Magallanez v. Engineers and Scientists of California, Local 20, International Federation of Professional and Technical Engineers et al, No. 2:2011cv03466 - Document 36 (E.D. Cal. 2012)
Court Description: ORDER granting in part and denying in part 26 Motion to Dismiss signed by Judge Garland E. Burrell, Jr on 12/5/12. (Kaminski, H)
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Magallanez v. Engineers and Scientists of California, Local 20, In...l and Technical Engineers et al Doc. 36 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ABRAHAM MAGALLANEZ, Plaintiff, 10 11 12 13 14 15 16 v. ENGINEERS AND SCIENTISTS OF CALIFORNIA, LOCAL 20, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS; and THE PERMANENTE MEDICAL GROUP, INC., a California corporation, Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:11-cv-03466-GEB-EFB ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 17 18 Defendant The Permanente Medical Group, Inc. (“TPMG”) moves 19 for an order dismissing with prejudice Plaintiff’s claims in his First 20 Amended Complaint (“FAC”), in which Plaintiff alleges breach of contract 21 and breach of the duty of fair representation. TPMG argues these claims 22 should be dismissed because they are time barred since Plaintiff “failed 23 to plead sufficient grounds to equitably toll the limitations period or 24 estop TPMG from raising a limitations defense.” (Mot. to Dismiss, ECF 25 No. 26 (“Mot.”) 11:25—26.) TPMG also asserts that Plaintiff cannot state 26 a fair representation claim against it since employers “do not owe 27 employees a duty of fair representation.” (Mot. 11:11—12.) Plaintiff 28 Abraham Magallanez opposes the motion, arguing that his administrative 1 Dockets.Justia.com 1 grievance equitably tolled the limitations period and that TPMG’s 2 knowledge 3 International Federation of Professional and Technical Engineers (the 4 “Union”) had misstated the statute of limitations equitably estops it 5 from asserting a limitations defense. (Opp’n to Def.’s Mot. to Dismiss, 6 ECF No. 28 (“Opp’n”) 4:5—8:5.) 7 the motion seeking dismissal of his duty of fair representation claim 8 against TPMG. that Engineers 9 and Scientists of California, Local 20, Plaintiff also opposes the portion of I. LEGAL STANDARD 10 Decision on a Federal Rule of Civil Procedure (“Rule”) 11 12(b)(6) 12 complaint’s 13 inferences, state a plausible claim for relief.” Cafasso, United States 14 ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 (9th Cir. 15 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678—79 (2009)). “A claim 16 has facial plausibility when the plaintiff pleads factual content that 17 allows the court to draw the reasonable inference that the defendant is 18 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell 19 Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). dismissal factual motion requires allegations, determination together with of “whether all the reasonable 20 In evaluating a Rule 12(b)(6) motion, the court “accepts the 21 complaint’s well-pleaded factual allegations as true and draws all 22 reasonable inferences in the light most favorable to the plaintiff.” 23 Adams v. U.S. Forest Serv., 671 F.3d 1138, 1142—43 (9th Cir. 2012) 24 (citing Twombly, 544 U.S. at 555—56). However, this tenet does not apply 25 to “legal conclusions . . . cast in the form of factual allegations.” 26 Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (internal quotation 27 marks 28 unwarranted inferences are insufficient to defeat a motion to dismiss.” omitted). “Therefore, conclusory 2 allegations of law and 1 Id. (internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 2 (quoting Twombly, 550 U.S. at 555) (“A pleading that offers ‘labels and 3 conclusions’ or ‘a formulaic recitation of the elements of a cause of 4 action will not do.’”). 