# Nathanson v. Truebeck Construction, Inc.

> District Court, N.D. California · January 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10077644

## Case

- **Court:** District Court, N.D. California
- **Decided:** January 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10077644

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 MATTHEW NATHANSON, Case No. 23-cv-02211-DMR

8 Plaintiff,
ORDER GRANTING PLAINTIFF'S
9 v. MOTION TO REMAND

10 TRUEBECK CONSTRUCTION, INC., Re: Dkt. No. 20
11 Defendant.

12 Plaintiff Matthew Nathanson filed this discrimination action in San Mateo County Superior
13 Court against his employer, Truebeck Construction, Inc. (“Truebeck”) and Does 1-50. Truebeck
14 removed the case, asserting that this court has federal question jurisdiction because Section 301 of
15 the Labor Management Relations Act (“LMRA”) preempts Nathanson’s claims. Nathanson now
16 moves to remand the case to state court. [Docket No. 20.] This matter is suitable for
17 determination without oral argument. Civil L.R. 7-1(b). For the following reasons, the motion to
18 remand is granted.
19 I. BACKGROUND
20 A. Plaintiff’s Allegations
21 In his complaint, Nathanson alleges that he was employed by Truebeck as a Jobsite Safety
22 Manager from May 11, 2020 to December 22, 2022, when he alleges he was constructively or
23 wrongfully terminated. [Docket No. 1-2 (Madonna A. Herman Decl., May 5, 2023) ¶ 1, Ex. 1
24 (Complaint) ¶ 10.]
25 Nathanson suffered an injury to his knee on January 21, 2021, while working for Truebeck.
26 Compl. ¶ 14. After taking some doctor-recommended time off to receive treatment, Nathanson
27 went back to work in February 2021. Id. ¶¶ 15-16. Because his knee was still causing him pain,
1 was on work disability during his recovery. Id. ¶ 17. In December 2021, Nathanson was able to
2 return to work to perform “light dut[ies].” Id. ¶ 18. Throughout 2022, however, Truebeck told
3 Nathanson that the company did not have any light duty positions, “refused to allow [Nathanson]
4 to return to work,” and “consistently ignored [Nathanson]’s requests to return to work.” Id. ¶¶ 19-
5 20. In April 2022, Nathanson’s doctor informed him that he was at his “maximum level of
6 recovery” and could return to work. Id. ¶ 21. Nathanson alleges that Truebeck nevertheless
7 refused to allow him to return. Id. According to Nathanson, he was constructively or wrongfully
8 terminated on December 22, 2022, and the “pre-textual nature” of his termination is clear based on
9 his “prior explicit request(s) for reasonable accommodation, Defendant’s failure to provide them,
10 and Plaintiff’s forced leave from the company without pay.” Id. ¶ 22.
11 B. Procedural History
12 Nathanson filed a complaint against Defendants in San Mateo County Superior Court on
13 April 3, 2023, alleging four claims under California’s Fair Employment and Housing Act
14 (“FEHA”), California Government Code section 12900 et seq.: 1) disability discrimination; 2)
15 failure to engage in an interactive process; 3) failure to provide reasonable accommodations; and
16 4) retaliation. Nathanson also brought claims for constructive/wrongful termination in violation of
17 public policy and intentional infliction of emotional distress (“IIED”).1 Truebeck removed the
18 action on May 5, 2023, asserting that this court has federal question jurisdiction pursuant to 28
19 U.S.C. § 1331 because Nathanson’s claims require interpretation of a collective bargaining
20 agreement and are thus completely preempted by Section 301 of the LMRA, 20 U.S.C. § 185.
21 [Docket No. 1 (Notice of Removal) ¶¶ 5, 8.] Truebeck asserts that Nathanson’s employment was
22 governed by a collective bargaining agreement at all relevant times. Notice of Removal ¶ 5; see
23 also Herman Decl. ¶ 3, Ex. 3 (2018-2023 Carpenters Master Agreement for Northern California
24 (the “CBA”)).
25 II. LEGAL STANDARD
26 The federal district courts have original jurisdiction over “all civil actions arising under the
27
1 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A civil action brought in
2 state court over which the federal district courts have original jurisdiction may be removed to the
3 federal district court for the district embracing the place where the action is pending. See 28
4 U.S.C. § 1441(a). “If at any time before final judgment it appears that the district court lacks
5 subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
6 “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-
7 pleaded complaint rule,’ which provides that in the absence of diversity jurisdiction, federal
8 jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly
9 pleaded complaint.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar,
10 Inc. v. Williams, 482 U.S. 386, 392 (1987)). That rule applies equally to evaluating the existence
11 of federal questions in cases brought initially in federal court and in removed cases. See Holmes
12 Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 n.2 (2002). Under the “well-
13 pleaded complaint rule,” the plaintiff is the master of his or her claim, and “may avoid federal
14 jurisdiction by exclusive reliance on state law.” Caterpillar, 482 U.S. at 392. The removing
15 defendant bears the burden of establishing that removal was proper. Duncan v. Stuetzle, 76 F.3d
16 1480, 1485 (9th Cir. 1996).
17 III. DISCUSSION
18 Nathanson moves to remand the case to state court. He contends that his claims do not
19 require interpretation of the CBA and therefore are not preempted by Section 301 of the LMRA.2
20
2 The parties dispute whether Nathanson’s motion to remand was timely filed. The motion was
21
filed on October 31, 2023. Truebeck contends the motion was untimely because it was filed after
a court-imposed deadline. [See Docket No. 11 (granting stipulation continuing deadline to file
22
motion to remand from June 5, 2023 to July 5, 2023).] Nathanson responds that the motion was
nevertheless timely under 28 U.S.C. § 1447(c) because he seeks to remand this action for lack of
23
subject-matter jurisdiction.

