Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^* 

Dolores Raya appeals the district court's grant of summary judgment for Maryatt Industries Corporation ("Maryatt") in her wrongful discharge action against Maryatt.

* On July 23, 1979, Maryatt hired Dolores Raya to work in its industrial laundry facility located in the south part of San Francisco. Raya, a native of Mexico with limited knowledge of English, was assigned to feed and fold towels in the company's "feeder work station." As Maryatt had a collective bargaining agreement with Local 75 of the Textile Process Service, Service Trades, Health Care, Professional and Technical Employees International Union, Raya became a member of the Local.¹ 

On October 22, 1979, the company transferred Raya to the "vibra-steam work station," where Raya's new assignment entailed hanging garments on hangers. Sometime in 1985, Raya apparently broke her ankle at work. She then complained that the working conditions at the laundry were unsafe. Two years later, on February 19, 1987, Raya injured her back when she stepped on a pair of overalls. Raya sought and received workers' compensation benefits for her injury.

Raya returned to work on November 23, 1987, although she remained partially disabled. Claiming that her position in the vibra-steam work station had been filled, Maryatt offered to reassign Raya to the "clean room," where Raya was to fold, sort, and bag garments. Maryatt allegedly told Raya that the reassignment would be temporary. Two months later, however, Raya was laid off by Maryatt. Layoffs were necessary because of business downturns, Maryatt contends, and Raya was selected for layoff because she had the least seniority in the clean room and was the "least productive" worker there.

Raya did not formally grieve the reassignment to the clean room or her subsequent layoff. However, she did file an unfair labor practice against the union, charging the union with breaching its duty of fair representation. The National Labor Relations Board found that the union investigated Raya's layoff and made a good faith determination that the layoff did not violate the collective bargaining agreement.

Thereafter, on September 14, 1988, Raya filed a six-count pro se complaint against Maryatt in San Mateo County Superior Court, alleging causes of action for (1) retaliation, (2) physical handicap discrimination, (3) breach of contract, (4) intentional infliction of emotional distress, (5) specific performance, and (6) tortious breach of the covenant of good faith and fair dealing. In October 1988, Maryatt removed the case to the United States District Court for the Northern District of California, contending that Raya's claims were preempted by the Labor Management Relations Act, 29 U.S.C. § 185(a).

Maryatt moved for summary judgment in August 1989, claiming that each of Raya's claims was preempted by either California's Workers' Compensation Act or section 301 of the Labor Management Relations Act and that Raya had not fulfilled the prerequisites to filing suit under either of these statutes. The district court granted Maryatt's motion as to all counts, finding Raya's retaliation and physical handicap discrimination counts preempted by California's Workers' Compensation Act, and the remaining counts preempted by the LMRA.

This appeal followed. Raya challenges summary judgment only on the first two causes of action--retaliation and physical handicap discrimination.

II

In her second cause of action, Raya alleged that Maryatt terminated her because of physical disability, in violation of California's Fair Employment and Housing Act ("FEHA"), Gov't Code Secs. 12900-12996. Maryatt contends--and the district court so ruled--that this claim is preempted by California's Workers' Compensation Act ("WCA"), Labor Code Secs. 3200-4855.

The WCA mandates that an employer must, regardless of fault, compensate an employee for an injury "arising out of and in the course of the employment." Labor Code Sec. 3600(a). In a similar vein, it is illegal for an employer to discriminate or retaliate against any employee who seeks workers' compensation benefits. Labor Code Sec. 132a. California courts have held that section 132a provides the exclusive remedy for an employee who is aggrieved under the section. See Portillo v. G.T. Price Prod., Inc., 131 Cal. App. 3d 285, 289-90, 182 Cal. Rptr. 291, 293-94 (1982). This exclusivity provision, Maryatt contends, preempts Raya's FEHA claim.

Where, as here, the state high court has not addressed the specific question at issue, the role of this court is to determine how the state high court would rule on this issue. See Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1093 (9th Cir. 1990). To resolve this question, we may look for guidance to decisions by California appellate courts and by courts of other jurisdictions. See id. However, intermediate appellate court decisions are not binding if this court is convinced that the state's supreme court would rule differently. See Martinez v. Asarco, Inc., 918 F.2d 1467, 1473 (9th Cir. 1990) (disregarding two Arizona appellate court decisions when convinced Arizona Supreme Court would hold otherwise); Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (disregarding decision by California appellate court), modified on other grounds, 810 F.2d 1517 (1987).

