CAMPOS v. GREEN DIAMOND RESOURCE COMPANY (2025)

ORDER GRANTING MOTION TO REMAND; DENYING MOTION TO DISMISS; AND DENYING MOTION TO CONSOLIDATE CASES

Re: Dkt. Nos. 14, 17, 25

On October 29, 2024, Plaintiff Pablo Campos filed this employment discrimination action in Humboldt County Superior Court against Defendants Green Diamond Resource Company (“Green Diamond”), Kevin Nichols, and Does 1 through 100 (collectively, “Defendants”). ECF 3, Exhibit (“Ex.”) 1. On December 2, 2024, Defendants removed the action to this federal court, asserting federal question jurisdiction based on preemption by § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 (“§ 301”). ECF 3.

Before the Court are three motions: (1) Plaintiff's motion to remand, (2) Defendants’ motion to dismiss, and (3) Defendants’ motion to consolidate cases. ECF 14, 17, 25. The Court found this matters appropriate for resolution without oral argument and takes the matter under submission. ECF 29; see L.R. 7-1(b) (authorizing courts to dispense with oral argument on any motion except where an oral hearing is required by statute).

After review and consideration of motions, briefings, attachments and exhibits thereto, the Court GRANTS Plaintiff's motion to remand for all claims; DENIES as moot Defendants’ motion to dismiss; and DENIES as moot Defendants’ motion to consolidate cases.

I. BACKGROUND

A. Factual History

1. Events Leading to Plaintiff's Termination

Plaintiff was employed by Green Diamond, a forest management company, on April 4, 2007. ECF 13, ¶ 14. He was employed as a hook tender and earned an hourly wage of $34.00. Id. ¶ 15. He was supervised by Kevin Nichols, his logging supervisor. Id. ¶ 16.

On June 30, 2023, Plaintiff was injured at work when a tree fell on him (“June 30, 2023, tree incident”). Id. ¶ 17. He suffered a collapsed lung and multiple broken bones, requiring ongoing treatment. Id. ¶ 19. In February 2024, Plaintiff returned to work with medical restrictions. Id. ¶ 21. He reported his medical restrictions to Nichols, and Nichols assigned him “to drive pickup trucks, place road markers, sweep, and shuttle other employees.” Id. ¶ 23–24.

Plaintiff's new tasks required him “to drive for long-periods of time on uneven roads,” aggravating his injuries. Id. ¶ 26. He continued working and was released from his medical restrictions on March 29, 2024. Id. ¶ 27.

On June 5, 2024, Plaintiff was injured again when a mishandled cable struck him (June 5, 2024, cable incident”). Id. ¶ 28–30. At the end of his shift, he reported the incident to Nichols, stating he might be unable to work the next day due to his pain. Id. ¶ 32. Nichols scheduled a meeting with Plaintiff the following day. Id. ¶ 33.

At the meeting, which included other employees and supervisors, Nichols told Plaintiff that “they were going to investigate the incident.” Id. ¶ 35. Plaintiff explained that another employee had failed to follow protocol resulting in the accident. Id. ¶ 35. One of Plaintiff's colleagues, Raul Bernal, confirmed Plaintiff's statement. Id. ¶ 37.

A second meeting was held the following day, including everyone from the prior meeting except Bernal. Id. ¶ 39. During the meeting, a supervisor informed Plaintiff that he was being terminated for “violating safety procedures.” Id. ¶ 40. The supervisor mentioned the June 30, 2023 tree incident. Id. ¶ 41. The supervisor also blamed Plaintiff for the June 5, 2024 cable incident, stating that Plaintiff “had been standing too close to the cable lines and failed to report the incident right away.” Id. ¶ 43.

2. Collective Bargaining Agreement

Although not mentioned in Plaintiff's complaint, Defendants assert that the collective bargaining agreement, “Working Agreement by and between Green Diamond Resource Company Korbel Operations and International Association of Machinists and Aerospace Workers AFL-CIO Woodworkers District Lodge 1 I Am Local Lodge W98 (June 1, 2021 through May 31, 2025)” (the “CBA”), applied to Plaintiff during the events described in Plaintiff's complaint. ECF 3, ¶ 3; see ECF 3-1, Ex. A.

