Santos v. The Harver Company et al

Filing 33

Findings & Recommendation - Santos's motion 20 to remand should be GRANTED and this case remanded to the Circuit Court of the State of Oregon for the County of Multnomah. Santos's request for attorney fees should be DENIED. Objections to the Findings and Recommendation are due by 6/15/2009. If objections are filed, a party may file a response to those within fourteen days of the filing date of the objections. Signed on 5/29/09, by Magistrate Judge John V. Acosta. (peg)

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FILED

29

I N T H E UNITED S T A T E S D I S T R I C T C O U R T F O R T H E DISTRICT OF O R E G O N

R A C H E L SANTOS, Plaintiff,
v,

CV,08-1206-AC FINDINGS A N D RECOMMENDATION

H A R V E R C O M P A N Y , CASCADE ACOUSTICS, W E S T E R N PARTITIONS, I N C , and INTERNATIONAL U N I O N OF PAINTERS AND ALLIED TRADES, L O C A L #110, Defendants,

A C O S T A , M a g i s t r a t e Judge:
Findings a n d Recommendation

In this action, plaintiff Rachel Santos ("Santos") is suing h e r former employers, Harvel' C o m p a n y ( " H a r v e r " ) , C a s c a d e A c o u s t i c s ( " C a s c a d e " ) , a n d W e s t e r n P a r t i t i o n s ( " W e s t e r n " ) , a s well as her former union, the Intemational Union o f Painters and Allied Trades, Local #10 ("Painters' U n i o n " ) ( c o l l e c t i v e l y " D e f e n d a n t s " ) , asserting claims for s e x discrimination, sexual harassment,

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workers' compensation discrimination, opposition to unlawful employment practices, intentional interference with economic relations, and aiding and abetting discrimination and retaliation. Santos filed her complaint i n the Circuit Court o f the State o f Oregon for the County o f Multnomah o n August 19, 2008. Defendants removed the action to this court asserting that resolution o f the state l a w claims requires the interpretation o f a collective bargaining agreement resulting in federal question jurisdiction under § 301 o f the Labor Management Relations Act (28 U . S . c . §185, e t
seq. )("LMRA").

Presently before the court is S a n t o s ' s motion to remand the action to state court. F o r the reasons discussed below, S a n t o s ' s motion should be granted and this action remanded. S a n t o s ' s request for attorney fees incurred to effect remand should be denied.
Background'

Harver hired Santos as a utility driver o n October 31, 2006. Santos alleges that her male coworkers subjected her to rude and lewd sexual comments and that one male employee complained about riding as a passenger with Santos, stating that he did not trust women drivers and making offensive comments about womens" intelligence and abilities. From April 24, 2007, to August 29, 2007, Harver dispatched Santos to various j o b sites as a drywall finisher apprentice. While on the j o b sites, the sexually offensive comments continued. Additionally, male co-workers refused to allow Santos to perform taping and drywall functions, relegated her to clean-up work, and unjustly criticized her performance. Santos also alleges that her male co-workers forced her "to work by

'The factual summary is taken from the allegations o f S a n t o s ' s complaint filed in state court o n August 1 9 , 2 0 0 8 , and removed to this court o n October 1 5 , 2 0 0 8 . ' S a n t o s does not specifically allege that she is a woman. However, it is evident from the allegations in the complaint that she is a woman. Page -2- FINDINGS AND RECOMMENDATION
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h e r s e l f under unsafe working conditions and contrary to the terms o f t h e union contract." (Compl.
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12(n).) O n July 18,2007, Santos suffered an on-the-job injury to her right foot and was o f f w o r k for

three weeks. She applied for, and was awarded, workers' compensation benefits. During her medical leave, a Harvel' representative contacted Santos and complained about the amount o f time Santos was taking o f f work. Upon h e r retum, S a n t o s ' s co-workers again limited her to cleaning up after them and ridiculed h e r because she was not allowed to perform drywall finishing work. Harvel' terminated Santos on August 29, 2007, indicating that she was being laid o f f for lack o f work. Harvel' then allegedly replaced Santos with a male drywall finisher. Cascade hired Santos o n January 17, 2008. Santos alleges that h e r Cascade co-workers subjected her to "rude and offensive sexually harassing statements about h e r marital status"3 and "offensive and unwelcome touching o f a sexual nature," all i n violation o f C a s c a d e ' s written h a r a s s m e n t a n d e q u a l o p p o r t u n i t y p o l i c i e s . ( C o m p l . ~~ 2 1 - 2 3 . ) C a s c a d e l a i d S a n t o s o f f o n F e b r u m y 22, 2008. Santos then alleges that: P u r s u a n t t o t h e c o n t r a c t D e f e n d a n t Cascade h a d w i t h D e f e n d a n t [ P a i n t e r s ' U n i o n ] , D e f e n d a n t C a s c a d e was o b l i g a t e d to p u t p l a i n t i f f b a c k t o w o r k b e f o r e h i r i n g a n o t h e r worker who had been o u t o f work less time. Defendant Cascade refused t o r e t u m her to work and filled the position w i t h a male dlywall finisher who was out o f work for a lesser amount o f time. (CampI.
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24.)

