ORDER GRANTING LEHIGH'S MOTION TO DISMISS WITH LEAVE TO AMEND
William Jones ("Plaintiff") was terminated from his employment from Lehigh Southwest Cement Company ("Lehigh", "Defendant") effective August 19, 2011. Doc. 1-1 at 9. Plaintiff filed a grievance with the United Steel Workers Local 12-52 (the "Union") on August 30, 2011, id. at 22, and also filed charges against United Steel Workers International ("International") in September 2011 and January 2012 with the National Labor Relations Board ("NLRB"). Id. at 13-20. Plaintiff filed a claim against Lehigh with the Equal Employment Opportunity Commission ("EEOC") and the EEOC mailed Plaintiff a right to sue notice on November 11, 2011. Id. at 11. Plaintiff filed suit against Lehigh in Kern County Superior Court on February 29, 2012. Id. at 1. The case was removed to this court on April 20, 2012, doc. 1, and Plaintiff's motion to remand back to state court was denied on May 22, 2012. Doc. 17. Defendant filed a motion on April 27, 2012, to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 7.*fn1
A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) if the claim states no cognizable legal theory or alleges insufficient facts to support a valid allegation. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
For purposes of a 12(b)(6) motion, all well-pleaded allegations are accepted as true and are construed in the light most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir. 2008). A well-pleaded allegation contains sufficient facts to state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (U.S. 2007). To be plausible, alleged facts must be more than "merely consistent with a defendant's liability;" the "sheer possibility" of unlawful behavior is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences do not meet the plausibility standard and need not be accepted as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
"[A] court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss. Facts raised for the first time in opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice." Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) (citations omitted). The court may, however, consider materials that are attached to the complaint in ruling on a motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
Where, as here, the plaintiff is a pro se litigant, the plaintiff's complaint is "to be liberally construed" and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted).*fn2
While working as Lehigh's employee, Plaintiff alleges Lehigh's management routinely discriminated against and harassed Plaintiff. Doc. 1-1 at 5:2-3. Plaintiff's working habits were constantly monitored by Plant Production Manager Joe Barrett ("Barrett"), and Plaintiff's supervisor, Terry Moody ("Moody"), was directed by Barrett to discipline Plaintiff by issuing a write-up. Id. at 5:4-7. Derogatory racial remarks were also made in the presence of Plaintiff. Id. at 5:9-11.
In August 2011, an accident occurred involving a Lehigh truck. Id. at 5:16-18; id. at 9. Lehigh apparently held Plaintiff responsible for the accident despite the fact that Plaintiff was not the driver because Plaintiff was training the driver, but Plaintiff denies being a part of the accident and also says he was not a qualified trainer within the meaning of the union contract. Id. 5:19-22. As a result of the accident, Plaintiff was subjected to several drug tests -- two at Lehigh and one at Tehachapi Hospital -- during which Plaintiff had no union representation. Id. at 5:24-28. Plaintiff states that the two tests done at Lehigh were negative. Id. at 5:25.
Plaintiff filed a grievance with USW after numerous calls and letters to Union President Sean Pugh went unanswered. Id. at 6:1-4. Plaintiff also filed complaints with the NLRB and the EEOC. Id. at 6:4-5. Moody also filed a grievance with USW on Plaintiff's behalf. Id. at 6:7; id. at 23. Plaintiff claims there were problems with this grievance, perhaps caused by the union or by Lehigh. Id. at 6:8-13.
A hearing involving Lehigh and the Union was held September 29, 2011, at which the Union advised Lehigh's representative to reinstate his employment. Id. at 6:15-16. The Union representative at the hearing then told Plaintiff that Lehigh's representative did not want to reinstate Plaintiff, but did want to know whether Plaintiff was interested in settling the matter. Id. at 6:23-24. Plaintiff provided a settlement request, but the request was not presented. Id. at 6:24-27. The Union representative informed Plaintiff that an arbitration would take place in May 2012, a date violating an unspecified contract's 25-day limit for holding arbitration. Id. at 6:26-28. Plaintiff further alleges that the Union attempted to cover up Lehigh's contract violation and has failed to represent Plaintiff in the goal of Plaintiff's best interests. Id. at 7:1-4.
Plaintiff makes claims against Lehigh for defamation; wrongful termination and violation of collective bargaining agreement, which Defendant infers arise under the Labor Management Relations Act ("LMRA"); racial discrimination, which Defendant infers are brought under Title VII of the Civil Rights Act of 1964; and age discrimination, which ...