24
Under section 1447(c), a motion to remand based on any defect other than subject-matter
jurisdiction must be made within thirty days after the filing of the notice of removal. This is
25
because subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R., 868
F.2d 1081, 1085 (9th Cir. 1989); see also 28 U.S.C. § 1447(c) (“If at any time before final
26
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”).
27
1 Section 301(a) provides federal jurisdiction over “[s]uits for violation of contracts between
2 an employer and a labor organization.” 29 U.S.C. § 185(a). Section 301 “completely preempts
3 any state causes of action based on alleged violations of contracts between employers and labor
4 organizations.” Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 747 (9th Cir. 1993).
5 Usually, federal preemption is a defense that defendants cannot raise in order to remove state law
6 cases. Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152 (9th Cir. 2019). However, section 301
7 “has such ‘extraordinary pre-emptive power’ that it ‘converts an ordinary state common law
8 complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’” Id.
9 (quoting Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987)). Labor claims may be subject to
10 preemption under section 301 “even in some instances in which the plaintiffs have not alleged a
11 breach of contract in their complaint, if the plaintiffs’ claim is either grounded in the provisions of
12 the labor contract or requires interpretation of it.” Burnside v. Kiewit Pac. Corp., 491 F.3d 1053,
13 1059 (9th Cir. 2007). Thus, a state law claim is preempted “if the resolution of [that] claim
14 depends upon the meaning of a collective-bargaining agreement.” Detabali v. St. Luke’s Hosp.,
15 482 F.3d 1199, 1203 (9th Cir. 2007) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
16 399, 405–06 (1988)). “The plaintiff’s claim is the touchstone for this analysis; the need to
17 interpret the [collective bargaining agreement] must inhere in the nature of the plaintiff’s claim. If
18 the claim is plainly based on state law, § 301 preemption is not mandated simply because the
19 defendant refers to the [collective bargaining agreement] in mounting a defense.” Cramer v.
20 Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001).
21 The Ninth Circuit uses a two-part analysis to determine whether a claim is preempted by
22 section 301. First, the court inquires “whether the asserted cause of action involves a right
23 conferred upon an employee by virtue of state law, not by a CBA.” Burnside, 491 F.3d at 1059.
24 If the right “exists solely as a result of the CBA, then the claim is preempted, and [the] analysis
25 ends there.” Id. If the right exists independently of the CBA, the court must then consider
26 whether “it is nevertheless substantially dependent on analysis of a collective-bargaining
27
1 agreement.” Id. (quoting Caterpillar, 482 U.S. at 394). “If such dependence exists, then the claim
2 is preempted by section 301.” Id. at 1059-60. But if the claim can be resolved by “looking to”
3 instead of “interpreting” the CBA, the claim is not preempted and can proceed under state law. Id.
4 at 1060.
5 Here, Truebeck does not dispute that the rights asserted by Nathanson are conferred upon
6 employees by virtue of state law. Therefore, the court focuses on the second part of the
7 preemption analysis, namely, whether Nathanson’s claims are “substantially dependent on
8 analysis of a collective-bargaining agreement.” Burnside, 491 F.3d 1059.
9 Truebeck does not differentiate between Nathanson’s FEHA claims and his claims for
10 constructive/wrongful termination in violation of public policy and IIED. In general, Truebeck
11 argues that Nathanson’s employment, treatment, and discharge are governed by the CBA and thus
12 require interpretation of its provisions. Opp’n at 3. Truebeck relies primarily on the following
13 provisions:

