1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Arthur Miller, No. CV-22-00848-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 United Parcel Service Incorporated, et al.,
13 Defendants. 14 15 Pending before the Court is Defendant United Parcel Service, Inc’s (“UPS”) Rule 16 12(b)(6) Motion for Partial Dismissal. (Doc. 26.) Plaintiff Arthur Miller filed a Response 17 (Doc. 28), and UPS filed a Reply (Doc. 29). The Court has considered the pleadings and 18 relevant law and will grant in part and deny in part UPS’s Motion for the following reasons. 19 I. BACKGROUND 20 Miller worked for UPS as a preloader and part-time preload supervisor from 21 September 2015 through July 2017. (Doc. 22 at 2.) UPS rehired him in October 2020 as 22 a temporary, seasonal employee. (Id.) Miller’s second stint with UPS ended in January 23 2021. (Id.) Plaintiff applied for and was offered an open UPS position at the Phoenix Air 24 Gateway Center, and he cleared an FBI and TSA background check. (Id. at 3.) Miller’s 25 first shift in his new role was on the morning of March 1, 2021. (Id.) Later that day, a 26 UPS human resources employee called Miller to inform him of his termination for failing 27 to pass UPS’s third-party background check. (Id.) 28 Miller filed his First Amended Complaint (“AC”) on January 13, 2022. The AC has 1 added new factual allegations to the wrongful termination claim and adds a fourth claim of 2 promissory estoppel. UPS now moves to dismiss Miller’s state law claims for wrongful 3 termination and promissory estoppel. 4 II. LEGAL STANDARD 5 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 6 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 7 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 8 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 9 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Where a 11 complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops 12 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting 13 Twombly, 550 U.S. at 557). 14 III. DISCUSSION 15 A. Garmon Pre-emption 16 “Garmon pre-emption ‘is intended to preclude state interference with the National 17 Labor Relations Board’s interpretation and active enforcement of the integrated scheme of 18 regulation established by the NLRA.’” Idaho Bldg. & Const. Trades Council, AFL-CIO v. 19 Inland Pac. Chapter of Associated Builders & Contractors, Inc., 801 F.3d 950, 956 (9th 20 Cir. 2015) (quoting Chamber of Com. of U.S. v. Brown, 554 U.S. 60, 65 (2008)). “When 21 an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal 22 courts must defer to the exclusive competence of the National Labor Relations Board if the 23 danger of interference with national policy is to be averted.” San Diego Bldg. Trades 24 Council v. Garmon, 359 U.S. 236, 245 (1959). 25 UPS argues Garmon applies because Miller’s new factual allegations under his 26 wrongful termination and promissory estoppel claims amount to allegations of direct 27 dealing. Miller alleges he was promised employment and relied on that promise to his 28 detriment when UPS terminated him. “An attempt by the employer to bypass the 1 bargaining representative in conducting negotiations constitutes direct dealing, a violation 2 of § 8(a)(5) of the Act.” Facet Enters., Inc. v. N.L.R.B., 907 F.2d 963, 969 (10th Cir. 1990) 3 (citing Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 683–84 (1944)). UPS argues 4 the AC alleges direct dealing, because Miller’s claims relate to promises UPS made outside 5 of the collective bargaining agreement (“CBA”), which it cannot do. 6 Miller argues his claims are unrelated to direct dealing and are instead based upon 7 UPS’s violating provisions of the Airport Security Regulations and the FCRA. This 8 argument is disingenuous. The AC contains no mention of the Airport Security Regulation 9 or the FCRA related to the promissory estoppel claim. (See Doc. 22 at 8 ¶¶ 59–62.) In his 10 wrongful termination claim, Miller alleges “he was wrongfully terminated in violation 11 implied in-fact promise of employment and assurances of job security in company 12 personnel manuals or memoranda.” (Doc. 22 at 7 ¶ 55.) The Court agrees Miller’s 13 allegations for both claims involve direct dealing, which is preempted under Garmon. 14 However, Miller’s wrongful termination claim also alleges UPS violated the FCRA 15 and Airport Security Regulations in terminating him. The AC states the Airport Security 16 Regulations prohibit employment if an applicant’s is convicted of kidnapping within ten 17 years of submitting an application. (Doc. 22 at 4 ¶¶ 22–23.) Miller alleges he was 18 wrongfully terminated because he was convicted of kidnapping more than ten years prior 19 to his applying (Id. ¶ 24), meaning the Airport Security Regulations did not prohibit his 20 employment. Additionally, UPS did not provide a pre-adverse action notice to Miller as 21 required by the FCRA. “The FCRA mandates that, before an employer may take adverse 22 action against an employee or job applicant based on a consumer report, the employer must 23 provide the consumer with ‘a copy of the report’ and ‘a description in writing of the rights 24 of the consumer . . . as prescribed by the Bureau [of Consumer Financial Protection] under 25 section 1681g(c)(3) of this title.’” Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1092 (9th 26 Cir. 2020) (quoting 15 U.S.C. § 1681b(b)(3)(A)). UPS does not address how these claims 27 might be affected by the Garmon pre-emption and the Court finds these claims are not 28 preempted. These claims fail for another reason discussed below. 1 UPS points out that Miller’s wrongful termination claim is based on A.R.S. § 23- 2 1501 which provides, in part, that an employee has a claim against an employer for 3 termination if the employer has terminated the employment in violation of an Arizona 4 statute. See A.R.S. § 23-1501(A)(3)(b). Here, Miller claims UPS terminated him in 5 violation of the FCRA and Airport Security Regulation, both federal statutes. Miller argues 6 that because Arizona enacted its own Fair Credit Reporting Act which mirrors the FCRA 7 and has the same goals, the Court should not dismiss this claim. But the AC does not allege 8 UPS violated Arizona’s Fair Credit Reporting Act nor explain how Miller could plead such 9 a violation. Therefore, Miller’s alternative bases for wrongful termination may not be 10 preempted under Garmon, but they are nonetheless defective for the reasons discussed 11 above. 12 B.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Arthur Miller, No. CV-22-00848-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 United Parcel Service Incorporated, et al.,
13 Defendants. 14 15 Pending before the Court is Defendant United Parcel Service, Inc’s (“UPS”) Rule 16 12(b)(6) Motion for Partial Dismissal. (Doc. 26.) Plaintiff Arthur Miller filed a Response 17 (Doc. 28), and UPS filed a Reply (Doc. 29). The Court has considered the pleadings and 18 relevant law and will grant in part and deny in part UPS’s Motion for the following reasons. 19 I. BACKGROUND 20 Miller worked for UPS as a preloader and part-time preload supervisor from 21 September 2015 through July 2017. (Doc. 22 at 2.) UPS rehired him in October 2020 as 22 a temporary, seasonal employee. (Id.) Miller’s second stint with UPS ended in January 23 2021. (Id.) Plaintiff applied for and was offered an open UPS position at the Phoenix Air 24 Gateway Center, and he cleared an FBI and TSA background check. (Id. at 3.) Miller’s 25 first shift in his new role was on the morning of March 1, 2021. (Id.) Later that day, a 26 UPS human resources employee called Miller to inform him of his termination for failing 27 to pass UPS’s third-party background check. (Id.) 28 Miller filed his First Amended Complaint (“AC”) on January 13, 2022. The AC has 1 added new factual allegations to the wrongful termination claim and adds a fourth claim of 2 promissory estoppel. UPS now moves to dismiss Miller’s state law claims for wrongful 3 termination and promissory estoppel. 4 II. LEGAL STANDARD 5 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 6 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 7 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 8 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 9 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Where a 11 complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops 12 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting 13 Twombly, 550 U.S. at 557). 14 III. DISCUSSION 15 A. Garmon Pre-emption 16 “Garmon pre-emption ‘is intended to preclude state interference with the National 17 Labor Relations Board’s interpretation and active enforcement of the integrated scheme of 18 regulation established by the NLRA.’” Idaho Bldg. & Const. Trades Council, AFL-CIO v. 19 Inland Pac. Chapter of Associated Builders & Contractors, Inc., 801 F.3d 950, 956 (9th 20 Cir. 2015) (quoting Chamber of Com. of U.S. v. Brown, 554 U.S. 60, 65 (2008)). “When 21 an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal 22 courts must defer to the exclusive competence of the National Labor Relations Board if the 23 danger of interference with national policy is to be averted.” San Diego Bldg. Trades 24 Council v. Garmon, 359 U.S. 236, 245 (1959). 25 UPS argues Garmon applies because Miller’s new factual allegations under his 26 wrongful termination and promissory estoppel claims amount to allegations of direct 27 dealing. Miller alleges he was promised employment and relied on that promise to his 28 detriment when UPS terminated him. “An attempt by the employer to bypass the 1 bargaining representative in conducting negotiations constitutes direct dealing, a violation 2 of § 8(a)(5) of the Act.” Facet Enters., Inc. v. N.L.R.B., 907 F.2d 963, 969 (10th Cir. 1990) 3 (citing Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 683–84 (1944)). UPS argues 4 the AC alleges direct dealing, because Miller’s claims relate to promises UPS made outside 5 of the collective bargaining agreement (“CBA”), which it cannot do. 6 Miller argues his claims are unrelated to direct dealing and are instead based upon 7 UPS’s violating provisions of the Airport Security Regulations and the FCRA. This 8 argument is disingenuous. The AC contains no mention of the Airport Security Regulation 9 or the FCRA related to the promissory estoppel claim. (See Doc. 22 at 8 ¶¶ 59–62.) In his 10 wrongful termination claim, Miller alleges “he was wrongfully terminated in violation 11 implied in-fact promise of employment and assurances of job security in company 12 personnel manuals or memoranda.” (Doc. 22 at 7 ¶ 55.) The Court agrees Miller’s 13 allegations for both claims involve direct dealing, which is preempted under Garmon. 