1 2 3 4 5 6 7 8 1] 12 Glenda Hrones, No. 2:20-cv-00449-KJM-KJIN 13 Plaintiff, ORDER 14 v. 15 Rideout Memorial Hospital DBA Adventist 16 Health and Rideout, et al., 17 Defendants. 18 19 Federal labor law and state employment law meet in a “tangled and confusing” thicket. 20 | Galvez v. Kuhn, 933 F.2d 773, 774 (9th Cir. 1990). Federal courts have often hacked through the 21 | underbrush only to find they have lost the way. Cf, e.g., Cramer v. Consol. Freightways, Inc., 22 | 255 F.3d 683, 692-93 (9th Cir. 2000) (en banc) (overruling several previous decisions). 23 | Fortunately, in this case, the path is well worn and clearly marked. Following that path leads the 24 | court to conclude it lacks jurisdiction over this action, as explained below. This action is 25 | remanded to state court. 26 | /////
2 Plaintiff Glenda Hrones began working as a nurse in the defendant hospital in 1999. 3 Resp. Stmt. Facts No. 1, ECF No. 31-1. In or about 2008, she became a member of the California 4 Nurses Association, which was organizing nurses in the hospital at about that time. Id. No. 12; 5 Henry Dep. at 74–75, Pl.’s Ex. 4, ECF No. 31-5; G. Hrones Dep. at 14–16, Pl.’s Ex. 1, ECF No. 6 31-4. A labor representative described the organizing efforts as “difficult.” See Henry Dep. 7 at 74. Ms. Hrones would describe the experience as harassment, but that time is now many years 8 in the past, and the administrator who was most directly to blame for Ms. Hrones’s privations no 9 longer works at the hospital. See Resp. Stmt. Facts No. 13. That said, tensions have not 10 completely slackened between Ms. Hrones and the human resources department, especially with 11 one employee in particular: Kim Triplett. See Henry Dep. at 74–75. 12 This litigation began with a workplace security gaffe. One day in late 2017, Ms. Hrones 13 left work sick. See G. Hrones Dep. at 151. She asked her husband to pick up her medication and 14 her unfinished lunch from her office in the hospital. See id.; C. Hrones Dep. at 10, Pl.’s Ex. 2, 15 ECF No. 31-4. He went, but rather than checking in with security at the front door, he used his 16 wife’s badge and key to enter the hospital through a locked side door. See C. Hrones Dep. at 10– 17 14. When Ms. Triplett learned that someone other than Ms. Hrones had used her badge—a 18 violation of the hospital’s security policies—she began an investigation that culminated in Ms. 19 Hrones’s negotiated resignation. See Triplett Decl. ¶¶ 3–9, 13–14, ECF No. 29. 20 Ms. Hrones filed this action against the hospital in state court in early 2019. See generally 21 Compl., Not. Removal Ex. A, ECF No. 1-1. She asserts five claims, all under state law: age 22 discrimination, retaliation, constructive discharge, fraud, and intentional infliction of emotional 23 distress. Second Am. Compl., Not. Removal Ex. A, ECF No. 1-1. The parties are not diverse, 24 but the hospital removed the case to this court. See generally Not. Removal, ECF No. 1. It 25 argued two of Ms. Hrones’s claims, retaliation and fraud, are preempted by section 301 of the 26 Labor Management Relations Act. See id. ¶¶ 6–24. If at least one of those claims is indeed 27 preempted, this court would have jurisdiction, as explained in more detail below. See Lingle v. 28 Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406 n.5 (1988). 1 Now, two years later, discovery is complete, and the hospital moves for summary 2 judgment. See generally Mot., ECF No. 26; Mem., ECF No. 27. It did not argue in its moving 3 papers, however, that Ms. Hrones’s retaliation and fraud claims are preempted under section 301. 4 It relied instead on the statute of limitations, California law for claims of retaliation and fraud, 5 and a different preemption doctrine that cannot give this court jurisdiction. See Prev. Order at 2– 6 3, ECF No. 38. Ms. Hrones opposes the motion, and the hospital has replied. See generally 7 Opp’n, ECF No. 31; Reply, ECF No. 25. 8 Before the hearing, the court directed the parties to submit supplemental briefs addressing 9 this court’s jurisdiction, which they have done. See generally Prev. Order; Def.’s Suppl. Br., ECF 10 No. 39; Pl.’s Suppl. Br., ECF No. 40. Despite the hospital’s decision not to rely on section 301 in 11 its motion for summary judgment, it argues in its supplemental brief that Ms. Hrones’s retaliation 12 and fraud claims are in fact preempted under that section. See Def. Suppl. Br. at 4–8. The 13 hospital also argues for the first time that the discrimination claim is preempted. Compare id. at 14 4–6 with Not. Removal ¶¶ 6–24. Ms. Hrones contends none of her claims is preempted by 15 section 301. See generally Pl.’s Suppl. Br. The court heard oral arguments by videoconference 16 on February 11, 2022. Mark Ellis appeared for Ms. Hrones, and Candice Zee appeared for the 17 hospital. 