Soremekun v. Thrifty Payless, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADEDIJI ADESOLA SOREMEKUN, 
Plaintiff-Appellant, No. 06-55035
v. D.C. No.
THRIFTY PAYLESS, INC., d/b/a RITE  CV-04-06868-
AID CORPORATION, a California MMM
corporation, ORDER
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted November 9, 2007*
Pasadena, California
Filed November 27, 2007
Before: Kim McLane Wardlaw, Carlos T. Bea, and
N.R. Smith, Circuit Judges.
ORDER
We adopt and affirm the district court’s well-reasoned
Order Granting Defendant Thrifty Payless, Inc.’s Motion for
Summary Judgment, filed November 23, 2005, attached as
Appendix A.
*The panel unanimously finds this case suitable for decision without
oral argument See Fed. R. App. 34 (a) (2).
15201
15202 SOREMEKUN v. THRIFTY PAYLESS, INC.
AFFIRMED.
SOREMEKUN v. THRIFTY PAYLESS, INC. 15203
APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA
ADEDIJI ADESOLA SOREMEKUN,  CASE NO. CV
Plaintiff, 04-06868 MMM
v. (VBKx)
THRIFTY PAYLESS, INC. d/b/a RITE ORDER
GRANTING
AID CORPORATION, a California
corporation; DOES 1 through 100,  DEFENDANT
inclusive, THRIFTY
Defendants. PAYLESS, INC.’S
MOTION FOR
SUMMARY
 JUDGMENT
Adediji Adesola Soremekun filed this action against Rite
Aid Corporation, Ismail Keekeebha, Sharim Manek, and cer-
tain unnamed defendants in Los Angeles Superior Court on
January 15, 2004. On July 21, 2004, he filed an amended
complaint, naming Thrifty Payless, Inc. (“Thrifty”), doing
business as Rite Aid Corporation (“Rite Aid”), and Does 1
through 100 as defendants.1 Soremekun, a former Rite Aid
employee, alleged that defendants had intentionally engaged
in a practice of failing to compensate him in accordance with
the governing collective bargaining agreements.2 Specifically,
he asserted that Rite Aid refused to pay him wages purport-
edly owed for overtime work and bereavement leave.3 Based
on these allegations, Soremekun asserted claims for breach of
contract, failure to pay wages in violation of the California
1
The first amended complaint did not name either Keekeebha or Manek.
2
First Amended Complaint, ¶ 16.
3
Id., ¶¶ 14, 15, 16, 17, 19.
15204 SOREMEKUN v. THRIFTY PAYLESS, INC.
Labor Code, quantum meruit, and unfair business practices in
violation of California Business & Professions Code §§ 17200
et seq.
On August 17, 2004, Thrifty removed the action to this
court, asserting that it raised a federal question. Soremekun
filed a motion to remand on September 16, 2004, arguing that
the court lacked subject matter jurisdiction and that Thrifty’s
removal was untimely. The court denied Soremekun’s motion
on October 29, 2004. Thrifty now moves for summary judg-
ment, or in the alternative, partial summary judgment.
I. FACTUAL BACKGROUND
Adediji Soremekun was employed by Rite Aid as a phar-
macist from approximately January 15, 1998, until his resig-
nation on June 27, 2003.4 Soremekun’s employment at Rite
Aid was governed by successive collective bargaining agree-
ments (“CBAs”) between Rite Aid and the United Food and
Commercial Workers Union (the “Union”).5
A. Pay Provisions
Under the collective bargaining agreement for the period
from July 5, 1999 to July 7, 2002 (the “1999-2002 CBA”),6
4
[Proposed] Statement of Uncontroverted Facts and Conclusions of Law
(“Def.’s Facts”), ¶ 1; Plaintiff Adediji A. Soremekun’s Separate Statement
of Disputed Material Facts (“Pl.’s Facts”), ¶ 1.
5
‘Def.’s Facts, ¶ 2; Pl.’s Facts, ¶ 2. Plaintiff contends that he received
a copy of the CBA only after he had filed a complaint with the Division
of Labor Standards and Enforcement. (Pl.’s Facts, ¶ 2.)
6
Declaration of Glenn L. Briggs in Support of Defendant Thrifty Pay-
less, Inc. d/b/a/ Rite Aid Corporation’s Motion for Summary Judgment or,
in the Alternative, Partial Summary Judgment (“Briggs Decl.”), Exh. C at
47 (Retail Pharmacist Agreement between Rite Aid Inc. and UFCW
Locals 135, 324, 770, 1036, 1167, 1428 and 1442 (July 5, 1999 -July 7,
2002) (“1999-2002 CBA”), Art. 16.A). Neither party has submitted the
collective bargaining agreement in force between January 15, 1998 and
July 5, 1999.
SOREMEKUN v. THRIFTY PAYLESS, INC. 15205
Rite Aid was obligated to pay pharmacists overtime at a rate
of time and a half, for any work performed in excess of eighty
hours a week within a consecutive two-week period between
July 5 and October 1, 1999.7 Effective October 11, 1999, if
authorizeili by a written agreement between Rite Aid, the
Union, and the employee, a pharmacist could “work an alter-
nate work schedule consisting of no more than twelve (12)
hour shifts at straight time.”8 In such a case, Rite Aid was
obligated to pay the employee double time for any work
exceeding twelve hours in an alternate shift, and time and a
half for any work over forty hours in a given workweek.9 In
addition, Rite Aid was required to pay pharmacists for time
spent traveling between stores during the work day, at the reg-
ular rate;10 for “on call” time, in the amount of four hours’ pay
at the appropriate rate;11 and for work between the hours of 10
p.m. and 7 a.m. at a premium of one dollar per hour in addi-
tion to the straight-time rate.12 Finally, Rite Aid guaranteed
paid bereavement leave in the event of the death of an
employee’s immediate family member,13 as well as specified
vacation time with full pay.14 The collective bargaining agree-
ment for the period from July 8, 2002 to July 10, 2005 (the
“2002-2005 CBA) contained similar provisions regarding
pharmacists’ hours and wages.15
7
Id., Exh. C at 41 (1999-2002 CBA, Art. 7.C.1).
8
Id., Exh. C at 38 (1999-2002 CBA, Art. 6.C.1).
9
Id.
10
Id., Exh. C at 42 (1999-2002 CBA, Art. 7.G).
11
Id., Exh. C at 38-39 (1999-2002 CBA, Art. 6.C.3).
12
Id., Exh. C at 41 (1999-2002 CBA, Art. 7.B).
13
Id., Exh. Cat 46 (1999-2002 CBA, Art. 11).
14
Id., Exh. C at 43 (1999-2002 CBA, Art. 8.A).
