Jones v. Lehigh Southwest Cement Company, Inc., No. 1:2012cv00633 - Document 42 (E.D. Cal. 2012)
Court Description: MEMORANDUM OPINION and ORDER on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 31), Signed by District Judge Anthony W. Ishii on 11/27/2012. Any amended complaint shall be filed and served not later than twenty-one (21) days from the date of service of this order. Should Plaintiff not file any amended complaint within the time period allotted, Defendant shall so notify the court and move for dismissal of the action and entry of judgment. (Arellano, S.)
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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 WILLIAM RAY JONES, SR., ) ) Plaintiff, ) ) v. ) ) LEHIGH SOUTHWEST CEMENT ) COMPANY, INC., a California ) corporation; and DOES 1-10, ) ) Defendants. ) ____________________________________) 1:12-cv-0633 AWI JLT MEMORANDUM OPINION AND ORDER ON DEFENDANTS MOTION TO DISMISS PLAINTIFF S FIRST AMENDED COMPLAINT Doc. # 31 16 17 This an action for wrongful termination by plaintiff William Ray Jones, Sr. ( Plaintiff ) 18 who was employed by defendant Lehigh Southwest Cement ( Defendant ) and was terminated 19 by Defendant on or about August 19, 2012, following a positive test for prohibited drugs. 20 Plaintiff s original complaint was dismissed by the court s order filed on July 18, 2012, granting 21 Defendant s motion to dismiss (hereinafter, the July 18 Order ). The court granted leave to 22 amend and Plaintiff filed a document titled Motion to Amend Complaint: Motion to Amend 23 Original Complaint which the court has deemed to be Plaintiff s First Amended Complaint 24 ( FAC ). Currently before the court is Defendant s motion to dismiss Plaintiff s FAC. 25 Jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court. 26 FACTUAL BACKGROUND AND PROCEDURAL HISTORY 27 The basic factual allegations set forth in Plaintiff s FAC appear little changed from those 28 1 alleged in the original complaint. Plaintiff is a 55 year-old African American male who was 2 employed by Defendant for approximately four and one-half years as a laborer in the company s 3 facility in Tehachapi, California until his termination in August of 2011. Plaintiff alleges that 4 during his time as an employee for Defendant, he was subjected to emotional abuses, 5 disparaging remarks and treatment that was different from his white co-workers. Doc. # 29 at 2: 6 9-10. In particular, Plaintiff alleges he was assigned to perform duties by himself on the night 7 shift that would have been assigned to two workers on the day shift where there were no African 8 American employees. Plaintiff alleges he was singled out for scrutiny on the job and that the 9 plant manager that would constantly request[. . .] write-ups to be placed in [Plaintiff s] 10 personnel file by [Plaintiff s] Supervisor, Terry Moody, for no reason other than being an 11 African-American Employee. Doc. # 29 at 2:24-3:1. 12 On August 9, 2012, Plaintiff was assigned a younger White male how to operate a 13 vacuum truck. Plaintiff s FAC alleges the younger employee told Plaintiff the younger employee 14 could operate the vacuum truck by himself, so Plaintiff turned away and set about his other 15 duties. Shortly thereafter Plaintiff notice a crowd gathering around an apparent collision between 16 the vacuum truck and a pallet holding a transmission. The fender of the truck was dented. Since 17 Plaintiff did not witness the accident, he left it to those who had witnessed to make the required 18 report. After replacing the transmission on the pallet, Plaintiff went on break. When Plaintiff 19 returned from break he was informed that he would be required submit to a urine test for 20 prohibited drugs. Plaintiff alleges that two screening tests were performed on site without the 21 presence of a union representative in violation of Defendant s Collective Bargaining Agreement 22 ( CBA ) and Joint Drug Policy ( Drug Policy ) with the Steelworkers Union. Plaintiff alleges 23 both screening tests were negative. 24 Plaintiff alleges that, following the two negative screening tests for the presence of 25 prohibited drugs, he was transported to Tehachapi Valley District Hospital for more 26 comprehensive drug testing; again without accompaniment of a union representative and in 27 28 2 1 violation of the CBA. Plaintiff contends that both Defendant and representatives of the 2 Steelworkers Union were in violation of the CBA and the Drug Policy by agreeing that Plaintiff 3 should be transported without representation for further testing at the hospital. Plaintiff also 4 alleges both the Union and Defendant failed to undertake an investigation of the incident and, 5 instead, used the incident as a pretext to secure unwarranted drug testing on Plaintiff in violation 6 of the CBA and in violation of Defendant s own drug policy. 