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Lee v. CVS Pharmacy, Inc.

United States District Court, C.D. California

July 29, 2016

Bong Sook Lee
v.
CVS Pharmacy, Inc., et al.

          Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

          (IN CHAMBERS) ORDER RE PLAINTIFF’S MOTION TO REMAND CASE (DKT. 12, 13) JS-6: REMANDED TO SUPERIOR COURT

          HONORABLE JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

         I. Introduction

         On September 30, 2015, Bong Sook Lee (“Plaintiff”) brought this action in the Los Angeles Superior Court (“LASC”) against CVS Pharmacy, Inc. (“CVS”) and Ghada Ashkar (“Ashkar”) (collectively, “Defendants”). Dkt. 1-2 (Ex. 1). The First Amended Complaint (“FAC”) advances eight causes of action: (i) discrimination in violation of Cal. Gov’t Code § 12940(a); (ii) harassment in violation of Cal. Gov’t Code § 12940(j); (iii) retaliation in violation of Cal. Gov’t Code § 12940(h); (iv) failure to prevent discrimination, harassment and retaliation in violation of Cal. Gov’t Code § 12940(k); (v) defamation per se; (vi) violation of Cal. Lab. Code §§ 98.6 and 1102.5; (vii) violation of Cal. Lab. Code §§ 2698 et seq.; and (viii) adverse action in violation of public policy. Dkt. 1-5 (Ex. 4).

         On January 8, 2016, Defendants removed the matter from the LASC pursuant to 28 U.S.C. §§ 1331 and 1441 on the basis that Plaintiff’s claims are preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Dkt. 1 ¶ 15; see 28 U.S.C. § 1446(b). On February 17, 2016, Plaintiff filed a motion to remand the action (“Motion”). Dkt. 12. Defendants filed an opposition to the Motion (“Opposition”) (Dkt. 14), and Plaintiff filed a reply (“Reply”) (Dkt. 17). Plaintiff also seeks an a award of attorney’s fees incurred as a result of these removal proceedings.

         A hearing on the Motion was held on May 9, 2016, and the matter was taken under submission. Dkt. 20. For the reasons stated in this Order, the Motion is GRANTED, but the request for an award of attorney’s fees is DENIED.

         II. Factual Background

         A. Allegations in the Complaint

         Plaintiff has worked for more than 30 years as a licensed pharmacist, and has been a Guild pharmacist since 2001.[1] FAC, Dkt. 1-5 (Ex. 4 ¶¶ 7, 9). From 2001 through 2014, Plaintiff was employed by CVS as a licensed pharmacist. See Id. ¶¶ 8, 21. Beginning in 2009, she worked as a “floater” pharmacist and was assigned to work at different CVS locations. Id. ¶ 9.

         In December 2013, Plaintiff applied to take vacation time, but her request was denied. Id. ¶ 10. Defendants’ stated reason was that vacation slots for the requested period were “full.” Id. The FAC alleges, however, that younger pharmacists with less seniority than Plaintiff were able to take vacation time during this period. Id. Beginning in March 2014, Defendants began scheduling Plaintiff for less than 32 hours of work per week. Id. ¶ 11. Plaintiff was not provided a reason for this reduction in her hours. Id. The FAC alleges that Defendants reduced Plaintiff’s hours due to her age. Id. In addition, the FAC alleges that Plaintiff was “assigned to problematic stores” where pharmacists frequently “got behind” on work and “written up.” Id.

         In response to her new schedule, Plaintiff sent email messages to certain “schedulers” and Ashkar, a CVS District Manager. Id. ¶¶ 3, 12. In one of them, Plaintiff stated that, as a full-time pharmacist, she should be scheduled for a full work week. Id. ¶ 12. In April 2014, Ashkar asked Plaintiff to sign a document that was labeled, “‘part-time pharmacist available.’” Id. ¶ 13. Plaintiff declined to do so, and told Ashkar that this was because she was a full-time pharmacist. Id. The FAC alleges that, notwithstanding Plaintiff’s continuous objections to her reduced, weekly schedule, Defendants continued to assign her to work for less than 32 hours per week. Id.

         On June 2, 2014, Plaintiff e-mailed the officer at the Guild with responsibility for her. The email stated that Plaintiff believed that she was not being assigned to a full-time schedule due to her age. Id. ¶ 14. The Guild Officer relayed this complaint to Ashkar. Id.

         Ashkar met with Plaintiff on June 10, 2014 for “performance counseling.” Id. ¶ 16. “This counseling indicated that [Plaintiff] was not able to plan, prioritize or delegate during her shifts.” Id. During the counseling session, Ashkar also linked a low customer service score at a particular CVS location to Plaintiff, notwithstanding that she had only worked there two days per week. Id. The FAC alleges that Ashkar subsequently set unrealistic performance goals for Plaintiff, warning her that if she failed to meet them, she could be terminated. Id. ¶ 17.

         On June 12, 2014, Plaintiff reported this “unfair discrimination and treatment” to her Guild Officer. Id. ¶ 18. Plaintiff once again reported that she was being targeted by Ashkar because of her age, and that she received satisfactory performance scores from her previous supervisor. Id. The Guild Officer again communicated this complaint to Ashkar. Id.

         On September 2, 2014, Ashkar called Plaintiff to deliver a yearly performance evaluation. Id. ¶ 19. The FAC alleges that with respect to such an annual performance evaluation, CVS policy “dictates” pharmacists to complete a written self-evaluation, followed by a written evaluation by a supervisor and in-person for a busy store.” Id.

         The FAC alleges that on October 6, 2014, Ashkar delivered a termination notice to Plaintiff that contained false statements about her job performance, Id. ¶ 21. These included that Plaintiff was unable to plan or organize. Id. The notice further stated that Plaintiff was “terminated for failure to manage, prioritize, delegate, and follow company procedures.” Id. It added that Ashkar had met with Plaintiff on July 19, 2014, to discuss concerns about her performance. Id. The FAC alleges, however, that this meeting never occurred. Id. Plaintiff believes that she was terminated upon being presented with the termination notice. Id. ¶ 24.[2]

         B. The Collective Bargaining Agreement

         The FAC does not mention or identify any collective bargaining agreement (“CBA”). However, the FAC states that Plaintiff is a member of the Guild. See FAC, Dkt. 1-5 (Ex. 4 ¶ 9). As a member of the Guild, the terms of Plaintiff’s employment with CVS were governed by a CBA between the CVS and the Guild.[3]Plaintiff does not dispute this conclusion.

         III. ...


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