14 However, Miller’s wrongful termination claim also alleges UPS violated the FCRA 15 and Airport Security Regulations in terminating him. The AC states the Airport Security 16 Regulations prohibit employment if an applicant’s is convicted of kidnapping within ten 17 years of submitting an application. (Doc. 22 at 4 ¶¶ 22–23.) Miller alleges he was 18 wrongfully terminated because he was convicted of kidnapping more than ten years prior 19 to his applying (Id. ¶ 24), meaning the Airport Security Regulations did not prohibit his 20 employment. Additionally, UPS did not provide a pre-adverse action notice to Miller as 21 required by the FCRA. “The FCRA mandates that, before an employer may take adverse 22 action against an employee or job applicant based on a consumer report, the employer must 23 provide the consumer with ‘a copy of the report’ and ‘a description in writing of the rights 24 of the consumer . . . as prescribed by the Bureau [of Consumer Financial Protection] under 25 section 1681g(c)(3) of this title.’” Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1092 (9th 26 Cir. 2020) (quoting 15 U.S.C. § 1681b(b)(3)(A)). UPS does not address how these claims 27 might be affected by the Garmon pre-emption and the Court finds these claims are not 28 preempted. These claims fail for another reason discussed below. 1 UPS points out that Miller’s wrongful termination claim is based on A.R.S. § 23- 2 1501 which provides, in part, that an employee has a claim against an employer for 3 termination if the employer has terminated the employment in violation of an Arizona 4 statute. See A.R.S. § 23-1501(A)(3)(b). Here, Miller claims UPS terminated him in 5 violation of the FCRA and Airport Security Regulation, both federal statutes. Miller argues 6 that because Arizona enacted its own Fair Credit Reporting Act which mirrors the FCRA 7 and has the same goals, the Court should not dismiss this claim. But the AC does not allege 8 UPS violated Arizona’s Fair Credit Reporting Act nor explain how Miller could plead such 9 a violation. Therefore, Miller’s alternative bases for wrongful termination may not be 10 preempted under Garmon, but they are nonetheless defective for the reasons discussed 11 above. 12 B. LMRA § 301 13 The Supreme Court has held that “if the resolution of a state-law claim depends 14 upon the meaning of a collective-bargaining agreement, the application of state law . . . is 15 pre-empted and federal labor law principles—necessarily uniform throughout the Nation— 16 must be employed to resolve the dispute.” Lingle v. Norge Div. of Magic Chef, Inc., 486 17 U.S. 399, 405–06; see also Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997 (9th 18 Cir. 1987) (“The preemptive force of section 301 is so powerful as to displace entirely any 19 state claim based on a collective bargaining agreement and any state claim whose outcome 20 depends on analysis of the terms of the agreement.”) (cleaned up). 21 The Ninth Circuit has employed a two-part test to determine if a state law claim is 22 preempted by Section 301. See Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059–60 23 (9th Cir. 2007). The first prong requires the Court to consider “whether the asserted cause 24 of action involves a right conferred upon an employee by virtue of state law, not by a CBA. 25 Id. at 1059. “If the right exists solely as a result of the CBA, then the claim is preempted 26 and [the Court’s] analysis ends there.” Id. But if the Court determines that that the right 27 underlying the state law claim “exists independently of the CBA,” then it proceeds to the 28 second prong to examine whether the right is “substantially dependent on analysis of a collective bargaining agreement.” Jd. A right is “substantially dependent on analysis” of 2|| a CBA if the claim can be resolved by “‘looking to versus interpreting the CBA.” □□□□ at || 1060 (cleaned up). “If the latter, the claim is preempted; if the former, it is not.” □□□ Ifa state law claim is preempted by Section 301, it is barred by the LMRA’s six-month statute of limitations. See Milne Emps. Ass’n v. Sun Carriers, 960 F.2d 1401, 1411 (9th Cir. 1991). 6 Miller concedes that his claim for wrongful termination based on the implied-in- 7\| fact promise of employment is preempted by Section 301 and that claim will be dismissed. 8 || Miller does not address how the promissory estoppel claim survives under Section 301. □□ The promissory estoppel claim is based on the same facts as the implied promise under the || wrongful termination claim. These claims would require interpretation of the CBA and are 11 || pre-empted. 12 C. Statute of Limitations 13 UPS argues Miller’s new claims should be dismissed because they were filed outside the statute of limitations. However, UPS makes this argument in a conclusory 15 || fashion in a footnote. Therefore, the Court will not consider this argument. See In re Katz Interactive Call Processing Pat. Litig., No. 07-ML-01816-B RGK, 2009 WL 8636055, at *1-2 (C.D. Cal. Oct. 26, 2009) (refusing to consider conclusory argument made in a □□ footnote). 19 IV. CONCLUSION 20 Because Miller fails to state a claim for wrongful termination or promissory estoppel, 22 IT IS ORDERED granting UPS’s Rule 12(b)(6) Motion for Partial Dismissal. 23 || (Doc. 26.) 24 Dated this 14th day of August, 2023. 25 —_—_———= 26 27 —Alonorable Susan M, Braovich 28 United States District Judge
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