Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 CANDICE HUNTER, an individual, Case No.: 3:23-CV-02223-BEN-SBC 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 v. MOTION TO REMAND

12 SOUTHERN CALIFORNIA

PERMANENTE MEDICAL GROUP, a 13 California General Partnership, KAISER 14 FOUNDATION HEALTH PLAN, a [ECF No. 8] California non-profit corporation, and 15 DOES 1 through 20, inclusive, 16 Defendants. 17 18 Defendants Southern California Permanente Medical Group and Kaiser Foundation 19 Health Plan (collectively “Defendants”) removed this case based on federal preemption 20 of state law under the Labor Management Relations Act (“LMRA”). Before the Court is 21 Plaintiff Candice Hunter’s (“Plaintiff”) motion to remand the action back to the Superior 22 Court of California, County of San Diego. ECF No. 4 (“Mot.”). Defendants filed an 23 opposition, ECF No. 5 (“Oppo.”), and Plaintiff filed a reply. ECF No. 6 (“Reply”). The 24 briefing was submitted on the papers without oral argument pursuant to Civil Local Rule 25 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. 26 After considering the applicable law and the parties’ arguments, the Court 27 GRANTS Plaintiff’s Motion to Remand. 28 1 I. BACKGROUND FACTS 2 Plaintiff, an African American woman, began working for Defendants around 3 September 1995, and remains employed as a Lab Assistant. ECF No. 1-2, Ex. E (“FAC”) 4 ¶ 19-20. Beginning in 2017, Plaintiff was entrusted with additional responsibilities by 5 former Lab Manager Ron Bajet (“Bajet”), including: training new employees; working on 6 the scheduling rotation; and troubleshooting complicated blood draws. Id. at ¶ 24. 7 Following her perceived elevation, co-workers with identical job titles began making 8 offensive comments based on Plaintiff’s race. Id. at ¶ 25. Prior to her additional 9 responsibilities, Plaintiff alleges she did not have any conflicts with her co-workers. Id. 10 at ¶ 26. In November 2017 Plaintiff’s co-workers submitted complaints against Plaintiff 11 portraying her as an “angry black woman.” Id. at ¶ 30. The complaints led to a meeting 12 with Bajet where he openly laughed at the comments Plaintiff’s co-workers made about 13 her. Id. at ¶ 31. The harassment by co-workers continued, leading Plaintiff to request to 14 work shifts different from the harassers in late 2017. Id. at ¶ 32. 15 Throughout 2018, Plaintiff continued to perform the additional duties and 16 continued to experience harassment, even in presence of Bajet who did nothing to correct 17 the behavior. Id. at ¶ 33-35. In May 2019, Plaintiff reported the harassment to Bajet, and 18 during that conversation Bajet made a “slave” comment to Plaintiff. Id. at ¶ 38. Bajet 19 later denied making the “slave” comment. Id. Throughout 2020, Plaintiff continued to 20 face harassment by co-workers, such as being completely ignored, receiving negative 21 comments about her hair scarf, and attempts to influence new employees against her. Id. 22 at ¶ 39-41. In June 2020, Plaintiff again reported the harassment to Bajet. Id. at ¶ 42. 23 Bajet responded by saying “be strong” but did not take any action. Id. 24 On July 30, 2020, Plaintiff filed a discrimination complaint, this time with: Human 25 Resources Consultant, Kari Pacheco (“Pacheco”), Lab Administrator, Dian Giles, 26 27 1 For the purposes of Plaintiff Hunter’s Motion to Remand, the Court assumes facts pled 28 1 (“Giles”) Director of Administrative Assistants, Aldie Garcia (“Garcia”), and a local 2 union representative. Id. at ¶ 45. On August 19, 2020, Plaintiff met with Pacheco to 3 provide additional details about her compliant. Id. at ¶ 46. 4 Between August 26, 2020, and September 7, 2020, and again between September 5 16, 2020 through August 6, 2021, Plaintiff covered shifts for other employees at the 6 Rancho San Diego jobsite in an effort to get away from her harassers. Id. at ¶ 47, 49. 7 While working at Rancho San Diego, Plaintiff filed a grievance against Bajet. Id. at ¶ 49. 8 On October 18, 2020, Plaintiff contacted Pacheco requesting an update. Id. at ¶ 50. 9 Pacheco responded by requesting a meeting with Plaintiff and Garcia. Id. 10 On January 14, 2021, Bajet called Plaintiff at home at 10:02 p.m. Id. at ¶ 52. 11 Plaintiff did not answer but attempted to return Bajet’s phone call twice that evening and 12 again the next morning. Id. Bajet did not respond to any of Plaintiff’s phone calls. Id. 13 Plaintiff learned that Bajet was seeking to cover overtime opportunities in the lab and 14 instead of following up with Plaintiff, he scheduled two less senior employees for the 15 overtime. Id. Bajet continued to ignore Plaintiff’s calls and text messages and required 16 an intermediary to communicate with Plaintiff. Id. at ¶ 53. In or about March 2021, 17 Plaintiff amended her complaint against Bajet to include allegations that he made her 18 work off-the-clock. Id. at ¶ 57. Defendants subsequently terminated Bajet. Id. at ¶ 59. 