Unpublished Disposition, 865 F.2d 263 (9th Cir. 1986)

MEMORANDUM^* 

Cootz appeals the district court's recharacterization of her state claims as arising under federal labor law and its grant of summary judgment in favor of General Telephone (now doing business as GTE) based on her failure to exhaust grievance procedures. We affirm.

BACKGROUND

At the time of her discharge from GTE, Cootz was a member of the collective bargaining unit represented by the Communications Workers of America (Union). Her employment was governed by a Collective Bargaining Agreement (CBA), which gave GTE the right to discharge her for "just cause" and provided for a grievance procedure to resolve disputes.

Cootz was absent from work for four months for pregnancy and childbirth. Expected to return to work on December 27, 1985, she did not for allegedly medical reasons. From December 27, 1985 to January 10, 1986, she received notices from her supervisor, Loveall, to submit a required leave of absence form. She did not submit it timely.

Loveall informed Cootz on January 15, 1986 that he had terminated her employment because she had failed to submit the necessary leave form. As required by the CBA, he informed Union representative Moreno that Cootz had been terminated. Neither Cootz nor the Union filed a grievance protesting the discharge.

Instead, Cootz sued GTE in state court for (1) wrongful termination, (2) breach of the covenant of good faith and fair dealing, (3) intentional infliction of emotional distress, (4) employment discrimination, and (5) negligent infliction of emotional distress. GTE removed to federal court and alleged that Cootz's state law claims were "artfully pled" claims for breach of the CBA under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The court retained jurisdiction of all causes of action except the discrimination action, which was remanded to state court. GTE moved for summary judgment as to the remaining claims. Having found that Cootz's state claims were preempted by section 301 and that her failure to exhaust the CBA's grievance procedure barred the suit, the court granted summary judgment.

ANALYSIS

Cootz contends that her state law claims are based on rights under an individual employment contract and under California's public policy prohibiting discharge based on pregnancy or childbirth. See Cal.Gov't Code Sec. 12945. She argues that her claims are not preempted by section 301¹  because they do not require interpretation of the CBA. The district court rejected that argument and found jurisdiction. So do we.

Under 28 U.S.C. § 1441(a), a defendant may remove to federal court a civil action "brought in a State court of which the district courts of the United States have original jurisdiction." The Supreme Court has outlined the requirements for removal jurisdiction based on preemption:

Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal question jurisdiction is required. The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.

Caterpillar, Inc. v. Williams, 107 S. Ct. 2425, 2429 (1987) (citations and footnotes omitted). Although this rule makes the plaintiff the master of the claim, he or she may not avoid federal jurisdiction by omitting from the complaint allegations of federal law that are essential to the claim. If the plaintiff does so, a court may recharacterize the "artfully-pleaded" complaint as though it had been "well-pleaded." See Hyles v. Mensing, 849 F.2d 1213, 1215 (9th Cir. 1988); Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987). It may remove the state action if "federal law preempts completely the state law on which it relies and 'supplants' the state claim with a federal claim." Hyles, 849 F.2d at 1215. The court recharacterized properly Cootz's state law claims as arising under the CBA and had removal jurisdiction.

The Court and this circuit have emphasized repeatedly that " [t]he preemptive force of section 301 is so powerful that it displaces entirely any state cause of action for violation of a collective bargaining agreement." See, e.g., Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1146 (9th Cir. 1988); see also Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 23 (1983). To determine whether section 301 preempts a state claim, we must decide whether the claim requires the interpretation of the CBA, Lingle v. Norge Div. of Magic Chef, Inc., 108 S. Ct. 1877, 1885 (1988), or whether the claim depends substantially upon analysis of the CBA's terms, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985).² 

Cootz first alleges a claim for wrongful discharge in violation of her independent employment contract and Cal.Gov't Code Sec. 12945.

Cootz contends that she was discharged wrongfully in violation of an independent "oral contract of employment as modified by certain policies, practices, assurances and other statements, both oral and in writing." She argues that the oral contract is independent of the CBA and that her claim is not preempted. This court has held that independent contracts, when they involve union employees, are effective only as part of the CBA. See Young, 830 F.2d at 997; Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1048 (9th Cir.), cert. denied, 108 S. Ct. 504 (1987); Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1474 (9th Cir. 1984). The CBA controls and Cootz's claim is preempted.

Her reliance on Caterpillar, Inc. v. Williams, 107 S. Ct. 2425 (1987), is misplaced. In Caterpillar, union-represented employees sued Caterpillar for breach of individual employment contracts. They alleged that when they had held nonunion managerial positions, Caterpillar promised them continued employment if the plant closed. Later, Caterpillar downgraded these employees to positions covered by the CBA and assured them it was only temporary. They were laid off. The Supreme Court held that the claims based on their individual contracts did not implicate the CBA and could not be removed to federal court. Id. at 2431-33.

By contrast, Cootz's claims are based on her employment contract while a Union member, when the CBA governed her employment. Even if she had an independent contract, it would have been enforceable only under the CBA. Young, 830 F.2d at 998. The court recharacterized properly her claim as one for breach of the CBA and one preempted completely by section 301.³ 

2. Public Policy Against Discharge Based on Pregnancy

Cootz also bases her wrongful termination claim on the violation of Cal.Gov't Code Sec. 12945, which prohibits an employer from discharging an employee for pregnancy and from refusing a reasonable leave of absence.

Section 301 does not preempt every public policy claim brought by an employee covered by the CBA. Young, 830 F.2d at 1001. Recently, the Supreme Court held that "a state tribunal could resolve either a discriminatory or retaliatory discharge claim without interpreting the 'just cause' language of a collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 108 S. Ct. 1877, 1885 (1988) (holding that the employee's retaliatory discharge claim under Illinois law was not preempted).