15
Id., Exh. D at 57, 62, 64, 66, 70 (Retail Pharmacist Agreement Rite
Aid, Inc. (July 8, 2002 - July 10, 2005) (“2002-2005 CBA”), arts. 6.3.1.1,
7.3.1 (“Pharmacists will be paid one and one-half times (1 1/2 x) the regu-
lar straight-time rate on all hours worked over ten (10) per day, double
time (2 x) the regular straight-time rate on all hours worked over twelve
15206 SOREMEKUN v. THRIFTY PAYLESS, INC.
B. Grievance Procedures
Under both the 1999-2002 and 2002-2005 CBAs, the
Union, Rite Aid, and all covered employees were required to
adhere to certain grievance procedures for the resolution or
settlement of “[a]ny and all matters of controversy, dispute or
disagreement of any kind or character existing between the
parties arising out of or in any way involving the interpreta-
tion and/or application of the terms of this Agreement.”16
Under these grievance procedures, an employee with a claim
regarding a wage discrepancy, such as a claim “for unpaid
wages, holidays, vacation, jury duty, sick leave, bereavement
pay, or night premium pay, or for any other direct compensa-
(12) per day and one and one-half times (1 1/2 x) the regular straight-time
rate on all hours worked over forty (40) per week”), Art. 6.3.3 (“If the
Employer requires an employee to remain at home ‘on call’ the Employer
shall guarantee the employer four (4) hours’ pay at the appropriate rate for
such day. All Employer requests for an employee to remain available for
‘on call’ duty shall be in writing to the employee”), Art. 7.2 (“A premium
of one dollar ($1.00) per hour in addition to the applicable straight-time
rate shall be paid on all hours worked by employees between the hours of
10 P.M. and 7 A.M.”), Art. 7.7 (“Whenever an employee is required by
the Employer to change from one (1) store to another during the same day,
all time consumed by said employee in going either to or from one (1)
store to another shall be considered and paid for as part of the employee’s
regular duties”), Art. 8.1.3 (“All full-time employees who have been con-
tinuously employed by the Employer for five (5) years shall receive three
(3) weeks’ vacation with full pay”), Art. 8.2.1 (“The term ‘full pay’ shall
be defined as forty (40) hours’ pay at the employee’s straight-time hourly
rate which was in effect at the time the vacation became due on the
employee’s anniversary date”), Art. 11 (“Leave for all employees shall be
provided because of death of a member of the employee’s immediate fam-
ily. . . . Verification of time required for such paid leave shall be supplied
to the Employer by the employee, if requested. Immediate family shall be
defined as the employee’s spouse, child, mother, father, stepparent,
brother, sister, mother-in-law, father-in-law, grandchild, grandparent, step-
child, legal guardian, or other relative living in the employee’s home”).
16
Id., Exh. C at 47 (1999-2002 CBA, Art. 16.A), Exh. D at 71 (2002-
2005 CBA, Art. 16.1).
SOREMEKUN v. THRIFTY PAYLESS, INC. 15207
tion,” had to file the claim with the Union “promptly upon dis-
covery.”17 Once the employee filed a claim, the Union was
obligated, “if it believe[d] such claim ha[d] validity,” to notify
the employer promptly about the claim.18 The CBAs set time
limits for the filing of claims and the initiation of grievance
procedures. Under the 1999-2002 CBA, “[a] claim not filed
by the employee with the Union within ten (10) days after dis-
covery and not filed by the Union with the Employer within
an additional ten (10) days, [was to] be deemed null and void.
(The Union has twenty (20) days from the employee’s date of
discovery to file notice with the Employer.)”19 The 2002-2005
CBA extended the time for an employee to file a claim to
twenty-one days after discovery.20 Both CBAs limited Rite
Aid’s liability in the following manner:
“Notwithstanding the foregoing, no wage or other
direct compensation claim not involving interpreta-
tion of the contract can cause such Employer to pay
such claim or any portion thereof retroactively for a
period of more than six (6) months immediately
prior to the date of the Employer’s receipt of notice
from the Union of the claim. In any event, the
Employer’s obligation to compensate an employee
for unpaid time worked under Article 7-E, shall not
be limited in any way by the foregoing, except for
the six (6) month limitation.
17
Id., Exh. C at 47 (1999-2002 CBA, Art. 16.8.3), Exh. D at 72 (2002-
2005 CBA, Art. 16.2.3).
18
Id.
19
Id., Exh. C at 47 (1999-2002 CBA, Art. 16.B.3).
20
Id., Exh. D at 72 (2002-2005 CBA, Art. 16.2.3 (“A claim not filed by
the employee with the Union within twenty-one (21) days after discovery
and not filed by the Union with the Employer within an additional ten (10)
days, shall be deemed null and void. (The Union has thirty-one (31) days
from the employee’s date of discovery to file notice with the Employ-
er.)”).
15208 SOREMEKUN v. THRIFTY PAYLESS, INC.
The Employer shall promptly investigate all
claims for failure to pay or incorrect payment of
wages and premiums for time worked and pay any
discrepancies within twenty one (21) days of the date
it is brought to the Employer’s attention. Failure to
do so, will result in valid claims earning a penalty of
ten percent (10%) of the amount owed. After the
twenty second (22nd) day, an additional penalty of
ten percent (10%) per week will be owed for each
week until the claim is paid.
The claim shall include the employee’s name,
social security number, store number, approximate
time period and nature of the claim.”21
The CBAs established the following grievance procedure:
Step 1 — Store Level. Employees, either directly or
with their Union representative, shall attempt to set-
tle or resolve any dispute with their Store Manager
or supervisor within ten (10) days after discovery of
the event giving rise to the grievance. In the event
the matter or dispute is not settled or resolved, the
employee shall have ten (10) days in which to file a
written protest with the Union with a copy of such
notice to the Employer.
The written grievance shall reasonably describe as
fully as possible the matter at issue and contract pro-
vision alleged to have been violated, including the
names of the individual(s) involved and the date(s)
of the alleged violation, and the remedy sought.
Step 2 — Formal Meeting. Upon receipt of an
employee’s written protest, as detailed in Step 1,
21
Id., Exh. C at 47 (1999-2002 CBA, Art. 16.B.3), Exh. D at 72 (2002-
2005 CBA 16.2.3).
SOREMEKUN v. THRIFTY PAYLESS, INC. 15209
either party may request a formal grievance meeting.
Upon receipt of written notice from either party, rep-
resentatives of the Employer and representatives of
the Union shall meet within one (1) calendar week
in order to attempt to settle or resolve the matter.
Any request for a formal grievance meeting must be
submitted within ten (10) days after receipt of the
employee’s written protest.