7 Although the results of the drug test or tests performed through the Hospital are not set 8 forth in the FAC, the results of the test apparently formed part of the basis for Defendant s 9 decision to terminate Plaintiff s employment. In the Termination Letter sent by Defendant to 10 Plaintiff, Defendant lists violation of three provisions of Defendant s policies, including violation 11 of the policy prohibiting [p]ossession, sale, or use of illegal drugs while on Company time or 12 premises or reporting to work under the influence of illegal drugs, (which was confirmed to be 13 the case by the required testing protocol). Exhib. B to Doc. 29, p. 15. In addition, the 14 Termination Letter cited damage, destruction or misuse of company property and failure to 15 report an accident as reasons for termination. Id. 16 Plaintiff s FAC is ambiguous with regard to what procedure was followed from the date 17 of the alleged infractions to the date of Plaintiff s termination. The termination letter refers to 18 the Company Policy HR-2-004 Progressive Discipline which you [i.e. Plaintiff] acknowledged 19 receiving and understanding on May 11, 2010. Id. Plaintiff s FAC alludes to proceedings at 20 which he was represented by union representative and at which he put forward his contention that 21 the drug test results were invalid due to the failure to maintain a proper chain of custody. In 22 particular, Plaintiff mentions a hearing held by the union and [Defendant in] September 2011. 23 Plaintiff alleges that at the hearing [Defendant] was advised since they did not establish chain of 24 custody, [Plaintiff] was entitled to be reinstated with [Defendant]. However, the union refuse 25 [sic] to advise [Defendant] that they were in also breached [sic] their Collective Bargaining 26 Agreement. Doc. # 29 at 9:20-23. Plaintiff s FAC does not elaborate on the nature of these 27 28 3 1 proceedings; however the FAC does not appear to allege that the procedure referred to as 2 Progressive Discipline in the Termination Letter was either not followed or was in some way 3 deficient. 4 Plaintiff s makes a number of allegations with regard to a grievance that he requested 5 that his union file on his behalf after the Termination Letter was received. Plaintiff alleges that 6 no grievance was ever properly filed on his behalf. Confusingly, Plaintiff alleges that after the 7 termination: 8 9 10 11 12 13 14 15 16 17 [Plaintiff] requested that his union file a grievance on his behalf on a variety of occasions and the union refuse [sic] to answer his calls, emails and other means of communications. [Plaintiff] therefore filed a complaint with the National Labor Relations Board regarding the union s failure in their duties. The NLRB sent letters to the union advising that charges would be filed if they did not fulfil their fiduciary duties. [Plaintiff] states that the union never filed a formal grievance on his behalf. [Plaintiff s] union representative Bill Locke advised the [NLRB] that a grievance was filed, however, the grievance that he was speaking of was a grievance file [sic] by Terry Moody, Supervisor at Lehigh Southwest Cement. The grievance reads that [Plaintiff] was terminated, without just cause then it reads a dirty urine test. The grievance [which was] dated September 6, 2011, was back dated (forged) because the NLRB was still demanding that the union file grievance as of October and November 2011. According [to] the United Steelworkers Grievance Procedures, any formal grievance must have the union representative signature [Plaintiff s] signature and his statement must be included on the grievance. [Plaintiff s] grievance was filed with his statement and signature by fax to the Albuquerque, New Mexico, district office for the Local 12-52. [Plaintiff] never informed the union that he was taking any medications and he never spoke to any union representative because they would not take his calls, emails. 18 Doc. # 29 at 8:15-9:7. The foregoing narrative appears to be the basis for Plaintiff s contention 19 that his union failed in their duty of fair representation. For purposes of this decision, the court 20 will infer that the grievance that is the subject of above-quoted narrative is a grievance that was 21 separate and apart from other proceedings that were conducted in connection with Defendant s 22 progressive disciplinary procedure that culminated in Plaintiff s termination. If this inference 23 is incorrect, it will be up to Plaintiff to further amend his complaint to make it unambiguously 24 clear what proceedings did take place, with whom, for what purpose, and to what effect. 25 This action was commenced in the Kern County Superior Court on February 23, 2012. 