Warning and no points will be re-accrued for a full six
month period from the date the employee is placed on Termination Warning. . . .
Id. The point system used to manage accountability for absences states:

12
Point Range

Point Range

7.0 to 4.0 points

Acceptable Attendance

15

3.5 to 2.5 points

Documented Verbal Warning

16

2.0 to 1.5 points

Written Warning

17

1.0 to 0.5 points

Termination Warning (Meeting Required)

18

0 points

Termination

19

Id. at 6. Employees start with a balance of 7 points and points are deducted for impermissible

20

absences. Id.

13
14

21

United’s Reasonable Accommodation Process (“RAP”) Policy, which is also part of the

22

CBA, “is the interactive process where United works with employees who, in order to perform

23

their jobs, may be in need of an accommodation due to a medical condition or restriction.” Dkt.

24

No. 6-5 at 1 (RAP Policy). “During the RAP meeting, the employee’s medical restrictions are

25

reviewed and discussed in an effort to identify any reasonable accommodation that will enable the

26

employee to perform the essential functions of the employee’s current position.” Id. “Depending

27

on the circumstances and the operational needs of a department, a reasonable accommodation may

28

involve (but is not limited to): providing a leave of absence. . . .” Id. at 2. “The RAP process is
3

1

designed to be an interactive process between the employee and the Company. The RAP Process

2

is an ongoing one, meaning that if an employee’s restrictions change in any way, or a position

3

opens up that was previously unavailable, the employee and Company should meet again and

4

continue the interactive discussion.” Id.

5

After his termination, plaintiff filed a grievance through his union challenging the

6

termination. FAC ¶ 14(a). The grievance proceedings started in January 2016 and ended on or

7

about September 20, 2016. Id. The FAC alleges that “[t]hroughout the grievance process,

8

Plaintiff alleged that Defendant unfairly terminated his employment because he was punished for

9

absences that were related to his disability by providing him with a leave of absence to treat and

10

United States District Court
Northern District of California

11

recover from his disability without repercussions.” Id.2 United denied the grievance.
On January 3, 2018, plaintiff sued defendant in San Mateo County Superior Court, alleging

12

claims under federal and California law.

The complaint alleged, inter alia, that United

13

discriminated against him because of his disability by terminating plaintiff’s employment in

14

retaliation for plaintiff’s leave of absence and by failing to accommodate plaintiff’s disability.

15

Dkt. No. 1. Defendant removed this action to federal court on the basis of federal question and

16

diversity jurisdiction. Defendant then moved to dismiss the complaint, arguing all of plaintiff’s

17

claims should be dismissed for failure to state a claim and that plaintiff’s state law claims were

18

preempted. Dkt. No. 6 at 1. The Court granted in part and denied in part the motion to dismiss

19

with leave to amend, and deferred the preemption question until plaintiff filed an amended

20

complaint clarifying the nature of his claims. Dkt. No. 27.

21
22
23
24
25
26
27
28

2

Defendant contends that plaintiff and his union representatives did not, in fact, make
these arguments during the grievance process, and defendant requests that the Court take judicial
notice of a letter that United sent plaintiff denying his grievance at step 3 of the CBA’s grievance
process. Defendant argues that the letter, in which United sets forth its reasons for denying
plaintiff’s grievance, shows that plaintiff and his union representatives challenged the termination
on grounds unrelated to disability. The Court declines to take judicial notice of this document, as
the letter is neither “incorporated by reference in the complaint,” nor does it “form the basis of the
plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Further, even if the
Court took judicial notice of this document, the Court finds that United’s statements in the letter
regarding the arguments made by plaintiff in his grievance process are not, on their face,
necessarily inconsistent with the allegations in the FAC. In any event, the Court finds that the fact
that plaintiff and his union representatives may have challenged the termination on non-disability
grounds is not a basis for dismissal of the complaint.
4

1

On May 1, 2018, plaintiff filed the FAC, which alleges five causes of action under

2

California law. The FAC alleges that defendant: (1) unlawfully discriminated on the basis of

3

plaintiff’s disability in violation of the Fair Housing and Employment Act (“FEHA”); (2) failed to

4

accommodate plaintiff’s disability in violation of the FEHA; (3) failed to engage in the interactive

5

process in violation of the FEHA; (4) retaliated against plaintiff for asserting his rights under the

6

FEHA; and (5) wrongfully terminated plaintiff in violation of public policy set forth in the FEHA,

7

the California Family Rights Act (“CFRA”), and California Labor Code sections 246.5 and 98.6.