Step 3 — Arbitration. Any matter not settled or
resolved in Step 2 may be submitted to arbitration by
either party to this Agreement, i.e., the Employer or
the Union, provided that written demand for arbitra-
tion must be made within forty-five days from the
date of occurrence. Failure to comply within the time
limits contained in this Paragraph and/or Steps 1 and
2 shall render the grievance null and void. Any rights
possessed by either the Union or the employee with
respect to arbitration shall be irrevocably waived. .
. .”22
Soremekun contends that he did not receive a copy of the
CBAs until June 2003, after he filed a complaint with the Cal-
ifornia Department of Labor Standards Enforcement.23
Although he knew that the Union existed and knew that
Union dues were deducted from his paycheck, Soremekun
contends that “no one from the Union informed [him] about,
or gave [him] a copy of, the Collective Bargaining Agree-
ment; and no one ever discussed with [him] any of the provi-
sions of the Agreement while [he] was employed with Rite
Aid.”24
22
Id., Exh. C at 47-48 (1999-2002 CBA, Art. 16.B.4), Exh. D at 72-73
(2002-2005 CBA, Art. 16.2.4.
23
P1.’s Facts, ¶ 2; Declaration of Adediji Adesola Soremekun in Sup-
port of Opposition Defendants’ Motion for Summary Judgment, Etc.
(“Soremekun Decl.”), ¶ 2.
24
Soremekun Decl., ¶ 3.
15210 SOREMEKUN v. THRIFTY PAYLESS, INC.
C. Soremekun’s Complaints
Beginning in 1998, Soremekun made repeated complaints
regarding his wages to his managers at Rite Aid, either
through the computer message system or in written correspon-
dence.25 Soremekun also wrote numerous letters to his Union
representatives detailing his complaints.26 He did not, how-
ever, file an official grievance form with the Union.27 As a
result, Thrifty asserts that Soremekun never invoked the
grievance procedure set forth in the CBAs regarding his
unpaid wages claims.28
25
Def.’s Facts, ¶ 3; Pl.’s Facts, ¶ 3.
26
See Briggs Decl. Exh. E at 76 (Oct. 27, 2000 Letter from Soremekun
to Rite Aid re: Adediji A. Soremekun — Employee #802731, SS# 375-72-
7886), Exh. E at 77 (Dec. 4, 2001 Letter from Soremekun to Mike Calder-
ella, Union Representative and Mike A. Straeter, President re: Non-
Payment of Salary by Rite Aid), Exh. E at 78-82 (Dec. 18, 2001 Letter
from Soremekun to Calderella), Exh. E at 83-84 (Undated Letter from
Sorekemun to Calderella and Straeter re: Adediji A. Soremekun, Pharma-
cist at Rite Aid Store 5489. Member Local 1442), Exh. E at 85 (Dec. 30,
2001 Letter from Soremekun to Calderella), Exh. E at 86 (Nov. 15, 2001
Letter from Soremekun to Calderella and Straeter re: Adediji A.
Soremekun, Pharamacist at Rite Aid Store 5489. Member UFCW Local
1442).
See also Soremekun Decl., ¶¶ 14, 15, 16; Exh. 2 (Oct. 27, 2000 Letter
from Soremekun to Rite Aid re: Adediji A. Soremekun — Employee
#802731, SS# XXX-XX-XXXX), Exh. 3 (June 6, 2000 Letter from Soremekun
to Calderella), Exh. 4 (Dec. 4, 2001 Letter from Soremekun to Calderella
and Straeter re: Non-Payment of Salary by Rite Aid), Exh. 5 (Dec. 18,
2001 Letter from Soremekun to Calderella), Exh. 6 (Undated Letter from
Sorekemun to Calderella and Straeter re: Adediji A. Soremekun, Pharma-
cist at Rite Aid Store 5489. Member Local 1442), Exh. 7 (Nov. 15, 2001
Letter from Soremekun to Calderella and Straeter re: Adediji A.
Soremekun, Pharamacist at Rite Aid Store 5489. Member UFCW Local
1442), Exh. 8 (Dec. 30, 2001 Letter from Soremekun to Calderella).
27
Def.’s Facts, ¶ 4; Briggs Decl., Exh. B (Deposition of Adediji Adesola
Soremekun (“Soremekun Depo.”) at 26:21-24, 28:15-29:4).
28
Thrifty contends that the Union never communicated Soremekun’s
claim for unpaid wages to Rite Aid, but offers no admissible evidence sup-
SOREMEKUN v. THRIFTY PAYLESS, INC. 15211
In December 2001, Soremekun communicated a grievance
regarding warning notices and a suspension that he had
received to Michael Calderella, his Union representative. In
response to the grievance, Calderella sent a letter to Rite
Aid’s Human Resources Manager, stating that “[t]he warning
notices and suspension were unwarranted and should be
rescinded,” and requesting a grievance meeting with Rite Aid
to resolve the matter.29
Soremekun resigned his position at Rite Aid on June 27,
2003.30 Prior to his resignation, in February 2003, Soremekun
filed a claim for unpaid wages with the California Department
of Labor Standards Enforcement, seeking nearly $51,000 in
porting the assertion. (Def.’s Facts, ¶ 5.) Soremekun contends that the
Union advised him it had communicated his complaints to Rite Aid, and
assured him that the payment problems would be resolved. (Pl.’s Facts,
¶ 5.) The reference to Soremekun’s declaration that is cited, however, does
not support this contention. (See Soremekun Decl., ¶ 9 (“. . . I contacted
both the union representative, Mike Calderella, and Rite Aid manager, and
he was [sic] that they were going to look into my paycheck problem”).)
Soremekun’s declaration, if proved true, would simply establish that the
Union representative was going to investigate the paycheck complaint, not
that the Union was going to communicate, or had already communicated,
the grievance to Rite Aid in accordance with the formal procedures set
forth in the CBAs. Moreover, Soremekun’s testimony regarding the pur-
ported statements of the Union representative is inadmissible hearsay, as
it is a statement by an out-of-court declarant offered for the truth of the
matter asserted. See FED.R.EVID. 801, 802.
29
Declaration of Theresa A. Whitman in Support of Defendant Thrifty
Payless, Inc. d/b/a Rite Aid Corporation’s Reply Supporting its Motion for
Summary Judgment or, in the Alternative, Partial Summary Judgment
(“Whitman Decl.”), Exh. A (Dec. 10, 2001 Letter from Michael Calderella
to Laura Peyto, Human Resources Manager, Rite Aid Corp., re: Adediji
Soremekun SS# XXX-XX-XXXX, Store #5489).
30
[Proposed] Statement of Uncontroverted Facts and Conclusions of
Law (“Def.’s Facts”), ¶ 1; Plaintiff Adediji A. Soremekun’s Separate
Statement of Disputed Material Facts (“Pl.’s Facts”), ¶ 1.
