Morris v. Clark Pacific

• Court: District Court, E.D. California
• Decided: November 5, 2020
• Docket: 2:20-cv-01291
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ROLON MORRIS, Case No. 2:20-cv-01291 WBS CKD 13 Plaintiff,

14 v. ORDER DENYING DEFENDANT’S 15 CLARK PACIFIC, a California MOTION TO COMPEL ARBITRATION General Partnership; DOES 1-20 16 Individually and in official capacities, inclusive, 17 Defendants. 18

19 ----oo0oo---- 20 Plaintiff Rolon Morris brought this action against his 21 former employer, defendant Clark Pacific, alleging that he was 22 wrongfully terminated, discriminated against, and harassed on the 23 basis of his race in violation of federal and state workplace 24 antidiscrimination laws. (See generally First Amended Compl. 25 (“FAC”) (Docket No. 11).) Defendant has filed a motion to compel 26 arbitration and stay judicial proceedings. (Mot. to Compel 27 Arbitration (Docket No. 13).) 28 1 I. Facts & Procedural History 2 Plaintiff worked for defendant as a laborer at 3 defendant’s Woodland, California manufacturing facility (the 4 “Woodland Plant”) from October 8, 2018 until mid-February 2020. 5 (FAC ¶ 1.) Defendant manufactures molds and other pieces for 6 large-scale construction projects. (FAC ¶ 9.) 7 Plaintiff alleges that, as an African American man, he 8 was subjected to discrimination and harassment based on his race 9 throughout his time working for defendant. (See FAC ¶¶ 14-39.) 10 Plaintiff alleges that several white employees made overt 11 references to or otherwise claimed affiliation with a white 12 supremacist prison gang, referred to African-American employees 13 as “monkeys,” and referred to certain jobs as “nigger jobs,” 14 leading to a hostile work environment for African-American 15 employees. (See FAC ¶¶ 18-23.) Plaintiff further alleges that 16 he was paid less than white employees who performed the same 17 work, that he was routinely required to do work outside of his 18 classification without proper trainings or state-mandated 19 certifications and without receiving additional monetary 20 compensation for the work, and that white employees received 21 credit for his work and were promoted in his place. (See FAC ¶¶ 22 26-29.) 23 In February 2020, plaintiff complained to defendant’s 24 Human Resource Department regarding the racial discrimination and 25 harassment he faced in the workplace. (See FAC ¶ 30.) Shortly 26 after receiving plaintiff’s complaint, defendant required 27 plaintiff to take a drug test which it claimed was being randomly 28 administered. (FAC ¶ 32.) After plaintiff completed the test, 1 the individual who administered the test, an agent of defendant, 2 informed plaintiff that he had tested negative, but that another 3 sample was required because the first sample had been “too warm.” 4 (FAC ¶ 34.) The agent informed plaintiff that he would have to 5 observe plaintiff’s genitalia while providing the second sample 6 to ensure its integrity. (Id.) Plaintiff complained to a 7 foreman at the Woodland Plant that no other employees had been 8 required to expose themselves during a drug test, but the foreman 9 reaffirmed that plaintiff would in fact have to expose his 10 genitals while providing the additional urine sample. (FAC ¶¶ 11 36-37.) Plaintiff maintains that this series of successive drug 12 tests, along with the requirement that the agent administering 13 the test observe plaintiff’s genitalia, constituted an act of 14 retaliation for the complaint plaintiff had lodged with 15 defendant’s Human Resources Department. (See id.) 16 All employees in the production and maintenance 17 departments of the Woodland Plant, including plaintiff, must be a 18 member in good standing with the Laborers Local No. 185 union 19 (“the Union”). (Decl. of Scott Maddux, Ex. A §§ 2, 3 (“Woodland 20 Plant CBA”) (Docket No. 15).) The employees are therefore 21 subject to the Collective Bargaining Agreement entered into on 22 August 20, 2015, between defendant and the Union. (Id.) Section 23 IV of the CBA addresses “Equal Employment,” stating:

24 It is mutually agreed by the Employer and the Union to fully comply with all the provisions 25 of Title 7 of the Civil Rights Act of 1964, Presidential Executive Order #11246. The 26 [sic] California Fair Employment Practices Section, and the Americans with Disability 27 Act of 1990, to the end that no person shall, on the grounds of sex, race, color, 28 disability or national origin, be excluded 1 from participation in, be denied the benefits of, or be otherwise subjected to 2 discrimination by not having full access to the contents of Section III of this 3 Agreement.