14 DISCHARGED EMPLOYEE: Employees receiving notice of
termination for any reason shall be allowed a reasonable time (not less
15 than fifteen (15) minutes) before the end of the regular work day to
assemble their tools in addition to the normal pick-up time prevailing
16 on the job.

17 After forty (40) hours of employment, the individual employer may
discharge any employee for just cause only. Just cause is subject to
18 Section 51, the grievance and arbitration provision of this Agreement.
The individual employer during the first forty (40) hours of
19 employment may reject or discharge any employee for any reason.

20 Discharge for cause shall be in writing to the employee.
21 CBA at 18 (Section 30, Show Up Time, Termination Pay and Discharge).

22 An industrial injury shall not be cause for discharge and an applicant
for employment shall not be rejected because of prior industrial
23 injury, provided that any such prior industrial injury has not caused
the applicant to be incapable of satisfactorily performing the duties
24 and functions required by the job to which he/she is assigned or would
be assigned.
25
26 Id. at 19 (Section 34, Injury).

27 On all cases relating to discharge or discipline, employees must file
their grievances with the Local Union or the NCCRC within three (3)
Thereafter, the Local Union or the NCCRC must file its grievance
1 with the Board of Adjustment within four (4) working days after the
employee files his/her grievance. The Board shall meet within seven
2 (7) working days following submission of the grievance. The Board
of Adjustment or Arbitrator shall be free to sustain the discharge or to
3 find discipline other than discharge to be appropriate and may order
reinstatement with full or partial back pay as he or it deems
4 appropriate provided there shall be no discrimination on the part of
the individual employer against any employee for activities on behalf
5 of or representation of the Union not interfering with the proper
performance of his/her duties.
6
7 Id. at 46-47 (Paragraph 16, Section 51, Grievance Procedure). Truebeck does not explain how
8 these sections apply to Nathanson’s claims, or why this action will require interpretation of any of
9 the cited provisions. See Opp’n at 3 (quoting CBA provisions without further analysis); see also
10 id. at 5 (arguing in a conclusory way that “[t]he CBA expressly governs Plaintiff’s employment,
11 treatment, and discharge, and claims regarding the same require consideration and analysis of the
12 terms of the CBA”).
13 Contrary to Truebeck’s assertions, the Ninth Circuit has “consistently held that state law
14 discrimination claims under the FEHA do not require courts to interpret the terms of a CBA and
15 are therefore not preempted by § 301.” Schrader v. Noll Mfg. Co., 91 Fed. App’x. 553, 555 (9th
16 Cir. 2004) (collecting cases); see also Ramirez, 998 F.2d at 748 (“[i]n every case in which we have
17 considered an action brought under [California’s anti-discrimination statute], we have held that it
18 is not preempted by section 301,” collecting cases). “This is true even where the CBA closely
19 regulates the conduct that the plaintiff claims to be discriminatory.” Schrader, 91 Fed. App’x. at
20 555.
21 While it is possible that the parties will refer to the CBA during the course of the litigation,
22 it will not be necessary to interpret its terms to adjudicate Nathanson’s claims because “they turn
23 on the defendants’ motives, rather than their contractual rights.” Schrader, 91 Fed. App’x. at 555.
24 Truebeck does not identify a claim that encompasses a dispute about the meaning of a CBA
25 provision, and Nathanson’s claims do not on their face require interpretation of the CBA. See