8

Dkt. No. 29 at 6-12. The FAC also states, “Plaintiff does not contend that there was a dispute

9

under the CBA between Plaintiff and Defendant related to his employment and/or termination.”

10

Id. at ¶ 13.3
Defendant has moved to dismiss the FAC, arguing that all of plaintiff’s claims should be

United States District Court
Northern District of California

11
12

dismissed under Rule 12(b)(6) and 12(b)(1) based upon federal preemption.

13
LEGAL STANDARDS

14
15

I.

Rule 12(b)(6)

16

A complaint must contain “a short and plain statement of the claim showing that the

17

pleader is entitled to relief,” Fed. R. Civ. Pro. 8(a)(2), and a complaint that fails to do so is subject

18

to dismissal pursuant to Rule 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

19

must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

20

Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to

21

allege facts that add up to “more than a sheer possibility that a Defendant has acted unlawfully.”

22

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While courts do not require “heightened fact

23

pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the

24

speculative level.”

Twombly, 550 U.S. at 544, 555.

“A pleading that offers ‘labels and

25
3

26
27
28

United contends that this allegation is inconsistent with the original complaint because
the original complaint alleged that United misapplied provisions of the Attendance Policy and
RAP Policy against plaintiff. However, plaintiff has consistently alleged that United terminated
him pursuant to the Attendance Policy, and he has maintained that his discrimination and
retaliation claims are independent of the CBA and that he was terminated on account of his
disability.
5

1

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,

2

556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders

3

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

4

557). “While legal conclusions can provide the framework of a complaint, they must be supported

5

by factual allegations.” Id.
In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the

7

complaint, and draw all reasonable inferences in favor of the plaintiff. See Usher v. City of Los

8

Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as true

9

“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

10

inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). If a court

11
United States District Court
Northern District of California

6

dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has

12

“repeatedly held that a district court should grant leave to amend even if no request to amend the

13

pleading was made, unless it determines that the pleading could not possibly be cured by the

14

allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and

15

internal quotation marks omitted).
As a general rule, courts may not consider materials beyond the pleadings when ruling on a

16
17

Rule 12(b)(6) motion.

Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

18

However, courts “may take judicial notice of some public records, including the ‘records and

19

reports of administrative bodies.’” Ritchie, 342 F.3d at 909 (citing Interstate Nat. Gas Co. v. S.

20

Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953)). Courts may not take judicial notice of facts in

21

the public record that are subject to reasonable dispute. Lee, 250 F.3d at 690.

22
23

II.

Rule 12(b)(1)

24

Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court’s

25

jurisdiction over the subject matter of the complaint. As the party invoking the jurisdiction of the

26

federal court, the plaintiff bears the burden of establishing that the court has the requisite subject

27

matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins. Co. of

28

America, 511 U.S. 375, 377 (1994) (internal citations omitted). A complaint will be dismissed if,
6

1

looking at the complaint as a whole, it appears to lack federal jurisdiction either “facially” or

2

“factually.” Thornhill Publ’g Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.

3

1979); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“A Rule 12(b)(1)

4

jurisdictional attack may be facial or factual.”).
When the complaint is challenged for lack of subject matter jurisdiction on its face, all

6

material allegations in the complaint will be taken as true and construed in the light most favorable

7

to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In deciding a Rule

8

12(b)(1) motion which mounts a factual attack on jurisdiction, “no presumptive truthfulness

9

attaches to plaintiff=s allegations, and the existence of disputed material facts will not preclude the

10

trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will

11
United States District Court
Northern District of California

5

have the burden of proof that jurisdiction does in fact exist.” Mortensen v. First Fed. Sav. & Loan

12

Ass=n, 549 F.2d 884, 891 (3d Cir. 1977).

