MEMORANDUM OPINION AND ORDER ON
DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT Doc. # 31
This an action for wrongful termination by plaintiff William Ray Jones, Sr. ("Plaintiff") who was employed by defendant Lehigh Southwest Cement ("Defendant") and was terminated by Defendant on or about August 19, 2012, following a positive test for prohibited drugs. Plaintiff's original complaint was dismissed by the court's order filed on July 18, 2012, granting Defendant's motion to dismiss (hereinafter, the "July 18 Order"). The court granted leave to amend and Plaintiff filed a document titled "Motion to Amend Complaint: Motion to Amend Original Complaint" which the court has deemed to be Plaintiff's First Amended Complaint ("FAC"). Currently before the court is Defendant's motion to dismiss Plaintiff's FAC. Jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The basic factual allegations set forth in Plaintiff's FAC appear little changed from those alleged in the original complaint. Plaintiff is a 55 year-old African American male who was employed by Defendant for approximately four and one-half years as a laborer in the company's facility in Tehachapi, California until his termination in August of 2011. Plaintiff alleges that during his time as an employee for Defendant, he was "subjected to emotional abuses, disparaging remarks and treatment that was different from his white co-workers." Doc. # 29 at 2: 9-10. In particular, Plaintiff alleges he was assigned to perform duties by himself on the night shift that would have been assigned to two workers on the day shift where there were no African American employees. Plaintiff alleges he was singled out for scrutiny on the job and that the plant manager that "would constantly request[. . .] write-ups to be placed in [Plaintiff's] personnel file by [Plaintiff's] Supervisor, Terry Moody, for no reason other than being an African-American Employee." Doc. # 29 at 2:24-3:1.
On August 9, 2012, Plaintiff was assigned a younger White male how to operate a vacuum truck. Plaintiff's FAC alleges the younger employee told Plaintiff the younger employee could operate the vacuum truck by himself, so Plaintiff turned away and set about his other duties. Shortly thereafter Plaintiff notice a crowd gathering around an apparent collision between the vacuum truck and a pallet holding a transmission. The fender of the truck was dented. Since Plaintiff did not witness the accident, he left it to those who had witnessed to make the required report. After replacing the transmission on the pallet, Plaintiff went on break. When Plaintiff returned from break he was informed that he would be required submit to a urine test for prohibited drugs. Plaintiff alleges that two screening tests were performed on site without the presence of a union representative in violation of Defendant's Collective Bargaining Agreement ("CBA") and Joint Drug Policy ("Drug Policy") with the Steelworkers Union. Plaintiff alleges both screening tests were negative.
Plaintiff alleges that, following the two negative screening tests for the presence of prohibited drugs, he was transported to Tehachapi Valley District Hospital for more comprehensive drug testing; again without accompaniment of a union representative and in violation of the CBA. Plaintiff contends that both Defendant and representatives of the Steelworkers Union were in violation of the CBA and the Drug Policy by agreeing that Plaintiff should be transported without representation for further testing at the hospital. Plaintiff also alleges both the Union and Defendant failed to undertake an investigation of the incident and, instead, used the incident as a pretext to secure unwarranted drug testing on Plaintiff in violation of the CBA and in violation of Defendant's own drug policy.
Although the results of the drug test or tests performed through the Hospital are not set forth in the FAC, the results of the test apparently formed part of the basis for Defendant's decision to terminate Plaintiff's employment. In the Termination Letter sent by Defendant to Plaintiff, Defendant lists violation of three provisions of Defendant's policies, including violation of the policy prohibiting "[p]ossession, sale, or use of illegal drugs while on Company time or premises or reporting to work under the influence of illegal drugs, (which was confirmed to be the case by the required testing protocol)." Exhib. "B" to Doc. 29, p. 15. In addition, the Termination Letter cited "damage, destruction or misuse of company property" and failure to report an accident as reasons for termination. Id.
