United States District Court, C.D. California
Present: The Honorable JOHN A. KRONSTADT, UNITED STATES
(IN CHAMBERS) ORDER RE PLAINTIFF’S MOTION TO
REMAND CASE (DKT. 12, 13) JS-6: REMANDED TO SUPERIOR
HONORABLE JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE
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.
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.
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
Allegations in the Complaint
has worked for more than 30 years as a licensed pharmacist,
and has been a Guild pharmacist since 2001. 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.
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
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.
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.
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.
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.
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
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.
Collective Bargaining Agreement
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.Plaintiff does not dispute this