13

jurisdiction, the district court may review evidence beyond the complaint without converting the

14

motion to dismiss into a motion for summary judgment.” In re Digimarc Corp. Derivative

15

Litigation, 549 F.3d 1223, 1236 (9th Cir. 2008) (citation and internal brackets omitted).

“In resolving a Rule 12(b)(1) factual attack on

16
DISCUSSION

17
18

I.

Preemption under the Railway Labor Act

19

Defendant contends that plaintiff’s claims are minor disputes under the CBA and are

20

therefore preempted by the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-65, 181-88. Defendant

21

has the burden to demonstrate preemption. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 393

22

(1987); Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1526 n.6 (9th Cir. 1995); Martinez v. Kaiser

23

Found. Hosps., C-12-1824 EMC, 2012 WL 2598165, at *2 (N.D. Cal. July 5, 2012).

24

“Whether federal law pre-empts a state law establishing a cause of action is a question of

25

congressional intent.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (citing Allis-

26

Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985)). “Congress’ purpose in passing the RLA was

27

to promote stability in labor-management relations by providing a comprehensive framework for

28

resolving labor disputes.” Id. (citing Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557,
7

1

562 (1987)); see also Alaska Airlines Inc. v. Schurke, ___ F.3d ___, No. 13-35574, 2018 WL

2

3636431, at *11 (9th Cir. Aug. 1, 2018) (en banc) (“In the RLA and LMRA § 301 context, the

3

‘purpose of Congress’ is to protect the role of grievance and arbitration and of federal labor law in

4

resolving CBA disputes, not to alter or displace state law labor rights.”). The RLA provides a

5

mandatory arbitral mechanism for resolving disputes, including “minor disputes” that involve the

6

“application or interpretation” of a CBA “covering rates of pay, rules, or working conditions.”

7

Norris, 512 U.S. at 252-53, 255-56; 45 U.S.C. § 151(a). Thus, the RLA preempts state law claims

8

upon “a determination that [the plaintiff’s] complaints constitute a minor dispute.” Norris, 512

9

U.S. at 253.
A minor dispute is a claim “that may be conclusively resolved” by a CBA. Id. at 262-63

11
United States District Court
Northern District of California

10

(citing Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 305 (1989)); accord

12

Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999). In other words, a minor dispute

13

exists “only if [the state law claim] is dependent on the interpretation of a [CBA].” Espinal v. Nw.

14

Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996) (citing Norris, 512 U.S. at 262-63); see, e.g., Guidry

15

v. Marine Engineers’ Beneficial Ass’n, No. C 05-03960 CRB, 2007 WL 707511, at *4, 6 (N.D.

16

Cal. Mar. 6, 2007) (finding no minor dispute because there was no dispute over the interpretation

17

of CBA terms and state law claims are only preempted when the resolution of a discrimination

18

claim itself hinges on the interpretation of a CBA).

19

The Ninth Circuit has recently articulated a two-part test to determine whether a claim a

20

preempted by the RLA. “First, to determine whether a particular right is grounded in a CBA, we

21

evaluate the ‘legal character’ of the claim by asking whether it seeks purely to vindicate a right or

22

duty created by the CBA itself.” Schurke, 2018 WL 3636431, at *7 (internal citation omitted).

23
24
25
26
27

If a claim arises entirely from a right or duty of the CBA—for example, a claim for
violation of the labor agreement, whether sounding in contract or in tort—it is, in
effect, a CBA dispute in state law garb, and is preempted. In such cases, the CBA
is the “only source” of the right the plaintiff seeks to vindicate. There is thus no
part of the claim that “do[es] not require construing [the] collective-bargaining
agreement[ ],” and as to which litigation in court, rather than though the grievance
and arbitration system, would be appropriate. For the same reason, there is no part
of the claim in which the uniform body of federal labor law does not control the
resolution of the parties’ dispute.