4 (Woodland Plant CBA § IV.) 5 Section III of the CBA is a union security clause. 6 (See Woodland Plant CBA § III.) It requires that employees be in 7 good standing with the Union by their 30th day of employment, 8 that the Union be given the same opportunity as other recruitment 9 sources to provide qualified applicants for defendants’ 10 consideration when more employees are needed, and that defendant 11 refrain from discharging an employee for 48 hours following 12 written notice from the Union that the employee is no longer in 13 good standing with the Union. (See id.) 14 Section XII of the CBA establishes a multistep 15 grievance procedure for the parties to the agreement. (See 16 Woodland Plant CBA § XII.) Under the procedure, disputes 17 involving alleged violations of the CBA “shall first be discussed 18 between a representative of the union and the Employer.” (See 19 id.) If a resolution is not achieved within five working days, 20 Section XII authorizes either party to escalate the dispute, 21 including by proceeding to arbitration. (Id.) Section XII 22 states that “only those disputes which involve an alleged 23 violation of this Agreement shall be grieved and/or arbitrated.” 24 (See id.) 25 Exhibit 5 to the CBA establishes parameters that 26 defendant must follow in establishing a drug testing program. 27 (See Woodland Plant CBA, Ex. 5.) Exhibit 5 states that “the 28 1 Employer may establish a substance abuse testing program in its 2 Woodland Yard on a non-discriminatory basis.” (Id.) Exhibit 5 3 authorizes defendant to test all applicants, employees involved 4 in an accident, “all employees for reasonable suspicion,” and 5 “all employees on an all inclusive or random basis.” (Id.) 6 Following his discharge, plaintiff filed this action, 7 claiming that defendant’s discrimination and harassment violated 8 (1) 42 U.S.C. § 1981; (2) Title VII of the Civil Rights Act of 9 1964, 42 U.S.C. §§ 2000(e), et seq.; (3) the California Fair 10 Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940; (4) 11 California Unfair Competition law, Cal. Bus. & Prof. Code § 12 17200, California public policy against wrongful termination; and 13 (5) the Bane Act, Cal. Civ. Code § 52.1. Defendant argues that 14 Section XII of the CBA compels arbitration of plaintiff’s claims. 15 (See generally Def.’s Mot. to Compel Arbitration.) 16 II. Legal Standard 17 The Federal Arbitration Act (“FAA”) provides that that 18 an arbitration clause in a contract “shall be valid, irrevocable, 19 and enforceable, save upon such grounds as exist at law or in 20 equity for the revocation of any contract.” 9 U.S.C. § 2; Stolt- 21 Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 22 (2010). “The central or primary purpose of the FAA is to ensure 23 that private agreements to arbitrate are enforced according to 24 their terms.” Id. 25 Under section 4 of the FAA, “a party to an arbitration 26 agreement may petition a United States district court for an 27 order directing that ‘arbitration proceed in the manner provided 28 for in such agreement.’” Id. (quoting 9 U.S.C. § 4). The FAA 1 “limits courts’ involvement to ‘determining (1) whether a valid 2 agreement to arbitrate exists and, if it does, (2) whether the 3 agreement encompasses the dispute at issue.’” Munro v. Univ. of 4 S. Cal., 896 F.3d 1088, 1091 (9th Cir. 2018) (internal citations 5 omitted). The court “may take judicial notice of a CBA . . . 6 [as] such documents properly are considered [ ] materials ‘not 7 subject to reasonable dispute’ because they are ‘capable of 8 accurate and ready determination by resort to sources whose 9 accuracy cannot reasonably be questioned.’” Densmore v. Mission 10 Linen Supply, 164 F. Supp. 3d 1180, 1187 (E.D. Cal. 2016) 11 (O’Neill, J.) (quoting Jones v. AT&T, No. C 07-3888 JF (PR), 2008 12 WL 902292, at *2 (N.D. Cal. Mar. 31, 2008)). 