26 The action was removed by Defendants on April 20, 2012. As was the case with Plaintiff s 27 28 4 1 original complaint, the FAC does not clearly delineate claims for relief but rather infers claims 2 for relief based on the factual narrative. There is little doubt that Plaintiff s FAC alleges 3 workplace discrimination in violation of Section 703(a)(1) of Title VII; 42 U.S.C. § 2000e- 4 2(a)(1). As the court s July 18 Order noted, in addition to a claim for workplace discrimination 5 based on race, Defendant has inferred claims pursuant to the Labor Management Relations Act 6 ( LMRA ), age discrimination pursuant to the Age Discrimination in Employment Act 7 ( ADEA ) and defamation, presumably under California common law. Doc.# 27 at 4:12-16. In 8 the July 18 Order, the court accepted Defendant s characterization of Plaintiff s claims with the 9 admonition that if claims on other legal grounds was Plaintiff s intent, the complaint would have 10 11 to be amended to make such claims express. Plaintiff s FAC does not allege anything that could reasonably be understood as a new 12 claim that was not inferred by Defendants from the allegations set forth in the original complaint. 13 LEGAL STANDARD 14 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure 15 can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient 16 facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 17 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint 18 must set forth factual allegations sufficient to raise a right to relief above the speculative level. 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ( Twombly ). While a court 20 considering a motion to dismiss must accept as true the allegations of the complaint in question, 21 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the 22 pleading in the light most favorable to the party opposing the motion, and resolve factual 23 disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 24 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ( a 25 plaintiff s obligation to provide the grounds of his entitlement to relief requires more than 26 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 27 28 5 1 do ). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure does not 2 require detailed factual allegations, but it demands more than an unadorned, the-defendant- 3 unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ( Iqbal ). 4 The Ninth Circuit follows the methodological approach set forth in Iqbal for the 5 assessment of a plaintiff s complaint: 6 [A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. 7 8 9 Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 10 1950). 11 DISCUSSION 12 For purposes of this discussion, the court will again accept the interpretation of the claims 13 set forth in Plaintiff s FAC as reflected in Defendant s motion to dismiss. Defendants have 14 observed that Plaintiff s FAC differs from the original complaint in that Plaintiff has interspersed 15 citations to legal authority throughout the narrative, however the facts set forth in the FAC are 16 not substantially different from those that were alleged in the original complaint. Defendant 17 therefore has interpreted Plaintiff s FAC to allege the same claims for relief that were alleged in 18 the original complaint racial and age discrimination in violation of Title VII, breach of contract 19 under the Labor Management Relations Act, and defamation under California common law. 20 In analyzing and reaching a conclusion as to the sufficiency of each of the above21 mentioned claims by Plaintiff, the court notes that the applicable legal standards for the 22 determination of each of Plaintiff s clams have been extensively set forth in the court s July 11 23 Order. In the interests of conservation of judicial resources, a shortened version of the applicable 24 legal standards will be used in this opinion. The more extensive exposition of the legal standards 25 set forth in the July 11 Order is incorporated here by reference. 26 27 28 6 1 2 I. Racial Discrimination Under Title VII Section 703(a)(1) of Title VII provides that it is an unlawful employment practice for 3 an employer to discriminate against any individual with respect to his compensation, terms, 4 conditions, or privileges of employment, because of such individual s race. 42 U.S.C. § 2000e- 5 2(a)(1). At the motion to dismiss stage, [the plaintiff] need not support [her] allegations with 6 evidence, but must allege sufficient facts to state the elements of a hostile work environment [or 7 retaliation] claim. Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1122 (9th Cir. 8 2008). In general, claims asserted pursuant to Title VII are guided by the same legal principles 9 that apply to claims asserted pursuant to 42 U.S.C. § 1981. Manatt v. Bank of America, 339 F.3d 10 792, 797 (9th Cir. 2003). There are various legal pathways that are invoked to reach the 11 conclusion of unlawful discrimination under Title VII. While Plaintiff s FAC does not specify 12 the particular theory of discrimination, the facts alleged hint fairly strongly at three theories; 13 racial discrimination, hostile work environment and retaliation. 