Thomas v. Vulcan Materials Co.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS Re: Dkt. No. 12

          KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Gary Price Thomas filed the instant action against Defendants Vulcan Material Company, Inc. (“Vulcan”), Jeff Nehmens, and Phil Miller (collectively, “Vulcan Defendants”), as well as Teamsters Union Local 665 (“Local 665”), Teamsters Union Local 853 (“Local 853”), Mike Yates, Mark Gleason, and Rodney Smith (collectively, “Union Defendants”). Plaintiff alleges various causes of action based on his February 22, 2018 termination. (See Compl. ¶ 1, Dkt. No. 1-1.)

         Pending before the Court is the Union Defendants' motion to dismiss. (Defs.' Mot. to Dismiss, Dkt. No. 12.) The Court deems the matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b), and VACATES the December 5, 2019 hearing. Having reviewed the parties' filings and the relevant legal authority, the Court GRANTS the Union Defendants' motion to dismiss.

         I. BACKGROUND

         Plaintiff was an employee of Shamrock Materials, whose parent company is Defendant Vulcan. (Compl. ¶¶ 1-2.) On February 7, 2018, Plaintiff attended a meeting, where earthquake safety was discussed. (Compl. ¶¶ 15-17, 19.) During the meeting, complained that the “worksite was an earthquake deathtrap and Plaintiff [had] been denied documentation, acknowledgment of the danger.” (Compl. ¶ 18.) On February 9, 2018, Supervisor Tyler Cagros submitted an employee corrective action letter against Plaintiff under “Group C Work Rules, ” based on the events of the February 7, 2018 meeting. (Compl. ¶ 19.)

         Plaintiff reported the incident to Defendant Yates, the president of Defendant Local 665. (Compl. ¶¶ 6, 20.) On February 21, 2018, Plaintiff filed a grievance with Defendant Local 665 against Defendant Vulcan. (Compl. ¶ 23.) Shortly thereafter, Plaintiff received a call from a union representative regarding a February 22, 2018 meeting with Defendant Vulcan. (Compl. ¶ 23.) On February 22, 2018, Plaintiff met with Defendants Vulcan and Local 665, and learned he was being terminated for violation of “Group C Rules.” (Compl. ¶ 24.)

         Plaintiff alleges that in June 2019, Plaintiff “discovered” that the Collective Bargaining Agreement (“CBA”) between Defendants Local 665 and Vulcan “was void before it began as a matter of law because it denied parties to the agreement the right to the protection of life.” (Compl. ¶ 25.)

         On November 29, 2018, Plaintiff received a Board of Adjustment Grievance meeting letter of confirmation from Defendant Gleason. (Compl. ¶ 26.) On December 19, 2018, the meeting was held. (Compl. ¶ 26.) Plaintiff alleges that Defendants Local 665, Vulcan, and Local 853 “conspired and staged a fraudulent Board of Adjustment grievance procedure, ” as the CBA was void. (Compl. ¶¶ 27, 29.) Plaintiff further alleges that he was terminated under the Group C Work Rules, but that those Rules are for non-union member employees, further evidencing that the CBA was void. (Compl. ¶ 29.)

         On August 26, 2019, Plaintiff filed the instant action in the County of Marin Superior Court. (Compl. at 1.) Plaintiff asserted claims for: (1) whistleblower protection per Labor Code § 1102.5, (2) violation of California Code of Regulations § 1509(a), (3) wrongful constructive termination of employment in violation of Labor Code § 1102.5 and the Fair Employment Housing Act (“FEHA”), (4) conspiracy, (5) fraud, (6) violation of Labor Code § 1102.5, and (7) intentional infliction of emotional distress (“IIED”). (Compl. at 7-14.) On September 25, 2019, Defendants removed the case to federal court. (Not. of Removal, Dkt. No. 1.)

         On October 2, 2019, the Union Defendants filed the instant motion to dismiss.^[1] On October 25, 2019, Plaintiff filed a late opposition to the motion. (Pl.'s Opp'n, Dkt. No. 21.) The Union Defendants did not file a reply.^[2]

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         In considering such a motion, a court must “accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation marks omitted).

         A claim is plausible on its face when a plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate “more than labels and conclusions, and a formulaic recitation of the ...