19 “Only state-court actions that originally could have been filed in federal court may be 20 removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 21 (1987). If the parties are not completely diverse, or if the amount in controversy is too low, then 22 a federal court has jurisdiction only if the action arises under “the Constitutions, laws, or treaties 23 of the United States.” Id. at 392 & n.6 (quoting 28 U.S.C. § 1331). This “federal question” must 24 generally “appear on the face of the plaintiff’s complaint.” Galvez, 933 F.2d at 775. As a result, 25 if a federal court would not have jurisdiction based on the parties’ citizenship or the amount in 26 controversy, a plaintiff may avoid federal court by relying exclusively on state law. See 27 Caterpillar, 482 U.S. at 392. 1 Although plaintiffs may choose to plead only state claims, they may not avoid federal 2 court by “omitting to plead necessary federal questions in a complaint.” Franchise Tax Bd. of 3 State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 22 (1983). For example, if 4 a federal statute entirely displaces a particular state-law claim—that is, if the statute completely 5 preempts the state law—then a plaintiff may not prevent the defendant from removing the action 6 by citing the displaced state law and sweeping the federal statute under the rug. See Metro. Life 7 Ins. Co. v. Taylor, 481 U.S. 58, 64 (1987). “Once an area of state law has been completely pre- 8 empted, any claim purportedly based on that pre-empted state law is considered, from its 9 inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at 393. 10 In the 1960s, the Supreme Court held that section 301 of the Labor Management Relations 11 Act completely preempts state contract law in the interpretation and enforcement of collective 12 bargaining agreements. See Local 174, Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95, 103– 13 04 (1962). The Court emphasized the importance of “uniform law” in collective bargaining 14 agreements. Id. at 103 (citation omitted). “The possibility that individual contract terms might 15 have different meanings under state and federal law would inevitably exert a disruptive influence 16 upon both the negotiation and administration of collective agreements.” Id.
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1 2 3 4 5 6 7 8 1] 12 Glenda Hrones, No. 2:20-cv-00449-KJM-KJIN 13 Plaintiff, ORDER 14 v. 15 Rideout Memorial Hospital DBA Adventist 16 Health and Rideout, et al., 17 Defendants. 18 19 Federal labor law and state employment law meet in a “tangled and confusing” thicket. 20 | Galvez v. Kuhn, 933 F.2d 773, 774 (9th Cir. 1990). Federal courts have often hacked through the 21 | underbrush only to find they have lost the way. Cf, e.g., Cramer v. Consol. Freightways, Inc., 22 | 255 F.3d 683, 692-93 (9th Cir. 2000) (en banc) (overruling several previous decisions). 23 | Fortunately, in this case, the path is well worn and clearly marked. Following that path leads the 24 | court to conclude it lacks jurisdiction over this action, as explained below. This action is 25 | remanded to state court. 26 | /////
2 Plaintiff Glenda Hrones began working as a nurse in the defendant hospital in 1999. 3 Resp. Stmt. Facts No. 1, ECF No. 31-1. In or about 2008, she became a member of the California 4 Nurses Association, which was organizing nurses in the hospital at about that time. Id. No. 12; 5 Henry Dep. at 74–75, Pl.’s Ex. 4, ECF No. 31-5; G. Hrones Dep. at 14–16, Pl.’s Ex. 1, ECF No. 6 31-4. A labor representative described the organizing efforts as “difficult.” See Henry Dep. 7 at 74. Ms. Hrones would describe the experience as harassment, but that time is now many years 8 in the past, and the administrator who was most directly to blame for Ms. Hrones’s privations no 9 longer works at the hospital. See Resp. Stmt. Facts No. 13. That said, tensions have not 10 completely slackened between Ms. Hrones and the human resources department, especially with 11 one employee in particular: Kim Triplett. See Henry Dep. at 74–75. 12 This litigation began with a workplace security gaffe. One day in late 2017, Ms. Hrones 13 left work sick. See G. Hrones Dep. at 151. She asked her husband to pick up her medication and 14 her unfinished lunch from her office in the hospital. See id.; C. Hrones Dep. at 10, Pl.’s Ex. 2, 15 ECF No. 31-4. He went, but rather than checking in with security at the front door, he used his 16 wife’s badge and key to enter the hospital through a locked side door. See C. Hrones Dep. at 10– 17 14. When Ms. Triplett learned that someone other than Ms. Hrones had used her badge—a 18 violation of the hospital’s security policies—she began an investigation that culminated in Ms. 19 Hrones’s negotiated resignation. See Triplett Decl. ¶¶ 3–9, 13–14, ECF No. 29. 