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Elaref v. Able Services

United States District Court, N.D. California, Oakland Division

May 1, 2017

ABLE SERVICES, the SEIU LOCAL 87, and DOES 1-25, inclusive, Defendants.


          SAUNDRA BROWN ARMSTRONG Senior United States District Judge.

         Plaintiff 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.

         The 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.[2]

         I. BACKGROUND

         A. Factual Summary

         Defendant 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. ¶ 28.

         In 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.

         On 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.

         Plaintiff 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.[3]

         When 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 EEOC/DFEH.” Id.

         On July 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 error.” Id.

         B. Procedural History

         On 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.[4] 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.

         On 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 jurisdiction. Id.

         Pursuant 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.


         A. Review of a Magistrate Judge's Recommendation

         A 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).

         The 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.

         B. ...

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