19 On July 14, 2021, Plaintiff received a schedule placing her back at her original 20 jobsite in Otay Mesa. Id. at ¶ 60. Giles informed her that she was returning to Otay 21 Mesa because complaints had been reported against her at the Rancho San Diego 22 location. Id. at ¶ 61. Plaintiff then took medical leave of absence due to excessive 23 anxiety over returning to Otay Mesa and facing complaints against her in Rancho San 24 Diego. Id. at ¶ 62. On July 22, 2021, a few days before the expiration of her leave, 25 Plaintiff spoke to Pacheco about the still incomplete investigation of her discrimination 26 complaint. Id. at ¶ 63. Pacheco told her that the investigation was ongoing. Id. On 27 August 12, 2021, Pacheco emailed Plaintiff informing her that the issues she raised in her 28 1 discrimination complaint were “personality conflicts that were handled in 2017.” Id. at ¶ 2 65. 3 In September 2021, Plaintiff reported to Garcia that he was not assigning overtime 4 in order of seniority, as required by a collective bargaining agreement (“CBA”). Id. at ¶ 5 66. Garcia responded indicating that Plaintiff needed to email him with the days she 6 wished to pick up overtime hours. Id. Plaintiff alleges she was the only employee 7 required to follow the additional email request step. Id. On November 10, 2021, Plaintiff 8 began to cut back her hours in an effort to avoid a harasser. Id. at ¶ 68. 9 Between November and December 2021, Plaintiff noticed she was no longer being 10 asked to train new employees. Id. at ¶ 69. On December 1, 2021, Plaintiff asked 11 Technical Support Supervisor Alvin Baton why she was no longer being asked to train 12 new employees. Id. Baton responded by saying that part-time workers were not allowed 13 to train new employees. Id. However, a part-time co-worker and main harasser was 14 tasked with training new employees. Id. The same co-worker received overtime on 15 February 28, 2022. Id. at ¶ 70. When Plaintiff informed Baton that her seniority entitled 16 her to that shift, Baton offered her a different overtime shift instead of addressing the 17 issue. Id. On September 7, 2022, Defendants held a fact-finding meeting wherein 18 Plaintiff was informed of new complaints against her by co-workers. Id. at ¶ 75. 19 Plaintiff never received a copy of the conclusion or findings from that meeting before she 20 left on medical leave on September 16, 2022. Id. 21 II. LEGAL STANDARDS 22 A defendant in state court may remove a civil action to federal court so long as 23 that case could originally have been filed in federal court. 28 U.S.C. § 1441(1); City of 24 Chi v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). Removal of a state action may 25 be based on either diversity or federal question jurisdiction. City of Chi, 522 U.S. at 163; 26 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Whether or not the Court has 27 federal question jurisdiction is governed by the “well-pleaded complaint rule,” which 28 states that “federal jurisdiction only exists when a federal question is presented on the 1 face of the plaintiff's properly pleaded complaint.” Caterpillar, 482 U.S. at 392. “The 2 rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction 3 by exclusive reliance on state law.” Id. The removal statutes are strictly construed, and 4 removal jurisdiction is to be rejected in favor of remand if there are doubts as to the right 5 of removal. Nev. v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012). 6 The Supreme Court has held that “if the resolution of a state-law claim depends on 7 the meaning of a collective-bargaining agreement,” then the “state law is pre-empted and 8 federal labor-law principles” must decide the matter. Lingle v. Norge Div. of Magic Chef, 9 Inc., 486 U.S. 399, 405-406 (1988). State law claims that can be resolved independently 10 of the CBA are not preempted by section 301 of the LMRA. Lingle, 486 U.S. at 407. 11 III. DISCUSSION 12 Plaintiff argues that Defendants improperly removed this case from state court 13 because there is no federal jurisdiction. See Mot. at 1-2. Defendants contend that certain 14 causes of action in Plaintiff’s complaint are preempted by section 301 of the LMRA and 15 therefore this Court has federal question jurisdiction2. Notice of Removal at ¶ 6, 24, 36, 16 37, 49; Oppo at 5. Defendants’ argument rests on the view that the Court will need to 17 interpret the CBA in order to adjudicate several of Plaintiff’s causes of action. Notice of 18 Removal at ¶ 24; Oppo. at 5. Plaintiff argues she can prove the elements of these causes 19 of action without reference to the CBA, leaving her case outside of the scope of section 20 301 of the LMRA. Mot. at 9; Reply at 2. 