Eshun v. Local Union Number 17 ( 2020 )

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 KWEKU ESHUN, et al., CASE NO. 1:19-cv-00256-EPG 10 Plaintiffs, ORDER GRANTING IN PART AND 11 DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, 12 v. AND DENYING PLAINTIFF’S CROSS- MOTION FOR SUMMARY JUDGMENT 13 UNITED STEEL, PAPER AND FORESTRY, RUBBER, (ECF Nos. 22, 25) 14 MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE ORDER FOR CLERK TO UPDATE 15 WORKERS INTERNATIONAL UNION, CAPTION AFL-CIO, CLC, LOCAL 17,1 16 ORDER TO PARTICIPATE IN Defendant. SETTLEMENT OR MEDIATION 17 18 Plaintiff Kweku Eshun (“Plaintiff”), who is proceeding pro se, brought claims in state 19 court against Local Union Number 17, also known as United Steel, Paper and Forestry, Rubber, 20 Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, 21 CLC, Local 17 (“USW”) (collectively, these unions are referred to as the “Union” or “Local 17” 22 and are interchangeably referred to as “Defendant”), alleging that the Union failed to properly 23 represent him after his employer, Gallo Glass Company (“Gallo”), terminated his employment. 24 Defendant removed the action to this Court, claiming federal jurisdiction pursuant to the Labor 25 1 The parties agree that the proper defendant in this action is United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Plaintiff does 26 not deny that Defendant Local Union No. 17’s proper name is United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, Local 17. 27 Accordingly, the Court will direct the Clerk of the Court to correct the docket to indicate that Local Union No. 17 is also known as United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service 28 Workers International Union, AFL-CIO, CLC, Local 17. 1 Management Relations Act (“LMRA”). 2 The Court has before it the parties’ cross-motions for summary judgment (ECF Nos. 22, 3 25). For the reasons discussed below, the Court grants, in part, and denies, in part, Defendant’s 4 motion for summary judgment (ECF No. 22) and denies Plaintiff’s motion for summary judgment 5 (ECF No. 25). The Court also orders the parties to participate in a settlement conference or 6 mediation. 7 I. BACKGROUND2 8 Except as otherwise noted, the facts in the summary judgment record are undisputed.3 9 Plaintiff began working for Gallo in 2003 or 2004 as a utility worker in the warehouse 10 department and was later promoted to equipment operator. (ECF No. 22-1 at 2). Throughout his 11 employment with Gallo, Plaintiff was a member of the Union, which has been in a collective 12 bargaining relationship with Gallo since 1958. (Id. at 2-3). Plaintiff engaged in a physical 13 altercation with another employee on April 1, 2016, and Gallo suspended Plaintiff on April 25, 14 2016 as a result of that altercation. (Id. at 5-6). Plaintiff and Defendant challenged the termination 15 through the grievance process pursuant to Defendant’s collective-bargaining agreement with 16 Gallo. (Id.). Union official David Hoffman represented Plaintiff at an arbitration hearing on 17 Plaintiff’s termination on March 10, 2017. (Id. at 8). The arbitrator issued his decision that 18 declined to reinstated Plaintiff on May 18, 2017. (Id. at 10). Plaintiff filed this lawsuit against 19 Defendant on January 17, 2019. 20 A. 2006-2007 interactions between Plaintiff and David Hoffman 21 Hoffman began working for Gallo in 1985 and continued working there until he retired in 22 February 2020. (ECF No. 22-3 at 2-3). From November 1994 through November 2006, and from 23 24 2 Document 22-1 is the joint statement of undisputed facts. Although this document bears Plaintiff’s signature (see id. at 14), it appears that Plaintiff did not understand the nature of what he was signing and, as demonstrated by 25 Plaintiff’s memorandum in support of summary judgment (ECF No. 25) and statement of disputed facts (see ECF No. 26), Plaintiff does not agree with much of the information included in the Union’s joint statement. Specifically, Plaintiff indicates that he does not agree with information in paragraphs 32-37, 40-41, 43-44, 48-49, 51-52, 55-61, 26 and 65. (ECF No. 25 at 5.) 