United States District Court, C.D. California
ORDER DENYING PLAINTIFF’S MOTION TO REMAND
(DOC. # 13) AND GRANTING DEFENDANT’S MOTION TO DISMISS
(DOC. # 17)
S. FISCHER, United States District Judge
Donald Tumblin seeks remand, arguing that the Court has
neither diversity nor federal question jurisdiction.
Defendant USA Waste of California, Inc. (UWC) moves to
dismiss Plaintiff’s claims, arguing that (1) some of
Plaintiff’s claims are preempted by the NLRA, and (2)
Plaintiff fails to state claims for discrimination, wrongful
termination, retaliation, harassment, or failure to prevent
harassment. The Court found these matters suitable for
disposition without oral argument and previously removed them
from the Court’s calendar.
December 14, 2015, Plaintiff filed an amended complaint (DFEH
Complaint) with the Department of Fair Employment and Housing
(DFEH) alleging that UWC retaliated against him for
complaining about age discrimination, and discriminated
against and wrongfully terminated him on the basis of age in
violation of the California
Employment and Housing Act (FEHA). Doc. # 1, Ex.
The DFEH closed the complaint and issued a right to sue
March 10, 2016, Plaintiff filed his complaint in Los Angeles
Superior Court alleging: (1) wrongful termination in
violation of public policy; (2) discrimination based on age;
and (3) retaliation. UWC removed the case. Plaintiff then
filed his First Amended Complaint (FAC), adding his former
supervisor Mike Grimm as a defendant -and adding a
harassment claim against all defendants, and a failure to
prevent harassment claim against UWC.
worked for UWC and its predecessor beginning in June 1981. As
an employee of UWC, Plaintiff was a member of the Package and
General Utility Drivers Local Union No. 396 (Union), and the
terms and conditions of Plaintiff’s employment were
subject to a collective bargaining agreement (CBA). Article 7
of the CBA provides:
Grievances shall be limited to disputes arising as to the
meaning or application of any provisions set forth in this
Agreement. Any Employee who believes he has a grievance may
present it orally to his supervisor for adjustment with or
without his Union representative. If the grievance is not
settled by this procedure, and the Employee wishes to carry
it further, he must file his grievance in writing with the
Union and a copy sent to the Employer no later than ten (10)
working days following the event giving rise to his
grievance. The parties hereto shall exercise every amicable
means to settle or adjust such grievance. Doc. 1, Ex. A at
12. Article 22 of the CBA provides that “there will be
no discrimination by the Company of the Union because of an
Employee’s . . . age.” Id. at 21.
Article 23 provides that the Company may test employees for
alcohol and controlled substances if the employer reasonably
suspects that the employee has used alcohol or controlled
substances and may immediately terminate an employee who
tests positive for controlled substances. Id. at 22.
to the FAC, in 2013, Plaintiff began to suspect that UWC was
discriminating against employees on the basis of age. On one
occasion, Plaintiff and other employees were called into the
training room where they were shown a video that
“depicted older employees . . . as lazy, careless and
constantly breaking the rules.” FAC ¶ 14.
Plaintiff complained to Grimm, but Grimm brushed off his
concerns. Plaintiff also began to notice that older
employees, especially employees over 50, were being
terminated under circumstances where a younger employee would
not be terminated. He again complained to Grimm and Grimm
again dismissed his concerns.
16, 2014, Plaintiff was injured while working, and was later
written up for being careless. Plaintiff believed the
write-up was unwarranted and believed that younger employees
would not have been written up for similar conduct, so he
filed a grievance. Grimm asked why Plaintiff filed the
grievance. After Plaintiff explained, Grimm told Plaintiff he
could not win and told Plaintiff he had to remove the
grievance. Plaintiff refused.
November 7, Plaintiff was instructed to take a random drug
test. Plaintiff explained that he had used the restroom
before arriving and was not able to produce enough urine for
the test. He was given water and two more opportunities, but
still was not able to produce enough urine.
November 11, Plaintiff was questioned regarding the urine
tests. On November 13, he was notified that he was suspended
pending investigation of what had occurred on November 7. On
November 20, Plaintiff was notified that he was terminated
because he “failed to produce a sufficient specimen [of
urine] within the time allowed and therefore the result was
returned as a refusal.” FAC ¶ 26.
Plaintiff’s Motion to
1. Diversity Jurisdiction
courts have diversity jurisdiction over civil actions in
which (1) complete diversity of citizenship exists and (2)
the amount in controversy exceeds $75, 000. 28 U.S.C. §
1332(a). There is an “exception to the requirement of
complete diversity . . . where a non-diverse defendant has
been ‘fraudulently joined.’” Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001). “Joinder of a non-diverse defendant is deemed
fraudulent, and the defendant’s presence in the lawsuit
is ignored for purposes of determining diversity, ‘[i]f
the plaintiff fails to state a cause of action against a
resident defendant, and the failure is obvious according to
the settled rules of the state.’” Id.
(quoting McCabe v. General Foods Corp., 811 F.2d
1336, 1339 (9th Cir. 1987)).
notice of removal, the defendant need only include a
“short and plain statement of the grounds for
removal.” 28 U.S.C.A. § 1446.
Jurisdictional Amount and UWC’s
does not contest the amount in controversy, but argues remand
is required because UWC is not diverse from Plaintiff. But
UWC alleges that it is a citizen of Texas, its principal
place of business, and Delaware, its place of incorporation,
supporting these allegations with a declaration from
Defendant’s vice-president/secretary. This is
sufficient at this point in the proceedings.
Plaintiff’s assertion that UWC was created
“solely to do business in the state of California,
” does nothing to address the statutory requirements
for diversity or cause the Court to question its
removal, Plaintiff amended his complaint to add Grimm, a
California domiciliary. Plaintiff argues that Grimm is not a
sham defendant. The Court disagrees because Plaintiff fails
to state a claim against Grimm and because this failure is
obvious under state law. See Morris, 236 F.3d at
bringing a FEHA claim, an employee must exhaust his
administrative remedies by filing a DFEH complaint within one
year of the date of the alleged unlawful practice and
receiving a notice of his right to sue. Cal. Gov’t Code
§ 12960. Typically, an employee must exhaust his
administrative remedies for all of his claims. This means
that a plaintiff cannot bring additional claims that are not
within the scope of his DFEH complaint and cannot bring
claims against defendants not mentioned in the DFEH
complaint. Nazir v. United Airlines., Inc., 178
Cal.App.4th 243, 266 (2009); Medix Ambulance Serv., Inc.
v. Superior Court, 97 Cal.App.4th 109, 115-18 (2002).
the DFEH complaint is “construed in light of what might
be uncovered by a reasonable investigation” and claims
are deemed exhausted if they are sufficiently related to
claims alleged in the DFEH complaint such that the defendants
would be put on notice of such claims. Nazir, 178
Cal.App.4th at 268; accord Chung v. Pomona Valley
Community Hospital, 667 F.2d 788, 792 (9th Cir.1982)
(quoting Oubichon v. N. Am. Rockwell Corp., 482 F.2d
569, 571 (9th Cir. 1973)) (allowing plaintiff to allege an
additional instance of a denied promotion where that denial
was “like or reasonably related” to the
allegations in his EEOC complaint that he was denied
promotions on other instances).
Court disagrees that Grimm’s alleged harassment
“would have been identified in [a] reasonable
investigation” of wrongful termination, discrimination,
and retaliation. MTR Reply at 3. Plaintiff did not mention
Grimm in his DFEH complaint - filed by the same attorneys who
represent him here. Nor did he allege harassment, ...