This matter is before the court on defendants Sacramento Metropolitan Fire District's (the "District") and Local 522 Union, Pat Monahan, and Brian Rice's (collectively, the "Union") motions to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 Plaintiffs Mark Thomsen ("plaintiff") and Dawn J. Thomsen ("Mrs. Thomsen") oppose the motions. For the reasons set forth below,*fn2 defendants' motions to dismiss pursuant to Rule 12(b)(6) are GRANTED in part and DENIED in part.
At all relevant times, plaintiff was employed by the Sacramento Metropolitan Fire District, which operates in the County of Sacramento. (Pls.' 2d Am. Compl. ("SAC"), filed Apr. 22, 2009, [Docket # 1-3], ¶ 1.) Plaintiff alleges in February 2006, Fire Chief Don Mette ("Mette") assigned him to the District's Special Investigations Unit. (Id. ¶ 11.) Plaintiff claims that in this capacity he worked under the District's General Counsel Dick Margarita ("Margarita"), assisted with personnel investigations, and conducted background checks on persons seeking employment with the District. (Id.)
Plaintiff alleges that in late September 2006, he received an email from a previous female employee (the "former employee") stating that she had been wrongfully terminated. (Id. ¶ 15.) Plaintiff alleges that Margarita instructed him to contact the former employee and have her discuss the matter with Margarita, plaintiff, and Pat Monahan ("Monahan"). (Id.) Plaintiff further alleges that Mette and Margarita utilized Jeff Rinek ("Rinek") to aid the investigation. (Id. ¶ 16.) Plaintiff claims that as a result of this investigation, Mette advised the Board of Directors to approve a settlement with the former employee.
(Id.) Around September 28, 2006, plaintiff claims he was asked to attend a late-night meeting at which he was advised to keep silent on the issue. (Id. ¶ 17.) Plaintiff further claims that around the time of the meeting, Mette accused him of discussing the former employee's complaint with others and ordered him to keep the issue secret. (Id. ¶ 19.)
Within a few days of the meeting, plaintiff claims he was removed from the Special Investigations Unit, allegedly because he had violated Mette's order not to discuss the former employee's complaint. (Id. ¶ 20.) Plaintiff claims that shortly thereafter, he was assigned to a different shift and was told he would return to the day shift "once tempers cooled." (Id. ¶ 21.) Plaintiff alleges that around October or November 2006, he met with the Board of Directors to discuss his concern that the former employee's case was not properly investigated. (Id. ¶ 22.) Plaintiff claims that around mid to late November 2006, he learned that the former employee had received a settlement of over one-half million dollars. (Id. ¶ 23.) Plaintiff claims that he made inquiries as to why the former employee's complaint had not resulted in an outside investigation. (Id. ¶ 24.)
On December 2, 2006, plaintiff alleges he was placed on administrative leave pending an investigation into an allegation that plaintiff committed a felony by altering a patient's report. (Id. ¶ 25.) Plaintiff contends that he was put on leave as a result of his investigation into the former employee's situation. (Id. ¶ 26.) Plaintiff claims that Rinek performed the investigation with regard to plaintiff's alleged felony, but that Mette and Margarita decided the outcome of this investigation.
(Id. ¶ 27.) Local 522 Union ("Union") provided plaintiff with an attorney to aid with issues pertaining to his administrative leave. (Id. ¶ 28.) Plaintiff alleges the attorney refused to act without first getting approval from Monahan and Brian Rice ("Rice"). (Id.) While on administrative leave, plaintiff alleges he was asked to attend a meeting on December 14, 2006, with the President and Vice President of the Union. (Id. ¶ 29.) Plaintiff claims that during the meeting he was told he would be fired if he continued to ask questions about the former employee and continued to "push" with regard to his pending disciplinary case. (Id.) Plaintiff alleges that the Union officials were acting at the behest of Margarita and Mette. (Id.)
On December 31, 2006, an article appeared in the Sacramento Bee, reporting that Margarita had signed an affidavit in a superior court action, alleging that plaintiff had committed a felony by materially altering a public report. (Id. ¶ 30.) Plaintiff claims he had not received a Notice of Intent to Discipline at this time, and as far as he knew, an investigation of the alleged felony had never been completed. (Id.)
On January 2, 2007, plaintiff alleges he retained new counsel because of the conflict of interest between the Union's counsel and the investigation into the former employee's termination. (Id. ¶ 31.) Around the same time, plaintiff claims his counsel notified every Board member of their duties to plaintiff. (Id. ¶ 32.) Plaintiff also alleges he and his counsel requested the right to speak about the investigation and plaintiff's administrative leave, which was noted on the Board of Director's agenda. (Id.)