3 To the extent the Court necessarily relied on evidence that has been objected to, the Court relied only on evidence it 27 considered to be admissible. Generally, it is not the practice of the Court to rule on evidentiary matters individually in the context of summary judgment. Therefore, only some of the evidentiary objections have been individually ruled 28 on. 1 May 2007, until he retired, Hoffman held full-time union positions that required him to take a 2 union leave of absence from Gallo. (Id.). However, from November 2006 through May 2007, 3 Hoffman did not hold a union position and instead worked full-time at Gallo as a coordinator in 4 training with coordinator Alfred Albor. (ECF No. 22-1 at 11-12). 5 The coordinator is in charge of coordinating the workforce by assigning each employee on 6 a given shift a workstation (“tank”) and machine (“shop”). The schedule of assignments is then 7 posted at the beginning of each shift. (Id.). As a coordinator in training, Hoffman assisted Albor 8 in creating work schedules for the equipment operators and utility workers. 9 1. Plaintiff’s Version of Negative Interactions with Hoffman 10 Plaintiff states the following interaction occurred between him and Hoffman: 11 he attack me at the Gallo Glass plant when they removed me from equipment 12 which I suppose to operate and put a white man whom I had seniority than and when I asked the supervisor why? Mr. Hoffman told me he will take me to the 13 outside and fight me because why I asked that question. 14 (ECF No. 39 at 5). 15 2. The Union’s Version 16 Defendant’s version of a negative interaction between Hoffman and Plaintiff—and it is 17 not clear whether this is the same interaction as the one Plaintiff discusses—is as follows: 18 A machine on tank 1 was not working, and Plaintiff, who was on tank 1, was the next 19 person in rotation to operate the “non-working shop.” Rather than bumping Plaintiff off to 20 perform utility work and receive a lower rate of pay, Albor and Hoffman assigned Plaintiff to act 21 as a “floater.” That meant that Plaintiff was to assist other equipment operators on tank 1 but 22 would receive his regular rate of pay rather than the lower utility worker rate and would have an 23 easier workday. It also meant that no other equipment operator would be bumped out of their 24 shop to perform utility work at a lower rate of pay. (ECF No. 22-1 at 12). 25 When Albor posted the work schedule, Plaintiff saw that he was assigned as a floater and 26 became upset and yelled at Albor because he thought he was being assigned as a utility worker 27 rather than an equipment operator and was thus being demoted and would receive less pay. (Id. at 28 13). Albor tried to explain to Plaintiff that he was not being demoted and would just have an easy 1 workday. (Id.). Plaintiff continued to yell at Albor that he wanted to operate a shop until 2 Hoffman, who was sitting inside the office around the corner, walked out and said to Plaintiff 3 something along the lines of: “What are you doing? We are giving you an easy day. If you are 4 going to yell at someone, yell at me because it was my idea.” (Id.). Plaintiff yelled back, “I am an 5 equipment operator and want to operate.” Hoffman replied, “I was trying to help you.” Plaintiff 6 threw his hands up and walked away. (Id.). 7 The interaction between Plaintiff and Hoffman lasted about 30 seconds. In the end, 8 Plaintiff did operate a shop that day and the least senior operator took Plaintiff’s assignment as a 9 floater to assist equipment operators in tank 1. (Id.). Hoffman states that his assignment of 10 Plaintiff as a floater had nothing to do with racism or discrimination. (ECF No. 22-3 at 7). 11 Hoffman was again hired by the Union in May 2007, “held full-time union positions that 12 required [him] to take a union leave of abence from Gallo” until he retired in early 2020. (ECF 13 No. 22-3 at 2-3). 14 As discussed below, in 2017, while working for the Union, Hoffman was the Union’s 15 representative that represented Plaintiff in an arbitration proceeding. Hoffman contends that he 16 did not mention the 2007 incident with Plaintiff because he did not consider it significant or 17 memorable and that he was reminded of the 2007 incident only when he read Plaintiff’s 18 complaint. (ECF No. 22-3 at 8). 19 B. April 2016 incident between Plaintiff and Derek Rose 20 On April 1, 2016, Plaintiff and another employee, Derek Rose, had an altercation in 21 Gallo’s breakroom that resulted in both Plaintiff and Rose being terminated from their positions 22 at Gallo. 