5 A statute of limitations defense may be raised in a Rule 6 12(b)(6) motion if the expiration of the statute of limitations is 7 apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 8 F.2d 677, 682 (9th Cir. 1980). Such dismissal motions “based on the 9 running of the statute of limitations period may be granted only ‘if the 10 assertions of the complaint, read with the required liberality, would 11 not permit the plaintiff to prove that the statute was tolled.’” 12 Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 13 1995) (quoting Jablon, 614 F.2d at 682). 14 II. FACTUAL AND PROCEDURAL BACKGROUND 15 The factual allegations in Plaintiff’s FAC and the procedural 16 background are the following.1 For approximately four years, Plaintiff 17 worked as a staff optometrist for TPMG. (FAC ¶ 10.) “In November 2010, 18 Plaintiff received a positive performance evaluation.” (Id. ¶ 11.) On 19 December 30, 2010, he was fired because he used his “employee electronic 20 [medical records] access to view his family’s medical records” with 21 their consent. (Id. ¶¶ 10, 18.) 22 After his termination, Plaintiff requested that his Union 23 initiate a grievance against TPMG to dispute his termination. (Id. ¶¶ 7, 24 12.) The Union advised Plaintiff that “he had an approved right to Union 25 26 27 28 1 The Union’s Constitution and the letters of March 22 and July 21, 2011 are considered since these documents are “referenced in [the FAC] but not explicitly incorporated therein” and since “the [FAC] relies on the[se] document[s] and [their] authenticity is unquestioned.” Swartz v. KPMG LLC, 476 F.3d 756, 763 (9th Cir. 2007). 3 1 representation at all times . . . and that the Union would . . . proceed 2 with grievance procedures as necessary through all levels.” (Id. ¶ 12.) 3 However, the Union did not successfully restore Plaintiff’s employment, 4 and in a letter dated March 22, 2011, the Union informed Plaintiff of 5 its 6 “notified Plaintiff that he had one year from December 20, [2010] to 7 file suit against [TPMG].” (Id. ¶¶ 13, 14.) Plaintiff requested review 8 of the Union’s decision by the Union’s Optometry Unit Board, and on July 9 21, 2011, he received a written notification reaffirming the Union’s 10 prior decision to withdraw his grievance and forgo arbitration of his 11 claim. (Id. ¶¶ 15, 16; ECF No. 18, Ex. D.) Plaintiff again requested 12 reconsideration of this decision, this time via an appeal to the Union 13 Executive Board, and on August 22, 2011, the Union’s decision was again 14 reaffirmed. (FAC ¶ 17; ECF No. 18, Exs. D, F.) The Union Constitution 15 prescribes the procedures for such “appeals from Unit Executive Board 16 decisions [to] the Union Executive Board.” (ECF No. 27, art. XVI, § 2.) 17 Throughout, TPMG “was aware [the] Union was advising its employees of 18 the one year statute of limitations,” and it “allowed these false 19 statements to continue over the years.” (FAC ¶¶ 14, 24.) “withdrawal of Plaintiff’s grievance, as against [TPMG]” and 20 On December 29, 2011, over eight months after the Union first 21 informed Plaintiff that it would pursue his grievance no further, 22 Plaintiff filed this lawsuit against TPMG and against the Union. In the 23 Order filed on July 11, 2012, Plaintiff’s claims against TPMG in 24 Plaintiff’s initial complaint were dismissed, and Plaintiff was granted 25 leave to amend his complaint consistent with the Court’s Order. (ECF No. 26 22.) Subsequently, Plaintiff filed the FAC; the Union answered; and TPMG 27 filed the instant dismissal motion. 28 / 4 1 2 III. DISCUSSION A. Breach of the Duty of Fair Representation 3 TPMG argues Plaintiff does not allege that it owed him a duty 4 of 5 “[e]mployers are adverse to employees and unions during the grievance 6 procedure,” 7 representation.” (Mot. 11:17, 11:10—12.) Plaintiff responds generally 8 that “TPMG had a contractual obligation under the Collective Bargaining 9 Agreement not to terminate Plaintiff without just cause.” (Opp’n 8:4—5.) 10 TPMG is correct. “The union owes [a] duty of fair representation to the 11 employees it represents—the duty does not run to the employer . . . .” 