Abdulhussain v. MV Public Transportation Incorporated

• Court: District Court, D. Arizona
• Decided: April 21, 2023
• Docket: 2:22-cv-01458
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Hameed Abdulhussain, No. CV-22-01458-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 MV Public Transportation Incorporated,

13 Defendant. 14 15 Before the Court is Defendant MV Public Transportation’s1 (“MV”) Motion to 16 Dismiss Plaintiff Hameed Abdulhussain’s Complaint. (Doc. 10.) Plaintiff filed a 17 Response (Doc. 12), and MV filed a Reply (Doc. 15). After considering the parties’ 18 briefs and the relevant law, the Court will grant MV’s Motion to Dismiss for the reasons 19 discussed herein. 20 I. BACKGROUND 21 This is a dispute between an employer and its former employee. In July 2022, 22 Plaintiff filed a Complaint in state court alleging MV discriminated and retaliated against 23 him based on his national origin and/or religion when MV terminated him. Plaintiff also 24 alleges he was defamed. (Doc. 1-3 at 2–11.) Plaintiff served MV with the Complaint on 25 August 19, 2022. (Doc. 10 at 3.) MV removed the action to this Court on August 30, 26 2022. (Id.) 27 Plaintiff is a middle eastern, Muslim man who began working for MV on August

28 1 Plaintiff incorrectly named Defendant “MV Public Transportation, Inc.” (See Doc. 10 at 1.) 1 3, 2009. (Doc. 1-3 at 4.) At some point the parties entered into a Collective Bargaining 2 Agreement (“CBA”). (Id.) Plaintiff alleges that in August 2020, he requested to cash out 3 160 hours of vacation hours he accumulated from ten years’ work for MV. (Id.) Plaintiff 4 contends that on August 8, 2020, MV offered him only 80 hours. (Id.) In November 5 2020, Plaintiff alleges MV increased this amount to 95 hours, an offer he rejected. (Id.) 6 On February 25, 2021, Plaintiff alleges his union president attempted to set up a 7 meeting with Plaintiff’s human resources agent, Donna Harper. (Id.) Plaintiff alleges he 8 called Harper, who stated she would get back to Plaintiff on March 1, 2021, but never 9 did. (Id.) Furthermore, on March 19, 2021, Plaintiff alleges his supervisor Paulette 10 Johnson stopped him at MV’s entrance to “check the van for damage.” (Id.) While 11 stopped, Plaintiff alleges someone by the name Edna Garcia questioned why he was late, 12 but Garcia did not ask a simultaneously arriving, non-Muslim driver the same question. 13 (Id. at 4–5.) The following day Plaintiff alleges he made a complaint to MV about 14 Garcia’s questioning, and MV advised that disciplinary action would be taken against 15 Garcia. (Id. at 5.) However, Plaintiff contends that between March 2021 and July 2021, 16 Garcia further discriminated against Plaintiff by incorrectly adjusting his timecards, 17 harassing him before and after shifts, assigning him challenging routes and passengers, 18 and filing false complaints against him to management. (Id.) 19 On June 24, 2021, Plaintiff filed a grievance with the Arizona Industrial 20 Commission regarding his alleged unpaid wages. (Id.) In response, Plaintiff contends 21 that Harper notified his Union representative, Dana Kraiza, that Harper had spoken on the 22 phone with Plaintiff twice about two offers, but that Plaintiff refused them. (Id.) Plaintiff 23 asserts this exchange never happened, and that upon confronting Harper about the “false 24 claims,” Plaintiff received no response. (Id.) 25 Soon after, Garcia placed Plaintiff on administrative leave on July 1, 2021. (Id.) 26 Plaintiff alleges Garcia made false accusations against him in retaliation for his 27 complaints against her, and because of his race/ethnic background. (Id.) The following 28 day, Plaintiff was notified that he was under investigation for threatening MV employees 1 in violation of company policies. (Id. at 6.) Plaintiff contends he denied threatening any 2 employees and again raised the issue with his vacation time and the fact that Harper 3 never contacted him. (Id.) Plaintiff alleges he requested camera footage to prove he 4 didn’t threaten anyone, but that MV stated there was no audio. (Id.) 5 On July 22, 2021, MV allegedly terminated Plaintiff with nothing in writing, no 6 paid leave, no hearing, and no union representation. (Id.) That same day, Plaintiff recalls 7 speaking to MV’s previous general manager, Jon Huynh, and Kraiza about his