Plaintiff also sent a confidential letter to the Board, indicating his suspicions of a cover-up by Mette, Margarita, Chavez, Monahan, and Rice. (Id.) Plaintiff alleges that Greg Grenados ("Grenados") breached plaintiff's confidence by informing Mette and Margarita of plaintiff's suspicions regarding the investigation and circumstances surrounding his alleged felony. (Id.) Subsequently, plaintiff notified the Attorney General about the District's lack of investigation into the former employee's situation. (Id. ¶ 33.) Plaintiff claims that on or about January 17, 2007, four to six armed men knocked forcefully on his residential door. (Id. ¶ 34.) Plaintiff alleges these armed men were employed by the District and were directed by Margarita and/or Mette to instill terror on plaintiff's family. (Id.)
On February 14, 2007, plaintiff was advised of the District's intent to dismiss plaintiff. (Id. ¶ 35.) On March 23, 2007, plaintiff and his counsel attended a pre-disciplinary hearing, conducted by Deputy Chief Geoffrey Miller. (Id. ¶ 36.) Plaintiff and his attorney gave Deputy Chief Miller a twelve page letter with six attachments, all of which allegedly demonstrated that plaintiff's termination was unsupported by facts or law. (Id.) Plaintiff claims that Mette and Margarita ignored his letter, and notified him through a letter dated March 26, 2007, that he was terminated as of that date. (Id. ¶ 37.) Plaintiff alleges that sometime thereafter, Mette and Margarita learned that several District employees had submitted false documents containing allegedly false college degrees, but that these individuals only received reduced pay and were not terminated.
Plaintiff claims that, for the purpose of getting his job back, he initiated and won an arbitration proceeding. (Id. ¶ 39.) Shortly thereafter in November, 2008, plaintiff was informed that his employment would be suspended. (Id. ¶ 40.) Plaintiff then filed a complaint with the District, which was denied on August 24, 2007. (Id. ¶¶ 39-41.)
Finally, plaintiff alleges that he filed a complaint with the DFEH regarding his November 2008 suspension, which resulted in his receipt of a right-to-sue notice against the District. (Id. ¶ 42.) Plaintiffs filed a Complaint in the Superior Court of California for the County of Sacramento on February 22, 2008. The action was removed to this court on April 22, 2009.
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.
Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). Indeed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp.2d 1035, 1042 (C.D. Cal. 1998).
Ultimately, the court may not dismiss a complaint in which the plaintiff alleged enough facts to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. When there are well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.
I. Plaintiffs' Claims against the Union
Plaintiffs assert twelve causes of action against the Union. All but one of the claims are asserted individually by plaintiff Mark Thomsen. The allegations of wrongdoing by the Union include: breach of an implied covenant of good faith and fair dealing, breach of contract, negligence, violation of Government Code § 820, declaratory relief for attorney's fees under Government Code § 996.4, violation of 42 U.S.C. § 1983, and breach of the duty of fair representation. In addition, plaintiff asserts claims against Monahan and Rice, as agents of the Union, which include negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, violation of Government Code § 820, civil conspiracy, and violation of Government Code § 19683. Mrs. Thomson also brings an individual claim against all defendants for loss of consortium.
The Union moves to dismiss claims against the Union and its officers or officials, arguing that seven of plaintiffs' twelve claims are preempted by § 301 of the Labor Management Relations Act (the "LMRA"), subsumed by the duty of fair representation claim, or both.*fn3 Therefore, the Union asserts that these claims must be dismissed.
State law claims may be preempted by the LMRA where adjudication of such claims would require interpretation of the collective bargaining agreement between the employer and the labor organization. See Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005); Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). "Section 301 of the LMRA provides federal jurisdiction over '[s]uits for violation of contracts between an employer and a labor organization.' A suit for breach of a collective bargaining agreement is governed exclusively by federal law under Section 301." Smith v. Pac. Bell Tel. Co., No. CV-F-06-1756 OWW/DLB, 2007 U.S. Dist. LEXIS 31699 (E.D. Cal. April 13, 2007). "[T]he Supreme Court has interpreted [§ 301] to compel the complete preemption of state law claims brought to enforce collective bargaining agreements." Valles, 410 F.3d at 1075 (citing Avco Corp v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968)). The Ninth Circuit has further noted that "[a]lthough the language of § 301 is limited to 'suits for violation of contracts,' courts have concluded that, in order to give the proper range to § 301's policies of promoting arbitration and the uniform interpretation of collective bargaining provisions, § 301 'complete preemption' must be construed to cover 'most state-law actions that require interpretation of labor agreements.'" Balcorta, 208 F.3d at 1108 (citing Associated Builders & Contractors, Inc. v. Local 302 Int'l Bhd. of Elec. Workers, 109 F.3d 1353, 1356 (9th Cir. 1997); see also Valles, 410 F.3d at 1075 ("[T]he Supreme Court has expanded § 301 preemption to include cases the resolution of which is substantially dependent upon the analysis of the terms of a collective bargaining agreement.") (internal citations omitted).