Westem hired Santos as a n apprentice taper on March 10, 2008. Shortly thereafter, Santos injured h e r elbow, wrist and back when she slipped o n dlywall m u d left o n the floor b y her supervisor. Santos immediately reported the injUly to h e r superiors. W e s t e r n ' s safety coordinator

3Santos does n o t allege what h e r marital status was. P a g e -3- F I N D I N G S A N D R E C O M M E N D A T I O N
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visited the j o b site, obtained information for a report, and took pictures. The coordinator then instructed Santos to retum to work. Santos worked for an hour in excruciating pain before she was relieved from duty. She then waited another three hours before Westem provided transpOliation to an urgent care facility. When Santos retumed to work, she was limited to light duty with additional medical restrictions. Western assigned Santos j o b duties that exceeded herrestrictions, and Santos suffered extreme pain when perfonning those duties. Western terminated Santos o n May 8, 2008. During the major pOliion o f S a n t o s ' s employment history set fOlih above, she was a member o f the Painters' Union. The Painters' Union accepted Santos into its apprenticeship program ("Apprentice Program") o n April 30, 2007. S a n t o s a l l e g e s t h a t the P a i n t e r s ' U n i o n t h e n

d i s c r i m i n a t e d a g a i n s t h e r b a s e d on h e r s e x i n a n u m b e r o f p a t i i c u l a r s . First, t h e P a i n t e r s ' U n i o n refused to give Santos credit for her previous experience while her male counterpatis were granted up to 70 per cent o f total program hours for their previous experience, resulting in a significant pay disparity. Second, the Painters' Union refused to give Santos credit for work perfonned on written assignments while giving male apprentices credit for the same work. Third, the Painters' U n i o n assigned Santos the duty o f making coffee, sweeping, and mopping while the males were taught to work with tools. Santos alleges that her instructors refused to train her on the tools o f the trade, stating that "1 have never had a womanlUn these tools and 1 am not about to s t a t i n o w , " and that they insinuated that Santos would never complete the Apprentice Program. (Compl. at ~ 4.) Finally, the Painters' Union refused to take action when Santos made complaints about the sexual harassment and discrimination she was experiencing o n j o b sites and thereafter attempted to telminate her from t h e A p p r e n t i c e P r o g r a m b a s e d o n false a n d m i s l e a d i n g a c c u s a t i o n s . S a n t o s a l l e g e s t h a t s h e w a s forced to quit her apprenticeship and union membership when the Painters' Union refused to train Page -4- FINDINGS AND RECOMMENDAn O N
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her or put her back to w o r k because she was a woman. S a n t o s f i l e d a m o t i o n t o r e m a n d t h i s a c t i o n to s t a t e c o u r t o n N o v e m b e r 1 4 , 2 0 0 8 , a r g u i n g t h a t not evelY dispute concerning employment between parties to a collective bargaining agreement is preempted by the LMRA. In her motion, Santos referred to an amended complaint which she intended to file that would eliminate all references t o a collective bargaining agreement. On N o v e m b e r 2 5 , 2 0 0 8 , S a n t o s filed h e r a m e n d e d c o m p l a i n t u p o n o r d e r o f t h e c o u r t a n d w i t h o u t a n y opposition from Defendants. The amended complaint does not contain the reference to the contract C a s c a d e h a d w i t h t h e P a i n t e r s ' U n i o n f o u n d i n p a r a g r a p h 2 4 o f t h e o r i g i n a l c o m p l a i n t but does r e t a i n the reference to the union contract found i n paragraph 12(n) o f the original complaint.
Legal Standard

28 U.S.C. § 1447(c) provides: I f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment o f j u s t costs and any actual expenses, including attomey fees, incurred as a result o f the removal. The removal statute is strictly construed and any doubt about the right o f removal is resolved i n favor o f remand. Galls v.lvliles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The presumption against removal jurisdiction means "the defendant always has the burden o f establishing that removal is proper." Id. Only cases that would have had original jurisdiction in a federal district court may be removed from state court. 28 U.S.C. § 1441 (a)(2007). "Absent diversity o r citizenship, federalquestion jurisdiction is required." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). There is no diversity jurisdiction i n this matter. Thus, the court must detelmine whether there is federal question jurisdiction over the p m i i e s ' dispute and, more precisely, whether the L M R A confers that

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jurisdiction. Federal courts have original federal question jurisdiction in " a l l civil actions arising under the Constitution, laws, or treaties o f the United States." 28 U.S.C. § 1331 (2007). Nonnally, cases brought under the general federal question jurisdiction o f t h e federal cOUlis are those i n which federal law creates the cause o f action. JvJerrell D o w Pharmaceuticals Inc. v, Thompson, 478 U.S. 8 0 4 , 8 0 8 (1986). However, federal cOUlis have recognized that a case may also arise under federal law "where the vindication o f a right under state l a w necessarily turned o n some construction o f federal law."
Franchise Tax B d a / t h e State a / C a l . v, CanstI'. Laborers Vacation T r u s t / o r S. Cal., 463 U.S. 1,

9 (1983). " E v e n t h o u g h s t a t e l a w c r e a t e s a p p e l l a n t ' s c a u s e s o f action, i t s case m i g h t s t i l l ' a r i s e under' the laws o f the United States i f a well-pleaded complaint established that its right to r e l i e f u n d e r s t a t e l a w r e q u i r e s r e s o l u t i o n o f a s u b s t a n t i a l q u e s t i o n o f federal l a w i n d i s p u t e b e t w e e n t h e parties." Id. at 13. I t is clear that the question whether a c l a i m "arises under" federal law must be determined by reference to the "well-pleaded complaint." M e r r e l l Dotl', 478 U.S. at 808. Federal question jurisdiction exists only i f the federal question appears o n the face o f p l a i n t i f f s complaint; i f not, original jurisdiction is lacking, even i f the defense is based o n federal law. Id.
Discussion

Defendants assert that the resolution o f Santos' s claims against both Cascade and the Painters U n i o n r e q u i r e c o n s t r u c t i o n o f t h e Oregon State a n d S o u t h w e s t W a s h i n g t o n M a s t e r A r e a A g r e e m e n t for the Drywall Finishing Industry for the period o f July 1 , 2 0 0 5 , through June 30, 2008 (the " L a b o r C o n t r a c t " ) . A c c o r d i n g l y , D e f e n d a n t s a r g u e t h a t S a n t o s ' s c o m p l a i n t is c o m p l e t e l y p r e e m p t e d b y t h e L M R A a n d t h a t f e d e r a l j u r i s d i c t i o n exists. I n t h e a i t e m a t i v e , D e f e n d a n t s argue t h a t Santos a l l e g e s Page -6- FINDINGS AND RECOMMENDATION
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a claim for breach o f the federal-law duty o f fair representation against the Painters' Union and that the Apprentice Program is an employee benefit plan under the federal Employee Retirement Income Security Act (29 U.S.C. §§ 1001 e t seq. (2007))("ERlSA"), both o f which create federaljurisdiction and defeat S a n t o s ' s motion to remand. Finally, Santos seeks reimbursement o f h e r attorney fees i n c u n e d as a result o f the removal o f this action to federal comi.