28
8

1
2
3

By contrast, claims are not simply CBA disputes by another name, and so are not
preempted under this first step, if they just refer to a CBA-defined right; rely in part
on a CBA’s terms of employment; run parallel to a CBA violation; or invite use of
the CBA as a defense. . . .
Id. at *7-8 (footnotes and internal citations omitted).
“Second, if a right is not grounded in a CBA in the sense just explained, we ask whether

5

litigating the state law claim nonetheless requires interpretation of a CBA, such that resolving the

6

entire claim in court threatens the proper role of grievance and arbitration.” Id. at *8. The Ninth

7

Circuit has instructed that “ʻ[i]nterpretation’ is construed narrowly; ‘it means something more than

8

‘consider,’ ‘refer to,’ or ‘apply.’” Id. at *8 (quoting Balcorta v. Twentieth Century-Fox Film

9

Corp., 208 F.3d 1102, 1108 (9th Cir. 2000)). “Accordingly, at this second step of an RLA or

10

LMRA § 301 preemption analysis, claims are only preempted to the extent there is an active

11
United States District Court
Northern District of California

4

dispute over the meaning of contract terms.”

12

quotations and citation omitted). It is not enough “that resolving the state law claim requires a

13

court to refer to the CBA and apply its plain or undisputed language—for example, to discern that

14

none of its terms is reasonably in dispute[]; to identify bargained-for wage rates in computing [a]

15

penalty[]; or to determine whether [the CBA] contains a clear and unmistakable waiver of state

16

law rights.” Id. (internal quotations and citations omitted); see also Ramirez v. Fox Television

17

Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993) (“[R]eference to or consideration of the terms of a

18

[CBA] is not the equivalent of interpreting the meaning of the terms.”).

Schurke, 2018 WL 3636431, at *8 (internal

19

The Ninth Circuit also clarified that “[n]otably, the result of preemption at the second step

20

is generally not the extinguishment of the state law claim.” Schurke, 2018 WL 3636431, at *8.

21

Instead, “if, at the second stage of the analysis, a state law claim depends on a dispute over the

22

meaning of a CBA, it is only ‘to that degree preempted.’” Id. (quoting Kobold v. Good Samaritan

23

Regional Med. Ctr., 832 F.3d 1024, 1036 (9th Cir. 2016)).

24

preempted by the RLA or LMRA § 301 ‘only insofar as resolution of the state-law claim requires

25

the interpretation of a collective-bargaining agreement.’” Id. (quoting Lingle v. Norge Div. of

26

Magic Chef, 486 U.S. 399, 409 n.8 (1988)).

“That is, state law claims are

27

In Schurke, the Ninth Circuit held that a claim premised on a state law right to reschedule

28

vacation leave for family medical purposes was not preempted by the RLA, even though the
9

1

worker’s underlying right to vacation leave was covered by a CBA. At the first step of the

2

analysis, the court held that the plaintiff’s claim did not arise entirely from the CBA. “Masserant

3

has alleged a violation of the [statute’s] independent state law right to use banked vacation days. . .

4

. Masserant’s claim invokes a state law right that applies to all workers, whether CBA-covered or

5

not, and gives rise to a state law dispute, not a dispute concerning the meaning of the CBA.”

6

Schurke, 2018 WL 3636431, at *12. At the second step, the court held that the plaintiff’s claim

7

did not require construction of the CBA:

8

The claim of course relies on the terms and conditions of employment established
by the CBA, in that Masserant’s banked vacation days exist only by virtue of her
having earned them in accordance with a workplace policy incorporated in the
CBA. And the claim may be aided by reference to certain other CBA provisions,
such as those making banked vacation immediately available for exchange,
personal medical leave, maternity leave, bereavement leave, or cash-out. But
reliance on and reference to CBA-established or CBA-defined terms of
employment do not make for a CBA dispute if there is no disagreement about the
meaning or application of any relevant CBA-covered terms of employment.

9
10

United States District Court
Northern District of California

11
12
13

Id. (internal citation omitted).
With these principles in mind, the Court now analyzes plaintiff’s claims.