B. Procedural History

On October 29, 2024, Plaintiff filed suit in Humboldt County Superior Court against Defendants, alleging sixteen claims stemming from his employment with Defendants. ECF 3, Ex. 1. Plaintiff asserts: (1) discrimination on the basis of disability and/or medical condition, (2) failure to accommodate disability, (3) failure of employer to engage in good faith interactive process to determine effective reasonable accommodation, (4) Family and Medical Leave Act (“FMLA”) discrimination, (5) harassment, (6) failure to take all steps necessary to stop discrimination and harassment from occurring, (7) retaliation, (8) whistle blower retaliation, (9) retaliation in violation of whistleblower statutes, (10) wrongful termination in violation of public policy, (11) intentional infliction of emotional distress, (12) failure to provide rest breaks, (13) failure to reimburse for required business, (14) failure to compensate for all hours worked, (15) failure to pay wages due upon separation, and (16) failure to maintain payroll records and violation of recordkeeping requirements. Id. ¶¶ 48–158.

On December 2, 2024, Defendants removed the action to this court, asserting federal question jurisdiction by arguing that Plaintiff's claims are completely preempted under § 301. ECF 3, ¶ 8.

On January 2, 2025, Plaintiff filed an amended complaint, dismissing his wage and hour claims—counts 12, 13, 14, 15, and 16. Compare ECF 13 (amended complaint) with ECF 3, Ex. 1 (complaint). On the same day, Plaintiff filed a motion to remand the action to state court. ECF 14. Defendants timely filed an opposition, ECF 18, and Plaintiff timely filed a reply. ECF 19. In his reply, Plaintiff also asserted several evidentiary objections and moves to strike portions and exhibits the Declaration of Alyson Dudkowski. ECF 19-1. Defendants filed a response to Plaintiff's evidentiary objections. ECF 24.

Defendants also filed a motion to dismiss the action in its entirety. ECF 17. Defendants request judicial notice of one exhibit in conjunction with their motion to dismiss. ECF 17-2. Plaintiff timely filed an opposition, ECF 20, and Defendants timely filed a reply. ECF 21.

Defendants also moved to relate and consolidate this action with Campos v. Green Diamond Resource Company, No. 1:25-cv-00663-RMI (removed from Humboldt County Superior Court Case No. CV2402318). ECF 25, at 2. Plaintiff timely filed an opposition, ECF 26, and Defendants timely filed a reply. ECF 27.

II. LEGAL STANDARDS

A. Motion to Remand

“Federal courts are courts of limited jurisdiction ․” Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal quotation marks omitted)). The federal district courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331; Tijerino v. Stetson Desert Project, LLC, 934 F.3d 968, 971 (9th Cir. 2019). “A defendant generally may remove a civil action if a federal district court would have original jurisdiction over the action.” Allen v. Boeing Co., 784 F.3d 625, 628 (9th Cir. 2015) (citing 28 U.S.C. § 1441(a)). After removal, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996).

“The general rule, referred to as the ‘well-pleaded complaint rule,’ is that a civil action arises under federal law for purposes of § 1331 when a federal question appears on the face of the complaint.” City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). “The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. “The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper, and that the court resolves all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quotations and citations omitted). The removing defendant “has the burden of establishing that removal was proper.” Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).

B. Motion to Dismiss

Under Rule 12(b)(6), a party may move to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To overcome a motion to dismiss, a plaintiff's “factual allegations [in the complaint] ‘must ․ suggest that the claim has at least a plausible chance of success.’ ” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the 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, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citations omitted).

III. REQUEST FOR JUDICIAL NOTICE

“The [C]ourt may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Alternatively, the Court may “consider materials that are submitted with and attached to the Complaint. [The Court] may also consider unattached evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the document.” United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). The Ninth Circuit has cautioned against the “unscrupulous use of extrinsic documents” under these exceptions, which “risks premature dismissals of plausible claims.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998–99 (9th Cir. 2018).

As part of their motion to dismiss, Defendants request judicial notice of Exhibit A, the CBA. ECF 17-2. Plaintiff does not oppose Defendants’ request for judicial notice. “Courts routinely take judicial notice of the governing collective bargaining agreement where necessary to resolve issues of preemption.” Johnson v. Sky Chefs, Inc., No. 11-CV-05619-LHK, 2012 WL 4483225, at *1 n.1 (N.D. Cal. Sept. 27, 2012). Accordingly, the Court GRANTS request for judicial notice of Exhibit A.

IV. DISCUSSION

The Court will first address Plaintiff's motion to remand by determining whether Plaintiffs’ claims are preempted based on § 310 of the LMRA. If any claims remain, the Court will then address the parties’ arguments in the motion to dismiss and motion to consolidate cases.

A. None of Plaintiff's claims are preempted based on § 310 of the LMRA.

At issue in the motion to remand is whether Plaintiff's claims are preempted by the LMRA, such that federal question jurisdiction is proper. ECF 14.

In general, “[t]he 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.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000); Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. Thus, removal is usually not appropriate for “[a] defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar, Inc., 482 U.S. at 393, 107 S.Ct. 2425.

However, “[a] corollary to the well-pleaded complaint rule is the ‘complete preemption’ doctrine, which applies in cases in which ‘the preemptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” In re NOS Commc'ns, MDL No. 1357, 495 F.3d 1052, 1057 (9th Cir. 2007) (quoting Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425). One such statute is § 301 of the LMRA, which provides “[s]uits for violation of contracts between an employer and a labor organization ․ may be brought in any district court of the United States.” 29 U.S.C. § 185(a). Accordingly, “[a]lthough normally federal preemption is a defense that does not authorize removal to federal court, § 301 has such ‘extraordinary pre-emptive power’ that it ‘converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019) (citing Metro. Life Ins. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). As a result, “a civil complaint raising claims preempted by § 301 raises a federal question that can be removed to a federal court.” Id.

In Burnside v. Kiewit Pacific Corp., the Ninth Circuit adopted a two-part test for analyzing whether § 301 preempts a state law claim. 491 F.3d 1053, 1059–60 (9th Cir. 2007). Under step one of the Burnside test, courts “ask whether the asserted cause of action involves a right [that] exists solely as a result of the CBA.” Curtis, 913 F.3d at 1152 (quotation marks and citations omitted). If the answer to step one is yes, then “the claim is preempted and [the] analysis ends there.” Id. at 1153 (quoting Burnside, 491 F.3d at 1059).

If the answer to the step one is no, then courts “proceed to the second step and ask whether a plaintiff's state law right is substantially dependent on analysis of” the CBA. Id. (quotations and citations omitted). “If such dependence exists, then the claim is preempted by section 301.” Burnside, 491 F.3d at 1059–60. To answer the step two question, courts consider “whether the claim cannot be resolved by simply look[ing] to versus interpreting the CBA.” Curtis, 913 F.3d at 1153 (quotations and citations omitted).

“ ‘[I]nterpretation’ is construed narrowly in this context” and “claims are only preempted to the extent there is an active dispute over ‘the meaning of contract terms.’ ” Id. (quoting Alaska Airlines Inc. v. Schurke, 898 F.3d 904 (9th Cir. 2018) and Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994)). “Accordingly, a state law claim may avoid preemption if it does not raise questions about the scope, meaning, or application of the CBA.” Id. (citing Livadas, 512 U.S. at 125, 114 S.Ct. 2068). In sum, if interpretation of the CBA is necessary the claim is preempted; if the court need only look to the CBA, the claim is not preempted. See Burnside, 491 F.3d at 1060.

1. Claims One to Seven: Discrimination and Retaliation under FEHA

Plaintiff seek remand of his seven Fair Employment and Housing Act (“FEHA”) discrimination and retaliation claims. ECF 13, ¶¶ 45–108. Defendants do not dispute step one of the Burnside test. Burnside, 491 F.3d at 1059. Turning to step two, the Court determines whether Plaintiff's FEHA claims are “substantially dependent on analysis of a [CBA].” Id. at 1060.

The Ninth Circuit has consistently held that “state law discrimination claims under the FEHA do not require courts to interpret the terms of a CBA and are therefore not preempted by § 301.” Schrader v. Noll Mfg. Co., 91 F. App'x 553, 555 (9th Cir. 2004) (collecting cases); see also Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“In every case in which we have considered an action brought under the [FEHA], we have held that it is not preempted by section 301.”). “This is true even where the CBA closely regulates the conduct that the plaintiff claims to be discriminatory.” Schrader, 91 F. App'x at 555.

Despite this controlling Ninth Circuit authority, Defendants contend that Plaintiff's FEHA claims require interpretation of the CBA's provisions. Defendants first argue that they had a “legitimate, non-discriminatory reason” for terminating Plaintiff because Defendants were “required to follow the terms of the CBA.” ECF 18, at 14 (quoting McGowen v. Nestle Food Co., No. 1:06CV01212AWIDLB, 2007 WL 173768 *4 (E.D. Cal. Jan. 19, 2007)). In McGowen, the district court found that plaintiff's FEHA claims required interpretation of the CBA because “the analysis [ ] require[d] deciding whether Defendant violated the CBA by distributing the functions of [p]laintiff's prior position among several employees.” McGowen, 2007 WL 173768, at *5.

However, McGowen is distinguishable. The McGowen complaint involved whether the defendant violated the CBA. McGowen, 2007 WL 173768, at *5. However, here, Plaintiff's complaint does not. Rather, Plaintiff alleges that he was wrongfully terminated in retaliation to his reporting of safety protocol violations and was discriminated against based on his disability. ECF 13, ¶¶ 45–108. Unlike McGowen, Plaintiff's complaint “concerns the alleged discriminatory enforcement of the terms of his CBA, not the substance of the terms themselves.” Schrader, 91 F. App'x at 555.

Defendants next assert that Plaintiff's FEHA claims require interpretation of the CBA because “an analysis of whether Green Diamond exhibited discrimination by terminating Plaintiff in accordance with the CBA ․ will involve a detailed analysis of the CBA.” ECF 18, at 15. However, the Court need not to interpret the terms of the CBA to adjudicate Plaintiff's discrimination claims because his claims “turn on the defendants’ motives, rather than their contractual rights.” Schrader, 91 F. App'x. at 555 (quoting Ramirez v. Fox Television Station, 998 F.2d 743, 749 (9th Cir. 1993)). Defendants’ argument that they may refer to the terms of the CBA to defend themselves does not change the result because “[a] defense based on the CBA is alone insufficient to require preemption.” Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 998 (9th Cir. 2007). Instead, “the need to interpret the CBA must inhere in the nature of the plaintiff's claim.” Cramer v. Consolidated Freightways Inc., 255 F.3d 683, 691 (9th Cir. 2001).

Citing Audette, Defendants also contend that where “resolution of the discrimination and retaliation claim turns on defendants’ offer of a legitimate nondiscriminatory reason requiring interpretation,” the claims are preempted. ECF 18, at 15 (quoting Audette v. Longshoremen's and Warehousemen's Union, 195 F.3d 1107, 1113 (9th Cir. 1999)). In Audette, plaintiffs alleged sexual discrimination based on defendants’ failure to comply with a settlement agreement. See Audette, 195 F.3d at 1112. The settlement agreement's enforcement depended on terms defined in the underlying CBA. Id. Therefore, the resolution of Plaintiff's claim required the Court to refer to the CBA and interpret it. Id. However, unlike the claims in Audette, Plaintiff's claims do not involve challenges to the terms of the CBA. Whereas the claims in Audette were inextricably intertwined with the CBA, Plaintiff's claims are not. See also Daniels v. Recology, Inc., No. C 10-04140 JSW, 2010 WL 5300878 (N.D. Cal. Dec. 20, 2010), *5–6 (distinguishing Audette in finding that plaintiff's FEHA claims are not preempted); Manalastas v. Joie de Vivre Kabuki, LLC, No. 23-CV-03957-HSG, 2024 WL 4982988, *4 (N.D. Cal. Dec. 4, 2024) (same).

Defendants also cite to Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1088 (9th Cir. 1991), arguing that the Court must “look to the CBA to judge the appropriateness of [the employer's] behavior.” ECF 18, at 15. In Perugini, plaintiff alleged breach of the duty of fair representation and emotional distress after she was refused light duty during her pregnancy. Perugini, 935 F.2d at 1084. However, unlike Plaintiff here, Perugini did not involve any FEHA claims. Id. Moreover, in Perugini, the defendant asserted preemption and argued that the court must refer to the CBA to determine whether the Union failed to represent plaintiff adequately. Id. at 1089. However, the Ninth Circuit found defendant's argument persuasive “only to the extent that Perugini's claim [wa]s based on an allegation that the Union violated the CBA.” Id. (emphasis added). Here, Plaintiff's claims are not based on allegations that Defendants violated the CBA. ECF 13, ¶¶ 45–108. For these reasons, Defendant's reliance on Perugini is unpersuasive.

Accordingly, the Court finds that Plaintiff's FEHA claims are not preempted because they do not require interpretation of the CBA. See Nathanson v. Truebeck Constr., Inc., No. 23-CV-02211-DMR, 2024 WL 68322, at *4 (N.D. Cal. Jan. 5, 2024) (finding that Plaintiff's FEHA claims are not preempted because no interpretation of the CBA is required); Little v. Pac. Gas & Elec. Co., No. 22-CV-00300-TSH, 2022 WL 612668, at *4 (N.D. Cal. Mar. 1, 2022) (same). The Court GRANTS Plaintiff's motion to remand for claims one to seven.

2. Claim Eight: Whistleblower Retaliation

Plaintiff next seeks remand of his whistleblower retaliation in violation of California Labor Code § 1102.5 claim. ECF 13, ¶¶ 109–14. Defendants do not provide a preemption counterargument for this claim. See ECF 18.

“Under § 1102.5(b) of the California Labor Code, an employer may not retaliate against an employee for disclosing a violation of a state or federal statute, regulation, or rule.” Brown v. Brotman Med. Ctr., Inc., 571 F. App'x 572, 575 (9th Cir. 2014); Cal. Lab. Code § 1102.5. The Ninth Circuit has found that the three elements of a section 1102.5(b) retaliation claim “require an inquiry into the respective actions of the employer and employee” and that such an inquiry “will not depend on interpretation of terms in the CBA.” Brotman, 571 F. App'x at 575.

Here, Plaintiff asserts that Defendants retaliated against him for disclosing safety protocol violations, which Plaintiff reasonably believed were violations of federal and state law. ECF 13, ¶ 112. Like Brotman, Plaintiff's whistleblower retaliation claim requires an inquiry into the actions of his employer. Brotman, 571 F. App'x at 575. This inquiry will “not depend on interpretation of terms in the CBA.” Id.

The Court finds that Plaintiff's eighth claim is not preempted because it is not based on the CBA and does not require interpretation of the CBA. See also Quigley v. United Airlines, Inc., No. 3:21-CV-00538-WHO, 2021 WL 1176687, at *11 (N.D. Cal. Mar. 29, 2021) (Whistleblower retaliation claims are not subject to LMRA preemption because they are “separate from and not governed by the CBA.”). The Court GRANTS Plaintiff's motion to remand for claim eight.

3. Claim Nine: Retaliation in Violation of Whistleblower Statutes

Plaintiff next seeks remand of his retaliation in violation of California Labor Code §§ 6310 and 6311 claim. ECF 13, ¶¶ 115–20. Defendants do not provide a preemption counterargument for this claim. See ECF 18.

California Labor Code § 6310(a)(1) provides that an employer may not terminate or discriminate against an employee because they reported unsafe working conditions or work practices. See Cal. Lab. Code § 6310(a)(1). California Labor Code § 6311 provides that an employer may not terminate or lay off an employee for refusing to work in unsafe conditions. See id. § 6311. Courts have repeatedly held that such claims “arise under California law and are independent of the particular terms of the CBA.” See Bartlett v. All Am. Asphalt, No. EDCV201449JGBKKX, 2020 WL 6118818, at *6 (C.D. Cal. Oct. 16, 2020) (collecting cases). Accordingly, the Court GRANTS Plaintiff's motion to remand for claim nine.

4. Claim Ten: Wrongful Termination in Violation of Public Policy

Plaintiff next seeks remand of his wrongful termination in violation of public policy claim. ECF 13, ¶¶ 121–29. Defendants argue that the wrongful termination claim is preempted because it cannot be evaluated without considering the safety violation and discipline provisions of the CBA that compelled Green Diamond to terminate Plaintiff. ECF 18, at 10.

The Ninth Circuit has held that a claim for wrongful termination in violation of public policy “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.” Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 1001 (9th Cir. 1987). Such a claim must be based on “genuine state public policy.” Id. at 1002.

Here, Plaintiff's claim for termination in violation of public policy is based on Article 1, Section 8 of the California Constitution (“Section 8”), which provides that a person “may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, disability, or national or ethnic origin.” Cal. Const. Art 1, § 8. Section 8 furthers the state's interest in protecting employees from discrimination. See Strother v. S. California Permanente Med. Grp., 79 F.3d 859, 872 (9th Cir. 1996) (recognizing Section 8 as a “fundamental, substantial public policy embodied in the state Constitution”); Perez v. Foster Poultry Farms, No. 22-CV-691-JLT-SAB, 2024 WL 279112, *6 (E.D. Cal. Jan. 24, 2024) (finding that wrongful termination claim based on Section 8 and FEHA is not preempted because it furthers a state interest). Here, Plaintiff's wrongful termination claim is not preempted under Young because it furthers state interest and is based on a genuine state public policy. See also Jackson v. S. Cal. Gas Co., 881 F.2d 638, 643–44 (9th Cir. 1989) (“[E]nforcement of the state discrimination statutes would not require interpretation of any of the provisions of the collective bargaining agreement.”).

Defendants contend that the CBA governs the actions that gave rise to Plaintiff's wrongful termination claim. ECF 18, at 9. Defendants assert the “thrust of Plaintiff's action is that [Defendants] allegedly discriminated against him in violation of the [FEHA] by terminating Plaintiff from his employment.” Id. But even if Plaintiff's claim is based on FEHA, Plaintiff's wrongful termination claim is still not preempted. See Nathanson v. Truebeck Constr., Inc., No. 23-CV-02211-DMR, 2024 WL 68322, at *4 (N.D. Cal. Jan. 5, 2024) (finding claim for wrongful termination in violation of public is not preempted because it is based upon FEHA claims); Williams v. Lockheed Martin Space Operations Co., No. C-05-05210 RMW, 2006 WL 1329889, at *6 (N.D. Cal. May 16, 2006) (“Assuming [Plaintiff's] wrongful termination claim is based on FEHA, there is a sufficiently clear California standard for considering it without looking to the CBA.”).

The Court finds that Plaintiff's tenth claim is not preempted because it is based on Section 8 and FEHA. See also Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir. 1999) (“[W]e have made clear that wrongful discharge claims based on public policy violations are not preempted by federal labor laws because such claims are derived from sources outside the CBA.”). The Court GRANTS Plaintiff's motion to remand for claim ten.

5. Claim Eleven: Intentional Infliction of Emotional Distress

Plaintiff also seek remand of his intentional infliction of emotional distress (“IIED”) claim. ECF 14, at 13–15. Defendants argues that Plaintiff's IIED claim is preempted. ECF 18, at 12.

The Ninth Circuit has held that an IIED claim is not preempted “if the CBA does not cover the allegedly extreme and outrageous conduct.” Humble v. Boeing Co., 305 F.3d 1004, 1013 (9th Cir. 2002). An IIED claim is not preempted if it “has been tacked on to the violation of a separate specific non-negotiable state statute, the violation of which always rises to the level of outrageousness.” Id. (emphasis in original).

Here, Plaintiff's IIED claim is based on allegations of unlawful discrimination and retaliation. ECF 13, ¶¶ 131–35. Plaintiff's IIED claim is “tacked on to the violation” of FEHA. Humble, 305 F.3d at 1013; see id. ¶¶ 45–108 (FEHA discrimination and retaliation claims). The Ninth Circuit has held that FEHA is a non-negotiable state statute. See Ramirez v. Fox Television Station, Inc., 998 F.2d 743,748 (9th Cir. 1993) (finding that FEHA rights are “nonnegotiable”). Thus, under Humble, Plaintiff's IIED claim is not preempted.

Defendants argue that Plaintiff's IIED claim is preempted because it arose “from the same circumstance” as other preempted claims. ECF 18, at 12 (quoting Wood v. Pac. Gas & Elec. Co., No. C-00-0052 THE, 2000 WL 502850, at *3 (N.D. Cal. Apr. 25, 2000)). In Wood, the court found that plaintiff's IIED claim was preempted because “the CBA sets forth specific standards concerning actions which [were] the basis of Plaintiff's disability discrimination and retaliation claims.” Wood, 2000 WL 502850, at *3. Here, unlike Wood, Plaintiff's disability discrimination and retaliation claims are not based on the CBA. See supra Section IV.A.1.