23 On repeated occasions prior to this, Rose had engaged in certain behaviors, such as 24 blowing kisses at Plaintiff, which Plaintiff did not like. Plaintiff called Rose “gay boy” in 25 response. (ECF No. 22-1 at 4). Rose had also previously secretly recorded Plaintiff talking with 26 another co-worker about some of the female workers, and Rose played that recorded conversation 27 to the female workers in the breakroom. (ECF No. 38 at 3). Plaintiff had complained to the Union 28 shop steward about this. (Id.). Plaintiff also asserts, and the Union admits, that although Plaintiff 1 has been a member of the Union for the entire time of his employment, Rose is not a union 2 member. 3 Then, “[o]n April 1, 2016, [Plaintiff and Rose] engaged in an altercation in the Company’s 4 breakroom. [Plaintiff] was operating a machine a few feet away from the breakroom. Mr. Rose 5 was in the breakroom with other employees. [Plaintiff] was having trouble with his machine and 6 made a gesture towards the window of the breakroom to get Corey Sweetin’s[4] attention so that 7 he could come help him with the machine.” (ECF No. 22-1 at 3). Plaintiff “believes that Mr. Rose 8 blew kisses towards [Plaintiff] and gestured with his index and middle fingers rolled towards his 9 palm for [Plaintiff] to walk into the breakroom. [Plaintiff] interpreted the motion as an 10 inappropriate sexual gesture.” (Id.). Plaintiff “then walked into the breakroom and grabbed Mr. 11 Rose by his chin and said, ‘stop doing that.’ He then let Mr. Rose go and walked out of the room. 12 Mr. Eshun left a red mark on Mr. Rose’s face.” (Id. at 4).5 13 C. Gallo’s Response to the April 2016 incident 14 Rose told another employee and shop steward Theresa Erickson about the altercation. 15 (Id.). According to Plaintiff, Rose then told Erickson not to report it to Gallo. (ECF No. 38 at 3). 16 However, Erickson did report it to Gallo. (ECF No. 22-1 at 4). 17 Gallo Human Resources Manager Jorian Reed interviewed Plaintiff and Rose separately, 18 with Erickson representing them as shop steward during the interviews. (Id.). Plaintiff told Reed 19 what happened—that he went inside the breakroom and grabbed Rose’s chin and told Rose, “stop 20 doing that,” because Rose had blown kisses at him and made a gesture. Gallo suspended both 21 Plaintiff and Rose on April 1, 2016, the same day that the altercation occurred. (Id. at 6). 22 D. Defendant Union Represents Plaintiff and Rose 23 After Plaintiff was suspended but before his termination, then-Union president, Carlos 24 Contreras, attended a suspension hearing with Plaintiff. Suspension hearings are a negotiated 25 4 In a supplemental declaration, Plaintiff referred to Sweetin as Sweeney. (See ECF Nos. 22-1 at 5 (in joint statement 26 of undisputed facts, stating Plaintiff sought “to get Corey Sweetin’s attention” on April 1, 2016); 38 at 2 (Plaintiff declaring he “decided to call the chipper-checker Mr. Corey Sweeney . . . to come and help me run the equipment”). 27 5 This description comes from the Joint Statement of Undisputed Facts, but Plaintiff has indicated that he does not disagree with this summary. However, he does not clearly state what aspects of this summary are incorrect. To the 28 extent Plaintiff identifies any differences, they do not affect the Court’s decision herein. 1 process in Article 6.4 of the applicable Collective Bargaining Agreement (“CBA”). This 2 provision gives a suspended employee an opportunity to meet with a union representative and 3 Gallo to review the offense and facts concerning the suspension. In some cases, Gallo has agreed 4 to reinstate employees following these suspension hearings. (ECF No. 22-1 at 4). 5 The day of Plaintiff’s suspension hearing, Contreras met with Plaintiff in advance of the 6 hearing and explained to Plaintiff the suspension hearing process. (Id. at 5). At the suspension 7 hearing, Contreras argued that Gallo violated Plaintiff’s rights under Article 3.4 of the CBA 8 because it did not give Plaintiff union representation at the investigative meeting on April 1, 9 2016. Present at this meeting was the Plant Manager, Joe Majeski, as well as Reed, Contreras, and 10 Plaintiff. (Id.). On April 25, 2016, Gallo converted Plaintiff’s and Rose’s suspension pending 11 investigation into a suspension pending discharge, then terminated both Plaintiff and Rose for 12 violating Gallo’s General Work Regulations and the Violence in the Workplace Policy. (Id.). 13 E. Grievance Process 14 Shortly after Plaintiff was terminated, Contreras contacted Plaintiff and told him that the 15 Union would file a grievance with Gallo and explained the grievance process to Plaintiff. (Id.). 