26 Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 921 (9th Cir. 2018) (“‘Interpretation’ is construed
27 narrowly; ‘it means something more than ‘consider,’ ‘refer to,’ or ‘apply’” (quoting Balcorta v.
1 may refer to the terms of the CBA to defend itself does not change the result, because “[a] defense
2 based on the CBA is alone insufficient to require preemption.” Ward v. Circus Circus Casinos,
3 Inc., 473 F.3d 994, 998 (9th Cir. 2007). Instead, “the need to interpret the CBA must inhere in the
4 nature of the plaintiff’s claim.” Cramer, 255 F.3d at 691.
5 Truebeck also fails to satisfy its burden of establishing that removal of the remaining
6 claims was proper. See Duncan, 76 F.3d at 1485. Nathanson’s claim for constructive/wrongful
7 termination in violation of public policy is “based upon [his] FEHA claims.” See Mot. at 6.
8 Absent any meaningful argument to the contrary, the complaint suggests that Nathanson’s claim
9 for constructive/wrongful termination in violation of public policy is independent of the CBA and
10 is thus not preempted by the LMRA. See, e.g., Williams v. Lockheed Martin Space Operations
11 Co., No. C-05-05210 RMW, 2006 WL 1329889, at *6 (N.D. Cal. May 16, 2006) (“Assuming [the
12 plaintiff]’s wrongful termination claim is based on FEHA, there is a sufficiently clear California
13 standard for considering it without looking to the CBA”).
14 Nathanson’s IIED claim also arises from the same circumstances as his FEHA claims. See
15 Complaint ¶ 57 (“When the Defendants committed the acts described above [i.e., the facts
16 underlying Nathanson’s FEHA claims], it did so deliberately and intentionally to cause Plaintiff to
17 suffer humiliation, mental anguish, and emotional distress”); see also Mot. at 8 (asserting that
18 Plaintiff’s IIED claim “arise[s] only from facts supporting his FEHA claims for discrimination,
19 retaliation and wrongful termination”).
20 In general, “[w]hen the CBA governs the behavior, and the underlying claims are
21 preempted, the IIED claims relying upon them are also preempted . . . In contrast, when the
22 underlying claims are not preempted, neither are the claims for IIED.” Lee v. Eden Med. Ctr., 690
23 F. Supp. 2d 1011, 1021 (N.D. Cal. 2010) (citing Cook v. Lindsay Olive Growers, 911 F.2d 233,
24 239-40 (9th Cir. 1990); Tellez v. Pac. Gas and Elec. Co., Inc., 817 F.2d 536, 538–39 (9th Cir.
25 1987)).
26 Truebeck does not specifically address Nathanson’s IIED claim and thus fails to carry its
27 burden of demonstrating that removal is proper. In addition, because Nathanson’s IIED claim
1 claim is not preempted by section 301. See Lee, 690 F. Supp. 2d at 1021 (“to the extent that
2 Plaintiff’s IIED claim rests on discrimination, it is not preempted [by the LMRA]”); see also
3 Martinez v. Kaiser Found. Hosps., No. C-12-1824 EMC, 2012 WL 2598165, at *6 (N.D. Cal. July
4 5, 2012) (finding that claim for intentional infliction of emotional distress based on discrimination
5 was not preempted because the focus of the plaintiff’s claim was on discriminatory treatment
6 rather than the substantive provisions of the CBA).
7 In sum, the court concludes that section 301 does not preempt Nathanson’s claims and
8 removal is improper.
9 IV. CONCLUSION
10 For the foregoing reasons, Nathanson’s motion to remand this matter to the Superior Court
11 of the State of California, County of San Mateo is granted.
12 IT IS SO ORDERED.
13 Dated: January 5, 2024
14 ______________________________________
Donna M. Ryu
15
Chief Magistrate Judge
16
17
18
19
20
21
22
23
24
25
26
27

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10077644. Public record. Not legal advice.