14
15
16

II.

Analysis of plaintiff’s claims

17

Plaintiff alleges that United “discriminated against Plaintiff on account of his disability by

18

terminating plaintiff’s employment for time Plaintiff could not work due to his disability and/or

19

terminated Plaintiff’s employment in retaliation for his need for a leave of absence

20

accommodation because of his disability and/or as the result of its failure to accommodate

21

Plaintiff’s disability,” all in violation of the FEHA. FAC ¶ 12. Plaintiff also alleges that United

22

“failed to engage in a timely, good faith, interactive process with Plaintiff to accommodate his

23

known disability in violation of the FEHA,” and that plaintiff’s termination violated public policy

24

as set forth in the FEHA and the CFRA. Id. ¶¶ 32, 45.

25

“In RLA cases . . . , courts must look to the source of the right asserted by the plaintiff.”

26

Espinal, 90 F.3d at 1456 (citing Norris, 512 U.S. at 257-59). Thus, a “discrimination claim need

27

not be preempted merely because certain aspects of the [CBA] govern . . . discharges.” Jimeno, 66

28

F.3d at 1525 (internal quotation marks omitted). In Ramirez, the court explained “the [CBA] will
10

1

likely be referred to by [plaintiff] and [defendant] to determine the terms and conditions of

2

[plaintiff’s] employment.

3

discriminated against her in applying and/or altering those terms and conditions. Although the

4

inquiry may begin with the [CBA], it certainly will not end there.” Ramirez, 998 F.2d at 748-49.

But [plaintiff’s] underlying cause of action is that [defendant]

Here, plaintiff’s claims arise from the FEHA (and the CFRA, with regard to wrongful

6

termination), and do not seek to vindicate a right that is purely created by the CBA. As plaintiff

7

argues, his claims would exist even if he was not covered by a CBA. The Ninth Circuit has

8

generally found that “rights created by . . . [FEHA] are independent of a CBA and thus claims

9

brought pursuant to” FEHA are not preempted by federal law, such as the RLA. Saridakis, 166

10

F.3d at 1276-77 (finding plaintiff’s disability discrimination claim was not a minor dispute “and

11
United States District Court
Northern District of California

5

therefore [not] subject to the RLA’s dispute resolution mechanism”); see also Schurke, 2018 WL

12

3636431, at *12 (holding the plaintiff’s claim was not preempted at step one because “Masserant’s

13

claim invokes a state law right that applies to all workers, whether CBA-covered or not, and gives

14

rise to a state law dispute, not a dispute concerning the meaning of the CBA”); Guidry, 2007 WL

15

707511, at *4 (citing Ninth Circuit decisions that “rest upon the view that the rights conferred by

16

[FEHA] are defined and enforced under state law without reference to the terms of any [CBA] . . .

17

, and that actions asserting those rights are thus independent of [any CBA]”) (internal citations and

18

quotation marks omitted)).

19

Defendant’s preemption arguments largely focus on the second step of the analysis,

20

namely whether the claims require interpretation of the CBA.4 Defendant argues that the Court

21

will be required to interpret and apply the Attendance Policy and the RAP Policy in order to

22

resolve all of plaintiff’s claims. Defendant argues that interpretation of the CBA is required

23

because “Plaintiff explicitly claims United interpreted and applied the Attendance Policy against

24

him in a discriminatory manner, which resulted in him suffering an adverse employment action-

25

termination.” Motion at 14 (Dkt. No. 40). Defendant relies on plaintiff’s allegation that United

26
27
28

4

Defendant’s briefing addresses plaintiff’s claims as a whole and separately. However,
the arguments regarding preemption are largely the same for all the claims, specifically whether
the claims require the interpretation of the CBA.
11

1

“counted as occurrences under its no-fault attendance policy the time plaintiff was absent from

2

work due to his disability, and terminated Plaintiff’s employment for violation of its attendance

3

policy.” FAC ¶ 11. For example, defendant argues that the Court will be required to analyze and