16 Under the CBA, Article 14, includes a multi-step grievance procedure, and Article 15 provides 17 that the grievance procedure culminates with binding arbitration before a neutral third-party 18 arbitrator. (Id.). 19 On April 26, 2016, Contreras filed grievances challenging the terminations of Plaintiff and 20 Rose. (Id. at 6). On May 10, 2016, Gallo’s Director of Human Resources sent Contreras a letter 21 with Gallo’s response (Step 2 of the grievance process), denying Plaintiff’s grievance. (Id.). On 22 May 12, 2016, Contreras sent GMP International Representative and USW Staff Representative 23 David Hoffman a letter moving Plaintiff’s grievance to Step 3. (Id.). This is the same David 24 Hoffman who had previously worked for Gallo and had the 2006-2007 negative interactions with 25 Plaintiff and who, as discussed below, ended up representing Plaintiff during arbitration. 26 In May or June 2016, Hoffman and Contreras met with Gallo for a Step 3 meeting and 27 advocated for Gallo to reinstate Plaintiff. Gallo denied Plaintiff’s grievance at Step 3 and 28 Hoffman referred Plaintiff’s grievance to Step 4 of the grievance procedure. (Id.). 1 On June 10, 2016, BMP International Vice President Brenda Scotland, Contreras, and 2 Hoffman met with Gallo to discuss Plaintiff’s grievance at Step 4 of the grievance procedure. On 3 June 22, 2016, John Gallo, who was Gallo’s Vice President, sent Scotland a letter denying 4 Plaintiff’s grievance at Step 4 of the grievance procedure. (Id. at 6). Throughout the grievance 5 process, Contreras kept Plaintiff informed about the status of his grievance, explaining the various 6 steps in the grievance process. (Id. at 7). 7 On July 5, 2016, Scotland sent John Gallo a letter moving Plaintiff’s grievance to 8 arbitration. (Id.). Plaintiff’s and Rose’s arbitration was scheduled for March 10, 2017 before 9 arbitrator John Kagel. The Union sought reinstatement and backpay for both Plaintiff and Rose. 10 (Id.) 11 In November 2016, Contreras resigned as president of the Union because he was hired by 12 USW as staff representative. Vice president of the Union, Anthony Arceneaux, was then 13 appointed as president of the Union to fulfill Contreras’s duties for the remainder of a three-year 14 term. (Id.) 15 From January 2017 to March 2017, Plaintiff called Arceneaux frequently to check in and 16 ask if there were any updates on his case. David Hoffman, who served as the Union’s advocate in 17 the arbitration proceedings, decided to arbitrate Plaintiff’s and Rose’s grievances together. (Id. at 18 8). 19 F. Arbitration Proceeding 20 The arbitration took place on March 10, 2017. The issue before the arbitrator was whether 21 there was just cause for the termination of Plaintiff and Rose and, if not, what should be the 22 remedy. 23 The Union asserts as follows: Hoffman decided to arbitrate Plaintiff’s and Rose’s 24 grievances together because he thought it was in the best interest of the arbitrator to see that 25 Plaintiff and Rose got along, had no hard feelings, and could continue to work together. (Id.). 26 Hoffman believed Rose had the stronger case and hoped that arbitrating the two grievances 27 together would make it more likely the arbitrator would order both employees reinstated. (Id.). 28 Hoffman explained the arbitration process to Plaintiff and Rose and that he was going to advocate 1 for them both during the arbitration proceeding. (Id.). 2 Plaintiff asserts as follows: on March 10, 2017, Plaintiff met with Hoffman and 3 Arceneaux at the Union’s office. Hoffman told Plaintiff that he and Rose should be nice to each 4 other to assist in their reinstatement. Hoffman knew that he had issues with Plaintiff before but 5 that he was the representative for Plaintiff now. 6 When the arbitration began, Gallo presented its case first, then Hoffman presented the 7 case for the Union. During the lunch break, prior to the second half of the arbitration hearing, 8 Hoffman invited Plaintiff, Rose, and Arceneaux out for lunch. Plaintiff and Rose expressed 9 nervousness about their upcoming testimony, and Hoffman told them that the arbitration was 10 going well, explained the evidence that had been presented by Gallo, and explained the questions 11 he would be asking them, the type of questions they may be asked on cross examination by 12 Gallo’s lawyers, and how best to answer those questions. (ECF No. 22-1 at 9). 