A. L M R A
The Supremacy Clause o f Article VI o f the United States Constitution gives Congress the authority to preempt state law. A l l i s - C h a l m e r s Corp. v. Lueck, 471 U.S. 202, 208 (1985). In the a b s e n c e o f a n e x p r e s s s t a t e m e n t b y C o n g r e s s , s t a t e l a w i s n o n e t h e l e s s p r e e m p t e d w h e r e : (1) Congress intends that federal l a w occupy a given field; or (2) state l a w actually conflicts with federal law, such that compliance w i t h b o t h state and federal l a w is impossible, or state l a w is a n obstacle t o the accomplishment and execution o f the full purposes and objectives o f Congress. California
v. A R C Am. Corp., 490 U.S. 93, 100-01 (l989)(citations omitted).

Section 301(a) o f the LMRA, found at 29 U.S.C. § 185(a)(2007) provides that: Suits for violation o f contracts between a n employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, o r between any such labor organizations, may be brought i n any district court o f the United States having jurisdiction o f the paliies, without respect to the amount in c o n t r o v e r s y o r w i t h o u t r e g a r d to t h e c i t i z e n s h i p o f t h e p a r t i e s . Under § 301 (a), federal courts have jurisdiction over controversies involving collective bargaining agreements and are authorized ' ' ' t o fashion a body o f federal law for the enforcement o f these collective bargaining agreements.'" Lingle v. Norge Div. o j l v f a g i c C h e f Inc., 486 U.S. 399, 403 ( l 9 8 8 ) ( q u o t i n g Textile Workers v. Lincoln "'"fills, 353 U.S. 448, 451 (1957)). Section 301 preempts state l a w contract actions that attempt t o enforce a collectiveP a g e -7- F I N D I N G S A N D R E C O M M E N D A T I O N
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bargaining agreement. Avco Corp. v. Aero Lodge No. 7 3 5 , 3 9 0 U.S. 557 (1968)(action filed i n state c o u r t t o e n f o r c e a n o - s t r i k e c l a u s e i n a c o l l e c t i v e b a r g a i n i n g a g r e e m e n t p r e e m p t e d b y § 301). T h i s preemption principle also extends beyond state l a w contract actions to any state-law claim that is "inextricably inteliwined w i t h consideration o f the terms o f the labor contract." Allis-Chalmers

Corp., 471 U.S. a t 213. "[W]hen resolution o f a state-law c l a i m is substantially dependent upon
analysis o f the terms o f an agreement made between the parties i n a labor contract, that claim must either be treated as a Section 301 claim . . . or dismissed as preempted by federal labor-contract law."

Id. a t 220. Thus, the preemptive effect o f § 301 cannot be avoided by artfully pleading contract
claims as t01i claims. " T h e key t o determining the scope o f preemption is n o t h o w the complaint is cast, b u t whether the claims can be resolved only b y referring to the terms o f the collective bargaining agreement." Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 999 ( 9 t h Cir.

1987)(citingAllis-Chalmers, 471 U.S. at 211).
However, preemption is n o t a foregone conclusion evelY time a collective bargaining agreement might be relevant. The Supreme Court has held that despite the broad preemptive effect o f § 3 0 1 , s t a t e s r e t a i n t h e a u t h o r i t y to c o n f e r n o n n e g o t i a b l e r i g h t s o n i n d i v i d u a l e m p l o y e e s t h a t a r e independent o f rights under a collective bargaining agreement and that actions to enforce these rights are n o t preempted. Allis-Chalmers, 471 U.S. a t 212. Accordingly, state-law claims based solely on nonnegotiable rights that are independent o f a collective bargaining agreement, such as the r i g h t to the prompt payment o f wages upon severance, are not preempted b y § 301. Livadas v. Bradshaw, 512 U.S. 107, 123-23 (1994). Similarly, w h e n t h e c o l l e c t i v e b a r g a i n i n g a g r e e m e n t i s o n l y

tangentially related to the state-law action or where the cOUli's examination o f the collective b a r g a i n i n g a g r e e m e n t i s l i m i t e d to a d e t e r m i n a t i o n o f w h e t h e r a c o n f l i c t e x i s t s , p r e e m p t i o n i s n o t P a g e -8- F I N D I N G S A N D R E C O M M E N D A T I O N

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appropriate. Loewen Group Intern., Inc. v. Haberichter, 65 F.3d 1417, 1422 (7th Cir. 1995). In ",vfiller v. A T & T N e t w o r k Sys., 850 F.2d 543, 547 (9th Cir. 1988), the Ninth Circuit acknowledged that despite the requirement that federal l a w govern the enforcement o f collective bargaining agreements, the states still retained the right to establish IUles governing the employer/employee relationship and that state laws that alter the substance o f what private parties may agree to in a labor contract are not preempted by § 301. The court t h e n developed a test to detel1nine whether a state-law claim is preempted i n situations where a collective bargaining agreement contains rights similar to those created by state law. In deciding whether a state law is preempted under section 301, therefore, a court m u s t c o n s i d e r : (1) w h e t h e r t h e [ c o l l e c t i v e b a r g a i n i n g a g r e e m e n t ] c o n t a i n s p r o v i s i o n s that govern the actions giving rise to a state claim, and i f so, (2) whether the state has articulated a standard sufficiently clear that the state claim c a n be evaluated without considering the overlapping provisions o f the [collective bargaining agreement], and (3) whether the state has shown a n intent n o t t o allow its prohibition to be altered or removed b y private contract. A state l a w will be preempted only i f the answer to the first question is "yes," and the answer to either the second or third i s " n o . "
Id. at 548.
1. Cascade

Santos alleges that Cascade discriminated against her w h e n it allowed her co-employees to make rude and sexually harassing statements regarding S a n t o s ' s marital status and to touch Santos i n a sexual nature. Santos also alleges that Cascade discriminated against her based o n her sex by rehiring a male drywall finisher while refusing to rehire her. Based o n these allegations, Santos a s s e r t s c l a i m s a g a i n s t Cascade f o r s e x u a l d i s c r i m i n a t i o n a n d h a r a s s m e n t , w o r k e r s ' c o m p e n s a t i o n discrimination, and opposition to unlawful employment practices, all under Chapter 659 o f the O r e g o n R e v i s e d Statutes.