14 A. Discrimination - Disparate Treatment on Racial Grounds 15 As the July 11 Order stated: 16 To establish a prima facie case of race discrimination, an employee must show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action gives rise to an inference of discrimination. 17 18 19 Doc. # 27 at 10:16-20 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); 20 Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004)). The July 21 11 Order acknowledged that Plaintiff s complaint set forth facts sufficient to demonstrate the 22 first three of the above-listed elements of a discrimination claim. The July 11 order concluded 23 that Plaintiff s complaint did not allege facts sufficient to show that either the work conditions on 24 the night shift which Plaintiff claims were more hazardous and strenuous that those on the day 25 shift or the testing for prohibited drugs which Plaintiff alleges was pretextual were the 26 result of racial animus. The facts alleged in Plaintiff s FAC are essentially the same as those that 27 28 7 1 were alleged and found deficient in the original complaint. Plaintiff s FAC has not cured the 2 pleading deficiency because there remains no factual basis to find that individuals outside his 3 protected class were treated differently. Essentially, Plaintiff is burdened to plead facts to show 4 that a non-African American would not have been scrutinized to the same level, would not have 5 been subjected to drug testing as a result of the accident and/or would not have been placed on 6 the night shift with the same job conditions as Plaintiff. 7 While the court can accept for the purposes of this analysis that Plaintiff was subject to 8 unfair treatment and was railroaded into termination, Plaintiff is without recourse under Title 9 VII unless he can allege facts sufficient to show that the reason for his treatment was the fact that 10 he is African American. Except for a couple of statements by employees who do not appear to be 11 in a position to influence Plaintiff s working conditions, there is nothing in the facts to tie 12 Plaintiff s work experience to racial animus on the part of company officials or managers who 13 had actual influence over Plaintiff s work environment. The court must conclude that, as with 14 the original complaint, Plaintiff s FAC fails to state a claim for which relief can be granted with 15 regard to a Title VII claim for discrimination. 16 B. Hostile Work Environment 17 The terms hostile work environment and harassment are used interchangeably in that 18 the elements of a claim under either label are the same. The elements are (1) the plaintiff was 19 subjected to verbal or physical conduct because of her race, (2) the conduct was unwelcome, 20 and (3) the conduct was sufficiently severe or pervasive to alter the conditions of [the plaintiff s] 21 employment and create and abusive work environment. [Citation.] Manatt, 339 F.3d at 797 22 (reciting elements for hostile work environment claim and quoting Kang v. U. Lim Am., Inc., 23 296 F.3d 810, 817 (9th Cir. 202)); Martinez v. Marin Sanitary Services, 349 F.Supp.2d 1234, 24 1251 (N.D. Cal. 2004) (reciting same elements for claim of racial harassment). 25 26 While Plaintiff s FAC alleges certain work conditions that applied to him and not to others, there is nothing in the FAC to establish that the difference in treatment had its origin in 27 28 8 1 racial animus. There is no doubt that Plaintiff did overhear comments that were understandably 2 deeply subjectively offensive to him. However, there is no indication that the few comments that 3 were document in the FAC were made by policy-setters or that the sentiments reflected in those 4 comments guided the company s decision-making with regard to African Americans generally or 5 with regard to Plaintiff as an individual. Further, as pointed out in the court s July 18 Order, the 6 relatively short list of racially derogatory statements Plaintiff has been subjected to were not 7 sufficient in terms of their pervasiveness to show that there was any substantial effect on the 8 work environment. The court concludes that Plaintiff s FAC does not adequately state a claim 9 for violation of Title VII on the grounds of hostile work environment. 