20 Ms. Hrones filed this action against the hospital in state court in early 2019. See generally 21 Compl., Not. Removal Ex. A, ECF No. 1-1. She asserts five claims, all under state law: age 22 discrimination, retaliation, constructive discharge, fraud, and intentional infliction of emotional 23 distress. Second Am. Compl., Not. Removal Ex. A, ECF No. 1-1. The parties are not diverse, 24 but the hospital removed the case to this court. See generally Not. Removal, ECF No. 1. It 25 argued two of Ms. Hrones’s claims, retaliation and fraud, are preempted by section 301 of the 26 Labor Management Relations Act. See id. ¶¶ 6–24. If at least one of those claims is indeed 27 preempted, this court would have jurisdiction, as explained in more detail below. See Lingle v. 28 Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406 n.5 (1988). 1 Now, two years later, discovery is complete, and the hospital moves for summary 2 judgment. See generally Mot., ECF No. 26; Mem., ECF No. 27. It did not argue in its moving 3 papers, however, that Ms. Hrones’s retaliation and fraud claims are preempted under section 301. 4 It relied instead on the statute of limitations, California law for claims of retaliation and fraud, 5 and a different preemption doctrine that cannot give this court jurisdiction. See Prev. Order at 2– 6 3, ECF No. 38. Ms. Hrones opposes the motion, and the hospital has replied. See generally 7 Opp’n, ECF No. 31; Reply, ECF No. 25. 8 Before the hearing, the court directed the parties to submit supplemental briefs addressing 9 this court’s jurisdiction, which they have done. See generally Prev. Order; Def.’s Suppl. Br., ECF 10 No. 39; Pl.’s Suppl. Br., ECF No. 40. Despite the hospital’s decision not to rely on section 301 in 11 its motion for summary judgment, it argues in its supplemental brief that Ms. Hrones’s retaliation 12 and fraud claims are in fact preempted under that section. See Def. Suppl. Br. at 4–8. The 13 hospital also argues for the first time that the discrimination claim is preempted. Compare id. at 14 4–6 with Not. Removal ¶¶ 6–24. Ms. Hrones contends none of her claims is preempted by 15 section 301. See generally Pl.’s Suppl. Br. The court heard oral arguments by videoconference 16 on February 11, 2022. Mark Ellis appeared for Ms. Hrones, and Candice Zee appeared for the 17 hospital. 19 “Only state-court actions that originally could have been filed in federal court may be 20 removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 21 (1987). If the parties are not completely diverse, or if the amount in controversy is too low, then 22 a federal court has jurisdiction only if the action arises under “the Constitutions, laws, or treaties 23 of the United States.” Id. at 392 & n.6 (quoting 28 U.S.C. § 1331). This “federal question” must 24 generally “appear on the face of the plaintiff’s complaint.” Galvez, 933 F.2d at 775. As a result, 25 if a federal court would not have jurisdiction based on the parties’ citizenship or the amount in 26 controversy, a plaintiff may avoid federal court by relying exclusively on state law. See 27 Caterpillar, 482 U.S. at 392. 1 Although plaintiffs may choose to plead only state claims, they may not avoid federal 2 court by “omitting to plead necessary federal questions in a complaint.” Franchise Tax Bd. of 3 State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 22 (1983). For example, if 4 a federal statute entirely displaces a particular state-law claim—that is, if the statute completely 5 preempts the state law—then a plaintiff may not prevent the defendant from removing the action 6 by citing the displaced state law and sweeping the federal statute under the rug. See Metro. Life 7 Ins. Co. v. Taylor, 481 U.S. 58, 64 (1987). “Once an area of state law has been completely pre- 8 empted, any claim purportedly based on that pre-empted state law is considered, from its 9 inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at 393. 