While the California Supreme Court has not yet addressed the particular issue raised in this appeal, the question has been presented to and decided by two intermediate appellate courts. See Hartman v. Mathis & Bolinger Furniture Co., 230 Cal. App. 3d 1163, 282 Cal. Rptr. 35 (1991); Pickrel v. General Tel. Co., 205 Cal. App. 3d 1058, 252 Cal. Rptr. 878 (1989). In Pickrel, the California Court of Appeal concluded that the WCA preempted a handicap discrimination claim under the FEHA. In contrast, the Hartman Court found no such WCA preemption. Maryatt asserts that the California Supreme Court would follow Pickrel, while Raya urges upon us Hartman.

In Pickrel, the court of appeal observed that the California Supreme Court has held that section 132a "applies to all employer actions which in any manner discriminate against an industrially injured employee." Id. at 1063, 252 Cal. Rptr. at 880 (citing Judson Steel Corp. v. Workers' Comp. Appeals Bd., 22 Cal. 3d 658, 667, 586 P.2d 564, 569, 150 Cal. Rptr. 250, 255 (1978)). Thus, the court reasoned, Pickrel had an adequate remedy under section 132a, and found no reason to provide an additional remedy for the plaintiff. "Curtailing the exceptions to exclusivity benefits both employers and employees within the system, by keeping down the costs of compensation insurance and preserving the low cost, efficiency and certainty of recovery which characterizes workers' compensation." Id. at 1064, 252 Cal. Rptr. at 881. Accordingly, the court concluded that "Pickrel's complaint is a classic illustration of a section 132a claim for employer discrimination and her exclusive remedy is before the [Workers' Compensation Appeals Board]." Id.

The court of appeal in Hartman reached the opposite result. " [T]he legislative history of the two statutes," the court concluded, "indicate [s] that in enacting the FEHA, the Legislature intended to provide additional remedies to those already granted under other provisions of law." 230 Cal.App.3d at ----, 282 Cal. Rptr. at 42.

The Hartman Court relied heavily upon two recent California Supreme Court cases, Shoemaker v. Myers, 52 Cal. 3d 1, 801 P.2d 1054, 276 Cal. Rptr. 303 (1990), and Rojo v. Kliger, 52 Cal. 3d 65, 801 P.2d 373, 276 Cal. Rptr. 130 (1990). In Shoemaker, the court considered whether the WCA preempted a cause of action under California's whistle-blowing statute, Gov't Code Sec. 19683. The court observed:

The whistle-blower statute was a legislative expression intended to encourage and protect the reporting of unlawful governmental activities, and to effectively deter retaliation for such reporting. The Legislature clearly intended to afford an additional remedy to those already granted under other provisions of the law; otherwise section 19683 would be rendered meaningless.

801 P.2d at 1062, 276 Cal. Rptr. at 311 (emphasis in original). The court also reasoned that the whistle-blower statute was the more specific statute, as its intended beneficiaries were only state employees, and was thus controlling under the statutory construction maxim that the specific trumps the general. Id. at 1066-67, 276 Cal. Rptr. at 315-16.

In Rojo, the California Supreme Court considered the issue, inter alia, of whether the FEHA provided the exclusive remedy for injuries relating to gender discrimination in employment. While this issue is of only marginal relevance here, the court's understanding of the FEHA provides considerable insight. The court wrote:

Because the FEHA ... expressly disclaims any intent to displace other relevant state laws, no resort to interpretive aids is required and the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant. While the FEHA conferred certain new rights and created new remedies, its purpose was not to narrow, but to expand the rights and remedies available to victims of discrimination.

801 P.2d at 383, 276 Cal. Rptr. at 140 (emphasis added). Thus, like the whistle-blowing statute considered in Shoemaker, the FEHA provides "an additional remedy to those already granted under other provisions of the law."

