ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE
This matter comes before the Court on Defendant Union Pacific's ("Defendant's")Motion to Dismiss the second through eighth causes of action in Plaintiffs Jeremy Gilmore and Dana Gilmore's ("Plaintiffs'")First Amended Complaint ("FAC"). Defendant moves to dismiss the causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs oppose the motion. Defendant also brings a Motion to Strike, pursuant to Federal Rule of Civil Procedure 12(f).*fn1
I. FACTUAL AND PROCEDURAL BACKGROUND
As alleged in the FAC, Plaintiffs, who are husband and wife, were both employed by Union Pacific Railroad Company at an engine repair facility in Roseville, California. Plaintiff Jeremy Gilmore ("Jeremy") was a machinist and Plaintiff Dana Gilmore ("Dana") was an electrician. On August 14, 2008, Jeremy was hit and injured by an air compartment door while conducting tests of a locomotive engine. He was hospitalized following the accident, and completed a personal injury report at the request of Defendant. Shortly thereafter, he was cited for violations of various work rules, including allegations that he falsified the extent of his injuries in the injury report. Jeremy was subject to a disciplinary hearing held by Defendant, in which managers Carolyn Will and Dennis Magures acted as hearing officer and fact finder. Carolyn Will thereafter sent Jeremy a letter informing him that he was found guilty of the charges against him and terminated on November 6, 2008.
In conjunction with Defendant's investigation of Jeremy, Dana was questioned by Defendant and accused of dishonesty and insubordination based on her refusal to testify against Jeremy at his disciplinary hearing. She was then subjected to a disciplinary hearing at which Andrew Ribbing served as hearing officer and fact finder. He later informed Dana that she was terminated on December 22, 2008.
Plaintiffs originally filed suit in Placer Superior Court, alleging violations of the Federal Employers Liability Act ("FELA"), 45 U.S.C. §51 et seq., wrongful discharge, intentional infliction of emotional distress, and invasion of privacy. Plaintiffs seek back pay, general, special and punitive damages, and attorney's fees and costs. Defendant removed the case to District Court based on federal question jurisdiction, and in the alternative, diversity jurisdiction. Defendant also noted in the Notice of Removal that it was not joining the individually named defendants (Dennis Magures, John Parker, Carolyn Will, Leo Marin and Andrew Ribbing) in the removal because allegedly they had not been served and all causes of action against them were barred as a matter of law. Defendant then brought the present Motion to Dismiss and Motion to Strike, in which Defendant also argues for dismissal on behalf of the individually named defendants.
A party may move to dismiss an action for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Sherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F. 2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss, a court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Absent prejudice, or a strong showing of any [other relevant] factor, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F. 3d 1048, 1052 (9th Cir. 2003). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear... that the complaint could not be saved by amendment." Id. Accordingly, a court should grant leave to amend the Complaint unless the futility of amendment warrants dismissing a claim with prejudice.
"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter... Motions to strike are disfavored an infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation... A motion to strike may be used to strike any part of the prayer for relief when the recovery sought is unavailable as a matter of law." Bassett v. Ruggles et al., 2009 WL 2982895 at *24(E.D. Cal. Sept. 14, 2009)(internal citations omitted).
B. Wrongful Discharge, Second Cause of Action
Jeremy alleges that he was wrongfully terminated in violation of public policy. He alleges that he was terminated because Defendant knew he intended to pursue his rights for compensation under FELA, and wished to discourage him from doing so. He alleges that his termination was in violation of the law and policy articulated in California Labor Code Section 132(a) and the Federal Rail Safety Act, 49 U.S.C. Section 20109(a)(4). Defendant argues that this cause of action is preempted by the FRSA, the Railway Labor Act ("RLA") 45 U.S.C. 151 et seq., and FELA. For the reasons set forth below, Defendant's motion to dismiss this cause of action is DENIED.
Defendant argues that the FRSA preempts the claim of wrongful discharge because the FRSA contains an election of remedies clause. However, as Jeremy notes, he is not suing under the FRSA. He is merely referencing the FRSA as one of the public policies violated by his discharge. Because he is not suing under the FRSA, Defendant's argument that the FRSA constitutes an election of remedies does not apply. Likewise, Defendant's argument that the FRSA does not create a private right of action does not apply. Gonero v. Union Pacific Railroad Company, 2009 WL 3378987 at *6(E.D. Cal. Oct. 19, 2009). The California Supreme Court has expressly rejected the argument that common law wrongful termination claims may not be "tethered" to federal statutes that lack a private cause of action. Id. at *7, citing Green v. Ralee Engineering Co., 19 Cal. 4th 66, 87-88 (1998).
Similarly, Defendant argues that the cause of action under California Labor Code Section 132(a) must be dismissed, apparently misunderstanding that Jeremy is not attempting to sue under the Labor Code. Like his reference to the FRSA, the reference to the California Labor Code was to demonstrate the existence of a public policy advancing workplace safety. Section 132(a) declares it a policy of the state that there should be no discrimination against workers who are injured in the scope of their employment.
Defendant argues that the RLA preempts a wrongful termination claim because adjudication of the claim would require interpreting the collective bargaining agreement ("CBA"). The RLA is the exclusive dispute resolution process for claims that require adjudication of the CBA, because the National Railroad Adjustment Board and the private tribunals authorized by the RLA provide a "mandatory, exclusive, and comprehensive system for resolving [railroad] grievance disputes." Brotherhood of Locomotive Engineers, v. Louisville N.R., 373 U.S. 33, 38 (1963). Only those disputes that can be classified as "major" or "minor" under the Act are preempted by the RLA. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). Defendant does not contend that Jeremy raises a "major" dispute, rather it contends that Jeremy's wrongful discharge claim is a "minor" dispute. A "minor" dispute involves interpreting or applying an existing CBA. Id. at 253. However, "substantive protections provided by state law, independent of whatever labor agreement might govern, are not pre-empted under the RLA." Id. at 257 (citing Missouri Pacific R. Co. v. Norwood, 283 U.S. 249, 258 (1931).
In deciding whether Jeremy has raised a valid state law claim for wrongful termination that should survive a motion to dismiss, the first step is to determine if he has asserted a public policy capable of supporting such a claim. California recognizes an exception to the at-will employment doctrine, allowing employees fired in violation of fundamental state or federal public policy to sue for tort damages. Gonero, 2009 WL 3378987 at *7 (citing Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 172 (1980)). A public policy may support a Tameny claim if it is "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) 'substantial' and 'fundamental.' Stevenson v. Superior Court, 16 Cal. 4th 880, 901-02 (1997).
"While the California Labor Code and the FRSA serve to regulate the terms of the employment relationship, they also reflect a public policy in favor of promoting workplace safety." Gonero, 2009 WL 3378987 at *8. California has recognized workplace safety as a fundamental public policy under California Labor Code §6400. Id. at *9 (citing City of Palo Alto v. Service Employees International Union, 77 Cal. App. 4th 327, 336 (2000)). Likewise, in the employee protections section of the FRSA, §20109(a)(4), it is unlawful for an employer to terminate an employee who notifies the railroad carrier of a work-related injury or illness, as was the case when Jeremy notified Defendant of his injury. In the Gonero case, a case also against Union Pacific similar to the case at bar, plaintiff alleged violations of the employee protections provided by the FRSA in Section 20109. The court held that Union Pacific was expressly bound by the workplace safety provisions of FRSA §20109. The court found that the plaintiff had asserted a valid common law claim of wrongful termination in violation of public policy which the RLA may not preempt. Gonero, 2009 WL 3378987 at *7. The public policy supporting employee workplace safety advanced by the FRSA is a well-established "public" policy, and is "substantial" and "fundamental," thus meeting all the requirements to support a Tameny claim. Id. at *8-9.
The second step in the RLA preemption analysis is to determine whether Jeremy has raised a "minor" dispute which requires interpretation of the CBA. Defendant asserts that Jeremy's common law wrongful discharge claim is not independent of the CBA, because the FAC alleges that the disciplinary procedures and reasons for his termination were false, baseless and pre-textual. As it did in the Gonero case, Defendant cites Bielicke v. Terminal R.R. Ass'n, 30 F. 3d 877 (7th Cir. 1994), in support of this proposition. In Gonero, the Court found that "Bielicke is inapposite" because the source of the right claimed by plaintiffs in Bielicke was the CBA itself. The plaintiffs' claims in Bielicke constituted a 'minor' dispute subject to RLA preemption because the sole inquiry was whether the company abused its investigatory powers granted by the CBA. On the other hand, Plaintiff's claims in Gonero alleged that he was fired in violation of California and federal public policies supporting workplace and railroad ...