10 In the 1960s, the Supreme Court held that section 301 of the Labor Management Relations 11 Act completely preempts state contract law in the interpretation and enforcement of collective 12 bargaining agreements. See Local 174, Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95, 103– 13 04 (1962). The Court emphasized the importance of “uniform law” in collective bargaining 14 agreements. Id. at 103 (citation omitted). “The possibility that individual contract terms might 15 have different meanings under state and federal law would inevitably exert a disruptive influence 16 upon both the negotiation and administration of collective agreements.” Id. If courts were free to 17 interpret collective bargaining agreements with a variety of potentially conflicting state 18 interpretive rules, the Court reasoned, then Congress’s purposes would be frustrated. See 19 id. at 104. 20 About twenty years later, the Court held that in addition to contract claims, section 301 21 preempts any state claim whose resolution “is substantially dependent upon analysis of the terms 22 of an agreement made between the parties in a labor contract.” Allis–Chalmer Corp. v. Leuck, 23 471 U.S. 202, 220 (1985). The Court has often reiterated that rule, but it has cautioned that 24 section 301 does not preempt all “employment-related matters involving unionized employees.” 25 Caterpillar, 482 U.S. at 396 n.10. A state claim is preempted only if it “requires the 26 interpretation of a collective-bargaining agreement.” Lingle, 486 U.S. at 413. “[E]ven if dispute 27 resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the 28 other, would require addressing precisely the same set of facts, as long as the state-law claim can 1 be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement 2 for § 301 pre-emption purposes.” Id. at 409–10. Similarly, if to resolve a claim the court need 3 only “look to” a collective bargaining agreement, rather than “interpret” the agreement, the claim 4 is not preempted. Livadas v. Bradshaw, 512 U.S. 107, 125 (1994). 5 Although federal courts have often struggled to put these rules into practice, see Cramer, 6 255 F.3d at 691, a few basic principles are settled: 7 (1) “If the plaintiff’s claim cannot be resolved without interpreting the applicable 8 [collective bargaining agreement] . . . it is preempted.” Id. 9 (2) “[I]f the claim may be litigated without reference to the rights and duties 10 established in a [collective bargaining agreement] . . . it is not preempted.” Id. 11 (3) “If [a] claim is plainly based on state law, § 301 preemption is not mandated 12 simply because the defendant refers to the [collective bargaining agreement] in 13 mounting a defense.” Id. If “the meaning of contract terms is not the subject of 14 dispute,” then the claim is not preempted. Id. at 690–91 (quoting Livadas, 512 15 U.S. at 124). 16 In short, “[a] state law claim is not preempted under § 301 unless it necessarily requires the court 17 to interpret an existing provision of a [collective bargaining agreement] that can reasonably be 18 said to be relevant to the resolution of the dispute.” Id. at 693. 19 Returning, then, to Ms. Hrones’s case, the court must decide whether section 301 20 preempts any of her claims under the standard above. If not, then this court would not have had 21 original jurisdiction over the action if she had filed it here, and the case must be remanded to state 22 court. See 28 U.S.C. § 1447(c); Galvez, 933 F.2d at 775–76. Because the hospital invokes this 23 court’s jurisdiction, it bears the burden of establishing jurisdiction. See Lujan v. Defs. of Wildlife, 24 504 U.S. 555, 561 (1992); Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 25 1087 (9th Cir. 2009). Any doubts are resolved against the hospital and in favor of remand. See 26 Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam). 1 The hospital has not carried its burden. As noted above, it contended in its notice of 2 removal that two of Ms. Hrones’s claims were preempted: the retaliation claim and the fraud 3 claim. See Not. Removal ¶¶ 6–24. The court begins with the retaliation claim. 4 Ms. Hrones alleges the hospital forced her to resign in retaliation for her organizing efforts 5 with the California Nurses Association. See Second Am. Compl. ¶ 22. She relies on section 6 12940 of the California Government Code. See id. That section prohibits “any employer, labor 7 organization, employment agency, or person to discharge, expel, or otherwise discriminate 8 against any person because the person has opposed any practices forbidden under this part”—i.e., 9 the Fair Employment and Housing Act—“or because the person has filed a complaint, testified, or 10 assisted in any proceeding under this part.” See Cal. Gov’t Code § 12940(h). California courts 11 use a three-stage burden-shifting test when trying retaliation claims under section 12940(h). See 12 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). At stage one, plaintiffs