We are persuaded that, in light of Shoemaker and Rojo, Hartman was correctly decided. Because the two statutes serve very different purposes, there is no meaningful overlap and, accordingly, no need to consider the workers' compensation exclusivity provisions. Under the Workers' Compensation Act, " [t]he employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort." Shoemaker, 801 P.2d at 1062, 276 Cal. Rptr. at 311. In contrast, the Fair Employment and Housing Act was designed to "provide effective remedies which will eliminate discriminatory practices," Dyna-Med, Inc. v. Fair Employment and Housing Comm'n, 43 Cal. 3d 1379, 743 P.2d 1323, 1325, 241 Cal. Rptr. 67, 69 (1987), including the eradication of discrimination on such bases as race, gender, religion, or physical handicap. Gov't Code Sec. 12940. There being no conflict between the two statutes, there is no need to find an implied repeal of part of the FEHA.

Moreover, when considering the relationship between the two statutes under grounds other than physical handicap discrimination, California courts have uniformly found no such preemption. For example, in Jones v. Los Angeles Community College Dist., 198 Cal. App. 3d 794, 244 Cal. Rptr. 37 (1988), the court of appeal held that the Workers' Compensation Act did not preempt the Fair Employment and Housing Act, at least so far as race discrimination was concerned. "Because two separate wrongs are involved," the court reasoned, "there are no election of remedies or double recovery problems." Id. at 809, 244 Cal. Rptr. at 45. Likewise, in Meninga v. Raley's, Inc., 216 Cal. App. 3d 79, 264 Cal. Rptr. 319 (1989), the court found no preemption with regard to gender discrimination. Id. at 91, 264 Cal. Rptr. at 326.

Accordingly, we reverse the grant of summary judgment for Maryatt on the FEHA cause of action.

III

Raya contends that the district court erred in granting summary judgment for Maryatt on her retaliation cause of action.² 

* As a threshold matter, Maryatt contends that Raya may not "recharacterize for the first time" her complaint as one alleging retaliation for voicing complaints about working conditions. "Nowhere in Raya's Complaint," Maryatt alleges, "does she claim that she was discharged in retaliation for voicing complaints about working conditions." Likewise, Maryatt asserts that Raya never raised this issue in her cross-motion for summary judgment (treated by the district court as opposition to Maryatt's motion for summary judgment), and thus, waived the argument even if she had raised it in her complaint. Cf. Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983).

Maryatt's argument is meritless. Paragraph 9 of Raya's original complaint provides:

9. The retaliation against plaintiff came upon right after the plaintiff brought to the attention to the defendant Maryatt Ind. Corp., unsafe working conditions, in on about 1985 plaintiff fell and broke her ankle loosing considerable earnings, consequently defendant retaliating against plaintiff were more and more notorious, in on about February 19, 1987 plaintiff fell again caused by the poor working conditions provided by defendant to the plaintiff....

Then, in her memorandum of points and authorities in support of her summary judgment motion, Raya stated:

Plaintiff's First Cause of Action for Retaliation alleges the plaintiff detected abnormal conduct from defendants Maryatt's Industries Corporation manager when plaintiff Dolores Raya complainted for "safety hazards" around 1985, then defendants adopted a conduct to enforse plaintiff to double her production, all of this abnormalities involved made plaintiff to assumed that the defendant is "Retaliating Against her", for exercised her rights,....

While not artful, there can be no doubt that Raya both alleged the "safety complaint" retaliation in her original complaint and preserved the issue at the summary judgment stage. Accordingly, we turn to the question of federal labor statute preemption.

B

Maryatt contends that Raya's retaliation claim is preempted by both the Labor Management Relations Act (LMRA) and the National Labor Relations Act (NLRA). We consider each in turn.

* Section 301 of the LMRA, 29 U.S.C. § 185(a), creates a federal cause of action for breach of a collective bargaining agreement. See Miller v. AT & T Network Sys., 850 F.2d 543, 545 (9th Cir. 1988). Federal law governs, even if such suits are brought in state court. Id. Moreover, section 301 preempts all state-law cause of action if evaluation of the cause of action would require interpretation of the collective bargaining agreement. Id.; see also Schlacter-Jones v. General Tel., No. 89-56033, slip op. 7363, 7370 (9th Cir. June 17, 1991).

However, section 301 does not preempt every public policy claim brought by an employee covered by a collective bargaining agreement. Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 1001 (9th Cir. 1987). A claim is not preempted if it poses no significant threat to the collective bargaining process and furthers a state interest in protecting the public transcending the employment relationship. Id. Indeed, in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988), a unanimous Supreme Court concluded that "an application of state-law is preempted by Sec. 301 ... only if such application requires the interpretation of a collective bargaining agreement." Id. at 413 (footnote omitted).