15212 SOREMEKUN v. THRIFTY PAYLESS, INC.
allegedly unpaid wages for the period from February 1998 to
November 2002.31
II. DISCUSSION
A. Legal Standards Governing Motions For Summary
Judgment
A motion for summary judgment must be granted when
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED.R.CIV.PROC. 56(c). A party seeking summary judgment
bears the initial burden of informing the court of the basis for
its motion and of identifying those portions of the pleadings
and discovery responses that demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Where the moving party will have
the burden of proof on an issue at trial, the movant must affir-
matively demonstrate that no reasonable trier of fact could
find other than for the moving party. On an issue as to which
the nonmoving party will have the burden of proof, however,
the movant can prevail merely by pointing out that there is an
absence of evidence to support the nonmoving party’s case.
See id. If the moving party meets its initial burden, the non-
moving party must set forth, by affidavit or as otherwise pro-
vided in Rule 56, “specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986); FED.R.CIV.PROC. 56(e).
In judging evidence at the summary judgment stage, the
court does not make credibility determinations or weigh con-
flicting evidence. Rather, it draws all inferences in the light
most favorable to the nonmoving party. See T.W. Electric Ser-
vice, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626,
31
Briggs Decl., Exh. B (Soremekun Depo. at 52:7-16), Exh. F.
SOREMEKUN v. THRIFTY PAYLESS, INC. 15213
630-31 (9th Cir. 1987). The evidence presented by the parties
must be admissible. FED. R. CIV. PROC. 56(e). Conclusory,
speculative testimony in affidavits and moving papers is
insufficient to raise genuine issues of fact and defeat summary
judgment. See Nelson v. Pima Community College, 83 F.3d
1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and specu-
lation do not create a factual dispute for purposes of summary
judgment”); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d
730, 738 (9th Cir. 1979).
B. Whether Plaintiff’s Failure To Exhaust Remedies
Under The Collective Bargaining Agreements Bars
Recovery Under His Breach of Contract, Quantum
Meruit, And Unfair Business Practices Claims32
Thrifty argues that it is entitled summary judgment because
Soremekun failed to exhaust the grievance procedure set forth
in the CBAs.33 Section 301 of the Labor Management Rela-
tions Act (“LMRA”), 29 U.S.C. § 185,’34 “provides a statutory
32
In the order denying plaintiff’s motion for remand, the court found
that Soremekun’s state law claims for breach of contract, quantum meruit,
and unfair business practices in violation of Business and Professions
Code § 17200 et seq. were preempted by § 301 of the LMRA. See Cater-
pillar Inc. v. Williams, 482 U.S. 386, 393-94 (1987) (explaining that com-
plete preemption occurs where “the pre-emptive force of a statute is so
‘extraordinary’ that it ‘converts an ordinary state common-law complaint
into one stating a federal claim for purposes of the well-pleaded complaint
rule,’ ” and that state “claims founded directly on rights created by the
collective-bargaining agreement, and also claims ‘substantially dependent
on analysis of a collective bargaining agreement” are completely pre-
empted by federal law (citations omitted)). Although Soremekun did not
thereafter amend his complaint, the court construes the preempted state
law causes of action as stating a claim under § 301.
33
Defendant Thrifty Payless, Inc.’s Memorandum of Points and Author-
ities in Support of its Motion for Summary Judgment or, in the Alterna-
tive, Partial Summary Judgment (“Def.’s Mot.”)
34
As the court noted in denying Soremekun’s motion to remand on
October 27, 2004, section 301(a) of the LMRA preempts plaintiff’s state
law claims for breach of contract, quantum meruit, and unfair business
15214 SOREMEKUN v. THRIFTY PAYLESS, INC.
mechanism for vindicating contract rights under a collective
bargaining agreement.” Lerwill v. Inflight Motion Pictures,
Inc., 582 F.2d 507, 511 (9th Cir. 1978). Although claims aris-
ing under a collective bargaining agreement that concern
questions of labor policy are generally reserved to the union,
“it is well settled that rights which are personal rights of the
employees may be enforced by them directly under section
301.” Id. (citing Hines v. Anchor Motor Freight, Inc, 424 U.S.
554, 562 (1976), and Smith v. Evening News Ass‘n., 371 U.S.
195, 198-200 (1962)); see also Del Costello v. Int’l Brother-
hood of Teamsters, 462 U.S. 151, 163 (1983) (“It has long
been established that an individual employee may bring suit
against his employer for breach of a collective bargaining
agreement,” citing Smith, supra, 371 U.S. 195). Where, as
here, a former employee asserts claims involving “uniquely
personal rights” regarding “wages, hours, [o]vertime pay, and
wrongful discharge,” a direct suit against the employer is
proper under section 301. Lerwill, supra, 582 F.2d at 511(quoting Hines, supra, 424 U.S. at 562 (“Section 301 contem-
plates suits by and against individual employees as well as
between unions and employers; and contrary to earlier indica-
practices. See 29 U.S.C. § 185(a) (“Suits for violation of contracts
between an employer and a labor organization representing employees in
an industry affecting commerce as defined in this chapter, or between any
such labor organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the parties”);
see Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation
Trust for S. Cal., 463 U.S. 1, 23 (1983) (“The preemptive force of § 301
is so powerful as to displace entirely any state cause of action ‘for viola-
tion of contracts between an employer and a labor organization.’ Any such
suit is purely a creation of federal law, notwithstanding the fact that state
law would provide a cause of action in the absence of § 301”); see also
Lingle v. Norge Division of Magic Chef Inc., 486 U.S. 399, 404 & n.3
(1988) (holding that section 301 “mandate[s] resort to federal rules of law
in order to ensure uniform interpretation of collective-bargaining agree-
ments, and thus to promote the peaceable, consistent resolution of labor-
management disputes”).
SOREMEKUN v. THRIFTY PAYLESS, INC. 15215
tions s 301 suits encompass those seeking to vindicate
‘uniquely personal’ rights of employees such as wages, hours,
overtime pay, and wrongful discharge”)).
Prior to bringing suit, an employee seeking to vindicate
personal rights under a collective bargaining agreement must
first attempt to exhaust any mandatory or exclusive grievance
procedures provided in the agreement. See United Paper-
workers Int’l. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37
(1987) (“The courts have jurisdiction to enforce collective-
bargaining contracts; but where the contract provides griev-
ance and arbitration procedures, those procedures must first
be exhausted and courts must order resort to the private settle-
ment mechanisms without dealing with the merits of the dis-
pute”); DelCostello, surpa, 462 U.S. at 163 (“Ordinarily,
however, an employee is required to attempt to exhaust any
grievance or arbitration remedies provided in the collective
bargaining agreement. Subject to very limited judicial review,
he will be bound by the result according to the finality provi-
sions of the agreement” (citations omitted)).35 Thus, in the
ordinary case, an employee’s failure to exhaust contractually
mandated procedures precludes judicial relief for breach of
the collective bargaining agreement and related claims.