10 C. Retaliation 11 To state a claim for retaliation under Title VII, a plaintiff must establish that; (1) he 12 engaged in a protected activity, such as the filing of a complaint alleging racial discrimination, 13 (2) the [defendant] subjected him to an adverse employment action, and (3) a causal link exists 14 between the protected activity and the adverse action. Manatt 339 F.3d at 800 (internal citations 15 and footnotes omitted). The only portion of the FAC that appears to suggest the elements of a 16 claim of retaliation alleges: 17 18 19 20 21 [Plaintiff] being a fifty-year-old African-American, employed for four-and-onehalf years with [Defendant], with excellent working relationships and a personnel file without any write-ups, warnings or any problematic issues while employed was the next employee in line for an open position in maintenance department; however, that position was given to an employee by the name of John (last name unknown) a younger white male employee. A question was proposed to Union President Shawn Pugh as to why the position was not placed up for bidding in accordance with the Collectiv3e Bargaining Agreement (Article No. 9 - Seniority 9.10 Job Bidding). His question was n3ever answered and it [sic] almost a week later that the pretext of driving the vacuum truck surfaced. 22 Doc. # 29 at 4:9-18. 23 While a challenge to a promotion or transfer that is contrary to the terms of the CBA 24 would certainly be a protected activity, there is no evidence that Plaintiff made or was connected 25 with such a challenge. If, as the FAC suggests, Plaintiff merely asked the Union President a 26 question, that would not rise to the level of protected activity for purposes of a claim under 27 28 9 1 Title VII because there is no indication the question was ultimately directed to Defendant. In 2 terms of causation, Plaintiff s claim fails to allege a connection between a question (or challenge) 3 being proposed to the Union President and Defendant s treatment of Plaintiff. If the question 4 did amount to a challenge of Defendant s action, how did Defendant know that there was a 5 challenge and how did Defendant know that the challenge originated from Plaintiff, if indeed it 6 did? In the absence of some evidence of a causal link between the protected activity and the 7 adverse employment action against Plaintiff, a claim of retaliation cannot be sustained. 8 9 10 11 The court concludes that Plaintiff has failed to state a claim of discrimination under Title VII under any theory that might be applicable in light of the facts alleged in Plaintiff s FAC. II. Age Discrimination Under ADEA The court s July 11 Order noted that the elements of a prima facie case for age 12 discrimination are (1) the plaintiff is in the age group protected by the ADEA; (2) he was 13 discharged or demoted; (3) at the time of his discharge or demotion, he was performing his job at 14 a level that met his employer s legitimate expectations; and (4) following his discharge or 15 demotion he was replaced by someone of comparable qualifications outside the protected class. 16 The July 11 Order dismissed Plaintiff s ADEA claim noting that Plaintiff had not alleged his age 17 or the age of the person that replaced him. In his FAC, Plaintiff alleges his age 55 but again 18 does not allege the age of the individual who replaced him. In addition, while Plaintiff alleges 19 his personnel file was free of any negative reports or comments, he does not allege that the drug 20 test for which he was terminated was erroneous, only that it lacked a proper chain of custody. In 21 view of Defendant s strict policy regarding drug use or impairment, Plaintiff cannot show that he 22 met the employer s reasonable expectations so long as he cannot, or does not, allege he was drug 23 free at the time of the incident in question. 24 The court concludes that the pleading deficiencies noted in the court s July 11 Order with 25 regard his ADEA claim remain in his FAC. Plaintiff s claim for age discrimination under the 26 ADEA will therefore be dismissed. 27 28 10 1 2 III. Breach of Contract Under Labor Management Relations Act At the outset it is important to be clear as to what the court interprets Plaintiff to have 3 alleged with respect to his LMRA claim. While Plaintiff s FAC alleges a number of instances 4 where Defendant breached the CBA, the only reference that the court can find to the actual filing 5 of a grievance occurred after Plaintiff was terminated. Doc. # 29 at 8:14-15. Plaintiff s FAC 6 appends a copy of what is described as the Original Grievance which is provided at Doc. Page 7 17 of Doc. # 29. The Original Grievance is dated August 30, 2011. Plaintiff s Termination 8 Letter specified that his termination date was August 19, 2011. The Original Grievance indicates 9 that the subject of Plaintiff s grievance incorporated Plaintiff s allegation that he did not witness 10 the accident and that he consequently had no duty to report and incorporates the allegation that 11 Plaintiff was subjected to drug testing without union representation. The court also notes that 12 another grievance was apparently presented on behalf of Plaintiff by a person who is alleged by 13 Plaintiff to be a supervisor by the name of Terry Moody. The signature on the second grievance 14 is not legible but appears not to be that of Plaintiff. 