12 Bowen v. U.S. Postal Serv., 459 U.S. 212, 240 (1983) (White, J., 13 concurring); accord Breininger v. Sheet Metal Workers Int’l Ass’n Local 14 Union No. 6, 493 U.S. 67, 84 (1989) (stating “a fair representation 15 claim is a separate cause of action from any possible suit against the 16 employer”); Vaca v. Sipes, 386 U.S. 171, 190 (1967) (“A breach of the 17 statutory duty of fair representation occurs only when a union’s conduct 18 . . . is arbitrary, discriminatory, or in bad faith.”) (emphases added). 19 Since employers do not owe employees a duty of fair representation, 20 TPMG’s motion to dismiss Plaintiff’s duty of fair representation claim 21 against it is granted. Further, because fair representation claims are 22 not cognizable against employers, Plaintiff’s “‘pleading could not 23 possibly be cured by the allegation of other facts,’” Watison v. Carter, 24 668 F.3d 1108, 1117 (9th Cir. 2012) (quoting Doe v. United States, 58 25 F.3d 494, 497 (9th Cir. 1995)), and leave to amend should not be 26 permitted. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 27 F.2d 28 representation claim against TPMG is dismissed with prejudice. fair representation, 1276, and 1293 “they (9th “let do Cir. alone not owe 1983). 5 breached such employees Accordingly, a a duty,” duty of Plaintiff’s since fair fair 1 B. Breach of the Collective Bargaining Agreement 2 In this hybrid § 301/fair representation lawsuit, Plaintiff 3 sues his former employer for “breach of the collective bargaining 4 agreement” and his former Union for “breach of the [U]nion’s duty of 5 fair representation.” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 6 151, 165 (1983). Both claims are subject to the six-month statute of 7 limitations in § 10(b) of the National Labor Relations Act. Id. at 155; 8 see also Prazak v. Local 1 Int’l Union of Bricklayers & Allied Crafts, 9 233 F.3d 1149, 1151 (9th Cir. 2000). Plaintiff’s claims accrued on March 10 22, 2011, when the Union first notified him that it would pursue his 11 grievance no further. See Harris v. Alumax Mill Prods., Inc., 897 F.2d 12 400, 404 (9th Cir. 1990); Zuniga v. United Can Co., 812 F.2d 443, 449 13 (9th Cir. 1987). Since Plaintiff’s suit was filed on December 21, 2011, 14 over eight months after the accrual of his claims, Plaintiff’s action is 15 time barred by § 10(b)’s six-month statute of limitations “[u]nless he 16 can establish that the limitation period was suspended for some period.” 17 Conley v. Int’l Bhd. of Elec. Workers, 810 F.2d 913, 915 (9th Cir. 18 1987). 19 A statute of limitations may be suspended by either the 20 doctrine of equitable tolling or the doctrine of equitable estoppel. 21 Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987). 22 TPMG argues “as held in Eason, only grievance and arbitration procedures 23 that are mandated by a collective bargaining agreement can equitably 24 toll a hybrid section 301/fair representation claim.” (ECF No. 32, Reply 25 6:13—15 (citing Eason v. Waste Mgm’t of Alameda Cnty., No. C-06-06289 26 JCS, 2007 WL 2255231, at *6 (N.D. Cal. Aug. 3, 2007)).2 However, this is 27 28 2 TPMG’s argument is based in part on an earlier Order issued in (continued...) 6 1 not the holding of Eason—a case in which equitable tolling was “neither 2 alleged . . . nor argued.” Eason, 2007 WL 2255231, at *8. Further, 3 hybrid § 301/fair representation tolling cases distinguish between 4 intra-union grievances and other administrative proceedings, such as 5 worker’s compensation claims or National Labor Relations Board charges. 6 Compare Galindo v. Stoody Co., 793 F.2d 1502, 1510—11 (9th Cir. 1986) 7 (tolling 8 grievance procedures), and Stone v. Writer’s Guild of Am. W., Inc., 101 9 F.3d 1312, 1315 (9th Cir. 1996) (stating “the statute of limitations may 10 be tolled ‘while an employee pursues intra-union grievance procedures, 11 even if those procedures are ultimately futile’”) (quoting Galindo, 793 12 F.2d at 1510), with Harris, 897 F.2d at 404 (finding § 10(b) is not 13 tolled by worker’s compensation claim), Pejic v. Hughes Helicopters, 14 Inc., 840 F.2d 667, 671 (9th Cir. 1988) (same), and Conley, 810 F.2d at 15 916 (finding § 10(b) is not tolled by filing of NLRB charge). 