An exception to the general requirement of exhaustion
exists, however, where the employee demonstrates that “the
union representing the employee in the grievance/arbitration
procedure [has acted] in such a discriminatory, dishonest,
35
See also Hines, supra, 424 U.S. at 563 (“[W]e [have] held that an
employee could not sidestep the grievance machinery provided in the con-
tract and that unless he attempted to utilize the contractual procedures for
settling his dispute with his employer, his independent suit against the
employer in the District Court would be dismissed”); Republic Steel Corp.
v. Maddox, 379 U.S. 650, 652 (1965) (“As a general rule in cases to which
federal law applies, federal labor policy requires that individual employees
wishing to assert contract grievances must attempt use of the contract
grievance procedure agreed upon by employer and union as the mode of
redress”).
15216 SOREMEKUN v. THRIFTY PAYLESS, INC.
arbitrary, or perfunctory fashion as to breach its duty of fair
representation. In such an instance, an employee may bring
suit against both the employer and the union, notwithstanding
the outcome or finality of the grievance or arbitration pro-
ceeding.” DelCostello, supra, 462 U.S. at 164 (citations omit-
ted); Vaca v. Sipes, 386 U.S. 171, 177 (1967) (describing a
union’s duty of fair representation as a “statutory obligation
to serve the interests of all members without hostility or dis-
crimination toward any, to exercise its discretion with com-
plete good faith and honesty, and to avoid arbitrary conduct”);
see also Hines, supra, 424 U.S. at 567 (“The union’s breach
of duty relieves the employee of an express or implied
requirement that disputes be settled through contractual griev-
ance procedures. . .”). This exception reflects the basic princi-
ple that a union that acts as the exclusive collective bargaining
agent vis-a-vis the employer must fairly represent the mem-
bers that give it such power. See Vaca, supra, 386 U.S. at 177(“It is now well established that, as the exclusive bargaining
representative of the employees in [plaintiff ’s] bargaining
unit, the Union had a statutory duty fairly to represent all of
those employees, both in its collective bargaining with [the
employer] and in its enforcement of the resulting collective
bargaining agreement” (citations omitted)); see also Bowen v.
U.S. Postal Service, 459 U.S. 212, 226 (1983) (“By seeking
and acquiring the exclusive right and power to speak for a
group of employees, the union assumes a corresponding duty
to discharge that responsibility faithfully — a duty which it
owes to the employees whom it represents and on which the
employer with whom it bargains may rely. When the union,
as the exclusive agent of the employee, waives arbitration or
fails to seek review of an adverse decision, the employer
should be in substantially the same position as if the employee
had had the right to act on his own behalf and had done so.
Indeed, if the employer could not rely on the union’s decision,
the grievance procedure would not provide the ‘uniform and
exclusive method for [the] orderly settlement of employee
grievances,’ which the Court has recognized is essential to the
national labor policy,” citing Clayton v. Int’l. Union Automo-
bile, Aerospace & Agricultural Implement Workers, 451 U.S.
679, 686-87 (1981)); DelCostello, supra, 462 U.S. at 165 n.
14 (“The duty of fair representation exists because it is the
SOREMEKUN v. THRIFTY PAYLESS, INC. 15217
policy of the National Labor Relations Act to allow a single
labor organization to represent collectively the interests of all
employees within a unit, thereby depriving individuals in the
unit of the ability to bargain individually or to select a minor-
ity union as their representative. In such a system, if individ-
ual employees are not to be deprived of all effective means of
protecting their own interests, it must be the duty of the repre-
sentative organization ‘to serve the interests of all members
without hostility or discrimination toward any, to exercise its
discretion with complete good faith and honesty, and to avoid
arbitrary conduct,’ ” quoting Vaca, supra, 386 U.S. at 177).
An employee can support an action for breach of the collec-
tive bargaining agreement, brought solely against the
employer, by showing that the union violated its duty of fair
representation. In such a case, the employee bears the burden
of proving two claims — first, that the employer breached the
collective bargaining agreement, and second, that the labor
union breached its duty of fair representation. See DelCos-
tello, supra, 462 U.S. at 165 (“To prevail against either the
company or the Union, . . . [employee-plaintiffs] must not
only show that their discharge was contrary to the contract but
must also carry the burden of demonstrating a breach of duty
by the Union. The employee may, if he chooses, sue one
defendant and not the other; but the case he must prove is the
same whether he sues one, the other, or both. The suit is thus
not a straightforward breach of contract suit under § 301, . . .
but a hybrid § 301/fair representation claim, amounting to a
direct challenge to the private settlement of disputes under
[the collective-bargaining agreement]” (citations and internal
quotations omitted)); see Vaca, supra, 386 U.S. at 185-86(“We think that another situation when the employee may
seek judicial enforcement of his contractual rights arises, if,
as is true here, the union has sole power under the contract to
invoke the higher stages of the grievance procedure, and if, as
is alleged here, the employee-plaintiff has been prevented
from exhausting his contractual remedies by the union’s
wrongful refusal to process the grievance. It is true that the
15218 SOREMEKUN v. THRIFTY PAYLESS, INC.
employer in such a situation may have done nothing to pre-
vent exhaustion of the exclusive contractual remedies to
which he agreed in the collective bargaining agreement. But
the employer has committed a wrongful discharge in breach
of that agreement, a breach which could be remedied through
the grievance process to the employee-plaintiff ’s benefit were
it not for the union’s breach of its statutory duty of fair repre-
sentation to the employee. To leave the employee remediless
in such circumstances would, in our opinion, be a great injus-
tice”).
Here, the governing CBAs establish mandatory grievance
procedures that must be followed by employees asserting a
violation of the terms of the agreements.36 It is undisputed that
Soremekun did not exhaust these contractual procedures; no
official grievance form was filed,37 no formal grievance meet-
ing was held, and no arbitration proceeding was initiated.38
Soremekun contends, however, that his failure to exhaust con-
tractual remedies must be excused because the Union never
gave him a copy of the CBAs, neglected to advise him of the
need to file an official grievance form, and arbitrarily dis-
missed his complaints in violation of its duty of fair represen-
tation. These allegations regarding the Union, however, do
not appear in Soremekcun’s first amended complaint. Having
failed to include the allegations in his complaint, Soremekun
cannot now convert the action into “a hybrid § 301/fair repre-
sentation claim” by raising the argument for the first time in
opposition to a summary judgment motion. See id. at 185
36
See Briggs Decl., Exh. C at 47 (1999-2002 CBA, Art. 16.A. (“Any
and all matters of controversy, dispute or disagreement of any kind or
character existing between the parties arising out of or in any way involv-
ing the interpretation and/or application of the terms of this Agreement
shall be settled and resolved by the procedures and in the manner as set
forth herein” (emphasis added)), Exh. D at 71 (2002-2005 CBA, Art. 16.1
(same)).