15 As the court noted in its July 11 Order, an employee seeking to sue for the breach of a 16 CBA is generally required to exhaust all remedies provided by the agreement. Del Costello v. 17 Int l Bhd. of Teamsters, 462 U.S. 151, 163 (1983); Soremekun v. Thrifty Payless, Inc., 509 F.3d 18 978, 985 (9 Cir. 2007). The exhaustion requirement is waived, however, if an employee alleges 19 that (1) the employer breached the CBA and (2) that the union breached its duty of fair 20 representation to the employee. Del Costello, 462 U.S. at 164-165; Vaca v. Sipes, 386 U.S. 171, 21 185-186 (1967). Plaintiff s ability to bring this claim in court without having exhausted the 22 procedure provided by the CBA rests on the allegation that Plaintiff contacted the Union on 23 numerous occasions seeking to get the union to put forward his grievance without any result or 24 response by the Union. 25 26 Plaintiff s FAC appends a copy of the CBA that was in force at the time relevant to this action. Article 14 of that agreement sets forth the grievance procedure. Significantly, the 27 28 11 1 grievance procedure provides that the procedure is available to address any differences [that 2 may] arise as to the meaning or application of the provisions of this Agreement. Doc. # 29 at 3 59, ¶14.11. The grievance procedure does not suggest that it is applicable to questions of 4 progressive discipline or other matters having directly to do with the possible termination of an 5 employee. As previously noted, the Termination Letter referenced Company Policy HR -2-004, 6 Progressive Discipline as the authority underpinning the decision to terminate Plaintiff. The 7 Progressive Discipline policy is not contained or referenced in the CBA. The totality of the 8 information presented in Plaintiff s FAC suggests strongly that matters pertaining to employee 9 disciplinary actions are properly handled to according to the Progressive Discipline Policy and 10 not according to the Grievance procedure. In addition, although Plaintiff does not elaborate on 11 the content or purpose of the hearing or hearings that he attended with union representation, 12 the inference is that those proceedings were part of the Progressive Discipline Policy and that 13 Plaintiff was represented by one or more Union officials during those proceedings. 14 A union breaches its duty to fairly represent its members when its conduct is arbitrary, 15 discriminatory, or in bad faith. Vaca, 386 U.S. at 190; Beck v. United Food and Comm l 16 Workers Union Local 99, 506 F.3d 874, 878 (9th Cir. 2007). While a union is bound to represent 17 a member where representation is appropriate, it does not violate its duty where the requested 18 representation is pointless, futile, or contrary to the governing labor agreement. It appears to the 19 court that what Plaintiff was seeking to grieve were the facts or procedures that underpinned his 20 termination. In light of all the facts alleged, the court cannot infer that the Union s refusal to 21 carry Plaintiff s grievance forward constituted a failure to provide fair representation unless 22 Plaintiff can allege some facts to show that the grievance Plaintiff sought was authorized by the 23 CBA and was not an attempt to circumvent the Progressive Discipline Policy. 24 The court finds that Plaintiff has failed to plead facts sufficient to show that the union 25 failed to provide Plaintiff fair representation or that his claims under the agreement have been 26 exhausted. The court therefore lacks jurisdiction over claims of Defendant s alleged violation of 27 28 12 1 the CBA. 2 IV. Defamation 3 As previously noted in the court s July 11 Order, a plaintiff alleging the tort of 4 defamation must allege facts sufficient to show there was an intentional publication of a 5 statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes 6 special damage. Raghavan v. Boeing Co., 133 Cal.App.4th 1120, 1132 (2 Dist. 2005). 7 Publication [in the context of defamation] means communication to some third person who 8 understands the defamatory meaning of the statement and its application to the person to whom 9 reference is made. Id. 10 When the court read a claim for defamation into Plaintiff s original complaint, it 11 exercised the maximum extent of its ability to construe a pleading in favor of a pro se plaintiff. 