13 III. Discussion 14 A. Defendant’s Request for Judicial Notice 15 Defendant requests that the court take judicial notice 16 of the CBA signed by defendant and the Union on August 20, 2015. 17 (See Def.’s Req. Judicial Notice (Docket No. 16).) Plaintiff 18 does not dispute the authenticity of the CBA, that he was a 19 member of the Union, or that he was a covered employee according 20 to the terms of the CBA when the allegations in his complaint 21 took place. (See Pl.’s Opp’n at 6 (Docket No. 18).) 22 Because the CBA is not subject to reasonable dispute 23 and will aid the court in assessing the merits of defendant’s 24 motion to compel arbitration, the court will grant defendant’s 25 request for judicial notice. See Densmore, 164 F. Supp. at 1187. 26 B. Whether the CBA Clearly and Unambiguously Requires Plaintiff to Arbitrate his Statutory Antidiscrimination 27 Claims 28 A term in a CBA requiring arbitration of employment- 1 related discrimination claims is enforceable as a matter of 2 federal law as long as it “clearly and unmistakably” requires 3 union members to arbitrate their claims, “unless Congress itself 4 has evinced an intention to preclude a waiver of judicial 5 remedies for the statutory rights at issue.” 14 Penn Plaza LLC 6 v. Pyett, 556 U.S. 247, 256, 272 (2009) (quoting Gilmer v. 7 Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)). 8 In Pyett, the Supreme Court held that a CBA between the 9 defendant and the union required union members to arbitrate their 10 claims under the Age Discrimination in Employment Act of 1967 11 (“ADEA”) because the CBA clearly and unmistakably encompassed 12 statutory claims of age discrimination. See Pyett, 556 U.S. at 13 274. The CBA provision addressing age discrimination read as 14 follows:

15 ¶30. NO DISCRIMINATION ¶ “There shall be no 16 discrimination against any present or future employee by reason of race, creed, color, 17 age, disability, national origin, sex, union membership, or any characteristic protected 18 by law, including, but not limited to, claims made pursuant to Title VII of the 19 Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in 20 Employment Act, the New York State Human Rights Law, the New York City Human Rights 21 Code, ... or any other similar laws, rules or regulations. All such claims shall be 22 subject to the grievance and arbitration procedure (Articles V and VI) as the sole 23 and exclusive remedy for violations. Arbitrators shall apply appropriate law in 24 rendering decisions based upon claims of discrimination.” 25 Id. at 252. There, the CBA “expressly reference[d] the statutory 26 claim at issue.” Pyett, 556 U.S. at 263; see also Duraku v. 27 Tishman Speyer Props., Inc., 714 F. Supp. 2d 470, 473 (S.D.N.Y. 28 1 2010) (ordering that a plaintiff’s claims under Title VII and New 2 York state antidiscrimination laws be submitted to arbitration 3 because the CBA at issue “expressly require[d] the resolution of 4 plaintiffs’ statutory claims through mediation and/or 5 arbitration”). 6 Here, in contrast, the CBA invokes Title VII and the 7 California Fair Employment and Housing Act, but with specific 8 reference to Section III of the agreement, the union security 9 clause. (See Woodland Plant CBA § IV.) In Section IV, the Union 10 and defendant mutually agree that they will fully comply with 11 Title VII and California antidiscrimination law “to the end that 12 no person shall, on the grounds of sex, race, color, disability, 13 or national origin, be . . . subjected to discrimination by not 14 having full access to the contents of Section III of this 15 Agreement.” (Id.) In other words, by its own terms, Section IV 16 is limited to ensuring that employees will be able to obtain good 17 standing with the Union, that defendant give equal consideration 18 to Union members when seeking additional employees, and that all 19 employees be given a 48-hour grace period before being discharged 20 if they do not pay union dues, irrespective of the employees’ 21 sex, race, color, disability, or national origin. (See Woodland 22 Plant CBA § III.) 23 Thus, when section XII of the Woodland Plant CBA states 24 that any “disputes which involve an alleged violation of this 25 Agreement shall be grieved and/or arbitrated,” it is not 26 referencing any instance of discrimination or harassment that an 27 employee of defendant might experience. (Woodland Plant CBA § 28 XII.) The CBA merely contemplates that it will govern disputes 1 involving discrimination and harassment related to section III’s 2 union security clause. (See id.) 3 Additionally, even if section IV of the Woodland Plant 4 CBA were applicable to more than just section III, section XII 5 would still not “clearly and unmistakably” require Union members 6 to arbitrate statutory antidiscrimination claims, because it does 7 not “expressly reference the statutory claim at issue.” Id. 8 Section IV references Title VII and California antidiscrimination 9 law, but it does not address claims of any kind, let alone 10 “claims made pursuant to Title VII of the Civil Rights Act” or 11 other state antidiscrimination laws. See id. at 252. 12 Similarly, section V(m) of the CBA, which addresses 13 paid sick leave, states that paid sick leave will be provided “as 14 per California law.” (Woodland Plant CBA § V(m).) It then 15 states: “[a]ny disputes regarding the application of this 16 provision will be resolved by final and binding 17 arbitration in accordance with the grievance procedures set forth 18 in Section No. XII.” (Id.) As with section IV’s reference to 19 California discrimination law, section V(m) does not clearly or 20 expressly reference claims made under antidiscrimination 21 statutes. See Pyett, 556 U.S. at 263. 22 The Woodland Plant CBA therefore does not “clearly and 23 unmistakably” require Union members to arbitrate claims of 24 discrimination and harassment brought under Title VII or 25 California antidiscrimination laws. See id. at 274. 26 Accordingly, the court finds that the CBA’s arbitration clause 27 28 1 does not apply to plaintiff’s claims in this case.1 See id. 2 B. Whether LMRA Section 301 Preempts Plaintiff’s State Law Claims 3 4 Even when a CBA does not “clearly and unmistakably” 5 require union members to arbitrate their statutory 6 antidiscrimination claims, claims based upon violations of state 7 law may nevertheless be preempted by the Labor Management 8 Relations Act (“LMRA”). See Dent v. Nat’l Football League, 902 9 F.3d 1109, 1116 (9th Cir. 2018). LMRA section 301 directs 10 “federal courts to fashion a body of federal common law to be 11 used to address disputes arising out of labor contracts.” Kobold 12 v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th Cir. 13 2016) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 14 (1985)). “[T]his federal common law preempts . . . state law 15 claims grounded in the provisions of a CBA or requiring 16 interpretation of a CBA.” Id. (citing Lueck, 471 U.S. at 210- 17 11). 18 Preemption under the LMRA is, “in effect, a kind of 19 ‘forum’ preemption,” in that state law is preempted “only insofar 20 as resolution of the state-law claim requires the interpretation 21 of a collective-bargaining agreement.” Alaska Airlines Inc. v. 22 Schurke, 898 F.3d 904, 922 (9th Cir. 2018) (en banc) (quoting 23

24 1 Because the Woodland Plant CBA does not “clearly and unmistakably” require Union members to arbitrate their claims, 25 the court does not reach the question of whether Congress “evinced an intention to preclude a waiver of judicial remedies 26 for the statutory rights at issue” when it passed Title VII of 27 the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. See Pyett, 556 U.S. at 256. 28 1 Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409 n.8 2 (1988)). If Section 301 is found to preempt the plaintiff’s 3 state law claims, federal common law requires “specific 4 performance of CBA terms requiring the grievance and arbitration 5 of disputes.” Alaska Airlines, 898 F.3d at 918 n.7 (“[T]he end 6 purpose[] of LMRA § 301 preemption . . . [is] to enforce ‘a 7 central tenet of federal labor-contract law . . . that it is the 8 arbitrator, not the court who has the responsibility to interpret 9 the labor contract in the first instance.’”) (citing Lueck, 471 10 U.S. at 220)); Textile Workers Union of America v. Lincoln Mills 11 of Ala., 353 U.S. 448, 450-51 (1957). 12 The Ninth Circuit has articulated a two-part test to 13 determine whether a state law claim is “grounded in the 14 provisions of a CBA or requiring interpretation of a CBA” and 15 thus preempted by LMRA section 301. Kobold, 832 F.3d at 1032. 16 “First, a court must determine ‘whether the asserted cause of 17 action involves a right conferred upon an employee by virtue of 18 state law, not by a CBA. If the right exists solely as a result 19 of the CBA, then the claim is preempted, and [the] analysis ends 20 there.’” Id. (quoting Burnside v. Kiewit Pac. Corp., 491 F.3d 21 1053, 1059 (9th Cir. 2007)). 22 “If the court determines that the right underlying the 23 plaintiff’s state law claim(s) ‘exists independently of the CBA,’ 24 it moves to the second step, asking whether the right is 25 nevertheless ‘substantially dependent on analysis of a 26 collective-bargaining agreement.’” Id. (quoting Burnside, 491 27 F.3d at 1059). “Where there is such substantial dependence, the 28 state law claim is preempted by § 301.” Id. 1 Here, there can be little doubt that plaintiff’s state 2 law claims survive the first prong of the Kobold test. See 3 Kobold, 832 F.3d at 1032. Plaintiff claims that defendant 4 discriminated against him based on his race by requiring him to 5 perform work for which he had not been trained, by denying him 6 additional compensation for said work, by denying him 7 opportunities for promotion that other employees were granted, 8 and by rewarding other employees for the work plaintiff had 9 performed. (See FAC ¶¶ 27-37.) Plaintiff claims that several 10 white employees claimed to be part or, or otherwise made 11 references to, a white supremacist prison gang and made other 12 comments denigrating African Americans generally, contributing to 13 a hostile work environment for African Americans at defendant’s 14 facility. (See FAC ¶¶ 21-25.) Plaintiff further claims that, in 15 response to a complaint he made to Human Resources about his 16 disparate treatment and the overall hostile work environment for 17 African-American employees at defendant’s facility, he was made 18 to take two drug tests consecutively when other employees were 19 not and that he was required to show his genitalia while giving 20 the second drug test where other employees were not. (See id.) 21 Plaintiff’s claims allege violations of rights bestowed 22 upon him by California antidiscrimination law, including the 23 right (1) to be free of disparate treatment based on race in the 24 workplace, see Cal. Gov’t Code § 12940(a); (2) to be free of 25 harassment due to a hostile work environment, see id. § 12940(j); 26 (3) to be free from retaliation after complaining about the 27 presence of discrimination or harassment, see id. § 12940(h); (4) 28 to rely on one’s employer to prevent discrimination and 1 harassment, see id. § 12940(k); (5) to be free of unfairly 2 competitive practices, including unlawful intentional 3 discrimination, see Cal. Bus. & Prof. Code § 17200; (6) not to be 4 wrongfully terminated on discriminatory grounds or in retaliation 5 for reporting discrimination and harassment, see Cal. Gov’t Code. 6 § 12900; Cal. Const. art. I, § 8; and (7) not to be deprived of 7 federal or state constitutional rights through intimidation and 8 coercion, see Cal. Civ. Code § 52.1. 9 Because the CBA is not the “only source” of plaintiff’s 10 claims, and plaintiff’s claims do more than just refer to CBA- 11 defined rights, his claims are not preempted under the first 12 Kobold prong. See Alaska Airlines, 898 F.3d at 921; see also 13 Ramirez v. Fox Television Station, 998 F.3d 743, 748 (9th Cir. 14 1993) (“In every case in which we have considered an action 15 brought under the California [Fair Employment and Housing Act], 16 we have held that it is not preempted by section 301.” 17 (collecting cases)); Smith v. Greyhound Lines, Inc., No. 1:18-cv- 18 01354 LJO BAM, 2018 WL 6593365 (E.D. Cal. Dec. 14, 2018) (holding 19 claims under Gov’t Code § 12940 “explicitly arise[] under 20 California law and exist[] independent of the particular terms of 21 the CBA”). 22 Moving to the second Kobold factor, plaintiff’s claims 23 are not “substantially dependent” on an analysis of the CBA. See 24 Kobold, 832 F.3d at 1032. Under the second prong, the court must 25 “ask whether litigating the state law claim nonetheless requires 26 interpretation of a CBA, such that resolving the entire claim in 27 court threatens the proper role of grievance and arbitration.” 28 Alaska Airlines, 898 F.3d at 921. “‘Interpretation’ is construed 1 narrowly; “it means something more than ‘consider,’ ‘refer to,’ 2 or ‘apply.’” Id. (quoting Balcorta v. Twentieth Century-Fox Film 3 Corp., 208 F.3d 1102, 1108 (9th Cir. 2000)). 4 Where a court is only required to “look to” the CBA to 5 resolve the plaintiff’s claim, there is no preemption. Cramer v. 6 Consolidated Freeways, Inc., 255 F.3d 683, 691 (9th Cir. 2001) 7 (quoting Livadas v. Bradshaw, 512 U.S. 107, 124-25 (1994)). “The 8 plaintiff's claim is the touchstone for this analysis; the need 9 to interpret the CBA must inhere in the nature of the plaintiff's 10 claim.” Id. “If the claim is plainly based on state law, § 301 11 preemption is not mandated simply because the defendant refers to 12 the CBA in mounting a defense.” Id. (citing Caterpillar Inc. v. 13 Williams, 482 U.S. 386, 398-99 (1987)). 14 Defendant contends that the court will necessarily have 15 to interpret the terms of the CBA establishing defendant’s drug 16 testing protocols when it evaluates plaintiff’s claims that he 17 was retaliated against and wrongfully terminated, since plaintiff 18 will have to show that defendant’s stated reason for termination- 19 -refusing to submit to a drug test--was pretextual. (See Def.’s 20 Opp’n at 4.) Similarly, defendant argues that the court will 21 necessarily have to interpret the CBA’s terms related to wages, 22 classification, eligibility for promotion, seniority status, and 23 training to assess plaintiff’s claims of discrimination and 24 harassment. (See Def.’s Opp’n at 6-7.) 25 However, plaintiff’s claims are that defendant’s 26 administration of the two drug tests constituted retaliation for 27 his complaints of discrimination and harassment due to 28 defendant’s demand that he reveal his genitals while providing a 1 urine sample, and that he was underpaid for the work he was 2 required to perform compared to his white counterparts. (See FAC 3 §§ 26-73.) Defendant may argue that the drug tests administered 4 to plaintiff were in fact “random” as required under the CBA, 5 that a second urine sample was warranted under the terms of the 6 CBA, or that plaintiff’s pay and the jobs he was required to work 7 were appropriate according to the terms of the CBA (see Woodland 8 Plant CBA § V, Ex. 5), but a plaintiff’s state law claims are not 9 preempted by LMRA section 301 merely because the defendant will 10 “refer to the CBA in mounting its defense.” Cramer, 255 F.3d at 11 691. 12 There is no “active dispute” in this case “over the 13 meaning of [the] terms” of the CBA. See Alaska Airlines, 898 14 F.3d at 921. Plaintiff does not seek to interpret the CBA’s 15 provisions regarding the substance abuse testing program, which 16 authorize defendant to establish a drug abuse testing program, 17 provided it is “non-discriminatory” and tests employees “on an 18 all inclusive or random basis.” (See Woodland Plant CBA at Ex. 19 5.) Rather, plaintiff’s claim is that the specific drug tests he 20 was required to take were pretexts used by defendant to retaliate 21 against him for complaining about discrimination and harassment. 22 (See FAC §§ 32-36.) 23 Determining whether the tests were, in fact, 24 retaliatory will not require an interpretation of the CBA’s use 25 of the word “random” or “non-discriminatory.” Plaintiff can 26 succeed on his claim by showing that the motivating factor behind 27 defendant’s request that plaintiff submit to the drug tests at 28 issue or defendant’s decision to terminate plaintiff was 1 plaintiff’s opposition to practices of discrimination and 2 harassment at defendant’s facility. See Cal. Gov’t Code § 3 12940(h) (prohibiting employers from “discharge[ing], 4 expel[ling], or otherwise discriminat[ing] against any person 5 because the person has opposed [discrimination or harassment]”). 6 Though this claim may require the court to “consider” 7 or “look to” the CBA, it will not require the court to resolve 8 contested interpretations of the CBA’s language. See Alaska 9 Airlines, 898 F.3d at 927 (“reliance on and reference to CBA- 10 established or CBA-defined terms of employment do not make for a 11 CBA dispute if there is no disagreement about the meaning or 12 application of any relevant CBA-covered terms of employment”). 13 The same reasoning applies to plaintiff’s claims of 14 discrimination and harassment based on the work plaintiff was 15 assigned and his rate of pay. See Ramirez, 998 F.3d at 748-49. 16 The Ninth Circuit’s decision in Ramirez v. Fox 17 Television Station, 998 F.3d 743, 748 (9th Cir. 1993), is 18 instructive. There, the Ninth Circuit held that the plaintiff’s 19 antidiscrimination claims brought under the FEHA were not 20 preempted by LMRA section 301 because they did not require the 21 court to interpret the terms of the CBA at issue. See id. at 22 748-49. Discussing an allegation by the plaintiff that only 23 Hispanic employees, like the plaintiff, needed to submit jury- 24 service verification forms, the court stated: “The Bargaining 25 Agreement may be crystal clear--that all or no employees need 26 such verification forms--but [defendant] nonetheless may have 27 ignored the Bargaining Agreement in Ramirez's case or applied it 28 to her in a discriminatory manner.” Id. at 749. “Thus, nnn nnn nee no IE ID DE OS ESE IE IED II ee

1 reference to or consideration of the terms of a collective- 2 | bargaining agreement is not the equivalent of interpreting the 3 meaning of the terms. If it were, all discrimination actions 4 brought by unionized employees would be preempted because the 5 starting point for every case would have to be the agreement.” 6| Id. 7 For the same reasons as those articulated in Ramirez, 8 references to the CBA in this case do not rise to the level of 9 “interpretation” warranting LMRA preemption. Plaintiff does not 10 | dispute that the Woodland Plant CBA authorizes defendant to 11 establish random drug testing protocols or certain pay and 12 classification schemes. Plaintiff claims that defendant ignored 13 these protocols and schemes or applied them to him ina 14 discriminatory manner. See id. Accordingly, plaintiff’s claims 15 under state antidiscrimination law are not substantially 16 | dependent on an analysis of the Woodland Plant CBA. See Kobold, 17 832 F.3d at 1032. 18 Because plaintiff’s claims do not satisfy either of the 19 Kobold factors, they are not preempted under section 301 of the 20 | LMRA and specific enforcement of the CBA’s arbitration provision 21 is not warranted. See Alaska Airlines, 898 F.3d at 918 n.7. 22 IT IS THEREFORE ORDERED that defendant’s motion to 23 compel arbitration (Docket No. 13) be, and the same hereby is, 24 DENIED. 25 || Dated: November 5, 2020 bette 2d. □□ 26 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 27 28 17