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Under Oregon law, a n employer has engaged in a n unlawful employment practice i f i t d i s c r i m i n a t e s a g a i n s t a n y i n d i v i d u a l b a s e d u p o n t h a t i n d i v i d u a l ' s race, religion, c o l o r , s e x , n a t i o n a l origin, marital status o r age. OR.

REv. STAT. 659A.030(l)(2007).

Similarly, a n e m p l o y e r m a y n o t

d i s c r i m i n a t e a g a i n s t a n e m p l o y e e b e c a u s e the e m p l o y e e a p p l i e d for w o r k e r s ' c o m p e n s a t i o n b e n e f i t s . OR. REv. STAT. 659A.040(2007). Oregon courts have consistently held that case l a w developed b y the federal c o m i s i n the interpretation o f Title VII can be u s e d to interpret Chapter 659 4 o f the Oregon Revised Statutes because the statutOly schemes are similar and Chapter 659 is pattel1led after Title VII. Vaughn v. Pac. Nw Bell Tel. Co., 2 8 9 Or. 73, 86 (1980); ,Vfains v. I I iv/orrow, Inc., 128 Or. App. 625, 634 (1994); Winnett v. City o j Portland, 118 Or. App. 437, 442 (1993). A p r i m a j a c i e c l a i m for d i s c r i m i n a t i o n b a s e d o n s e x c o m p r i s e s four factors. T h e s e f a c t o r s are: (1) membership i n a protected class; (2) application a n d qualification for the j o b o r satisfactOlY p e r f o n u a n c e o f t h e j o b ; (3) a n employment decision, such as demotion, tennination, or failure t o hire made despite t h e satisfactory performance or qualifications; and (4) replacement in the p o s i t i o n b y an individual o f comparable qualification who is not a m e m b e r o f the protected class. jv!cDonneli

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). T o state a c l a i m for sexual h a r a s s m e n t under
a hostile e n v i r o n m e n t theOlY, a p l a i n t i f f must allege that: "(1) she w a s subjected to verbal o r p h y s i c a l conduct o f a sexual nature, (2) this conduct w a s unwelcome, (3) t h e conduct w a s sufficiently severe or pervasive [so as] to alter t h e conditions o f . . . employment a n d create a n abusive w o r k i n g environment." Fuller v. City o j O a k l a n d , 47 F . 3 d 1522, 1527 (9th Cir. 1995) (citations omitted). T o p r e s e n t a p r i m a j a c i e c a s e for r e t a l i a t i o n u n d e r C h a p t e r 6 5 9 A , S a n t o s m u s t s h o w t h a t : ( 1 ) s h e

4The relevant provisions o f Chapter 659 o f the O r e g o n R e v i s e d Statutes were r e n u m b e r e d a s C h a p t e r 6 5 9 A i n 2001. P a g e -10- FINDINGS A N D R E C O M M E N D A T I O N

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engaged i n a protected activity; (2) defendants subjected her to an adverse employment action; and (3) the adverse employment action was a result o f p l a i n t i f f s engagement i n the protected activity.

R a y v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
Cascade fails to reference any portion o f the Labor Contract that supp011s or creates a claim for discrimination or retaliation based on sex or the use o f the workers' compensation system. Even i f the Labor Contract does address a n employee's claim for discriminatOlY or retaliat01Y treatment, none o f the prima facie elements for S a n t o s ' s claims against Cascade implicate unique rights granted to S a n t o s u n d e r t h e L a b o r C o n t r a c t . T h e e l e m e n t s m e r e l y r a i s e f a c t u a l i s s u e s r e l a t i n g to S a n t o s ' s protected status, qualifications, and conduct, and the actions and motivation o f Cascade and its e m p l o y e e s . P u r e l y f a c t u a l q u e s t i o n s s u c h a s t h o s e p e r t a i n i n g to t h e c o n d u c t o f a n e m p l o y e e a n d t h e conduct o r motivation o f an employer, do n o t sufficiently implicate the telms o f a collective bargaining agreement to justifY preemption. I n these cases, the state-law claims do n o t require construction o f the collective bargaining agreement and the claim is independent o f such agreement.

Lingle, 486 U.S. at 407.
A number o f courts have reached the same conclusion and determined that the state-law discrimination claims before them were n o t inextricably intel1wined w i t h collective bargaining agreements and, therefore, were n o t preempted by federal law. See, e.g., Lingle, 486 U.S. 399 (t011 claim o f retaliatory discharge for filing workers' compensation claim recognized b y Illinois courts w a s independent o f a collective bargaining agreement in the sense that the resolution o f t h e state-law claim did not require construction o f the collective bargaining agreement and was not preempted b y

§ 301); Humble v. Boeing Co., 305 F.3d 1004 (9th Cir. 2002)(reasonable accommodation and
retaliation claims under Washington law n o t preempted under the LMRA); Jimeno v. lviobil Oil Page -11- FINDINGS A N D RECOMMENDATION

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Corp., 66 F.3d 1514, 1523-28 (9th Cir. 1995)(handicapped discrimination claim not preempted
b e c a u s e r e s o l u t i o n o f t h e c l a i m required a " p u r e l y f a c t u a l i n q u i r y , " therefore, i n t e r p r e t a t i o n o f t h e collective bargaining agreement was not required to evaluate the p l a i n t i f f s prima facie case);

Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993)(national origin
d i s c r i m i n a t i o n c l a i m n o t p r e e m p t e d b e c a u s e r i g h t s c o n f e r r e d b y t h e C a l i f o m i a E m p l o y m e n t A c t are " ' d e f i n e d a n d e n f o r c e d u n d e r s t a t e l a w w i t h o u t r e f e r e n c e to t h e t e r m s o f a n y c o l l e c t i v e b a r g a i n i n g a g r e e m e n t ' . . [ a ] c t i o n s a s s e r t i n g t h o s e r i g h t s are t h u s i n d e p e n d e n t o f c o l l e c t i v e - b a r g a i n i n g agreements.")(quoting Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1286 (9th Cir. 1989))(emphasis i n Ramirez); Jackson v. S. California Gas Co., 881 F.2d 638, 646 (9th Cir. 1989)(claims o f race discrimination under California statute not preempted b y § 301). Some o f these courts have even held that the rights granted by the Oregon legislature to employees to be free from discrimination by their employers found in Chapter 659 o f the Oregon Revised Statutes are nonnegotiable and independent o f rights granted under collective bargaining agreements and, as such, are n o t preempted b y § 301. See }vfiller, 850 F.2d a t 550 ("Because O r e g o n ' s handicap d i s c r i m i n a t i o n s t a t u t e i m p o s e s a m a n d a t o r y a n d i n d e p e n d e n t d u t y o n e m p l o y e r s t h a t does n o t r e q u i r e interpretation o f the t e l m s o f a [collective bargaining agreement], section 301 does not p r e e m p t claims brought under this statute."); Shuler v. Distribution Trucking Co., CV No. 96-1 189-MA, Opinion a t 2 (D. Or. Nov. 18, 1996)("It is well-settled that statutory discrimination claims are n o t subject to LMRA preemption.")(citing Lingle, 486 U.S. at 412, Ramirez, 998 F.2d at 748); Vaughan, 289 Or. at 82-3 (Oregon statutes that protect employees receiving workers' compensation benefits from retaliatory discrimination by employers apply whether or n o t the employee is subject to a c o l l e c t i v e b a r g a i n i n g a g r e e m e n t a n d are n o t p r e e m p t e d b y f e d e r a l l a w . ) P a g e -12- F I N D I N G S A N D R E C O M M E N D A T I O N

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Cascade argues that S a n t o s ' s specific reference to a contract between the Painters Union and Cascade i n paragraph 24 o f her complaint5 requires the COUlt to interpret the telIDS o f the L a b o r C o n t r a c t t o r e s o l v e S a n t o s ' s d i s c r i m i n a t i o n claims. I n p a r a g r a p h 2 4 , S a n t o s a l l e g e s t h a t a f t e r s h e w a s laid off, Cascade refused to return her to w o r k and rehired a male drywall finisher instead. She a l s o a l l e g e s t h a t t h i s c o n d u c t was c o n t r a r y to C a s c a d e ' s o b l i g a t i o n to r e t u r n S a n t o s to w o r k b e f o r e hiring other workers who were out o f w o r k for less time.· The mere fact that Santos allegedly references the Labor Contract" does n o t necessarily mean that the Labor Contract is relevant or essential to S a n t o s ' s claims. Allis-Chalmers, 471 U.S. a t 211 ( " [ N ] o t e v e r y dispute c o n c e m i n g e m p l o y m e n t o r t a n g e n t i a l l y i n v o l v i n g a p r o v i s i o n o f a c o l l e c t i v e bargaining agreement, is pre-empted by §301 or other provisions o f federal law.") Only state-law claims that require the resolution o f questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches o f that agreement are preempted by § 301. S a n t o s ' s allegation that she was replaced with a male worker supports the

5Santos eliminates the reference t o the Labor Contract i n h e r amended complaint. However, the c o m t m u s t determine whether it had jurisdiction over the action at the t i m e it was removed. Accordingly, the allegations in the amended complaint, which was filed after the action was removed, are not relevant. Sparta Surgical Corp. v. N a t 'I. Ass'n. o fSec. Dealers, 159 F.3d 1209, 1213 (9th Cir. 1998)(jurisdiction i s "analyzed a t the time o fremoval without reference to subsequent amendments"). ·Santos specifically references the Labor Contract i n h e r allegations against Harvel' asselting that she was forced to work by h e r s e l f under unsafe working conditions in violation o f the union c o n t r a c t . H a r v e r has n o t a r g u e d t h a t t h i s r e f e r e n c e t o t h e L a b o r C o n t r a c t r e s u l t s i n p r e e m p t i o n . 7Santos argues that the reference t o the contract between the Painters' U n i o n and Cascade relates to the Apprentice Program, not the Labor Contract. Because the court finds that S a n t o s ' s claims against Cascade are n o t inextricably intertwined w i t h the Labor Contract and are, therefore, n o t preempted, the c o m t need not address the issue o f which agreement Santos was refelTing to in her complaint or i f the Apprentice Program also qualifies as a collective bargaining agreement under theLMRA. P a g e -13- F I N D I N G S A N D R E C O M M E N D A T I O N
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fomih element o f a sex discrimination claim - replacement by a n individual o f comparable qualification who is not a member o f the protected class - without reference to the Labor Contract. That Santos could also state a claim for violation o f the recall provisions o f the Labor Contract does not t u m S a n t o s ' s state-law discrimination claims into a claim for breach o f the Labor Contract. The c o m i s h a v e regularly h e l d that w h i l e a p l a i n t i f f m a y h a v e a v a l i d c a use o f a c t i o n u n d e r b o t h s t a t e l a w and the collective bargaining agreement, the plaintiff is the master o f her complaint and may elect which action she wishes to pursue. C a t e l p i l l a r , 482 U.S. at 392 (1 987)("The rule makes the p l a i n t i f f the master o f the claim; he or she may avoid federal jurisdiction b y exclusive reliance o n state law.") Even i f Cascade relies on the recall provisions o f the Labor Contract in its defense to establish that it had a legitimate, nondiscriminatory reason for hiring a male drywall finisher rather than Santos, S a n t o s ' s claims are not preempted b y § 301. Neither pmiy has indicated that the recall p r o v i s i o n s are i n d i s p u t e o r t h a t i n t e r p r e t a t i o n o f t h e s e p r o v i s i o n s i s r e q u i r e d . A s t a t e - l a w c a u s e o f action is not preempted i n situations where the meaning o f terms in the collective bargaining agreement is n o t at issue. Livadas, 512 U.S. a t 124 (the fact that a collective bargaining agreement will be considered in resolving state-law claim does n o t result in preemption o f that claim). Santos's complaint alleges purely state-law claims for sex discrimination, sexual harassment, and retaliation, both for seeking workers' compensation benefits and for complaining about sexual discrimination/harassment. N o n e o f these c l a i m s i m p l i c a t e t h e L a b o r C o n t r a c t o r r e q u i r e