Plaintiff's FAC is ambiguous with regard to what procedure was followed from the date of the alleged infractions to the date of Plaintiff's termination. The termination letter refers to "the Company Policy HR-2-004 Progressive Discipline which you [i.e. Plaintiff] acknowledged receiving and understanding on May 11, 2010." Id. Plaintiff's FAC alludes to proceedings at which he was represented by union representative and at which he put forward his contention that the drug test results were invalid due to the failure to maintain a proper chain of custody. In particular, Plaintiff mentions a "hearing held by the union and [Defendant in] September 2011." Plaintiff alleges that at the hearing "[Defendant] was advised since they did not establish chain of custody, [Plaintiff] was entitled to be reinstated with [Defendant]. However, the union refuse [sic] to advise [Defendant] that they were in also breached [sic] their Collective Bargaining Agreement." Doc. # 29 at 9:20-23. Plaintiff's FAC does not elaborate on the nature of these proceedings; however the FAC does not appear to allege that the procedure referred to as "Progressive Discipline" in the Termination Letter was either not followed or was in some way deficient.
Plaintiff's makes a number of allegations with regard to a "grievance" that he requested that his union file on his behalf after the Termination Letter was received. Plaintiff alleges that no grievance was ever properly filed on his behalf. Confusingly, Plaintiff alleges that after the termination:
[Plaintiff] requested that his union file a grievance on his behalf on a variety of occasions and the union refuse [sic] to answer his calls, emails and other means of communications. [Plaintiff] therefore filed a complaint with the National Labor Relations Board regarding the union's failure in their duties. The NLRB sent letters to the union advising that charges would be filed if they did not fulfil their fiduciary duties. [Plaintiff] states that the union never filed a formal grievance on his behalf. [Plaintiff's] union representative Bill Locke advised the [NLRB] that a grievance was filed, however, the grievance that he was speaking of was a grievance file [sic] by Terry Moody, Supervisor at Lehigh Southwest Cement.
The grievance reads that [Plaintiff] was terminated, "without just cause" then it reads a dirty urine test. The grievance [which was] dated September 6, 2011, was back dated (forged) because the NLRB was still demanding that the union file grievance as of October and November 2011. According [to] the United Steelworkers Grievance Procedures, any formal grievance must have the union representative signature [Plaintiff's] signature and his statement must be included on the grievance. [Plaintiff's] grievance was filed with his statement and signature by fax to the Albuquerque, New Mexico, district office for the Local 12-52. [Plaintiff] never informed the union that he was taking any medications and he never spoke to any union representative because they would not take his calls, emails.
Doc. # 29 at 8:15-9:7. The foregoing narrative appears to be the basis for Plaintiff's contention that his union failed in their "duty of fair representation." For purposes of this decision, the court will infer that the "grievance" that is the subject of above-quoted narrative is a grievance that was separate and apart from other proceedings that were conducted in connection with Defendant's "progressive disciplinary" procedure that culminated in Plaintiff's termination. If this inference is incorrect, it will be up to Plaintiff to further amend his complaint to make it unambiguously clear what proceedings did take place, with whom, for what purpose, and to what effect.
This action was commenced in the Kern County Superior Court on February 23, 2012. The action was removed by Defendants on April 20, 2012. As was the case with Plaintiff's original complaint, the FAC does not clearly delineate claims for relief but rather infers claims for relief based on the factual narrative. There is little doubt that Plaintiff's FAC alleges workplace discrimination in violation of Section 703(a)(1) of Title VII; 42 U.S.C. § 2000e-2(a)(1). As the court's July 18 Order noted, in addition to a claim for workplace discrimination based on race, Defendant has inferred claims pursuant to the Labor Management Relations Act ("LMRA"), age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA") and defamation, presumably under California common law. Doc.# 27 at 4:12-16. In the July 18 Order, the court accepted Defendant's characterization of Plaintiff's claims with the admonition that if claims on other legal grounds was Plaintiff's intent, the complaint would have to be amended to make such claims express.
Plaintiff's FAC does not allege anything that could reasonably be understood as a new claim that was not inferred by Defendants from the allegations set forth in the original complaint.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume ...