Rissetto v. Plumbers and Steamfitters Local 343

Page 597

94 F.3d 597

153 L.R.R.M. (BNA) 2111, 71 Fair

Empl.Prac.Cas. (BNA) 1057,

69 Empl. Prac. Dec. P 44,460, 65 USLW 2181,

61 Cal. Comp. Cases 833,

96 Cal. Daily Op. Serv. 6439,

96 Daily Journal D.A.R. 10,597

Harriet RISSETTO, Plaintiff-Appellant, v. PLUMBERS AND STEAMFITTERS LOCAL 343, a business entity, form unknown, Michael Beavers and Does 1-25, inclusive Defendants-Appellees.

No. 94-15724.

United States Court of Appeals Ninth Circuit.

Submitted March 14, 1996. ^*

Decided Aug. 29, 1996.

Ivan O.B. Morse and Brian S. Momsen, Morse & Associates, Dublin, California, for plaintiff-appellant.

Diane Sidd-Champion, McCarthy, Johnson & Miller, San Francisco, California, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, District Judge, Presiding; No. CV-92-03652-DLJ.

Before: THOMPSON and KLEINFELD, Circuit Judges, and WILSON, District Judge. ^**

WILSON, District Judge:

Plaintiff-appellant Harriet Rissetto sued her former employer, defendant-appellee Plumbers and Steamfitters Local 343 ("Local 343"), and supervisor, defendant-appellee Michael Beavers ("Beavers") for, inter alia, age discrimination under the California Fair Employment and Housing Act ("the FEHA"). The district court granted summary judgment to defendants and plaintiff appealed. We affirm, but on a different ground than relied upon by the district court.

BACKGROUND

Plaintiff Rissetto was hired in 1986 as an office trainee by defendant Local 343. She was later promoted to the position of secretary-bookkeeper. Defendant Beavers was her second-level supervisor. Her employment was governed by a collective bargaining agreement ("CBA"), which provided that she could only be discharged for just cause.

In 1989, plaintiff slipped and fell in Local 343's kitchen. As a result of this fall, she experienced pain in her back, neck, right shoulder, right arm, and right wrist. Her job duties (including typing) exacerbated these problems, and her pain increased over time. On November 5, 1990, plaintiff filed a claim for workers' compensation disability benefits. Her last day of employment with Local 343 was January 25, 1991. Immediately thereafter, on January 28, 1991, she began receiving total temporary workers' compensation disability benefits, which she received without interruption until March 30, 1993.

On February 9, 1991, plaintiff filed a grievance under the CBA, alleging age discrimination. The grievance was rejected as untimely (February 8, 1991 was the last day for filing of a timely grievance) as well as meritless. On April 23, 1991, plaintiff timely filed a complaint for age discrimination against Local 343 with the California Department of Fair Employment and Housing ("DFEH"). On April 28, 1991, the DFEH issued plaintiff a right-to-sue letter.

Plaintiff subsequently filed this action in state court, pleading five causes of action under state law: (1) age discrimination under the FEHA; (2) wrongful discharge; (3) breach of contract; (4) breach of the implied covenant of good faith and fair dealing; and (5) negligent misrepresentation. Defendants removed on the ground of complete preemption under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA").

Defendants moved for summary judgment, making a variety of arguments. First, defendants argued that plaintiff's FEHA claim should be dismissed because she could not prove that she had been constructively discharged or that defendants' asserted legitimate, non-discriminatory reason was a pretext for age discrimination. Defendants next contended that the FEHA claim should be dismissed as to defendant Beavers because no individual liability lies under the FEHA and because plaintiff did not name Beavers in her DFEH complaint. Finally, defendants argued for dismissal of the common law claims on the grounds that they were barred by the exclusive remedy of workers' compensation, preempted by § 301 of the LMRA, and preempted by the FEHA.

In an unpublished order filed on March 31, 1994, the district court granted summary judgment on all claims. It did not address defendants' preemption arguments, and it stated that its subject matter jurisdiction was based on diversity. It held that, as a matter of law, plaintiff could not prove that she had been constructively discharged and therefore could not make out the prima facie case of age discrimination required under Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The court also stated that "substantial evidence indicates that plaintiff voluntarily left Local 343 because her painful injuries both interfered with her work performance and were exacerbated by her work duties. Accordingly, even if plaintiff's allegations supported a claim of constructive discharge, defendants had a legitimate, nondiscriminatory and nonpretextual reason for plaintiff's departure." The court dismissed the four common-law claims as dependent on the FEHA claim. ¹ Plaintiff timely filed a notice of appeal on April 29, 1994.

JURISDICTION

Plaintiff's complaint pleaded five state law causes of action. Defendants removed on the grounds that LMRA preemption transformed her state law claims into claims arising under federal law within the meaning of 28 U.S.C. § 1331. The record does not disclose any attempt to remand the action or any consideration by the district court of the propriety of removal.

In its order, the district court stated that subject matter jurisdiction was founded on the basis of diversity of citizenship. Our review of the record indicates that all of the parties appear to be California citizens, so this conclusion is of doubtful validity. We therefore must examine whether the district court in fact had jurisdiction over this action.

A federal district court has removal jurisdiction over actions which might have been brought in that court, 28 U.S.C. § 1441(a), including all actions arising under federal law, 28 U.S.C. § 1331. A claim pleaded under state law that requires the interpretation of a collective bargaining agreement is transformed by § 301 of the LMRA into a claim arising under federal law. See, e.g., Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988); Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d 1401, 1408 (9th Cir.1992).

Plaintiff's breach of contract claim is preempted by § 301 because the contract alleged to have been breached is itself the CBA. Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285 (9th Cir.1989); Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir.1987). Her claim for breach of the covenant of good faith and fair dealing is also clearly preempted because such covenant is an implied term of her CBA. Milne Employees, 960 F.2d at 1411; Cook v. Lindsay Olive Growers, 911 F.2d 233, 238-39 (9th Cir.1990) ("Where the collective bargaining agreement contains terms governing job security, this breach of the covenant of good faith and fair dealing cause of action is preempted"); Chmiel, 873 F.2d at 1286. ²

The district court thus properly exercised subject matter jurisdiction over this action. We have jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review the grant of summary judgment de novo "and will affirm only if, viewing the evidence in the light most favorable to the party opposing the motion, there are no genuine questions of fact and the trial court correctly applied the substantive law." Young, 830 F.2d at 996 (citation omitted).

DISCUSSION

The district court granted summary judgment on plaintiff's FEHA claim for two reasons. First, it determined that plaintiff had not established a genuine issue as to whether she was constructively discharged. Alternatively, the court held that since the evidence "amply demonstrates that plaintiff's work performance was adversely affected by her injuries," she failed to establish a genuine dispute as to defendants' asserted "legitimate, nondiscriminatory and non-pretextual reason for plaintiff's departure: plaintiff's work performance was adversely affected by her physical injuries." The district court took note of plaintiff's claim for and acceptance of $127,000 in workers' compensation benefits "based on her work-related injuries and inability to work," including total temporary disability payments and permanent disability payments. The court also took note of the testimony of the physicians whom plaintiff had retained in support of her workers' compensation claim that she suffered from serious orthopaedic injuries which interfered with her ability to work.

We do not decide whether plaintiff established a genuine issue of fact as to whether she was constructively discharged or as to whether defendants' asserted reason for her separation was a pretext for age discrimination. Rather, we hold that summary judgment was properly entered because plaintiff was unable to satisfy the element of her prima facie case that required her to show that she "was performing her job in a satisfactory manner," Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir.1990), and that there was thus no need even to address the issue of pretext. For the reasons that follow, we hold that plaintiff is estopped from claiming that she was able to perform her job in a satisfactory manner.

I. Judicial Estoppel

In applying for workers' compensation temporary total disability benefits in November 1990, plaintiff necessarily asserted that she was unable to work. E.g., Robinson v. W.C.A.B., 194 Cal.App.3d 784, 239 Cal.Rptr. 841, 845 (5 Dist.1987) ("The period of temporary total disability is that period when the employee is totally incapacitated for work"); Herrera v. W.C.A.B., 71 Cal.2d 254, 78 Cal.Rptr. 497, 499, 455 P.2d 425 (1969) (employee is temporarily totally disabled if he or she is "unable to earn any income").

Plaintiff and Local 343's...