13 During the second half of the arbitration hearing, when the Union presented its case, both 14 Plaintiff and Rose testified. When Plaintiff testified, he recounted the events of April 1, 2016, 15 admitting that he took “hold [of Rose’s] cheek” for “about . . . one minute or something like that.” 16 (Id.). Hoffman advocated for both Plaintiff and Rose to be reinstated to their former positions at 17 Gallo on the ground that there was no just cause for their terminations. 18 Plaintiff asserts, however, that Contreras “asked that Mr. Derek Rose be returned to work, 19 that he was the victim and that no discipline was warranted in his situation.” (ECF No. 39 at 4). 20 Plaintiff cites to “Exhibit A[,] arbitration transcript.” (Id.). Exhibit B appears to be the exhibit 21 Plaintiff meant to reference. The speaker, who is not identified in the transcript page, includes the 22 sentence “The Union will also claim that Mr. Rose was simply the victim of Mr. Eshun’s violent 23 act.” (Id. at 11). 24 Defendant attached the full arbitration transcript to Hoffman’s declaration. (See ECF Nos. 25 22-3 at 5 (“A true and correct copy of the arbitration transcript is attached hereto as Exhibit F.”); 26 22-9 (Exhibit F)). The transcript shows that Emily Erdman appeared on behalf of Gallo. (ECF 27 No. 22-9 at 3). Ms. Erdman was the speaker on the page Plaintiff attached to his declaration. 28 (Compare id. at 18-19 with ECF No. 39 at 11). 1 “In the Union’s post-hearing arbitration brief, Mr. Hoffman consistently argued that there 2 was no just cause for [Plaintiff’s] termination, especially given [Plaintiff’s] 13 years of service 3 and no record of formal written discipline of any type. Mr. Hoffman highlighted that [Gallo] has 4 repeatedly ignored physical and verbal assaults by other employees and had not terminated other 5 employees who violated [Gallo’s] Violence in the Workplace policy. . . . Mr. Hoffman argued 6 that [Plaintiff’s] actions did not rise to the just cause standard to support discharge and that the 7 proper remedy was to return both [Plaintiff] and Mr. Rose to work and make them whole.” (ECF 8 No. 22-1 at 10). 9 G. Arbitration Judgment and After 10 On May 18, 2017, the arbitrator issued his decision, reinstating Rose to his former 11 position at Gallo with backpay but declining to reinstate Plaintiff. (Id.). On or about May 19, 12 2017, Arceneaux called Plaintiff and told him that the arbitrator had decided to reinstate Rose but 13 to not reinstate Plaintiff. (Id.). 14 According to Plaintiff, Plaintiff asked Arceneaux for a copy of the arbitration decision on 15 May 19, 2017. However, Arceneaux told Plaintiff that Hoffman had told Arceneaux only to tell 16 Plaintiff the outcome of the arbitration. (ECF No. 39 at 3). 17 Then on September 14, 2018, Plaintiff called Gallo human resources to ask for various 18 forms that would permit Plaintiff to appeal the arbitration. The human resources representative 19 advised Plaintiff to speak with the Union. Plaintiff spoke again with Arceneaux to sign certain 20 consent forms. Plaintiff asked for, and received, a copy of the arbitrator’s decision the next day. 21 (Id.). 22 Plaintiff asserts, under penalty of perjury, that he then asked Arceneaux why Rose got his 23 job back but Plaintiff did not. “Arceneaux told me that it was Mr. David Hoffman told the Gallo 24 Glass Company and the Arbitrator not to reinstate my employment[.]” (ECF No. 39 at 3). 25 Arceneaux and Hoffman do not agree with Plaintiff’s description. According to 26 Arceneaux, he mailed Plaintiff a copy of the arbitrator’s decision on May 19, 2017. Then on 27 September 14, 2018, Plaintiff called Arceneaux who told Plaintiff he was suing Gallo and needed 28 a copy of the decision. Arceneaux mailed and emailed him another copy. Arceneaux avers that he 1 “never told [Plaintiff] that Mr. Hoffman told the arbitrator or the Company not to reinstate” 2 Plaintiff. (ECF No. 22-12 at 4-5). Hoffman, likewise, denies telling “any representative of Gallo 3 Glass or Arbitrator Kagel or anyone else, that [Plaintiff] should not be reinstated to his former 4 position at Gallo Glass.” (ECF No. 22-3 at 6). 