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Tumblin v. USA Waste of California, Inc.

United States District Court, C.D. California

July 20, 2016

Donald Tumblin
USA Waste of California, Inc., et al.


          DALE S. FISCHER, United States District Judge

         Plaintiff 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.



         On 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

         Fair Employment and Housing Act (FEHA). Doc. # 1, Ex. I.[1] The DFEH closed the complaint and issued a right to sue letter. Id.

         On 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[2] Mike Grimm[3] as a defendant -and adding a harassment claim against all defendants, and a failure to prevent harassment claim against UWC.



         Plaintiff 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.

         According 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.

         On July 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.

         On 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.

         On 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.



         A. Plaintiff’s Motion to Remand[4]

1. Diversity Jurisdiction


         District 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)).

         In a notice of removal, the defendant need only include a “short and plain statement of the grounds for removal.” 28 U.S.C.A. § 1446.

         a. Jurisdictional Amount and UWC’s Domicile

         Plaintiff 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 jurisdiction.

         b. Sham Defendant

         After 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 1067.

         Before 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).

         However, 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))[5] (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).

         The 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, ...

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