Defendants also argue that Plaintiff's IIED claim is preempted because it “requires consideration of [the] reasonableness of [the employer's] behavior, which in turn could depend on whether that behavior violated the [CBA].” ECF 18, at 12 (quoting Miller v. AT & T Network Sys., 850 F.2d 543, 551 (9th Cir. 1988)). In Miller, the court found that plaintiff's IIED claim was preempted because it determined that an interpretation of the CBA was required to consider the reasonableness of the defendant's behavior. Miller, 850 F.2d at 551. However, since Miller, the Ninth Circuit clarified that violation of a “separate specific non-negotiable state statute ․ always rises to the level of outrageousness.” Humble, 305 F.3d at 1013 (emphasis in original). As analyzed above, Plaintiff's IIED claim is based on violation of FEHA, a non-negotiable state statute. Thus, the Court finds Miller to be distinguishable.

Defendants also cite to Cook v. Lindsay Olive Growers, 911 F.2d 233, 239 (9th Cir. 1990) arguing that evaluation of employer's compliance with CBA requires the Court to determine whether an employer acted outrageously in firing Plaintiff. ECF 18, at 12. In Cook, plaintiff's IIED claim was directly based on the CBA terms regulating seniority and work transfers. Cook, 911 F.2d at 239. However, here, the Plaintiff's IIED is based on allegations of unlawful discrimination and retaliation in violation of state law. ECF 13, ¶¶ 131–35.

The Court finds that Plaintiff's IIED claim is not preempted because the CBA does not cover the alleged outrageous behavior, and the claim is based on FEHA. See Humble, 305 F.3d at 1013. The Court GRANTS Plaintiff's motion to remand for claim eleven.

6. Claims Twelve to Sixteen: Wage and Hour

Plaintiff dismissed claims twelve to sixteen in his amended complaint. Compare ECF 13 with ECF 3, Ex. 1. Defendants argue that the Court must look to Plaintiff's original complaint to determine jurisdiction. ECF 18, at 6.

The Ninth Circuit held that “[i]n determining the existence of removal jurisdiction, based upon a federal question, the court must look to the complaint as of the time the removal petition was filed.” Kobold v. Good Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1045 (9th Cir. 2016) (quoting Abada v. Charles Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002)).

The Court finds that it need not determine whether it has federal question jurisdiction over Plaintiff's dismissed wage and hour claims. Even if the Court finds that it may exercise jurisdiction over Plaintiff's dismissed wage and hour claims, the Court declines to exercise its supplemental jurisdiction over Plaintiff's previously address claims. See 28 U.S.C. 1367(c)(3) (“[C]ourts may decline to exercise supplemental jurisdiction over a claim ․ if all claims over which it has original jurisdiction” have been dismissed.); Acri v. Varian Associates, 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (“In the usual case in which all federal-law claims are eliminated before trial, the balance of factors ․ will point toward declining to exercise jurisdiction over the remaining state-law claims.”). Accordingly, the Court does not find it necessary to address Plaintiff's dismissed wage and hour claims in its remand analysis.

B. Plaintiff's motion to strike pursuant to evidentiary objections is denied.

In a separate supplemental brief filed with Plaintiff's reply, Plaintiff objects to and moves to strike portions and exhibits of the Declaration of Alyson Dudkowski. ECF 17-2. The Declaration was provided in support of Defendant's opposition to Plaintiff's motion to remand. ECF 18-1. Plaintiff's evidentiary objections violate Local Rule 7-3(c) which requires “any evidentiary and procedural objections to the opposition ․ [to] be contained within the reply brief or memorandum.” See L.R. 7-3(c). Regardless, because the Court has granted Plaintiff's motion to remand, Plaintiff's motion to strike is DENIED as moot.

V. CONCLUSION

For the reasons stated above, the Court finds that Plaintiff's claims are not preempted by § 301 of the LMRA. Accordingly, the Court GRANTS Plaintiff's motion to remand and REMANDS this action to state court (Humboldt County Superior Court Docket: No. CV2402081).

The Court DENIES as moot Defendants’ motion to dismiss; and DENIES as moot Defendants’ motion to consolidate cases.

This Order resolves ECF 14, 17, and 25.

IT IS SO ORDERED.

TRINA L. THOMPSON, United States District Judge