interpretation o f the Labor Contract. The answer to the first question under the iV/iller test is "no", Therefore, S a n t o s ' s claims against Cascade are not preempted b y § 301 o f the LMRA. 2. Painters' Union Santos alleges that the Painters' Union discriminated against h e r by refusing to give her credit
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for previous experience or written assignments while granting her male counterparts credit for the same, resulting i n a significant pay discrepancy between Santos and her male counterparts. She alleges that her instructors made sexually disparaging comments to her, assigned her menial tasks, such as making coffee, cleaning, and mopping, and refused to train her, all because she is a woman. Additionally, the Painters' Union allegedly did not respond to S a n t o s ' s complaints about sexual harassment and discrimination o n the j o b site and constructively discharged her in retaliation for making such complaints. Based on these allegations, Santos asserts claims for sex discrimination, sexual harassment, workers' compensation discrimination, opposition to unlawful employment practices, intentional interference with economic relations and aiding and abetting discrimination and retaliation against the Painters' Union. For the reasons discussed above, the court finds that Santos's claims for sex discrimination, sexual harassment, and retaliation against the Painters' Union are independent,. nonnegotiable state law claims that do not require interpretation o f the Labor Contract for resolution and are, therefore, not preempted under § 301. A s for her aiding and abetting claim, i t is based o n OR. REv. STAT. 659A.030(l )(g), which provides that it is an unlawful employment practice for " a n y person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing o f any o f the acts forbidden under this chapter or to attempt to do so." The question o f whether the Painters' Union aided and abetted i n Santos's employers' discriminatory acts is purely factual. I t does not require the interpretation o f the Labor Contract. This claim should be treated the same as S a n t o s ' s other Chapter 659 claims, which are not preempted by § 301. The Painters' Union argues that S a n t o s ' s complaints to the Painters' U n i o n about her employers' discriminatOlY conduct should be viewed as an attempt to initiate a grievance under the Page -15- FINDINGS AND RECOMMENDATION
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Labor Contract. In that case, any determination that the Painters' Union failed to properly pursue this grievance would require reference to and interpretation o f the Labor Contract, which sets fOlih the grievance procedures. However, Santos has not stated a claim for breach o f contract based o n the Painters' U n i o n ' s failure to pursue the grievance. Santos has clearly elected to proceed against the Painters' Union under a state statute that provides an independent nonnegotiable right to be free from discrimination and retaliation. The fact that Santos elected not to pursue the remedies offered to her under the Labor Contract does not prevent Santos from tiling an action against the Painters' Union for violation o f state law. "[A] p l a i n t i f f covered by a collective-bargaining agreement is p e r m i t t e d t o a s s e l i l e g a l r i g h t s i n d e p e n d e n t o f t h a t agreement, i n c l u d i n g s t a t e - l a w c o n t r a c t r i g h t s , so long as the contract relied o n is n o t a collective-bargaining agreement." Caterpillar, 482 U.S. at 3 9 6 ( e m p h a s i s i n original). The intentional interference claim is a state common-law claim which requires some a d d i t i o n a l consideration. In this claim, Santos asselis that the Painters' Union intentionally

interfered w i t h h e r e m p l o y m e n t p u r s u i t s w i t h b o t h p a s t a n d f u t u r e e m p l o y e r s t h r o u g h i m p r o p e r means and with an improper purpose. Based on these allegations, it appears that Santos is asseliing that by refusing to train her or put her back to work because she is a woman, thereby forcing her to terminate her apprenticeship and union membership, the P a i n t e r s ' Union intentionally and wrongfully interfered with her ability to work as an apprentice dlywall finisher. To prevail o n a claim for intentional interference with economic relations, a plaintiff must establish six elements: (1) the existence o f a professional or business relationship (which could include, e.g., a contract or a prospective economic advantage), (2) intentional interference with the relationship, (3) by a third party, (4) accomplished through improper means or for an Page -16- FINDINGS AND RECOMMENDATION
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improper purpose, (5) a causal effect between the interference and damage t o the e c o n o m i c r e l a t i o n s h i p , a n d (6) d a m a g e s .
lvfcGanty v. Staudenraus, 321 Or. 532, 535 (1995). The tort "arises when a defendant induces a third

p a t i y n o t to enter into or n o t to continue a business relationship w i t h the plaintiff." D i a l TemporGlY
H e l p Serv. Inc. v. Shrock, 946 F. Supp. 847, 855 (D. Or. 1996). The interference must be wrongful