12 The court notes that defamation was not checked as one of the claims pled on the Civil Case 13 Cover Sheet and the only reference to a defamation claim in the body of the original complaint 14 was the use of the word libelous to describe Plaintiff s Termination Letter. In granting 15 Defendant s motion to dismiss what the court construed as a defamation claim, the court noted 16 that Plaintiff failed to tie the claim [for defamation] to any alleged facts in the complaint. Doc. 17 # 27 at 24-25. Plaintiff s FAC is equally devoid of facts relating to any possible claim for 18 defamation. 19 Presuming that the Plaintiff s Termination Letter is the alleged defamatory instrument, 20 Plaintiff s FAC fails to allege any publication of the Letter to any third person or entity. 21 Plaintiff alleges that [r]ather than lie to potential employers [Plaintiff] has stated the truth; that 22 he was terminated wrongfully by his former employer. Doc. # 29 at 10:18-19. Plaintiff s 23 disclosure of the circumstances of his separation from Defendant s employment does not 24 constitute publication by Defendant. In addition, Plaintiff s FAC does not allege facts to show 25 that the Termination Letter contained any false statements. Although there is some discrepancy 26 as to the numbering of the Rules of Conduct cited in the Letter, there is no question that the 27 28 13 1 2 reasons cited in the Letter were the reasons for Plaintiff s termination. While Plaintiff vigorously disputes the validity of allegation that he violated the cited 3 Rules of Conduct, there is no question that the Termination Letter truthfully states the reasons for 4 Plaintiff s termination. In addition, Plaintiff has not alleged any facts that would tend to show 5 that, regardless of Plaintiff s allegations concerning the randomness of the test for prohibited 6 drugs, that he was in fact not in violation of the company policy of being under the influence of 7 prohibited drugs at the time of the incident that lead to his termination. Basically, Plaintiff s 8 FAC, to the extent there is any intent to allege a claim for defamation, seeks to elevate a dispute 9 as to the validity of the reasons for his termination into a claim that Defendants were deliberately 10 11 false in listing those reasons as the reasons for his termination. The court concludes that Plaintiff s FAC fails to state a claim for defamation for which 12 relief can be granted. Further, the court concludes that the facts of this action are fundamentally 13 incompatible with a claim for defamation inasmuch as it improperly seeks to litigate in the 14 district court the validity of allegations of misconduct that are properly considered in the forum 15 that is provided by agreement of the parties to review disciplinary actions including termination. 16 Leave to amend the claim for defamation will therefore be denied. 17 V. Leave to Amend 18 If a complaint is dismissed for failure to state a claim, leave to amend should be granted 19 unless the court determines that the allegation of other facts consistent with the challenged 20 pleading could not possibly cure the deficiency. Schreiber Distributing Co. v. Serv-Well 21 Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986). The court has tried once to provide 22 Plaintiff with information regarding basic pleading requirements and will not repeat those here 23 except to note that Plaintiff has not served his own interest by persisting in the same sort of 24 narrative that leaves the court and Defendant guessing as to what claims are being alleged. 25 Because the court cannot determine that further amendment would not cure deficiencies in 26 Plaintiff s Title VII claims, and because the court cannot determine from the material provided 27 28 14 1 that Plaintiff is not permitted to submit his termination to the grievance process, the court will 2 allow one further amendment of the complaint. Plaintiff is cautioned, however, that in any 3 further amendment of the complaint, Plaintiff must clearly identify the claim for relief that he is 4 alleging, provide the legal elements of the claim and allege facts sufficient to satisfy those 5 elements. The court is unwilling to make any further inferences with respect to Plaintiff s 6 claims. 7 8 9 THEREFORE, for the reasons discussed above, it is hereby ORDERED that Defendant s motion to dismiss Plaintiff s First Amended Complaint in its entirety is GRANTED. To the 10 extent Plaintiff s FAC alleges a claim for defamation, that claim is dismissed WITH 11 PREJUDICE. Leave to amend is hereby GRANTED with regard to all other claims. Any 12 amended complaint shall be filed and served not later than twenty-one (21) days from the date of 13 service of this order. Should Plaintiff not file any amended complaint within the time period 14 allotted, Defendant shall so notify the court and move for dismissal of the action and entry of 15 judgment. 16 17 IT IS SO ORDERED. 18 19 Dated: 0m8i78 November 27, 2012 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 15
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