United States District Court, N.D. California, Oakland Division
AMENDED ORDER DENYING DEFENDANT SEIU LOCAL 87'S
MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER, AND
GRANTING PLAINTIFF'S MOTION TO REMAND
SAUNDRA BROWN ARMSTRONG Senior United States District Judge.
Abdelbasset Elaref (“Plaintiff”), who is of
Tunisian and Arab origin, brings the instant wrongful
termination and retaliation action against his former
employer, Able Services (“Able”), and SEIU Local
87 (“the SEIU”), of which he is a member. The
Complaint alleges violations of the California Family Rights
Act (“CFRA”), Cal. Gov. Code § 12945.2(a),
(1); the Fair Employment and Housing Act
(“FEHA”), id. § 12940(a), (m), (k);
and two common law claims-all of which arise from
Defendants' termination of Plaintiff's employment
following his return from family leave to care for his
terminally ill wife. The SEIU removed the action to this
Court on the ground that certain of Plaintiff's claims
are preempted by § 301 of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185. In turn,
Plaintiff filed a Motion to Remand and for Attorney's
Fees, which the previously-assigned judge, Magistrate Judge
Maria Elena-James (“the Magistrate”), has
recommended granting in her Report and Recommendation.
parties are presently before the Court on the SEIU's
Motion for Relief from the Non-Dispositive Pretrial Order of
Magistrate Judge in which it objects to the Magistrate's
recommendations to remand the action and award fees to
Plaintiff under 28 U.S.C. § 1447(c). Having read and
considered the papers filed in connection with this matter
and being fully informed, the Court hereby OVERRULES the
objections to the Magistrate's recommendation, DENIES the
SEIU's motion, and GRANTS Plaintiff's Motion to
Remand and for Attorney's Fees.
Able is a family-owned company that provides janitorial and
building maintenance services. Compl. ¶ 3, Dkt. 1. On
March 12, 2012, Plaintiff was hired by Able as an
“Additional Services” employee and was assigned
to work at the Embarcadero Center 4 office building in San
Francisco. Id. ¶¶ 2, 17. At or around the
same time, Plaintiff also became a member of the SEIU.
Id. ¶ 17. In June 2013, Able notified Plaintiff
by letter that his position at the Embarcadero Center was
“permanent.” Id. ¶ 18. The letter
was sent by Marina Berrios (“Berrios”),
Able's Human Resource Business Partner. Id.
September 2013, Plaintiff's wife was diagnosed with
terminal metastatic colon cancer. Id. ¶ 19.
Plaintiff continued to work full-time for Able until November
2014, at which time he requested family leave to care for his
wife. Id. ¶ 20. Able granted his request and
authorized him to take medical leave until May 19, 2015.
Id. During his leave of absence, Plaintiff's
wife passed away. Id. ¶ 21.
April 7, 2015, several weeks prior to the expiration of his
leave, Plaintiff returned to work. Id. ¶ 21.
Two days later, Plaintiff's supervisor, identified in the
Complaint as “Sivori, ” notified Plaintiff that
“he was being terminated, asked him to turn in his keys
and badges, and told him to go home.” Id. The
only explanation Able provided was that “his position
had ‘already been filled by another employee' and
he was no longer needed.” Id. The employee who
replaced Plaintiff was Latino. Id. ¶ 23.
According to Plaintiff, most of the managers at the SEIU are
Latino and favor hiring Latino employees instead of
non-Latino employees. Id. ¶ 22. In addition,
Able's managers, including Sivori, allegedly facilitate
the SEIU management's preference for hiring Latino
workers. Id. ¶ 23.
made numerous attempts to ascertain why he had been
terminated. Id. ¶ 24. On April 13, 2015,
Plaintiff spoke to Sivori, who told him “to go back to
the union hall and there would be full time work available at
another location.” Id. Later the same day,
Plaintiff called Sivori, asking him to provide a termination
letter. Id. Sivori declined to do so, stating
“I have four kids and don't want to get into
trouble.” Id. Although Sivori said he would
speak to human resources, he eventually told Plaintiff that
the “Union is playing games, and I cannot give you your
position back.” Id.
Plaintiff went to the union hall as instructed, the SEIU
failed to dispatch him to any job sites. Id. ¶
26. Approximately one month following his termination by
Able, Plaintiff “was asked to work at a specific job
site - but when he went to the SEIU to get dispatched to the
jobsite, he was ignored.” Id. Plaintiff
alleges that the SEIU “did not dispatch [him] to any
further jobsites because (1) he was of Tunisian/Arabic
national origin and, (2) LOCAL 87 was retaliating against
PLAINTIFF for his complaint of discrimination to the
15, 2015, Plaintiff sent Sivori an email asking why, given
that he had taken protected medical leave, he was not being
allowed to work at the Embarcadero Center. Id.