"To effectuate the goals of Section 301, preemption should be applied only to 'state laws purporting to determine questions relating to what the parties to a labor agreement agreed, and what legal consequences flow from breaches of that agreement' and to tort suits which allege 'breaches of duties assumed in collective bargaining agreements.'" Livadas v. Bradshaw, 512 U.S. 107, 114 S.Ct. 2068 (1994). "A claim brought in state court on the basis of a state-law right that is 'independent of rights under the collective-bargaining agreement,' will not be preempted, even if 'a grievance arising from "precisely the same set of facts" could be pursued.'" Valles, 410 F.3d at 1076; see also Townsell v. Ralphs Grocery Co., No. 09 CV 0793 JM (AJB), 2009 U.S. Dist. LEXIS 46601, *10 (S.D. Cal. June 3, 2009) (stating "the LMRA preempts state law claims which are 'substantially dependent on the analysis of the terms of' the collective bargaining agreement and to the extent claims against the Union rest on such analysis, § 301 would predominate").
Furthermore, state law claims may also be subsumed under federal law*fn4 by plaintiff's duty of fair representation claim. "The duty of fair representation is a corollary of the union's status as the exclusive representative of all employees in a bargaining unit." Phillips v. Int'l Union of Operating Engineers, No. C-96-0363-VRW, 1996 U.S. Dist. LEXIS 12008, *11 (N.D. Cal. Aug. 7, 1996) (citing Vaca v. Sipes, 386 U.S. 171, 182 (1967)). "It is judicially created from § 9(a) of the [National Labor Relations Act (the "NLRA")] , which requires a union 'to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitration.'" Id. "Section 9(a) of the Labor Management Relations Act empowers a union to act as the exclusive bargaining agent of all employees in collective bargaining. Cash v. Chevron Corp., 1999 U.S. Dist. LEXIS 20709, *4 (N.D. Cal. 1999); 29 U.S.C. § 159(a). "The duties related to this representation are defined solely by federal law" and apply to all representational activity undertaken by the union." Id.
Furthermore, the "federal duty of fair representation preempts the application of state substantive law which attempts to regulate conduct that falls within the union's duty to represent its members." Id. at *5. Indeed, "[s]tate law claims are preempted 'whenever a plaintiff's claims invoke rights derived from a union's duty of fair representation.'" Id. at *6 (emphasis in original); see also Richardson v. United Steelworkers of America, 864 F.2d 1162, 1168 (holding that because plaintiff's allege that the Union breached a duty arising from its status as their exclusive collective bargaining agent pursuant to the NLRA, Vaca requires this duty to be defined by federal law).
Moreover, to the extent plaintiffs asserts claims implicates the duty of fair representation, under California state law, the Public Employment Relations Board ("PERB") has exclusive jurisdiction pursuant to the Meyers-Milias-Brown Act ("MMBA"). The MMBA "imposes on local public entities a duty to meet and confer in good faith with representatives of recognized employee organizations, in order to reach binding agreements governing wages, hours, and working conditions of the agencies' employees." Coachella Valley Mosquito v. California Public Employment Relations Board, 35 Cal. 4th 1072, 1083. In 2000, the legislature incorporated the MMBA within the PERB's jurisdiction. Id. at 1085. "In determining whether conduct in a given case could give rise to an unfair practice claim, the court must construe the activity broadly." Personnel Com. v. Barstow Unified School Dist., 43 Cal. App. 4th 871 (1996).
1. Breach of Implied Covenant of Good Faith and Fair Dealing
Plaintiff's third cause of action is for breach of implied covenant of good faith and fair dealing against the Union. "In California, a claim for the breach of the implied covenant of good faith and fair dealing 'is necessarily based on the existence of an underlying contractual relationship, and the essence of the covenant is that neither party to the contract will do anything which would deprive the other of the benefits of the contract.'" Marbley v. Kaiser Permanente Med. Group, Inc., No. C 09-2484 JF (PVT), 2009 U.S. Dist. LEXIS 61957 (N.D. Cal. July 20, 2009) (citations omitted). "The theory underlying a claim for breach of the implied covenant was developed to protect employees who lacked the job security created by a collective bargaining agreement." Id. Therefore, "[i]ndividuals protected by a collective bargaining agreement often need not resort to state law claims to obtain relief. As a result, 'section 301 preempts the California state cause of action for breach of the implied covenant of good faith and fair dealing when an employee enjoys comparable job security under a collective bargaining agreement.' Marbley, 2009 U.S. Dist. LEXIS 61957, at *11 (quoting Milne Employees Ass'n v. Sun Carriers, 960 F.2d 1401, 1411 (9th Cir. 1991)); see also Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1349-52 (9th Cir. 1985) (holding section 301 preempts claims for intentional infliction of emotional distress and breach of implied covenant of good faith and fair dealing).