4

interpret the Attendance Policy to determine such issues as what constitutes an absence, how the

5

point system works for purposes of counting absences, and how the progressive discipline policy

6

applies generally and as to plaintiff.
Plaintiff responds that his claims do not require the interpretation of the CBA, and that his

8

claims turn on whether defendant discriminated and retaliated against him on the basis of

9

disability, failed to provide reasonable accommodations for his disability, and failed to engage in

10

the interactive process. Plaintiff argues that at most the Court will be required to refer to the CBA,

11
United States District Court
Northern District of California

7

and that the parties do not dispute the meaning of any terms in the CBA. Plaintiff contends that

12

this case is similar to Carmona v. Southwest Airlines Co., 536 F.3d 344 (5th Cir. 2008), in which

13

the Fifth Circuit held that a flight attendant’s disability discrimination claims were not barred by

14

the RLA. In Carmona, Southwest Airlines terminated the plaintiff for excessive absenteeism

15

pursuant to an absence policy contained in a CBA. After challenging the termination as being in

16

violation of the CBA through an unsuccessful grievance, the flight attendant filed suit alleging that

17

the termination violated the Americans with Disabilities Act. The district court dismissed the

18

case, finding that the plaintiff’s claims were precluded by the RLA. 5 The Fifth Circuit reversed,

19

holding that “[a]s provisions of the CBA are relevant to, but not dispositive of, the resolution of

20

Carmona’s claims, his claims do not constitute a minor dispute under the RLA.” Id. at 349

21

(emphasis in original).

22

Even though a court would have to refer to the CBA to consider fully each of the
alleged acts of disparate treatment, there is no disagreement about how to interpret
these provisions of the CBA that detail Southwest’s procedures for assessing
attendance, leave, discipline, and termination. Carmona’s factual allegations that . .
. his chronic illnesses were the real reason he was fired, do not bring the meaning
of any CBA provisions into dispute.

23
24
25
Id.
26
27
28

5

Because the Carmona plaintiff alleged federal discrimination claims, the courts analyzed
whether those claims were precluded by the RLA, as opposed to preempted. See id. at 347 n.2.
12

The Court concludes under the second step of the analysis that plaintiff’s claims do not

2

require interpretation of the CBA, and are therefore not preempted. Similar to the flight attendant

3

in Carmona, plaintiff alleges that defendant terminated his employment pursuant to an absence

4

policy contained in a CBA, and that he was fired on account of his disability. While the Court

5

may be required to refer to the CBA to resolve plaintiff’s claims (and United’s defenses)6,

6

plaintiff’s claims do not require the interpretation of disputed terms in the CBA. See Schurke,

7

2018 WL 3636431, at *8 (“ʻInterpretation’ is construed narrowly; ‘it means something more than

8

‘consider,’ ‘refer to,’ or ‘apply.’”) (quoting Balcorta v. Twentieth Century-Fox Film Corp., 208

9

F.3d 1102, 1108 (9th Cir. 2000)). Although defendant has cited portions of the CBA that may be

10

relevant to plaintiff’s claims, defendant has not identified an “active dispute over the meaning of

11
United States District Court
Northern District of California

1

contract terms.”

12

omitted). To the extent the parties dispute whether United properly assessed points for plaintiff’s

13

absences under the Absence Policy, the Court will be required to refer to that policy and make a

14

factual determination; that evaluation does not require interpretation over disputed terms of the

15

CBA.

Schurke, 2018 WL 3636431, at *8 (internal quotation marks and citation

16

Similarly, although the Court may be required to refer to the RAP Policy in connection

17

with evaluating plaintiff’s reasonable accommodation and interactive process claims,7 defendant

18

has not shown that the Court would be required to interpret any disputed terms in order to

19

adjudicate those claims.

20

exploration of possible accommodations between employers and individual employees” to identify

21

“an accommodation that allows the employee to perform the job effectively.” Nadaf-Rahrov v.