37
Id., Exh. B (Soremekun Depo. at 26:21-24, 28:15-29:4).
38
Id., Exh. C at 47-48 (1999-2002 CBA, Art. 16.B.4); Exh. D at 72-73
(2002-2005 CBA, Art. 16.2.3).
SOREMEKUN v. THRIFTY PAYLESS, INC. 15219
(“We think that another situation when the employee may
seek judicial enforcement of his contractual rights arises, if,
as is true here, the union has sole power under the contract to
invoke the higher stages of the grievance procedure, and if, as
is alleged here, the employee-plaintiff has been prevented
from exhausting his contractual remedies by the union’s
wrongful refusal to process the grievance” (emphasis added));
Waldron v. Boeing Co., 388 F.3d 591, 594 (8th Cir. 2004) (“If
an employee does not agree with the results reached through
the procedures of the CBA, the employee, in order to bring an
individual suit directly against the employer for breach of the
CBA, must allege and prove the union breached its duty of
fair representation” (emphasis added)); Brown v. Witco Corp.,
340 F.3d 209, 213 n. 5 (5th Cir. 2003) (“The employee must
allege and prove both that the employer has breached the col-
lective bargaining agreement and that the union has breached
its duty of fair representation” (emphasis added)); Bills v.
United States Steel LLC, 276 F.3d 785, 787 (8th Cir. 2001)
(“The law is well settled that appellant’s invocation of juris-
diction under 301(a) of the Labor Management Relations Act
of 1947 required him to allege and prove that USWA
breached its duty of fair representation, Carter v. Ford Motor
Co., 121 F.3d 1146, 1149 (8th Cir.1997). There this Court
clearly states appellant’s options if he decides to file suit
because he does not agree with the results reached by the col-
lective bargaining agreement. The employee must allege and
prove the union breached its duty of fair representation”
(emphasis added)); McNealy v. Caterpillar, Inc., 139 F.3d
1113, 1124 (7th Cir. 1998) (“When an employee seeks to
bring a § 301 suit against his employer, he must allege a
hybrid cause of action — first a claim of breach of fair repre-
sentation against the union and then a § 301 cause of action
against the employer”); Thomas v. Office and Professional
Employees Int’l. Union, Local 2, Nos. 91-7173, 91-7174,
1993 WL 460099 (D.C. Cir. Oct. 27, 1993) (“Thomas’s
amended complaint dropped all claims against the union and
failed to allege that the union had breached its duty of fair
representation. Although Thomas need not have sued the
union, . . . she was required to ‘allege, and eventually show,
inadequate representation’ by the union,” quoting Samples v.
Ryder Truck Lines, Inc., 755 F.2d 881, 887 n. 5 (11th
Cir.1985) (emphasis added)); United Food and Commercial
Workers, Local Union No. 7R v. Safeway Stores, Inc., 889
F.2d 940, 944 (10th Cir. 1989) (“Ordinarily, an employee
must allege a breach of the duty of fair representation in order
to avoid dismissal of his or her section 301 suit for failure to
15220 SOREMEKUN v. THRIFTY PAYLESS, INC.
exhaust exclusive contractual remedies under the collective
bargaining agreement”).
Because the record clearly establishes that Soremekun
failed to exhaust his contractual remedies, and no breach of
the duty of fair representation is alleged in the complaint,
Thrifty is entitled to summary judgment on Soremekun’s
§ 301 claim.39
39
Even if Soremekun had alleged the Union’s breach of the duty of fair
representation in his complaint, and had succeeded in raising a triable
issue of fact regarding that claim, his § 301 claim would be barred by the
statute of limitations. This is because hybrid § 301/fair representation
claims are subject to the six-month statute of limitations set forth in sec-
tion 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 160(b). See DelCostello, supra, 462 U.S. at 169-70 (holding, in an
action by an employee against an employer for breach of a collective bar-
gaining agreement, and against a union for breach of the duty of fair repre-
sentation, that the six-month statute of limitations set forth in NLRA
barred filing of the claim; “. . . [W]e have available a federal statute of
limitations actually designed to accommodate a balance of interests very
similar to that at stake here — a statute that is, in fact, an analogy to the
present lawsuit more apt than any of the suggested state-law parallels. We
refer to § 10(b) of the National Labor Relations Act, which establishes a
six-month period for making charges of unfair labor practices to the
NLRB. . . [D]uty-of-fair-representation claims are allegations of unfair,
arbitrary, or discriminatory treatment of workers by unions — as are virtu-
ally all unfair labor practice charges made by workers against unions. Sim-
ilarly, it may be the case that alleged violations by an employer of a
collective bargaining agreement will also amount to unfair labor practices”
(citations and footnotes omitted)); Walls v. Int’l. Longshoremen’s &
Warehousemen’s Union, Local 23, 10 Fed. Appx. 485, 488 (9th Cir. May
11, 2001) (Unpub. Disp.) (“The district court did not err by applying the
six-month statute of limitations set forth in section 10(b) of the National
Labor Relations Act (NLRA), 29 U.S.C. § 160(d), to plaintiffs’ duty of
fair representation claim and hybrid § 301/duty of fair representation claim
. . .”); Truesdell v. So. Cal. Permanente Med. Group, 151 F.Supp.2d 1161,
1169-70 (C.D. Cal. 2001) (“The parties agree that Plaintiff ’s claim(s)
against the Medical Group and SEIU Local 399 are a ‘hybrid’ Section
301/breach of duty of fair representation claim. To support such a claim,
Plaintiff must plead facts showing both that the employer breached the
CBA and that the union breached its duty of fair representation to her.
SOREMEKUN v. THRIFTY PAYLESS, INC. 15221
C. Whether Plaintiff ’s Remaining State Law Claim Is
Barred
Thrifty next argues that Soremekun’s remaining state law
claim for violation of Labor Code §§ 202 and 203 is barred
by the six-month statute of limitations set forth in the CBAs.40
Soremekun counters that California Code of Civil Procedure
§ 337, which provides a four-year statute of limitations for
unpaid wage claims premised on a written employment con-
tract, governs.41
Under Labor Code § 202, “[i]f an employee not having a
written contract for a definite period quits his or her employ-
ment, his or her wages shall become due and payable not later
than 72 hours thereafter, unless the employee has given 72
hours previous notice of his or her intention to quit, in which
case the employee is entitled to his or her wages at the time
of quitting.” CAL. LAB. CODE § 202(a). Section 203 provides
that ”[i]f an employer willfully fails to pay, without abatement
or reduction, in accordance with Section[ ] . . . 202, . . . any
Such a claim is subject to the same six month statute of limitations period
which applies to unfair labor practice charges” (citations omitted)).