"by some measure beyond the fact o f the interference itself. Defendant's liability may arise from improper motives or from the use o f improper means. They may be wrongful by reason o f a statute or other regulation, or a recognized mle o f c o m m o n law, or perhaps a n established standard o f a trade or profession." Top Servo B o d y S h o p v. Allstate Ins. Co., 283 Or. 20 I, 209 (1978). Again, it is clear from the evidence Santos is required to offer to establish a p r i m a f a c i e claim for intentional interference claim that interpretation or construction o f the Labor Contract is n o t r e q u i r e d . T h e P a i n t e r s ' U n i o n ' s a l l e g e d d i s c r i m i n a t o r y a c t s f o r c e d S a n t o s to r e s i g n f r o m t h e Apprentice Program and h e r membership in the Painters' Union, which significantly restricted h e r ability to w o r k as a n apprentice drywall finisher. The only possible nexus to the Labor Contract is the requirement that contractors who have signed the Labor Contract employ only members o f the P a i n t e r s ' U n i o n . H o w e v e r , i n t e r p r e t a t i o n o f t h i s t e r m o f t h e L a b o r C o n t r a c t is n o t r e q u i r e d . S a n t o s ' s state-law claim for intentional interference with economic relations does n o t require interpretation o f the Labor Contract. Accordingly, the answer to the first Miller question is " n o " and the claim is n o t preempted by § 301 o f the LMRA. B. Federal-Law Duty o f Fair Representation Defendants also argue that this court has original jurisdiction over the complaint based o n two additional grounds: I ) that Santos alleges a claim for a federal-law duty o f fair representation

P a g e -17- F I N D I N G S A N D R E C O M M E N D A T I O N

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against the Painters' Union; and 2) that Santos alleges a violation o f the Apprentice Program, which is an employee benefit p l a n under ERISA. Defendants' failure to asseli these jurisdictional grounds i n their notice o f removal is not fatal. The Ninth Circuit has held that "[0 ]nce a case has been properly removed, the district court has jurisdiction over it on all grounds apparent from the complaint, not j u s t those cited i n the removal notices." Williams v. Costco Wholesale Corp., 471 F.3d 975 (9th Cir. 2006). The federal-law duty o f f a i r representation derives from Section 9(a) o f the National Labor Relations Act (29 U.S.C. § 151 e t s e q . ) ( " N L R A " ) , which authorizes a union, as the representative o f a majority o f the employees, to "be the exclusive representatives o f all the employees in such unit for the purposes o f collective bargaining in respect to rates o f pay, wages, hours o f employment, or other conditions o f employment." 29 U.S.C. § 159(a) (2007). This duty applies to representational activity, including the "negotiation, administration, and enforcement o f collective bargaining agreements" and imposes on a union the duty "to represent all members . . . without hostility o r discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." lvJadison v. }(Jotion Picture S e t Painters & Sign Writers Local 729, 132 F. Supp. 2 d 1244, 1256 (C.D. Cal. 2000)(quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967); I n t ' l Bhd.
o f E l e c . Workers v. Foust, 442 U.S. 42, 47 (1979)).

Defendants acknowledge that the N i n t h Circuit has not addressed the question o f whether the federal-law duty o f a union to fairly represent all o f its members preempts a state-law claim alleging the breach o f such a duty. However, Defendants encourage the court to adopt the analysis o f the First Circuit set fOlih i n B l W D e c e i v e d v. Local S6, Indus. Union o f },larine & Shipbuilding
Workers o f America, 132 F J d 824, 830 ( I s t Cir. 1997), which held that state law is completely

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preempted whenever a p l a i n t i f f s claim invokes rights derived from a u n i o n ' s duty o f fair representation which is grounded in federal statutes and governed by federal law. This court does not need to determine whether the Ninth Circuit would agree that a state law claim alleging a breach o f the federal-law duty o f fair representations is completely preempted beacuse Santos has not alleged a claim for breach o f the federal-law duty o f fair representation. Santos does not allege that the Labor Contract is discriminatOlY or that the Painters' Union did not act with complete good faith and honesty in negotiating or enforcing the Labor Contract. Instead, Santos has alleged that the Painters' Union violated Chapter 659 o f the Oregon Revised Statutes by allowing S a n t o s ' s employers, all o f whom were patiies to the Labor Contract, to discriminate against her. I n pursuing her claim, Santos is relying on a duty created by the Oregon statute applicable to all employers and employees to refrain from assisting i n the discrimination o f any employee based o n the employee's race, religion, color, sex, national origin, marital state or age. The duty is not unique to the Painters' Union as Santos's representative under the NLRA. 8 Therefore, S a n t o s ' s state-law claim for aiding and abetting under OR. REV. STAT. 659A.030(g) is not completely preempted by the federal-law duty o f fair representation and does not give this couli federal question jurisdiction over S a n t o s ' s complaint. See Adkins v. Jvfireles, 526 F.3d 531, 539-40 (9th Cir. 2008)("To bring a successful state law action, aggrieved workers must make a showing o f additional duties, i f they exist, beyond the normal incidents o f the union-employee relationship. Such duties m u s t derive from sources other than the u n i o n ' s status as its members' exclusive collective

8The cOUli is not convinced that the Painters' Union, to avoid potential liability under OR.

REv. STAT. 659A.030(g), was obligated to respond to S a n t o s ' s complaints about her employers'
discrimination and retaliation. However, the fact that Santos may not have stated a valid claim under s t a t e l a w d o e s n o t c o n v e r t h e r a l l e g a t i o n s into a b r e a c h o f t h e f e d e r a l - l a w d u t y o f f a i r r e p r e s e n t a t i o n . Page -19- FINDINGS AND RECOMMENDATION
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bargaining representative . . . . ")(citing United Steelworkers o fAm. v. Rawson, 495 U.S. 362, 374 (1990». C. ERISA Like the LMRA, the Supreme Court has held that state-law claims that are sufficiently related to a qualified employee-benefit p l a n are completely preempted by ERISA. The test for removal i s two fold - the claim must be preempted under 29 U.S.C. § I I 44(a) and m u s t fall within the scope o f E R I S A ' s enforcement provisions found at 29 U.S.C. § 1132. ,vfetro. Life Ins. Co. v. Taylor, 481 U.S. 58, 62-66 (1987). E R I S A s p e c i f i c a l l y p r o v i d e s t h a t i t " s h a l l s u p e r s e d e a n y a n d all S t a t e l a w s i n s o f a r a s t h e y may n o w or hereafterrelate to any employee benefit plan. . . . " 29 U.S.C. § 1144(a)(2007). A statel a w claim relates t o a n employee benefit plan, in the normal sense o f the phrase, i f it has a connection with o r r e l a t i o n to such a plan. Shaw v. Delta A i r Lines, Inc., 463 U.S. 85, 96-97 (1983). T h e r e q u i r e d c o n n e c t i o n e x i s t s w h e n a s t a t e - l a w c l a i m is p r e m i s e d o n t h e e x i s t e n c e o f a n E R I S A plan and the existence o f the p l a n is essential to the c l a i m ' s survival. Providence Health P l a n v.
}lfcDowell, 361 F J d 1243, 1247 (9th Cir. 2004).