21 A. Section 301 of the LMRA 22 The Supreme Court has decided that with the enactment of the LMRA, Congress 23 mandated federal courts to “to fashion a body of federal common law to be used to 24 25 26 2 Defendants argue that causes of action one, two, three, four, and nine are preempted by 27 the LMRA. Notice of Removal at ¶ 36; Oppo. at 5. Defendants further argue that the Court has supplemental jurisdiction over Plaintiff’s causes of action five, six, seven, 28 1 address disputes arising out of labor contracts.” Burnside v. Kiewit Pacific Corp., 491 2 F.3d 1053, 1059 (9th Cir. 2007). Section 301 of the LMRA states: 3 Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce… may be brought in 4 any district court of the United States having jurisdiction of the parties, without 5 respect to the amount in controversy or without regard to the citizenship of the parties. 6 7 29. U.S.C. § 185(a). The Supreme Court has held that certain state court claims 8 involving a violation of the CBA must be resolved by federal law. Allis-Chalmers Corp. 9 v. Lueck, 471 U.S. 202, 210 (1985). But the Court also cautioned “not every dispute 10 concerning employment, or tangentially involving a provision of a collective-bargaining 11 agreement, is pre-empted by § 301 or other provisions of the federal labor law.” Id. at 12 211. 13 Plaintiff’s first, second, third, fourth, and ninth causes of action for harassment 14 based on race, retaliation, and failure to prevent discrimination in violation of FEHA and 15 the California Labor Code, are based on the same alleged facts, which Defedants’s argue 16 gives rise to the federal preemption jurisdiction. See FAC ¶ 102, 114, 122, and 169. The 17 first cause of action in Plaintiff’s First Amended Complaint for discrimination based on 18 race3 states: 19 DEFENDANTS treated PLAINTFF less favorably than non-Black employees by subjecting her to discrimination in employment including, but 20 not limited to: disregarding her seniority under the collective bargaining 21 agreement when offering overtime to employees, requiring her to work off the clock, requiring her to take additional arbitrary steps to request overtime, 22 23 24 3 Plaintiff’s first cause of action states that it is for discrimination based on disability. 25 Defendant’s Notice of Removal made note of this inconsistency and treated it as a typo since in all other instances this cause of action has been referred to as discrimination 26 based on race. Plaintiff failed to address the inconsistency in her Motion to Remand and 27 Reply papers. The Court will treat the disability mention as a typographical error and proceed on the assumption that the first cause of action is that of discrimination based on 28 1 making racially charged comments to and about her, refusing to investigate her complaints, taking away her duties, and isolating her, excluding her from 2 group activities. 3 FAC ¶ 91. The central question then is whether the claims arise out of rights created by 4 the CBA or if they arise from rights Plaintiff enjoys independent from the CBA. If the 5 first, then Plaintiff’s claims would be preempted by section 301 of the LMRA, which in 6 turn provides basis for jurisdiction; if the second, then the Court would lack federal 7 question jurisdiction and be required to remand the case back to state court. 8 The Ninth Circuit set forth a two-part inquiry to determine whether a state law 9 claim is preempted by section 301 of the LMRA in Burnside. First, courts must inquire 10 “whether the asserted cause of action involves a right conferred upon an employee by 11 virtue of state law, not by a CBA.” Burnside, 491 F.3d at 1059. “If the right exists solely 12 as a result of the CBA, then the claim is preempted.” Id. If not, then courts proceed to 13 the second part of the inquiry and ask whether the right is “nevertheless ‘substantially 14 dependent on analysis of a collective-bargaining agreement.’” Id. (quoting Caterpillar, 15 482 U.S. at 394). “If such dependence exists, then the claim is preempted by section 16 301.” Burnside, 491 F.3d at 1059-60. Once preempted, “any claim purportedly based on 17 that pre-empted state law is considered, from its inception, a federal claim, and therefore 18 arises under federal law.” Caterpillar, 482 U.S. at 393; see also Diaz v. Sun-Maid 19 Growers of Cal., No. 1:19-cv-00149-LJO-SKO, 2019 WL 1785660, at *7–8 (E.D. Cal. 20 Apr. 24, 2019) (denying motion to remand after determining that plaintiff's overtime 21 claim preempted by § 301). 