Applying these principles, in Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir. 1987), cert. denied, 486 U.S. 1054 (1988), we found that an employee's cause of action for wrongful discharge, stemming from his discharge for raising complaints about workplace safety, was not preempted by the LMRA. The court reasoned: "State health and safety standards benefit all employees as individual workers, not because they are or are not members of a collective bargaining association. And California's interest in providing this private cause of action is the enforcement of the underlying statute or regulation, not to regulate the employment relationship." Id.

Similarly, in Tellez v. Pacific Gas & Elec., 817 F.2d 536 (9th Cir.), cert. denied, 484 U.S. 908 (1987), we considered whether an employee's claim of intentional infliction of emotional distress was preempted by section 301. The employee, Thomas Tellez, was suspended for ten days for allegedly purchasing cocaine on the job; his suspension letter was then circulated to eleven PG & E managers. We found that the employee's claims were not preempted:

[T]he present [collective bargaining] agreement is silent on work conditions, and vague on disciplinary formalities. It neither requires nor regulates suspension letters. Accordingly, examination or interpretation of the agreement would not help to resolve Tellez's claim. It follows that the claim should not be preempted.

Id. at 539.

Finally, in Eldridge v. Felec Servs., 920 F.2d 1434 (9th Cir. 1990), we identified yet another factor indicating that a claim was not preempted. There, we considered whether an employee's claim of breach of the implied covenant of good faith was preempted by section 301. The employee, Richard Eldridge, alleged that he was discharged in retaliation for filing a worker's compensation claim. Relying on Lingle, we noted that such a retaliatory discharge required a showing of two factual inquiries--(1) that the employee was discharged or threatened with discharge and (2) the employer's motive was to interfere with or deter the employee's exercise of his rights under the Worker's Compensation Act--neither of which necessitated a court to interpret any term of the collective bargaining agreement. Id. at 1439; see also Perguini v. Safeway Stores, Inc., No. 89-15425, slip op. 7293, 7304-05 (9th Cir. June 17, 1991) (finding no preemption under LMRA where "resolution of [the] claims depends on a purely factual inquiry into the conduct and motivation of the employer").

Here, Raya alleges that she was discharged for complaining about safety conditions. In her complaint, Raya asserts that the source of her right to safe working conditions was California state law. See Complaint, p 9(B). The collective bargaining agreement is virtually silent on working conditions, guaranteeing only adequate ventilation, clean restrooms with hot water, and a dressing area. Collective Bargaining Agreement, Sec. 23, p. 35. Finally, since Raya's allegation is one of retaliation, the primary consideration is Maryatt's motivation, an inquiry that may be determined without reference to the collective bargaining agreement. See Eldridge, 920 F.2d at 1439; Lingle, 486 U.S. at 407. Accordingly, the retaliation claim is not preempted by section 301 of the LMRA.

2

Maryatt also contends that Raya's retaliation claim is preempted by the National Labor Relations Act, 29 U.S.C. § 157. Preemption under the NLRA occurs in two different contexts. First, NLRA preemption exists to protect the original jurisdiction of the National Labor Relations Board (NLRB). See Paige, 826 F.2d at 862. Second, NLRA preemption is concerned with preventing state law interference with the policies of the NLRA. See id. at 863. The Paige Court found that a wrongful discharge based on safety complaints was not preempted by the NLRA under either preemption rationale.

As to the first doctrine, we noted that where a plaintiff, as master of his or her complaint, alleged only state law violations, the complaint did not threaten NLRB jurisdiction. Id. at 862. NLRB jurisdiction extended only to conduct prohibited or protected under the NLRA. We reached a like result under the second doctrine, finding that such a state law cause of action did not impugn the underlying policies of the NLRA. "Congress's main goal in enacting the NLRA was to establish an equitable bargaining process, not to establish any particular substantive terms to which the parties must agree. State laws which set minimum safety standards do not interfere with the bargaining process itself." Id. at 863-64 (citation omitted). We find this reasoning persuasive here. Raya's claim is not preempted by the NLRA.

In sum, Raya's claim of retaliation for complaining about safety concerns survives both LMRA and NLRA preemption.

REVERSED and REMANDED.