California Court of Appeals, Second District, Seventh Division
ORDER FILED DATE 10/15/2013.
APPEAL from an order of the Superior Court of Los Angeles County No. BC449964, Alan S. Rosenfield, Judge.
Beach ׀ Whitman ׀ Cowdrey; Beach ׀ Cowdrey ׀ Owen, Thomas E. Beach, Sean D. Cowdrey and Darryl C. Hottinger for Defendant and Appellant.
Law Offices of Ramin R. Younessi, Ramin R. Younessi and Kaveh S. Elihu for Plaintiff and Respondent.
SEGAL, J. [*]
Defendant Mid-Wilshire Health Care Center (Mid-Wilshire) appeals from an order denying its motion to compel arbitration and to stay this wrongful termination action filed by plaintiff Maribel Mendez. We hold that the arbitration provision in the collective bargaining agreement governing Mendez’s employment does not apply to Mendez’s statutory discrimination claims, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mid-Wilshire hired Mendez as a nurse’s assistant in January 1985, when she was 42 years old. Mendez worked at Mid-Wilshire’s skilled nursing facility in Los Angeles. She was a union member and served on the union bargaining committee.
In February 2009 Mendez, then 66 years old, experienced vaginal bleeding. She sought medical care from a gynecologist who provided her with a note stating she could return to work on March 2, 2009. On that date, Mendez gave the note to Betty Aguilar, who Mendez alleged was Mid-Wilshire’s sole principal with the “ability to hire, fire, discipline, demote and grant raises.” Aguilar told Mendez to go home and said she would call Mendez on March 4. Aguilar did not call Mendez on March 4, so on March 5 Mendez called Aguilar, who asked to speak to Mendez in person. Feeling uncomfortable, Mendez called a union representative who advised Mendez not to meet with Aguilar and stated he would arrange a meeting with Aguilar.
On March 17, 2009 Mendez, the union representative, and Aguilar met. Aguilar terminated Mendez’s employment. The union representative subsequently tried unsuccessfully to get Mendez her job back.
Mendez filed this action on November 19, 2010 against Mid-Wilshire and Aguilar, alleging seven causes of action. Four were common law claims for breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy, intentional infliction of emotional distress, and retaliation. Three were statutory causes of action for violations of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.) based on disability discrimination, age discrimination, and failure to provide reasonable accommodation. Mendez subsequently dismissed Aguilar from the case. Mid-Wilshire filed a motion to compel arbitration and stay the action, arguing that Mendez’s claims were subject to the grievance and arbitration procedure set forth in the collective bargaining agreement between Mid-Wilshire and the union.
Article 19 of the collective bargaining agreement, entitled “GRIEVANCE AND ARBITRATION, ” provides:
“Section 1 – General Principles
“A. The following procedure shall be applied and relied upon by both parties as the sole and exclusive means of adjustment of and settling grievances.
“B. Both parties agree that, prior to the filing of any grievance, except for grievances protesting discharge or suspension, an informal discussion may be ...