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Andrea Van Scoy, Lynda Azevedo, Diana v. New Albertson's Inc.

December 10, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Through the present action, Plaintiffs, who were white employees of Defendant Save Mart's*fn1 Store 7254 in Vallejo, California, allege they were subjected to so-called "reverse" discrimination at the hands of an African-American store manager who is claimed to have discriminated, harassed and retaliated against Plaintiffs because they were not African-American.

Presently before the Court is Plaintiffs' Motion to Remand this matter back to the Solano County Superior Court where it was originally filed on March 20, 2008.

Save Mart removed Plaintiffs' lawsuit to this Court on May 8, 2008, asserting that the claims contained therein were preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 141 et seq. ("LMRA"). Plaintiffs raised no objection to this Court's jurisdiction in that regard until September 27, 2010, nearly two-and-a-half years later, when they filed the instant Motion to Remand. The subject Motion was filed just three days before the Court was schedule to hear Save Mart's Motion for Summary Judgment as to two of the named Plaintiffs.

Given its suspect timing, the Court is unimpressed by Plaintiffs' tardy effort to challenge its jurisdiction. Nonetheless, as Plaintiffs point out, federal jurisdiction is properly subject to scrutiny at any time. Plaintiffs' jurisdictional arguments, however, still fail.

The terms and conditions of Plaintiffs' employment with Save Mart were unquestionably governed by one or more collective bargaining agreements ("CBAs") between Save Mart and its employee union organizations. The CBAs govern, among other things, work assignments, promotions, transfers and discipline. As indicated above, Plaintiffs' contentions herein include claims that they were unfairly denied promotions that instead went to African-American employees and further were subject to disciplinary measures disparate than those employed for their black counterparts.

The LMRA does not preempt state law discrimination claims like those asserted by Plaintiffs herein where the court can uphold such independent state claims without interpreting the terms of a CBA. Busey v. P.W. Supermarkets, Inc., 368 F. Supp. 2d 1045, 1049 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 213); see also Cook v. Lindsay Olive Growers, 911 F.2d 233, 237. Because such rights exist completely apart from the terms of a CBA and are nonnegotiable in any event, Congress in enacting the LMRA never intended to preempt state-based anti-discrimination statutes. Miller v. AT&T Network Sys., 850 F.2d 543, 546 (9th Cir. 1988). Consequently, free-standing claims of discrimination and retaliation under the California Fair Employment and Housing Act are not preempted by federal law. Bachilla v. Pacific Bell Tel. Co., 2007 WL 2825924 at * 7-8 (E.D. Cal. 2007).

Where adjudication of a state claim depends on the analysis or interpretation of CBA terms, however, the calculus changes. Reece v. Houston Lighting & Power Co., 79 F.3d 485, 487 (5th Cir. 1997), citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 274, 278 (if resolution will require interpretation of the CBA, then state law remedies sought by plaintiff are preempted by the LMRA).

Significantly, in this district's prior Bachilla decision, like the present matter, plaintiffs' discrimination claims were predicated, at least in part, on defendant's promotion of other individuals. That implicated the terms of the CBA, since defendants' assertion that the promotions were valid could not be interpreted without evaluating the seniority provisions of the CBA.

As the Bachilla court noted, this link between viability of the employer's defense and the terms of the CBA causes the two to become "inextricably intertwined", and therefore preempted. Bachilla, 2007 WL at * 8 (citing Audette v. Int'l Longshoremen's and Warehousemen's Union, 195 F.3d 1107, 1113 (9th Cir. 1999). Because the scope of the contractual relationship between the parties is implicated by any claim on Save Mart that its actions and those of its manager did indeed pass muster on the terms of the CBA, because this consequently requires the Court to interpret the obligations owed under the CBA, and because the preemptive force of the LMRA is strong in any event with respect to any state claim whose outcome may hinge on consideration of the CBA (see Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987)), this Court finds that Plaintiffs' FEHA claims are indeed preempted and that federal jurisdiction is proper.

Plaintiffs' Motion to Remand (ECF No. 74) is DENIED,*fn2 as is Plaintiffs' concurrent request that attorneys' fees be imposed in conjunction with remand.

IT IS SO ...

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