This court also has recognized that a claim challenging a discharge that violates a state antidiscrimination statute need not be preempted. Miller v. AT & T Network Sys., 850 F.2d 543, 548-50 (9th Cir. 1988) (holding that Oregon's antidiscrimination statute creates an independent state right). Further, a claim is not preempted if it poses no significant threat to the collective bargaining process and furthers state public policy "transcending the employment relationship." Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1373-75 (9th Cir. 1984) (finding that claim based on "whistle-blower" statute not preempted), cert. denied, 471 U.S. 1099 (1985); accord Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir. 1987) (holding that claim based on statute protecting workers' health and safety not preempted), cert. denied, 108 S. Ct. 2819 (1988). If state law imposes on employers an independent duty that does not require interpretation of the CBA's terms, section 301 does not preempt claims based on that law.

At first glance, these cases appear to control Cootz's wrongful discharge claim based on the California antidiscrimination statute. The statute makes it an unlawful employment practice for an employer, "because of the pregnancy, childbirth, or related medical condition of any female employee" to discharge her from employment. Cal.Gov't Code Sec. 12945(a). California has adopted a public policy against discrimination in the work place. Cal.Gov't Code Sec. 12920. Therefore, Cootz may have a persuasive argument that state law creates a nonnegotiable right that does not require interpretation of the CBA's terms.⁴ 

However, section 12945 further prohibits an employer from refusing to allow a reasonable leave of absence and states that " [a]n employer may require any employee who plans to take a leave ... to give the employer reasonable notice of the date such leave shall commence and the estimated duration of such leave." Id. Sec. 12945(b) (2).

Cootz admits that she was discharged for failure to submit a necessary leave of absence form. Unlike the state claims in the cases discussed above, her claim requires reference to the CBA's terms to determine what requirements she must satisfy to receive a leave of absence and to continue her employment.⁵  The claim is preempted.

B. Breach of Covenant of Good Faith and Fair Dealing

Cootz alleges that GTE breached an implied covenant of good faith and fair dealing owed to her under California common law. See Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443, 168 Cal. Rptr. 722 (1980). This tort is designed to protect the job security of employees who at common law could be discharged at will. The CBA permits discharge only for just cause and "provides the same or greater protection of job security that state tort law seeks to provide for nonunionized employees; accordingly federal law preempts state law." Olguin, 740 F.2d at 1474; see Newberry, 854 F.2d at 1147.

Finally, Cootz's complaint alleges emotional distress claims.

1. Intentional Infliction of Emotional Distress

The claim arises out of her discharge. To assess whether GTE intentionally inflicted emotional distress on Cootz, the court would have to interpret the CBA. See, e.g., Newberry, 854 F.2d 1142, 1149; Stallcop, 820 F.2d at 1049; Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1350 (9th Cir. 1985). The claim is preempted.

2. Negligent Infliction of Emotional Distress

Unlike the intentional emotional distress claim, the negligence action is grounded also on the allegedly discriminatory and hostile acts of Cootz's supervisor, Duval. In evaluating claims of negligent infliction of emotional distress, California applies a test of reasonable foreseeability. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 737 (9th Cir. 1986); Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 923, 167 Cal. Rptr. 831, 834-35, 616 P.2d 813, 816-17 (1980). The tort requires inquiry into the terms of the CBA to determine whether Duval's behavior was reasonable. The claim is preempted because California law requires a showing that Duval violated a standard that requires consideration of the CBA's terms. Accord Miller v. AT & T Network Sys., 850 F.2d 543, 550-51 (9th Cir. 1988).

III. Failure to Exhaust Grievance Procedures Bars Claims

Before Cootz may institute an action against GTE, she must exhaust the grievance and arbitration procedures outlined in the CBA. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965). Her failure to "at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement," Vaca v. Sipes, 386 U.S. 171, 184 (1967), bars her claims.

She seeks to avoid the consequences of the general rule and summary judgment by claiming she falls within the equitable estoppel exception. An employee is not limited to the procedures established by the CBA when the employer's conduct repudiates those contractual procedures. See Vaca, 386 U.S. at 185. "In such a situation ... the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee's cause of action." Id.; see D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1488 (7th Cir. 1985).

Under the terms of the CBA, " [a]ny grievance over ... [a] discharge must be presented by the Union within four (4) workdays from receipt of [GTE's] notice." The CBA also allows Cootz to present grievances herself. She admits that neither she nor the Union filed a grievance challenging her discharge.

She denies that Loveall notified Union representative Moreno of her discharge. Moreno said that Loveall told her that "Cootz was considered to have voluntarily terminated her employment by failure to turn in a leave of absence request.... He did not say that she had been discharged." For that reason, she did not follow the Union's practice of filing a grievance. Several days later, Moreno learned from Cootz that she had been discharged. However, she did not file a grievance because she believed it would have been untimely. Cootz alleges that Loveall misled Moreno and that his misrepresentation prevented a timely filing of the grievance.

Cootz has not provided sufficient evidence to defeat summary judgment. She knew that GTE had discharged her. Further, the record does not show that Loveall misrepresented the reasons for her discharge to Moreno or tried to dissuade the Union from pursuing available grievance remedies. Even if evidence supported that contention, the Union should have filed a grievance and argued that it was timely. See Vaca, 386 U.S. at 184. Cootz failed to exhaust the grievance procedure and her suit is barred. Summary judgment was proper.

AFFIRMED.