Soremekun’s declaration shows that he was aware of the alleged wage
discrepancies that form the basis of this action in 2001 and 2002. (See
Soremekun Decl., ¶¶ 8-18.) Moreover, Soremekun admits that in February
2003, he filed a claim with the California Department of Labor Standards
Enforcement for $50,976.99 in unpaid wages — approximately the same
amount of damages he seeks in this action. (See Briggs Decl., Exh. F.)
This fact confirms that Soremekun had knowledge of the alleged wage
discrepancies well more than six months prior to filing suit in January
2004. Thus, even assuming that Soremekun had properly pleaded a hybrid
§ 301/fair representation claim, and raised a triable issue of fact concern-
ing the union’s alleged breach of its duty of fair representation, the dispo-
sition of this case would be the same.
40
Def.’s Mot. at 6.
41
Plaintiff Adediji A. Soremekun’s Points and Authorities in Support of
Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp.”)
at 8.
15222 SOREMEKUN v. THRIFTY PAYLESS, INC.
wages of an employee who is discharged or who quits, the
wages of the employee shall continue as a penalty from the
due date thereof at the same rate until paid or until an action
therefor is commenced; but the wages shall not continue for
more than 30 days.” CAL. LAB. CODE § 203. These sections
create “nonnegotiable state-law rights . . . independent of any
right established by contract.” Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 213 (1985); see CAL. LAB. CODE § 219 (no pro-
vision in the article, including sections 202 and 203, “can in
any way be contravened or set aside by a private agreement,
whether written, oral, or implied”); id., § 222 (“It shall be
unlawful, in case of any wage agreement arrived at through
collective bargaining, either willfully or unlawfully or with
intent to defraud an employee, a competitor, or any other per-
son, to withhold from said employee any part of the wage
agreed upon”).
If a state law cannot be waived or modified by private con-
tract, and if the rights it creates can be enforced without resort
to the particular terms, express or implied, of the labor con-
tract, the LMRA does not preempt a claim for violation of the
law. Miller v. AT&T Network Systems, 850 F.2d 543, 545-46
(9th Cir. 1988). Stated otherwise, section 301 of the LMRA
does not “grant the parties to a collective-bargaining agree-
ment the ability to contract for what is illegal under state law.
. . .” Allis-Chalmers, supra, 471 U.S. at 212; see also Hayden
v. Reickerd, 957 F.2d 1506, 1509 (9th Cir. 1992). Conse-
quently, cases distinguish between state laws that require
interpretation of a labor contract and those that prohibit par-
ties from including particular terms in such a contract. Miller,
supra, 850 F.2d at 547. A provision in a collective bargaining
agreement will not trigger preemption when it is only poten-
tially relevant to the resolution of state law claims. See Hum-
ble v. Boeing Co., 305 F.3d 1004, 1010 (9th Cir. 2002)
(“First, we have held that a CBA provision does not trigger
preemption when it is only potentially relevant to the state law
claims, without any guarantee that interpretation or direct reli-
ance on the CBA terms will occur”); see also Cramer v. Con-
SOREMEKUN v. THRIFTY PAYLESS, INC. 15223
solidated Freightways, Inc., 255 F.3d 683, 691-92 (9th Cir.
2001) (“Moreover, alleging a hypothetical connection
between the claim and the terms of the CBA is not enough to
preempt the claim: adjudication of the claim must require
interpretation of a provision of the CBA. A creative linkage
between the subject matter of the claim and the wording of a
CBA provision is insufficient; rather, the proffered interpreta-
tion argument must reach a reasonable level of credibility. .
. . The argument does not become credible simply because the
court may have to consult the CBA to evaluate it; ‘look[ing]
to’ the CBA merely to discern that none of its terms is reason-
ably in dispute does not require preemption”). Thus, state law
claims for unpaid wages are not preempted when the court is
required simply to apply the terms of a CBA; they are pre-
empted only when the court must interpret the provisions of
the CBA. Compare Balcorta v. Twentieth Century-Fox Film
Corp., 208 F.3d 1102, 1109-10 (9th Cir. 2000) (“A court may
be required to read and apply these provisions [of the CBA]
in order to determine whether an employee was discharged
from his ‘call’ at the end of his shift, but no interpretation of
the provisions would be necessary”) with Firestone v. South-
ern California Gas Co., 219 F.3d 1063, 1067 (9th Cir. 2000)
(“[I]f California law were to apply, the parties negotiating the
agreement would not know whether the employer’s overtime
obligations were defined by the contract or not, depending on
which rate a court determined was the ‘regular’ rate under the
California law. The claim is preempted”).
In its October 25, 2004 order denying Soremekun’s motion
to remand, the court held that his Labor Code claim was not
preempted by the LMRA, stating:
“Under Balcorta, Soremekun’s Labor Code § 202
claim is not preempted because the statute confers a
right that is non-negotiable. More fundamentally, the
court need not interpret the CBA to determine
whether Soremekun received wages he was owed
within 72 hours of resigning his employment with
15224 SOREMEKUN v. THRIFTY PAYLESS, INC.
Thrifty. See id. at 1108 (“In order to help preserve
state authority in areas involving minimum labor
standards, the Supreme Court has distinguished
between claims that require interpretation or con-
struction of a labor agreement and those that require
a court simply to ‘look at’ the agreement”); id. (“We
have stressed that, in the context of § 301 complete
preemption, the term ‘interpret’ is defined narrowly
— it means something more than ‘consider,’ ‘refer
to,’ or ‘apply’ ”). While the court will have to “look
at” the CBA to determine what wages were owed, it
will not have to interpret the agreement to determine
if the amounts due were paid within 72 hours of
Soremekun’s resignation. See id. (“The measure of
timeliness under § 201.5 could not be more plain:
once an employee covered by the law is discharged,
state law requires payment ‘within 24 hours.’ On its
face, § 201.5 requires nothing more than a clock or
a calendar to determine the timeliness of Fox’s pay-
ment — the law does not require us even to refer to
the collective bargaining agreement, let alone inter-
pret it”).”
See also Livadas v. Bradshaw, 512 U.S. 107, 124-25 (1994)
(holding that a section 203 claim was not preempted because,
while the district court might have to consult the collective
bargaining agreement to determine what wages were due, “the
primary text for deciding whether Livadas was entitled to a
penalty was not the Food Store Contract, but a calendar,” and
“the mere need to ‘look to’ the collective-bargaining agree-
ment for damages computation is no reason to hold the state-
law claim defeated by § 301”).