must show 13 (1) they were “engaged in a protected activity,” (2) an employer subjected them to an adverse 14 employment action, and (3) “a causal link” connected the protected activity and the adverse 15 employment action. Id. (quotation marks omitted). A presumption of retaliation then arises. See 16 id. The employer may rebut that presumption by offering “a legitimate, nonretaliatory reason for 17 the adverse employment action.” Id. If the employer had a legitimate reason, “the burden shifts 18 back to the employee to prove intentional retaliation.” Id. 19 Each of the elements above requires only a “purely factual inquiry.” Lingle, 486 U.S. at 20 407. Did Ms. Hrones engage in a “protected activity” as defined by California law? Did the 21 hospital subject her to an adverse employment action? Was that adverse action connected to her 22 protected activity by a chain of cause and effect? Did the hospital have a legitimate reason for 23 what it did? And if so, was that legitimate reason merely pretext? None of these questions 24 requires interpretation of the collective bargaining agreement. See, e.g., Shields v. Andeavor 25 Logistics LP, No. 19-04995, 2019 WL 3453202, at *3 (C.D. Cal. July 31, 2019) (holding a 26 retaliation claim under the Fair Employment and Housing Act was not preempted for this reason); 27 Lencioni v. UA Loc. 467, Plumbers, Steamfitters & Refrigeration Fitters, No. 16-04518, 2016 1 WL 6069232, at *7 (N.D. Cal. Oct. 17, 2016) (same). Section 301 does not preempt the 2 retaliation claim. 3 In an attempt to avoid this conclusion, the hospital portrays the retaliation claim as a 4 bargaining agreement grievance in state-law clothing. See Def.’s Suppl. Br. at 4–6. The 5 hospital’s collective bargaining agreement prohibits “discrimination on account of membership or 6 non-membership in the Union.” See Agmt. Art. 4, § A, Suppl. Zee Decl. Ex. 3, ECF No. 39-1. 7 Ms. Hrones does not claim, however, that the hospital violated the collective bargaining 8 agreement, and the hospital has not cited any law that would require her to do so. Nor do the 9 parties dispute the meaning of any bargaining agreement terms. Without a dispute to resolve, 10 there is nothing for this court to interpret, and thus no state-law interpretative conflict to avoid by 11 way of preemption. See Cramer, 255 F.3d at 690–91. To be sure, if Ms. Hrones had pursued a 12 grievance under the collective bargaining agreement, she may very well have relied on allegations 13 identical to those she laid out in her complaint. But even if “precisely the same set of facts” 14 would be litigated in a grievance procedure, her state law claim would remain “independent” of 15 the collective bargaining agreement and would not be preempted. Lingle, 486 U.S. at 410. 16 The hospital also contends Ms. Hrones’s retaliation claim must actually be a federal claim 17 because, in the hospital’s assessment, the Fair Employment and Housing Act does not forbid 18 retaliation against workplace organization efforts. See, e.g., Def.’s Suppl. Br. at 6. The hospital 19 advanced a similar argument at hearing and in an unauthorized supplemental brief. See Def.’s 20 Add’l Auth., ECF No. 42 (citing Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 21 2007)).1 This is not an argument for complete federal preemption; it is an argument about what is 22 “protected” under California law. Whether Ms. Hrones’s claim would survive in state court is 23 “irrelevant.” Galvez, 933 F.2d at 776. The right to be free from retaliation for protected 24 activities, like the wage claim in Burnside, “is a right conferred as a matter of state law that exists 25 independent of the terms of the [collective bargaining agreement].” 491 F.3d at 1074. The
1 The unauthorized supplemental brief is stricken. See Standing Order at 3, ECF No. 6-1 (“No supplemental brief shall be filed without prior leave of court.”). Even if the court did consider the brief, however, it would not lead the court to a different conclusion. 1 retaliation claim “can be resolved without interpreting [that agreement],” so this court’s 2 jurisdiction cannot rest on the retaliation claim. Id. 3 The fraud claim is next. Ms. Hrones alleges Ms. Triplett persuaded her to resign by 4 making false promises about her health insurance benefits and possibly other matters. See Second 5 Am. Compl. ¶ 31. A claim for fraud or deceit under California law has five elements: 6 “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of 7 falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 8 (e) resulting damage.” Lazar v. Superior Ct., 12 Cal. 4th 631, 638 (1996) (citations omitted). 