Plaintiff is an individual protected by a collective bargaining agreement and thus, any allegation that the Union's conduct violated an employment agreement will require interpretation of the agreement. See Marbley, 2009 U.S. Dist. LEXIS 61957, at *11. As such, Section 301 preempts his state law claim for breach of implied covenant of good faith and fair dealing.
Furthermore, plaintiff's third cause of action is subsumed by the Union's duty of fair representation under federal and state law. Plaintiff alleges that the Union breached the implied covenant of good faith and fair dealing contained in the employment agreement; specifically, plaintiff contends that the employment agreement "obligated defendants to perform the terms and conditions of the agreement fairly and in good faith." Because plaintiff bases his cause of action on the Union's duties as defined by the employment agreement, plaintiff's claim for breach of the implied covenant of good faith and fair dealing is subsumed by the Union's duty of fair representation.
2. Negligent Infliction of Emotional Distress
Plaintiff's fifth cause of action is for negligent infliction of emotional distress against Monahan and Rice.*fn5
"Section 301 preemption of emotional distress claims depends on whether the CBA governs the alleged discriminatory behavior.
When the CBA does govern the behavior, and the underlying claims are preempted, the emotional distress claims are also preempted." Martinez v. Lucky Stores, No. C 97-4685 FMS, 1998 U.S. Dist. LEXIS 14740, *5-6 (N.D. Cal. Sept. 18, 1998); see also Cook v. Lindsay Olive Growers, 911 F.2d 233, 239-40 (9th Cir. 1990). "In contrast, when the underlying claim is not preempted, neither is the claim for emotional distress." Martinez, 1998 U.S. Dist. LEXIS 14740, at *6; see Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1089 ("To the extent that resolution of the negligent infliction of emotional distress claims requires interpretation of the CBA, these claims are preempted by section 301."). Because disciplinary actions and letters of warning are governed by the collective bargaining agreement, resolution of claims arising from such alleged conduct necessarily entails examination and interpretation of the agreement, thereby preempting those claims. Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1049 (1987).
Plaintiff's complaint details various disciplinary actions taken against him by defendants Monahan, Rice, Kelly, and Granados, including being put on leave, receipt of letters of intent to terminate, a pre-disciplinary hearing, and his discharge. Because these allegations arise out of the alleged disciplinary actions against him and because disciplinary actions and letters of warning are governed by the collective bargaining agreement, resolution of plaintiff's claims require examination and interpretation of the agreement. As such, plaintiff's claim for negligent infliction of emotional distress is preempted by § 301 of the LMRA.
Furthermore, plaintiff's fifth cause of action is also subsumed by the Union's duty of fair representation under federal and state law. Plaintiff specifically alleges that: (1) Monahan and Rice owed a duty to be part of an unbiased investigation into any wrongdoing alleged against plaintiff; (2) Kelly owed a duty to provide plaintiff with a forum to address the allegations against him; and (3) Grenados owed plaintiff a duty to keep information provided to him in confidence. Each of these alleged duties constitute "representational activity." See Cash, 1999 U.S. Dist. LEXIS 20709, at *4; see also Richardson, 864 F.2d at 1167 ("plaintiffs did not allege any breach of a state tort duty that exists independently of the NLRA-established collective bargaining relationship, which is the central concern of the NLRA"). Because plaintiff alleged that the Union members breached a duty that arose from the Union's status as the exclusive bargaining agent, his claim for negligent infliction of emotional distress is subsumed into claims that the Union violated its duty of fair representation.
Plaintiff's seventh cause of action is for breach of contract against the Union. "Section 301 of the LMRA provides federal jurisdiction over '[s]uits for violation of contracts between an employer and a labor organization.' A suit for breach of a collective bargaining agreement is governed exclusively by federal law under Section 301." Smith, 2007 U.S. Dist. LEXIS 31699, at *14-15; see also Balcorta, 208 F.3d at 1108 ("The pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization.") (internal quotations omitted). Plaintiff's claim for breach of contract is based on the "contract of employment" with defendants. (Compl. ¶ 82.) As such, any resolution of this claim depends on an analysis of the collective bargaining agreement and is thus preempted under § 301.
Further, plaintiff's claim is also subsumed by claims regarding the Union's duty of fair representation because plaintiff alleges that the Union breached its contract by failing to ...