vacation 8 pay. (Id.) Then, on September 11, 2021, Plaintiff alleges MV falsely accused him of 9 being on the premises and made inferences that he was a terrorist. (Id.) 10 Plaintiff brings claims for national origin/religious discrimination and retaliation 11 under Title VII and state law, as well claims of defamation relating to his termination 12 from MV. (Id. at 7–11.) MV moves to dismiss Plaintiff’s Complaint under Federal 13 Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 10 at 2.) MV argues that 14 Plaintiff’s claims for discrimination and retaliation arising under Title VII and state law 15 are governed by the parties’ CBA, thus requiring this matter to follow the CBA’s 16 grievance and arbitration procedures. (Id. at 1–2.) Plaintiff argues the discrimination and 17 retaliation claims are not covered by the CBA, but that if they were, they were followed 18 internally by the Union and the EEOC, but MV failed to participate. (Doc. 12 at 1–2.) 19 II. LEGAL STANDARD 20 Courts may dismiss a claim for “lack of jurisdiction over the subject matter.” Fed. 21 R. Civ. P. 12(b)(1). When reviewing motions to dismiss under Rule 12(b)(1), the Court 22 asked to either look at facial challenges, where review is limited to the complaint itself, 23 or factual questions, where review may expand into extrinsic evidence. Wolfe v. 24 Strankman, 392 F.3d 358, 362 (9th Cir. 2004). As such, when Rule 12(b)(1) review is 25 factual in nature, “the district court is not restricted to the face of the pleadings, but may 26 review any evidence, such as affidavits and testimony, to resolve factual disputes 27 concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 28 (9th Cir. 1988). In such a motion, the burden of proof rests with the party asserting 1 jurisdiction, and “no presumption of truthfulness attaches to plaintiff’s allegations.” 2 Owen v. United States, No. CIV S-06-2531 DFL DAD PS, 2007 WL 628662, at *1 (E.D. 3 Cal. Feb. 28, 2007) (citing Thornhill Publ’g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 4 (9th Cir. 1979)). 5 Additionally, under Rule 12(b)(6) claims may be dismissed for “failure to state a 6 claim upon which relief can be granted.” Thus, Courts may dismiss claims failing to 7 allege a “cognizable legal theory” or “sufficient facts . . . under a cognizable legal 8 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The 9 Court looks at the four corners of the complaint, but it need not accept conclusory 10 allegations as true, nor any unreasonable inferences, legal characterizations, or 11 unwarranted deductions of fact. Transphase Sys., Inc., v. S. Cal. Edison Co., 839 F. 12 Supp. 711, 718 (C.D. Cal. 1993). Typically, if Courts are considering a Rule 12(b)(6) 13 motion and considers evidence outside the pleadings, it must convert the motion to a 14 motion for summary judgment and allow the nonmoving party an opportunity to respond. 15 United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, if the Court is 16 considering “documents attached to the complaint, documents incorporated by reference 17 in the complaint, or matters of judicial notice,” the Court may do so without converting 18 the motion to one of summary judgment. Id. at 908 (citing Van Buskirk v. CNN, 284 F.3d 19 977, 980 (9th Cir. 2002)). “Even if a document is not attached to a complaint, it may be 20 incorporated by reference into a complaint if the plaintiff refers extensively to the 21 document or the document forms the basis of the plaintiff’s claim.” Id. 22 III. DISCUSSION 23 Plaintiff did not attach the CBA to the Complaint. Nevertheless, Plaintiff 24 incorporated the CBA by reference in the Complaint. (See Doc. 1-3 at 4). The Court also 25 finds that the CBA helps form the basis of Plaintiff’s alleged discrimination and wrongful 26 termination/retaliation claims against MV, seeing as the CBA outlines required grievance 27 and arbitration procedures for such claims. (See Doc. 10-1 at 7.) For these reasons, in 28 considering MV’s Motion to Dismiss the Court will also consider the CBA. See 1 McCarthy, 850 F.2d at 560 (regarding Rule 12(b)(1) dismissal); see also Ritchie, 342 2 F.3d at 908 (regarding Rule 12(b)(6) dismissal). 3 A. Plaintiff’s federal and state law discrimination and retaliation claims are 4 covered by the CBA. 5 MV moves the Court to dismiss Plaintiff’s federal and state discrimination and 6 retaliation claims because Plaintiff failed to raise them through the CBA’s mandatory 7 grievance procedure. MV points to the CBA’s following provisions: Article 1, Section 2: 8 The Company and the Union agree that it will not unlawfully discriminate 9 against any individual because of such individual’s race, color, religion, sex, national origin, age, marital status, veteran status, sexual orientation, 10 gender identity, disability, or Union affiliation or non-affiliation or Union 11 business or activity. The parties agree that disputes under this Article shall be resolved through grievance and arbitration procedure. 12 Article 9, Section 1: 13 For the purpose of this Agreement, a grievance is defined as any controversy between the Company and the Union as to any matter 14 involving the interpretation or application of the terms of the Agreement, or 15 any controversy between the Company and Union as to whether or not a non-probationary employee is disciplined for violation or when a dispute 16 exists concerning the work rules or working conditions. 17 (Doc. 10-1 at 4, 7) (emphasis added). 18 “It is well settled an employer and union can waive employees’ rights to a judicial 19 forum and compel the use of arbitration for adjudication of federal and state statutory 20 claims.” Sanchez v. Securitas Sec. Servs. USA, Inc., No. 2:17-cv-08462-SVW-E, 2018 21 WL 5861258, at *2 (C.D. Cal. July 17, 2018) (citing 14 Penn Plaza LLV v. Pyett, 556 22 U.S. 247, 256 (2009)). In Pyett, the Supreme Court held that union members bringing 23 claims under the Age Discrimination in Employment Act were required to follow a 24 “collective-bargaining agreement that clearly and unmistakably requires union members 25 to arbitrate.” 556 U.S. at 274. The Court clarified that: “The decision to resolve ADEA 26 claims by way of arbitration instead of litigation does not waive the statutory right to be 27 free from workplace age discrimination; it waives only the right to seek relief from a 28 court in the first instance.” Id. at 265–66 (citing Gilmer v. Interstate/Johnson Lane 1 Corp., 500 U.S. 20, 26 (1991)). Specifically, the relevant CBA provisions in Pyett read: 30. NO DISCRIMINATION There shall be no discrimination against any 2 present or future employee by reason of race, creed, color, age, disability, 3 national origin, sex, union membership, or any characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the 4 Civil Rights Act, the American with Disabilities Act, the Age 5 Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar 6 laws, rules or regulations. All such claims shall be subject to the grievance 7 and arbitration procedure (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering 8 decisions based upon claims of discrimination. 9 Id. at 252. 10 MV argues that like the agreement in Pyett, the CBA’s language is “clear and 11 unmistakable” in requiring that employee discrimination claims be brought through the 12 grievance process and arbitration. (Doc. 10 at 8.) Plaintiff argues that Article I of the 13 CBA is not “clear and unmistakable” because the CBA does not name the specific 14 statutes that are to be incorporated into the dispute resolution cause. (Doc. 12 at 6.) 15 Plaintiff relies on Fourth Circuit precedent found from Carson v. Giant Food, Inc. for the 16 proposition that “for a waiver of an employee’s right to a judicial forum for statutory 17 discrimination claims to be clear and unmistakable, the CBA must, at the very least, 18 identify the specific statutes the agreement purports to incorporate or include an 19 arbitration clause that explicitly refers to statutory claims.” 175 F.3d 325, 331–32 (4th 20 Cir. 1999). Although the Court agrees the Fourth Circuit’s exacting standard is not 21 satisfied here, it finds it is under Pyett and Ninth Circuit precedent. 22 Plaintiff agrees that Pyett establishes that employees must arbitrate their claims if 23 the CBA “clearly and unmistakably” requires it. (Doc. 12 at 6.) But notably, the 24 Supreme Court refused to define what “clear and unmistakable” language is because the 25 plaintiff in that case failed to dispute the issue in the lower courts. See Pyett, 556 U.S. at 26 272–73. As the Ninth Circuit has recently asserted, “[t]he party contesting arbitrability 27 bears the burden of demonstrating how the language in the collective bargaining 28 agreement excludes a particular dispute from arbitration.” Columbia Exp. Terminal, LLC 1 v. Int’l Longshore & Warehouse Union, 23 F.4th 836, 842 (9th Cir. 2022) (quoting 2 Standard Concrete Prods., Inc. v. Gen. Truck Drivers, Office, Food & Warehouse Union, 3 Loc. 952, 353 F.3d 668, 674 (9th Cir. 2003)). Furthermore, in Columbia the Ninth 4 Circuit held that even though the CBA did not explicitly contemplate federal RICO 5 claims, because the CBA “explicitly contemplates a dispute resolution mechanism 6 covering the exact conduct alleged as the basis” of the asserted timesheet fraud claims, 7 the RICO claim could not be brought in court and had to go through the CBA’s grievance 8 and arbitration process. Id. at 845–46. The Columbia Court also noted that federal law 9 requires doubts to be resolved in favor of coverage under the CBA, so it was plaintiff’s 10 burden to demonstrate that the RICO claim was not encompassed in the CBA contrary to 11 its stated scope. Id. at 846. This directly contrasts with the Fourth Circuit’s Carson 12 standard, which would have required RICO claims to be contemplated in the CBA for its 13 arbitration and grievance procedure requirements to take effect. See Carson, 175 F.3d at 14 331–32. 15 Here, the CBA expressly encompasses the issues at hand. Article 9 defines a 16 grievance as “any controversy between the Company and the Union as to any matter 17 involving . . . the application of the terms of the Agreement . . . or when a dispute exists 18 concerning the work rules or working conditions.” (Doc. 10-1 at 7) (emphasis added). 19 Article 1, Section 2 states “[t]he Company and the Union agree that it will not unlawfully 20 discriminate against any individual because of such individual’s race, color, 21 religion . . . national origin . . . [and] [t]he parties agree that disputes under this Article 22 shall be resolved through the grievance and arbitration procedure.” (Id. at 5) (emphasis 23 added). The Court finds the language clear and unmistakable that Plaintiff shall process 24 his discrimination claim through the CBA’s grievance procedure and arbitration. See 25 Columbia Exp. Terminal, LLC, 23 F.4th at 842. 26 MV further argues that Plaintiff fails to allege having followed the CBA’s 27 grievance procedures regarding his claims for discrimination and retaliation. (Doc. 10 at 28 9.) Plaintiff argues he “made claims in an attempt to resolve the matter with Defendant” 1 and “even attempted to submit the matter through arbitration.” (Doc. 12 at 9.) Plaintiff 2 points the Court to his allegations of filing with the Arizona Attorney General, Division 3 of Civil Rights, the U.S. Equal Employment Opportunity Commission, and that he filed a 4 complaint against Garcia with MV. (Id.) MV’s Response counters that: (1) Plaintiff fails 5 to cite to CBA provisions or case law that states an attempt to pursue a grievance satisfies 6 actually pursing one under the CBA’s provisions, or that it waives a defendant’s ability to 7 argue non-compliance; (2) the grievance form Plaintiff attached to his Response is not for 8 a discrimination claim; and (3) it would be for an arbitrator to decide if Plaintiff satisfied 9 the grievance procedure, not the Court. (Doc. 15 at 6.) 10 The Court agrees with MV. “It is a general rule in collective bargaining 11 agreement disputes that employees must exhaust contractual remedies and internal 12 grievance and arbitration procedures before bringing suit.” Thomas v. Garrett Corp., 13 744 F. Supp. 199, 203 (D. Ariz. 1989) (emphasis added), aff’d 904 F.2d 41 (9th Cir. 14 1990); see also Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 411 (1988) (“A rule 15 that permitted an individual to sidestep available grievance procedures would cause 16 arbitration to lose most of its effectiveness, . . . as well as eviscerate a central tenet of 17 federal labor contract law under § 301 that it is the arbitrator, not the court, who has the 18 responsibility to interpret the labor contract in the first instance.”) (cleaned up). 19 Plaintiff makes no allegations about pursuing discrimination or retaliation claims 20 through the CBA’s outlined grievance and arbitration procedures. Plaintiff did attach a 21 grievance form in his Response, but it contains no allegations of discrimination or 22 retaliation. (See Doc. 12 at 17.) But even if it did, resolving the dispute of whether the 23 grievance procedure was property followed is the job of an arbitrator—not the Court— 24 because as previously discussed, Plaintiff’s claims are subject to the CBA’s grievance 25 and arbitration procedures. See Columbia Exp. Terminal, LLC, 23 F.4th at 842. 26 Because Plaintiff failed to allege any arbitration attempts and his federal and state 27 claims for discrimination and retaliation are covered by the CBA’s grievance and 28 arbitration procedure, the Court lacks jurisdiction over this action. See Thomas, 744 F. 1 Supp. at 203. Thus, the Court will dismiss Plaintiff’s federal claims for discrimination 2 and retaliation without prejudice pursuant to Rule 12(b)(1). The Court will also dismiss 3 Plaintiff’s state law claims for the reasons described below. 4 B. Plaintiff’s state law claims for discrimination and wrongful 5 termination/retaliation are preempted and time-barred. 6 MV argues that under Section 301 of the Labor Management Relations Act 7 (“LMRA”), see 29 U.S.C. § 185(a) (1988), Plaintiff’s state law discrimination and 8 wrongful termination claims are preempted. (Doc. 10 at 9.) The Supreme Court has held 9 that “if the resolution of a state-law claim depends upon the meaning of a collective- 10 bargaining agreement, the application of state law . . . is pre-empted and federal labor law 11 principles—necessarily uniform throughout the Nation—must be employed to resolve the 12 dispute.” Lingle, 486 U.S. at 405–06; see also Young v. Anthony’s Fish Grottos, Inc., 13 830 F.2d 993, 997 (9th Cir. 1987) (“The preemptive force of section 301 is so powerful 14 as to displace entirely any state claim based on a collective bargaining agreement and any 15 state claim whose outcome depends on analysis of the terms of the agreement.”) (cleaned 16 up). 17 The Ninth Circuit has employed a two-part test to determine if a state law claim is 18 preempted by Section 301. See Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059–60 19 (9th Cir. 2007). The first prong requires the Court to consider “whether the asserted 20 cause of action involves a right conferred upon an employee by virtue of state law, not by 21 a CBA. If the right exists solely as a result of the CBA, then the claim is preempted and 22 [the Court’s] analysis ends there.” Id. at 1059. But if the Court determines that that the 23 right underlying the state law claim “exists independently of the CBA,” then it proceeds 24 to the second prong to examine whether the right is “substantially dependent on analysis 25 of a collective bargaining agreement.” Id. at 1059–60. A right is “substantially 26 dependent on analysis” of a CBA if the claim can be resolved by “‘look[ing] to’ [the 27 CBA] versus interpreting the CBA. If the latter, the claim is preempted; if the former, it is 28 not.” Id. at 1060. If a state law claim is preempted by Section 301, it is barred by the 1 LMRA’s six-month statute of limitations. See Milne Emps. Ass’n v. Sun Carriers, 960 F. 2 2d 1401, 1411 (9th Cir. 1991). 3 Here, Plaintiff argues his claims are not dependent on the CBA and that MV 4 cannot “bootstrap” the CBA onto these claims by arguing Plaintiff was terminated for 5 reasons covered by CBA. (Doc. 12 at 11.) MV counters that the CBA’s terms require 6 interpretation to determine if Plaintiff’s termination was warranted. (Doc. 15 at 7.) 7 MV does not argue prong one of the Ninth Circuit’s test. Plaintiff, on the other 8 hand, argues that the right to be free of discrimination from your employer under federal 9 and state law are rights independent of the CBA. (Doc. 12 at 12); see also Said v. Nat’l 10 R.R. Passenger Corp., 390 F. Supp. 3d 46, 55 (D.D.C. 2019). The Court agrees that 11 Plaintiff’s state law claims are conferred under A.R.S. § 23-1502(A), and §§ 41-1401 to 12 41-1492 of the Arizona Civil Rights Act (“ACRA”). (See Doc. 1-3 at 2–3.) The Court 13 therefore moves to prong two of the analysis. See Burnside, 491 F.3d at 1059–60. 14 MV argues Plaintiff’s state and federal discrimination and wrongful termination 15 claims are premised on the same allegations, and therefore cannot be resolved without 16 interpreting the CBA to determine if Plaintiff’s termination was lawful. (Doc. 10 at 13.) 17 Specifically, MV argues Plaintiff’s termination was lawful under the CBA because it had 18 a legitimate, non-discriminatory basis for termination: “Plaintiff’s threats to employees 19 and customers, . . . and just cause for immediate termination pursuant to Article 14 20 (Discipline and Discharge), Section 2 and 4 (Serious Infraction) of the CBA.” (Id.) 21 MV also argues that Plaintiff’s allegations of MV’s discriminatory animus require 22 the CBA’s interpretation. For example, MV argues that Plaintiff’s allegations about his 23 timecards being inaccurately adjusted require interpretation of Article 20 (Run and Time 24 Requirements), Article 26 (Holiday Party), Article 27 (Sick Leave), and Article 36 25 (Employee Wage Rates). (Id.) Furthermore, MV asserts that Plaintiff’s allegations about 26 being questioned for tardiness require interpretation of Article 17 (Attendance); 27 allegations of being assigned difficult routes requires a look at Article 10 (Seniority), 28 Article 19 (Bidding), and Article 20 (Run and Time Requirements); and allegations that 1 false complaints were made against Plaintiff necessitates review of Article 9 (Grievance 2 and Arbitration), and Article 14 (Discipline and Discharge). (Id.) The Court agrees. 3 In Audette v. International Longshoremen’s and Warehousemen’s Union, the 4 Ninth Circuit held that a plaintiff’s claims that their employer violated state anti- 5 discrimination laws by denying them Class B registration were preempted because the 6 parties’ CBA set forth the registration procedures and dispute resolution steps. 195 F.3d 7 1107, 1110–12 (9th Cir. 1999). The Audette Court found “resolution of the 8 discrimination and retaliation claim turns on defendants’ offer of a ‘legitimate 9 nondiscriminatory reason’ requiring interpretation of the collective bargaining 10 agreement,” and the Court would therefore need to interpret the CBA to determine if 11 plaintiff met the Class B criteria set forth. Id. at 1113; cf. Ramirez v. Fox Television 12 Station, Inc., 998 F.2d 743, 748–49 (9th Cir. 1993) (distinguishing between state law 13 claims that require interpretating CBA provisions and are therefore preempted, as 14 opposed to claims that merely require referencing a CBA and are not preempted). 15 Moreover, in Madison v. Motion Pictures Set Painters and Sign Writers Local 16 729, the Central District of California held that a plaintiff’s FEHA claims that his union 17 discriminated against him by filing a meritless grievance that reflected poorly on him 18 were preempted by Section 301 because the CBA would need interpretation to determine 19 if the union was required to notify plaintiff before filing a grievance. 132 F. Supp. 2d 20 1244, 1248–53 (C.D. Cal. 2000). However, the Madison Court also held that plaintiff’s 21 claim that the union discriminated against him by agreeing to discriminatory hiring 22 procedures was not preempted because the plaintiff did not allege that “the Union or 23 contract employers . . . incorrectly interpreted the agreement.” Id. at 1252. The Madison 24 Court concluded, “unlike the aspect of [plaintiff’s] claim that challenges the hiring 25 procedures negotiated as part of the CBA, the question is not whether unambiguous, 26 neutral provisions of the CBA have a disparate impact on African-Americans, but 27 whether the Union followed CBA procedures in filing the grievance against [defendant], 28 and whether that grievance had merit.” Id. at 1254. 1 Here, the Court agrees with MV that Plaintiff’s claims are akin to those in Audette 2 and Madison. Plaintiff’s state law discrimination and wrongful termination claims cannot 3 be resolved without interpreting the CBA because MV relies on the CBA’s provisions 4 and procedures to proffer a legitimate, non-discriminatory reason to justify Plaintiff’s 5 termination. See Audette, 195 F.3d at 1113. Additionally, like in Madison, the CBA 6 provisions here will require the CBA’s interpretation to determine if MV followed the 7 procedures set forth, and if Plaintiff’s allegations of discriminatory animus have merit to 8 support his alleged discrimination and wrongful termination. See 132 F. Supp. 2d at 9 1252. 