5 H. Allegations of Discrimination and Harassment 6 Plaintiff makes several additional statements with respect to alleged racial discrimination 7 and other harassment he encountered while working at Gallo, which is not a defendant in this 8 case. 9 After the altercation with Rose but before being suspended, Plaintiff alleges that he and 10 Rose were interviewed by the human resources manager Jorian Reed. After that, 11 Contreras requested another interview from the company to interview Mr. Derek 12 Rose and that interview was granted and Mr. Rose was interview[ed] for a second time and I think if the Union president Mr. Contreras made the company to 13 interview Mr. Rose without me this is not fair to me and see these as discrimination against me and as Union president who supposed to represent the 14 union members equal but he choose to be a prejudice against me and Mr. Carlos Contreras shows the same throughout the grievance process and only represent 15 Mr. Rose and I have been saying this throughout that Mr. Rose is not a Union 16 member but the Local Union choose to defend Mr. Rose because he is a white man and I am black man this is not what the Union stand for and this is a violation 17 of public policy. 18 (ECF No. 38 at 4). However, Defendant objects to Plaintiff’s statement concerning Contreras 19 causing Rose to be interviewed twice for lack of foundation and personal knowledge. (ECF No. 20 40 at 3). Under Federal Rule of Evidence 602, “[a] witness may testify to a matter only if 21 evidence is introduced sufficient to support a finding that the witness has personal knowledge of 22 the matter.” There is no indication for how Plaintiff knows Contreras requested a second 23 interview. For instance, he does not state that he saw Contreras bring Rose in for a second 24 interview or that Contreras or anyone else told him Contreras did so. Therefore, the Court sustains 25 this objection. See In re Worlds of Wonder Sec. Lit., 35 F.3d 1407, 1420 n. 4 (9th Cir.1994) 26 (excluding declaration because the author lacked personal knowledge of the facts contained 27 therein). 28 /// 1 The joint statement of undisputed facts states that Contreras did not harm Plaintiff. (ECF 2 Nos. 22-1 at 14) (“Mr. Plaintiff Contreras and Mr. Arceneaux never did anything to wrong Mr. 3 Eshun.”). This statement cites to Plaintiff’s deposition, where he stated that Contreras did not 4 wrong him from the time of the incident with Rose onward: 5 Q. . . . From the time of the incident that for which you were terminated, from that 6 time onward, did Carlos Contreras do anything to wrong you as far as you know? A.ꞏ No, he didn't do anything wrong me. 7 (ECF No. 22-23 at 36). 8 Plaintiff also states that other Gallo employees got in physical fights but were not 9 terminated: 10 There had been the same incident at Gallo Glass Company which those people 11 fought each other and those were not terminated from the company and those people were represented by the Union during that time. ( Exhibit C, the 12 declaration transcript from attorney for Gallo Glass.) Mr. Ivyn Kotcher and Mr. 13 Gary altercation happened on 2015 and our altercation happened 2016 and Mr. Ivyn Kotcher and Mr. Gary made a physical fight and Ms. Gloria Bajaras and Ms. 14 Elma also had a physical fight to each other and none of these employees were terminated from Gallo Glass Company and the Union representative Mr. David 15 Hoffman wrote in his testimony that I had a weak case and the Union attorney Ms. Antonia Domingo made the same argument during the June 5, 2020 16 conference called hearing that my case is weak. I would like to Know from the 17 Local Union and Ms. Domingo which Union represented those employees and who was the representative? So the Plaintiff alleges that the defendant Local 18 Union failed to represent me from April 1, 2016 throughout the grievance process and also Arbitration hearing, I kweku Eshun the Plaintiff make this assertion of 19 fact to the Local Union that, the Union Discriminate and Wrongful Terminate my Employment from Gallo Glass Company because of my race and my Nationality 20 and this is violation of public policy under California law. 21 (ECF No. 39 at 5-6) (as in original). 22 Exhibit C to docket number 39 appear to be responses to requests for admission. There, 23 Defendant made the following admissions: 24 1. Admit that Bruce Williams, Sr. Manager, Operations, oversaw plant operations 25 at Gallo Glass Company on the date that you allege that Maria Barajas had a physical altercation with Ms. Elma. 26 2. Admit that Joe Majewski did not oversee plant operations at Gallo Glass 27 Company on the date that you allege that Maria Barajas had a physical altercation 28 with Ms. Elma. 1 3. Admit that you do not know the identities of anyone who was involved in any 2 decision to discipline or not discipline Maria Barajas for the physical altercation 3 that you allege she had with Ms. Elma. 4 4. Admit that you do not know the identity of the supervisor Maria Barajas had on the date that you allege she had a physical altercation with Ms. Elma. 5 6 (Id. at 14-15). 