22 Using the Burnside test, first the Court will determine if Plaintiff’s claims arise 23 directly from rights created by the CBA. Failing to find in the affirmative to step one, the 24 Court would then determine whether the claim is “substantially dependent” on analysis of 25 the CBA. 26 1. Does Plaintiff’s Claim Arise Directly from Rights in the CBA? 27 28 1 Plaintiff repeats the claim throughout the complaint that Defendants engaged in 2 “disregarding her seniority under the collective bargaining agreement when offering 3 overtime to employees” and other acts unrelated to a CBA, in violation of California state 4 law. This is the only reference to a CBA in her ten claimed state law causes of action. In 5 the 84 paragraphs of factual assertions in her complaint, the CBA is rarely mentioned. 6 When the CBA is mentioned tangentially and only for context. The claims as pleaded 7 have little relationship to the CBA and “beyond the fact that they are asserted by an 8 individual covered by such an agreement are simply not pre-empted by § 301.” 9 Caterpillar, 482 U.S. at 396, n.10. 10 The right to be free from discrimination based on one’s race exists independent of 11 a CBA between an employer and a union of represented workers. See Ramierz v. Fox 12 Television Studios, Inc., 998 F.2d 743, 748 (1993). Plaintiff brings this action not for 13 CBA-created rights, but rather for the allegedly racially motivated treatment she received 14 while working for Defendants. Plaintiff’s allegations may involve violations of the CBA 15 (such as disregarding her seniority when scheduling work) as evidence of the 16 discriminatory treatment, but the Ninth Circuit has held that “reference to or 17 consideration of the terms of a collective-bargaining agreement is not the equivalent of 18 interpreting the meaning of the terms.” Ramierz, 998 F.2d at 749. 19 Plaintiff’s claims arise out of her right to be free from discrimination at work and 20 as pleaded are not based on rights directly created by the CBA. Therefore, the inquiry 21 proceeds to step two of the Burnside analysis to determine if Plaintiff’s claims are 22 substantially dependent on interpretation of the CBA. 23 2. Are Plaintiff’s Claims Substantially Dependent on Analysis of the 24 CBA? 25 26 27 28 1 Defendants argue that Plaintiff would need to rely on CBA-created rights to show 2 an adverse employment action4. Notice of Removal ¶ 36, Oppo. at 6-7. An adverse 3 employment action is an element of Plaintiff’s discrimination claims. Specifically, 4 Defendants argue that the Court will be required to interpret what constitutes an 5 “equitable rotation” of overtime hours and what constitutes a sufficient “offer” for 6 additional shifts. Oppo. at 13-14. Plaintiff argues that she will be able to establish her 7 claims without reference to the CBA. Mot. at 9. 8 To determine whether a claim is “substantially dependent” on interpretation of the 9 CBA a court determines whether a claim can be resolved by looking to, versus 10 interpreting, a CBA. Burnside, 491 F.3d at 1060. “Although the look to/interpret 11 distinction is not always clear or amenable to a bright-line test, some assessments are 12 easier to make than others . . . when the meaning of contract terms is not the subject of 13 dispute, the bare fact that a [CBA] will be consulted in the course of state-law litigation 14 plainly does not require the claim to be extinguished. Similarly, alleging a hypothetical 15 connection between the claim and the terms of the CBA is not enough to preempt the 16 claim.” Id. (internal citations omitted, cleaned up). 17 Here Plaintiff’s mention of CBA seniority rights as one piece of evidence for the 18 discrimination she allegedly suffered may not require an interpretation of the terms of the 19 CBA. Moreover, Plaintiff raises several other allegations as a basis for her 20 discrimination claims unrelated to the CBA violations. See supra Part I. Background 21 Facts. Applying the Burnside test, the claims neither arise directly from rights created by 22 the CBA, nor are they substantially dependent on an analysis of the CBA. Therefore, her 23 claims are not preempted by the LMRA. 24 25 26 27 4 Defendants argue that since Plaintiff is still employed with Defendants, then she cannot 28 1 B. Conclusion 2 For removal based on federal question jurisdiction to be proper, a federal question 3 must be present on the face of a plaintiff’s complaint. Caterpillar, 485 U.S. at 392. The 4 plaintiff is the master of the complaint and can avoid federal jurisdiction by relying solely 5 on state law. Id. Here, Plaintiff brings a complaint with ten state law causes of action, all 6 of which are based on state anti-discrimination and labor laws that remain independent of 7 a collective bargaining agreement. The Court finds that Plaintiff has not raised a federal 8 question in her complaint, thus making removal improper. 9 IV. CONCLUSION 10 For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand and 11 the case is remanded to the Superior Court of California, County of San Diego. 12 IT IS SO ORDERED. 13 Dated: July 18, 2024 _________________________________ HON. ROGER T. BENITEZ 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28