10 As such, the Court finds Plaintiff’s state law discrimination and retaliation claims 11 preempted by LMRA Section 301. Claims subject to Section 301 are also subject to a 12 six-month statute of limitations. Audette, 195 F.3d at 1111. Regarding Plaintiff’s 13 discrimination claim, the Complaint alleges MV discriminated against Plaintiff between 14 February 2021 and July 22, 2021. (See Doc. 1-3 at 4–6.) As to Plaintiff’s wrongful 15 termination claim, Plaintiff was terminated on July 22, 2021. (Id. at 6 ¶ 25.) Plaintiff 16 filed the Complaint on July 19, 2022. (Id. at 11.) Because Plaintiff filed this action 17 nearly twelve months after the causes of action arose, Plaintiff’s state law claims for 18 discrimination and wrongful termination/retaliation are time-barred and therefore 19 dismissed with prejudice pursuant to Rule 12(b)(6). See Audette, 195 F.3d at 1111. 20 C. Plaintiff failed to plead a defamation claim. 21 To state a defamation claim under Arizona law, Plaintiff needs to allege that MV 22 published a false and defamatory communication, and that MV “(a) knows that the 23 statement is false and it defames the other, (b) acts in reckless disregard of these matters, 24 or (c) acts negligently in failing to ascertain them.” Rowland v. Union Hills Country 25 Club, 757 P.2d 105, 110 (Ariz. Ct. App. 1988) (citation omitted). Likewise, the 26 defamatory statement must have been published to a third party and caused plaintiff 27 damage. Dube v. Likins, 167 P.3d 93, 104 (Ariz. Ct. App. 2007). Trial courts must 28 determine whether a statement has defamatory meaning. Yetman v. English, 811 P.2d 1 323, 331 (Ariz. 1991). 2 Here, Plaintiff’s Complaint alleges that MV “published statements to numerous 3 employees stating that Plaintiff showed up at the workplace on September 11, 2021 and 4 that he did so for unlawful reasons, intentionally invoking fear given the date in question 5 and Plaintiff’s national origin.” (Doc. 1-3 at 10 ¶ 48.) Plaintiff also alleges that he “was 6 damaged by the defamation by Defendant.” (Id. ¶ 49.) Plaintiff does not dispute being 7 on the property that day. (See id. at 2–11.) Furthermore, Plaintiff does not allege that 8 MV knew of its falsity, or that MV acted negligently in failing to ascertain the truth. (See 9 id.) Therefore, Plaintiff has failed to satisfy the minimum pleading standards to state a 10 claim for defamation. See Rowland, 757 P.2d at 110. Plaintiff’s defamation claim is 11 therefore dismissed without prejudice under Rule 12(b)(6). 12 IV. LEAVE TO AMEND 13 “[A] district court should grant leave to amend even if no request to amend the 14 pleading was made, unless it determines that the pleading could not possibly be cured by 15 the allegation of the facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (cleaned 16 up). Plaintiff cannot cure the pleading deficiencies of Count One because the state law 17 claims are time-barred, and therefore dismissed with prejudice. Plaintiff also cannot cure 18 the pleading deficiencies of Counts Two and Three because he must follow the required 19 grievance and arbitration procedures set forth in the CBA. However, the Court will grant 20 Plaintiff leave to amend his defamation claim, Count Four. 21 Plaintiff’s Amended Complaint must address the deficiencies identified above and 22 should follow the form detailed in Rule 7.1 of the Local Rules of Civil Procedure. 23 Within twenty-one (21) days from the date of entry of this Order, Plaintiff may submit an 24 amended complaint. Plaintiffs must clearly designate on the face of the document that it 25 is the “First Amended Complaint.” The amended complaint must be retyped or rewritten 26 in its entirety and may not incorporate any part of the original Complaint by reference. 27 28 1 V. CONCLUSION 2 Accordingly, 3 IT IS ORDERED granting MV’s Motion to Dismiss (Doc. 10). 4 IT IS FURTHER ORDERED dismissing Plaintiff's federal discrimination and || retaliation claims (Counts Two and Three) without prejudice under Rule 12(b)(1). 6 IT IS FURTHER ORDERED dismissing Plaintiff's state law discrimination and wrongful termination/retaliation claims (Count One) with prejudice under Rule 12(b)(6). 8 IT IS FURTHER ORDERED dismissing Plaintiffs defamation claim (Count 9|| Four) without prejudice under Rule 12(b)(6). 10 IT IS FURTHER ORDERED granting Plaintiff leave to amend Count Four of his original Complaint within twenty-one (21) days from the entry of this Order. 12 Dated this 21st day of April, 2023. 13 14 “Ss > SO fonorable Susan M. Brnovich = 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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