¶ 27. A week later on July 23, 2015, Sivori responded
that Plaintiff was “still employed by ABLE and was
still active in their system, and that if he went to the
union hiring hall he would be dispatched to sites
“needing a temporary employee.” Id. The
next day, Plaintiff responded to Sivori, informing him that
he had been classified by Able as a permanent employee and
therefore he should not have to be dispatched as a temporary
employee. Id. As support, Plaintiff attached a copy
of his June 19, 2013, letter from Barrios. Id.
¶ 28. In turn, Barrios emailed Plaintiff, claiming that
the “permanency” letter was issued “in
September 28, 2016, Plaintiff filed the instant action
against Able and the SEIU in San Francisco County Superior
Court. The Complaint alleges seven causes of action, as
follows: (1) discrimination in violation of the CFRA, Cal.
Gov. Code § 12945.2(a); (2) retaliation in violation of
the CFRA, id. § 12945.2(1); (3) race
discrimination in violation of the FEHA, id. §
12940(a); (4) retaliation for filing a discrimination charge
in violation of the FEHA, id. § 12940(m); (5)
failure to prevent discrimination in violation of FEHA,
id. § 12940(k); (6) wrongful termination in
violation of public policy; and (7) intentional infliction of
emotional distress. The pleadings allege, inter alia, that
Defendants violated his rights under the CFRA and FEHA by
terminating his employment for taking family leave. The
Complaint also alleges that Plaintiff was not dispatched to
job sites after his termination because of his national
origin and/or in retaliation for having filed an
administrative charge with the EEOC/DFEH.
November 1, 2016, the SEIU removed the action “under
the doctrine of Complete Preemption, as Plaintiff's
claims are preempted by the Labor Management Relations Act,
as resolution of Plaintiff's claims requires this Court
to interpret the provisions of the Collective Bargaining
Agreement [(“CBA”)].” Not. of Removal
¶ 5, Dkt. 1. Plaintiff filed a motion to remand on the
grounds that all of his claims are predicated on state law
and are not dependent on rights conferred by or requiring an
interpretation of the CBA. Dkt. 4. In addition, pursuant to
28 U.S.C. § 1447(c), Plaintiff requested the recovery of
his attorney's fees and costs incurred by the ostensibly
improvident removal. The Magistrate, who was initially
assigned to the action, issued a Report and Recommendation in
which she recommended granting the motion to remand and for
fees. Order for Reassignment; Report & Recommendation Re:
Motion to Remand (“Order”), Dkt. 15. Following
the issuance of the Order, the action was reassigned to this
Court, since Able had not consented to the Magistrate's
to Civil Local Rule 72-2, the SEIU filed the instant Motion
for Relief from the Non-Dispositive Pretrial Order of
Magistrate Judge, which objects to the Magistrate's
recommendation to grant the motion to remand and award of
fees to Plaintiff in the amount of $7, 875.00. Dkt. 21. The
Court directed Plaintiff and the SEIU to file an opposition
to and reply in support of the motion, respectively. Dkt. 22.
Plaintiff timely filed an opposition, but the SEIU did not
file a reply. Dkt. 25.
Review of a Magistrate Judge's Recommendation
district court may refer both nondispositive matters and
dispositive matters to a magistrate judge. 28 U.S.C. §
636(b)(1)(A) (nondispositive); id. §
636(b)(1)(B) (dispositive). “The primary difference
between subsections 1(A) and 1(B) is that the former allows
the magistrate to ‘determine' the matter (subject
to the review of the district court for clear or legal error)
while the latter allows the magistrate only to submit
‘proposed findings and recommendations' for the
district court's de novo review.” Reynaga v.
Cammisa, 971 F.2d 414, 416 (9th Cir. 1992).
Ninth Circuit has not determined whether a motion to remand
qualifies as a dispositive or nondispositive motion, and
courts are split on the issue. See Lerma v. URS Fed.
Support Servs., No. 1:11-CV-00536-LJO, 2011 WL 2493764,
at *2 (E.D. Cal. June 22, 2011). Neither party addresses this
issue or the proper standard of review. Thus, out of an
abundance of caution, the Court applies the more stringent
standard and will review de novo the Magistrate's
recommendation to grant Plaintiff's motion to remand and
to award attorney's fees.