22

Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 984 (2008) (internal quotation marks

The interactive process requires “communication and good-faith

23
24
25
26

6

“[R]eliance on CBA provisions to defend against an independent state law claim does not
trigger . . . preemption.” Humble v. Boeing Co., 305 F.3d 1004, 1011 (9th Cir. 2002); see also
Saridakis, 166 F.3d at 1277 (finding defendant’s reliance on the CBA as part of its defense does
not constitute a minor dispute).
7

27
28

“While a claim of failure to accommodate is independent of a cause of action for failure
to engage in an interactive dialogue, each necessarily implicates the other.” Moore v. Regents of
the University of California, 248 Cal. App. 4th 216, 242 (2016) (citing Gelfo v. Lockheed Martin
Corp., 140 Cal. App. 4th 34, 54 (2006)).
13

1

omitted); see Cal. Gov’t Code § 12940(n). Both parties “must communicate directly, exchange

2

essential information and neither side can delay or obstruct the process.” Nadaf-Rahrov, 166 Cal.

3

App. 4th at 984-85. There is no need to interpret the CBA to determine whether the parties failed

4

to communicate and explore in good faith possible accommodations for the plaintiff.

5

Finally, the Court finds that plaintiff’s retaliation claim requires a factual inquiry into any

6

retaliatory motive by the employer. Norris, 512 U.S. at 266. “Purely factual questions about an

7

employee’s conduct or an employer’s conduct and motives do not require a court to interpret any

8

term of the [CBA].” Id. at 261; see also Livadas, 512 U.S. at 123.
As the Court found in its previous order, defendant’s reliance on Silva v. USP Reddaway

10

Inc., No. 17-CV-01354-LB, 2017 WL 2117397 (N.D. Cal. May 15, 2017), is misplaced. In Silva,

11
United States District Court
Northern District of California

9

the plaintiff worked as a pickup and delivery truck driver, and after he experienced shoulder pain,

12

he requested a job transfer to long-distance driving as a reasonable accommodation. The company

13

denied the request, and the plaintiff sued, alleging breach of the CBA, common law

14

discrimination, and disability discrimination under the FEHA. Id. at *1. The plaintiff conceded

15

that the CBA breach claim was preempted, and therefore the court only addressed whether the

16

disability claims were preempted. Id. The court found that Silva’s discrimination claims were

17

preempted because “Mr. Silva’s claims will likely ‘necessitate determining whether CBA imposed

18

an obligation on’ Reddaway to offer him a line-driving position or whether, as the defendant

19

claims, its obligations under the CBA prevented it from doing so—which could disprove Mr.

20

Silva’s claim that Reddaway wrongfully discriminated against him.” Id. at *4 (footnote omitted).

21

The court found, “[i]t is more than just a question of having to ‘refer’ to or fleetingly ‘consult’ the

22

CBA. Whether Reddaway discriminated against Mr. Silva by not assigning him to line driving

23

will need some substantive assessment of the CBA to determine whether the terms of that

24

compact—terms on job assignment and seniority at least—allowed the defendant to do anything

25

else.” Id. The Silva court distinguished the plaintiff’s claims from “freestanding” discrimination

26

claims cases that do not implicate the terms of the CBA. Id. The Silva court held that the

27

plaintiff’s claims were preempted by the federal Labor Management Relations Act (LMRA)

28

because the court found “[plaintiff’s] theory [was] that [the defendant] discriminatorily breached
14

1

the CBA itself.” Id. at *5. Here, in contrast, plaintiff has not alleged that defendant breached the

2

CBA, and plaintiff’s claims do not require the interpretation of any disputed CBA term. Thus,

3

Silva is distinguishable.8

4
CONCLUSION

5

For the foregoing reasons, the Court DENIES defendant’s motion to dismiss plaintiff’s

6
7

FAC.

8
9

IT IS SO ORDERED.

10

United States District Court
Northern District of California

11

Dated: August 9, 2018

12

______________________________________
SUSAN ILLSTON
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
8

28

Further, Silva was decided prior to the Ninth Circuit’s recent decision in Schurke, which
clarified the test for determining preemption.
15