Now, at the summary judgment stage, the court must look
to the plain language of the CBAs to determine whether
Soremekun was in fact owed any wages at the time of his res-
ignation in 2003. Soremekun does not clearly identify the
wages he contends were “due” in June 2003. It appears, how-
SOREMEKUN v. THRIFTY PAYLESS, INC. 15225
ever, that he asserts the overtime pay and bereavement leave
wages that are the subject of his § 301 claim were not paid
within 72 hours of his resignation. The CBAs provide that if
an employee does not file a wage claim with the Union within
a specified period — ten days after discovery under the 1999-
2002 agreement and twenty-one days after discovery under
the 2002-2005 agreement — the claim “shall be deemed null
and void.”42 The CBAs further provide that “no wage or other
direct compensation claim not involving interpretation of the
contract can cause such Employer to pay such claim or any
portion thereof retroactively for a period of more than six (6)
months immediately prior to the date of the Employer’s
receipt of notice from the Union of the claim. In any event,
the Employer’s obligation to compensate an employee for
unpaid time worked under Article 7-E, shall not be limited in
any way by the foregoing, except for the six (6) month limita-
tion.”43
The parties do not dispute the meaning of these provisions,
or the fact that there was no compliance with the grievance
procedure in this case. There is thus no need to “interpret”
these aspects of the CBAs in assessing whether there were
wages “due” at the time of Soremekun’s resignation. See
Livadas, supra, 512 U.S. at 124 (“[W]e were clear that when
the meaning of contract terms is not the subject of dispute, the
bare fact that a collective-bargaining agreement will be con-
sulted in the course of state-law litigation plainly does not
require the claim to be extinguished,” citing Lingle, supra,486 U.S. at 413 n. 12). Similarly, there is no basis under the
Labor Code for refusing to give effect to the provisions, since
they do not “contravene[ ] or set aside” Soremekun’s right to
be compensated for any wages due within seventy-two hours
of his resignation, or “withhold from [him] any part of the
wage agreed upon.” CAL. LAB. CODE §§ 219, 222. Rather, the
42
Id., Exh. C at 47 (1999-2002 CBA, Art. 16.B.3), Exh. D at 72 (2002-
2005 CBA, Art. 16.2.3).
43
Id. (emphasis added).
15226 SOREMEKUN v. THRIFTY PAYLESS, INC.
provisions require that wage disputes be resolved through the
grievance procedures to which Rite Aid and the Union, on
behalf of the employees, contractually agreed. The undisputed
evidence shows that the grievance procedures set forth in the
CBAs were not followed, and that Rite Aid did not receive
contractual notice of Soremekun’s wage claims as required.
See Hagin v. Pacific Gas & Elec. Co., 152 Cal.App.2d 93, 96-
98 (1957) (holding that a discharged employee could not
recover board and lodging expenses under Labor Code §§ 202
and 203 because he failed to submit a grievance as required
by the collective bargaining agreement and establish that the
monies were due); cf. Lim v. Prudential Insurance Co. of
America, 36 Fed.Appx. 267, 271 (9th Cir. May 17, 2002)
(Unpub. Disp.) (holding, in a case where an employee sued
for wrongful termination in violation of public policy, and
asserted that her employer discharged her to avoid paying
earned commissions, that “[b]ecause Lim’s claim is based on
a violation of a fundamental state statutory policy that is inde-
pendent of the CBA and because her claim is not based on a
breach of the CBA, the district court erred in dismissing that
claim on the ground that Lim failed to exhaust the CBA’s
grievance procedure,” but noting that “the court hearing
Lim’s claim may be required to refer to the collective bargain-
ing agreement in order to confirm that termination did indeed
deprive Lim of earned commissions”). Like the plaintiff in
Hagin, Soremekun cannot show that the bereavement leave
pay and overtime wages he seeks to recover were “due” when
he resigned in 2003 because he failed to submit grievances
regarding those claims as required by the CBAs. Moreover,
reference to the CBAs, as authorized by Livadas and Lim,
shows that all of Soremekun’s claims — which concern
wages allegedly not paid between 1998 and April 200244 —
44
See Soremekun Decl., ¶¶ 5, 8, 14, 15, 16. Soremekun was hired by
Rite Aid on January 15, 1998, more than a year and a half before the July
5, 1999 effective date of the 1999-2002 CBA. (Def.’s Facts, ¶1; Pl.’s
Facts, ¶1.) It is undisputed that Soremekun began complaining about wage
discrepancies in 1998. (Def.’s Facts, ¶3; Pl.’s Facts, ¶3.) Because it
appears that Soremekun was not covered under a collective bargaining
SOREMEKUN v. THRIFTY PAYLESS, INC. 15227
involve amounts that were no longer “due” in 2003 because
more than six months had passed since the claims accrued.
Soremekun has neither alleged nor adduced evidence that
Thrifty failed to pay him wages due during the six months
preceding his resignation in 2003. Based on the clear lan-
guage of the CBAs, therefore, the court concludes that there
were no past wages due to Soremekun at the time of his resig-
nation. Accordingly, Thrifty is entitled to summary judgment
on Soremekun’s Labor Code §§ 202 and 203 claim.
agreement between January 15, 1998 and July 5, 1999, he was not
required to exhaust grievance procedures to preserve wage claims that
arose during that time. Those claims are therefore governed by the four-
year statute of limitations set forth in Code of Civil Procedure § 337(1).
CAL. CIV. PROC. CODE § 337(1); see Cuadra v. Milan, 17 Cal.4th 855, 859
(1988) (“The general statutes of limitations set out in the Code of Civil
Procedure govern the time in which an employee may commence a civil
action for unpaid wages. Thus if the action is based on a written contract
of employment it must be commenced within four years after the cause of
action has accrued,” citing CAL. CIV. PROC. CODE § 337(1)). As the court
in Cuadra explained: “A cause of action for unpaid wages accrues when
the wages first become legally due, i.e., on the regular payday for the pay
period in which the employee performed the work; when the work is con-
tinuing and the employee is therefore paid periodically (e.g., weekly or
monthly) a separate and distinct cause of action accrues on each payday,
triggering on each occasion the running of a new period of limitations.
And for statute of limitations purposes an action for unpaid wages is
deemed to have commenced, like all civil actions, on the date on which
the employee files the complaint. It follows that such an action is timely
as to all paydays falling within the relevant limitations period. For the
same reason, in calculating the amount of unpaid wages due in such an
action the court will count back from the filing of the complaint to the
beginning of the limitations period . . . . and will award all unpaid wages
earned during that period.” Id. (citations omitted, emphasis in original).
This action commenced on January 15, 2004, when Soremekun filed his
complaint in state court. See CAL. CIV. PROC. CODE § 350. Therefore, any
claims that accrued between January 15, 1998 and July 5, 1999 are barred
by the four-year statute of limitations set forth in Code of Civil Procedure
§ 337.
15228 SOREMEKUN v. THRIFTY PAYLESS, INC.
III. CONCLUSION
For the foregoing reasons, defendant’s motion for summary
judgment is granted.
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