Defendants argue that Santos i s seeking to enforce rights allegedly due her u n d e r the Apprentice Program, w h i c h it characterizes as an ERISA plan. 9 Specifically, Defendants assert that Santos is seeking credit for previous experience. Characterized i n this way, S a n t o s ' s allegations appear to assert a claim for benefits under a n ERISA plan. However, it is clear from the complaint and the relief requested that what Santos really wants is to force the Painters' Union t o apply the

9Because the court finds that the Apprentice Program is n o t essential to S a n t o s ' s claims, the c o u l i need not detelmine whether the Apprentice Program qualifies as a n ERISA plan. P a g e -20- F I N D I N G S A N D R E C O M M E N D A T I O N
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telms o f the Apprentice Program in a nondiscriminatory way - to treat males and females the same i n awarding the benefits due under the Apprentice Program. This is evidenced b y the r e l i e f Santos seeks, which includes money damages, attorney fees and costs, reinstatement, and a permanent injunction barring Defendants from engaging in discriminatory or retaliatory conduct as alleged i n the complaint. Nowhere in h e r complaint does Santos ask the court to give her credit for prior experience. S a n t o s ' s claims are not premised on the existence o f the Apprentice Program. She is asking only that she be treated the same as h e r male counterparts in all regards. Her complaints against D e f e n d a n t s are b a s e d , a m o n g o t h e r t h i n g s , o n s e x u a l l y d i s p a r a g i n g r e m a r k s , s e x u a l l y i n a p p r o p r i a t e touching, the assignment o f menial tasks, and retaliation for seeking workers' compensation benefits a n d c o m p l a i n i n g a b o u t s e x u a l d i s c r i m i n a t i o n . T h e A p p r e n t i c e P r o g r a m i s n o t e s s e n t i a l to a n y o f t h e s e c l a i m s . A c c o r d i n g l y , S a n t o s ' s c l a i m s are n o t p r e e m p t e d b y E R I S A . I n l i g h t o f t h i s f i n d i n g , the c o m t need n o t address the issue o f whether Santos, who is no longer a member o f the Apprentice Program, has standing to asselt an ERISA claim. D. A t t o r n e y Fees Santos asks the c o m t to order Defendants to reimburse for reasonable attorneys incurred by h e r as a result o f the removal. Santos argues that these fees are recoverable regardless o f

Defendants' state o f mind o r intent in removing the action in light o f }vioore v. Permanente }vfedical

Group, 981 F.2d 443, 448 (9th Cir. 1992), in which the N i n t h Circuit held that " [ a ] n award o f
attorney fees pursuant to 28 U.S.C. § 1447(c) . . . is within the discretion o f the district court, and bad faith need not be demonstrated." The Supreme Court recently took o n the issue o f when attomey fees should be awarded under § 1447(c). In jvfartin v. Franklin Capital Corp., 546 U.S. 132, 136 P a g e - 2 1 - FINDINGS A l ' l D R E C O M M E N D A T I O N

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(2005), the Court held t h a t " a b s e n t unusual circumstances, a t t o r n e y ' s fees should n o t b e awarded w h e n the removing p a r t y h a s a n objectively reasonable basis for removal." J'yJartin effectively overrules lvIoore. S a n t o s d o e s n o t a r g u e , a n d t h e c o u r t d o e s n o t find, t h a t D e f e n d a n t s d i d n o t h a v e o b j e c t i v e l y r e a s o n a b l e g r o u n d s to r e m o v e this a c t i o n to federal c o m t o r t h a t u n u s u a l c i r c u m s t a n c e s exist. T h e c o m p l a i n t specifically references t h e L a b o r Contract a s w e l l b e n e f i t s available u n d e r t h e A p p r e n t i c e P r o g r a m t h u s f a c i a l l y i m p l i c a t i n g t h e s e s o u r c e s o f p o t e n t i a l federal j u r i s d i c t i o n . T h e s e a l l e g a t i o n s serve as a n "objectively reasonable basis for removal." S a n t o s ' s request for attorney fees should be denied.

Conclusion
S a n t o s ' s m o t i o n (#20) to remand should be GRANTED and this case remanded to the Circuit C o u r t o f t h e S t a t e o f O r e g o n f o r t h e C o u n t y o f M u l t n o m a h . S a n t o s ' s r e q u e s t f o r a t t o m e y fees s h o u l d be DENIED. Scheduling Order T h e a b o v e F i n d i n g s a n d R e c o m m e n d a t i o n w i l l be referred to a U n i t e d States D i s t r i c t J u d g e for review. Objections, i f any, are due n o later than June 15,2009. I f n o objections are filed, r e v i e w o f the Findings and R e c o m m e n d a t i o n w i l l go under advisement o n that date. I f o b j e c t i o n s a r e filed, a n y p a t t y m a y file a r e s p o n s e w i t h i n f o u r t e e n d a y s a f t e r t h e d a t e t h e objections are filed. R e v i e w o f the Findings and R e c o m m e n d a t i o n will go under advisement when the response is due o r filed, whichever date is earlier. D A T E D this 29th day o f May, 2009.

J(pHN V. A C O S T A Uni States M a g i s t r a t e J u d g e

eJ

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