16 limitations When a period plaintiff while pursues plaintiff an pursued intra-union intra-union administrative 17 grievance that could result in the relief sought, the statute of 18 limitations may be equitably tolled. See Stone, 101 F.3d at 1315; 19 Galindo, 793 F.2d at 1510—11. The reasoning underlying this is that 20 21 22 23 24 25 26 27 28 2 (...continued) this case. Magallanez v. Eng’rs & Scientists of Cal., Local 20-Int’l Fed’n of Prof’l & Technical Eng’rs, No. 2:11-cv-03466-GEB-EFB, 2012 WL 2872816 (July 11, 2012). In that Order I stated: “Here, Plaintiff does not allege facts from which a reasonable inference could be drawn that he was required to seek reconsideration of the Union’s decision before he filed a civil complaint. Therefore, Plaintiff has not demonstrated that the statute of limitations for his hybrid § 301/fair representation claim was equitably tolled.” Id. at *5. However, as the Ninth Circuit states in Conley: “Equitable tolling is most appropriate when the plaintiff is required to avail himself of an alternate course of action as a precondition to filing suit.” 810 F.2d at 915. Conley does not indicate that it is inappropriate for Plaintiff to rely on the equitable tolling doctrine in the instant case. 7 1 “[a]n employee should not be penalized for seeking to resolve his 2 dispute through the grievance process before filing a suit in federal 3 court.” Galindo, 793 F.2d at 1510. Equitable tolling is favored as it 4 prevents “premature filing” of federal lawsuits, id., and it “advance[s] 5 the national labor policy encouraging private resolution of contractual 6 labor disputes.” Clayton v. Int’l Union, United Auto., Aerospace, & Agr. 7 Implement Workers of Am., 451 U.S. 679, 692 (1981). 8 TPMG argues that to equitably toll Plaintiff’s claims when 9 Plaintiff was not “required to exhaust an intra-union appeal before 10 filing suit against TPMG . . . ‘would frustrate the national policy of 11 prompt resolution of labor disputes.’” (Mot. 5:25, 7:15—16 (quoting 12 Conley, 810 F.2d at 916).) However, as the Ninth Circuit stated in 13 Galindo: “We believe that the policy of non-judicial resolution of labor 14 disputes should outweigh the policy of prompt resolution of labor 15 disputes in cases where the pursuit of [administrative] remedies would 16 toll the statute for only a few months.” Galindo, 793 F.2d at 1510 n.4. 17 TPMG also asserts that “a third party’s actions will not equitably toll 18 the six-month section 10(b) statute of limitations for claims against 19 another party.” (ECF No. 15, 7:4—6.) However, equitable modification of 20 the statute of limitations does apply to an employee’s hybrid claim 21 against 22 representative.” See Stallcorp, 820 F.2d at 1050—51 (emphasis added). her employer based on the actions of “a union business 23 Since TPMG has not shown that Plaintiff’s appeal to the Union 24 Executive Board of the Union Optometry Unit Board’s refusal to arbitrate 25 his 26 procedure,” Stone, 101 F.3d at 1315, that was explicitly provided for in 27 the 28 representation claim against the Union in a few months, TPMG’s motion to grievance Union was not Constitution, an and intra-union that 8 could “subsequent have administrative resolved his fair 1 dismiss Plaintiff’s breach of the collective bargaining agreement claim 2 is denied. 3 III. CONCLUSION 4 For the stated reasons, TPMG’s motion to dismiss Plaintiff’s 5 breach of the duty of fair representation claim against TPMG is granted 6 with 7 collective bargaining agreement claim is denied. 8 Dated: prejudice; its motion to dismiss Plaintiff’s breach of December 5, 2012 9 10 11 GARLAND E. BURRELL, JR. Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 the
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