9 “Promissory fraud is a subspecies of the action for fraud and deceit” Id. (quotation marks 10 omitted). “A promise to do something necessarily implies the intention to perform,” so a promise 11 without an intent to perform is an “implied misrepresentation of fact that may be actionable 12 fraud.” Id. 13 Again, these elements require no interpretation of the collective bargaining agreement. A 14 fact-finder need only decide what Ms. Triplett promised, whether she intended to do as promised, 15 whether she intended for Ms. Hrones to resign in reliance on that promise, whether Ms. Hrones 16 justifiably relied on Ms. Triplett’s promise, and whether she sustained damages as a result. 17 Although it may be necessary to consider Ms. Hrones’s rights under the collective bargaining 18 agreement when deciding whether she was justified in relying on Ms. Triplett’s alleged promises, 19 that question would require only an “examination” of those terms, not an “interpretation.” See 20 Milne Emps. Ass’n v. Sun Carriers, 960 F.2d 1401, 1408–10 (9th Cir. 1991). 21 The hospital focuses on the final element of fraud: damages. It argues this court must 22 interpret the collective bargaining agreement because Ms. Hrones alleges she “suffered damages 23 in that she was required to waive her right to challenge the decision to terminate her employment 24 via the grievance process afforded by reason of her union membership.” Second Am. Compl. 25 ¶ 36; see Def.’s Suppl. Br. at 7. The hospital argues, in other words, that the value of Ms. 26 Hrones’s damages claim depends on the value of the procedures and other benefits she forfeited. 27 The Supreme Court’s decisions in Livadas and Lingle foreclose any success on that basis. “[T]he 28 mere need to ‘look to’ the collective-bargaining agreement for a damages computation is no 1 reason to hold the state-law claim defeated by § 301.” Livadas, 512 U.S. at 125 (citing Lingle, 2 486 U.S. at 413 n.12). “Although federal law would govern the interpretation of the agreement to 3 determine the proper damages, the underlying state-law claim, not otherwise pre-empted, would 4 stand.” Lingle, 486 U.S. at 413 n.12. The hospital has, moreover, identified no dispute between 5 itself and Ms. Hrones about the meaning of any relevant bargaining agreement terms, so again, 6 this court has nothing to “interpret.” The fraud claim cannot serve as the basis for this court’s 7 jurisdiction. 8 The hospital did not advance any other viable jurisdictional theory in its notice of 9 removal. See Prev. Order at 2–3. In its supplemental brief, however, it argues Ms. Hrones’s 10 discrimination claim, too, is preempted by section 301. Suppl. Br. at 4. A notice of removal 11 “cannot be amended to add a separate basis for removal jurisdiction after the thirty day period.” 12 ARCO Env’t Remediation, L.L.C. v. Dep’t of Health & Env’t Quality of Mont., 213 F.3d 1108, 13 1117 (9th Cir. 2000) (quoting O’Halloran v. University of Washington, 856 F.2d 1375, 1381 (9th 14 Cir. 1988)). But this court would have jurisdiction over the action “on all grounds apparent from 15 the complaint, not just those cited in the removal notice.” Williams v. Costco Wholesale Corp., 16 471 F.3d 975, 977 (9th Cir. 2006) (per curiam). The court must therefore consider whether 17 preemption is apparent given Ms. Hrones’s discrimination allegations. 18 In “a long line” of cases, the Ninth Circuit has held that employment discrimination 19 claims under the Fair Employment and Housing Act “are not ipso facto preempted by § 301.” 20 Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007). True to that trend, the court 21 can see no connection between Ms. Hrones’s discrimination allegations and the collective 22 bargaining agreement. She alleges she was terminated despite her adequate job performance, was 23 over 40 at the time, and was replaced by a younger person. See Second Am. Compl. ¶ 17. The 24 hospital cites no provisions in the collective bargaining agreement that would need interpretation 25 before Ms. Hrones’s allegations are put to the test. Ms. Hrones’s discrimination claim does not 26 give this court jurisdiction. 2 The Clerk of Court is directed to strike the unauthorized supplemental brief (ECF 3 No. 42). 4 The hospital has not shown any of Ms. Hrones’s claims are preempted under section 301 5 of the Labor Management Relations Act, so her complaint raises no federal question. For that 6 reason, this court lacks subject matter jurisdiction. The court remands this action to the 7 California Superior Court for Yuba County, and the Clerk of Court is directed to close the case. 9 DATED: June 9, 2022.