7 Plaintiff also stated in his declaration that there is sexual harassment at Gallo. Between 8 2006 and 2007, Sweetin got naked and exposed his anus to Plaintiff while Plaintiff was working. 9 Plaintiff told Ms. Donna Sanders about it and she talked to Sweetin about the behavior. Sweetin 10 exposed his penis to Plaintiff on another occasion when two women were present. This behavior 11 “is harassment and its indecency and its immoral and all this attitude the Union leaders aware of 12 it.” (ECF No. 38 at 4-5). 13 Various times, “Rose asked me he want African anaconda which means he want Africa 14 pennis,” and Plaintiff states that others “want that . . . as well[.]” (Id. at 5). Plaintiff states that he 15 “think[s] this kind of behavior is harassment” and that Gallo had a harassment policy and a 16 violence policy. (Id.). 17 I. Administrative Complaints 18 “Plaintiff filed a discrimination complaint with the Department of Fair Employment and 19 Housing (‘DFEH’)” on March 24, 2017. (ECF No. 22-1 at 14). Although the joint statement of 20 undisputed facts states that Plaintiff also filed another discrimination complaint with the EEOC 21 on May 22, 2017, (id., citing Plaintiff’s deposition) it appears that the DFEH sent that complaint 22 to the EEOC on that date, (ECF Nos. 22-23 at 47 (at deposition, Plaintiff testifying that he filed 23 one complaint and the DFEH sent the complaint to the EEOC); 22-25 at 2 (EEOC filing noting 24 the complaint had “has been received by . . . The [DFEH] and sent to the EEOC for dual filing 25 purposes”)). The parties agree that the administrative complaints “nam[e] Gallo Glass Company 26 as a respondent and Mr. Majewski, the plant manager, and Mr. Contreras as co-respondents. 27 Plaintiff did not name [the Union in its current or previous forms] or Mr. Hoffman as respondents 28 /// 1 or co-respondents.” (ECF No. 22-1 at 14).6 Notably, none of these respondents are defendants in 2 this case. The Union, who is the defendant in this case, was not named in the discrimination 3 complaint. 4 The relevant portion of Plaintiff’s complaint with the DFEH states as follows: 5 1. I, Kweku Eshun, allege that I was subjected to Discrimination, Harassment by respondent, Gallo Glass Company due to one or more Fair Employment and 6 Housing Act protected, bases: National Origin - Including language use 7 restrictions, Race. 8 2. I was Denied a work environment free of discrimination and/or retaliation, Terminated. The most recent harm occurred, on or around August 25, 2016. 9 10 3. My belief is based on the following: On August 25, 2016,1 was terminated from my position as an equipment operator. From January 2011 through April 5, 11 2016,I was subjected to ongoing harassment by Utility Worker, Derrick Ross [sic]. This harassment included but was not limited to. Derrick taking pictures of 12 me without my knowledge, recording me, and blowing kisses at me. I made an internal complaint to Shop Steward, Teliza (LNU) regarding the ongoing 13 harassment. 1 was told he would be talked to but nothing was done. On April 5, 14 2016, Derrick and I were involved in a verbal altercation. On August 25, 2016,1 was called into the office and told I was being terminated. The reason given was 15 that I violated a no tolerance policy however, non-African employees with the same or similar infractions were not terminated. I believe I was terminated due to 16 my Race (African American) and National Origin (African). 17 (ECF No. 22-24 at 7-8) (fixing error in page order). 18 J. The Present Action 19 On January 17, 2019, Plaintiff initiated the present action by filing a complaint against the 20 Union in Stanislaus County Superior Court. (ECF No. 1-1). The complaint alleges state law 21 claims for discrimination, breach of contract, and wrongful termination in violation of public 22 policy. (Id.). Gallo is not a party. At oral argument, Plaintiff stated he filed an additional action in 23 state court against Gallo, which was dismissed.7 24 6 The joint statement cites to Plaintiff’s deposition. (Id.). According to Plaintiff’s deposition, he filed only one. (ECF 25 No. 22-23 at 47) (“A. So I didn’t file two cases, only one.”). Whether it is the same complaint or two different ones does not change the relevant aspect of the Court’s analysis. 7 The Court takes judicial notice of Eshun v. Gallo Glass Company, No. Cv-19-000301, Superior Court of California, 26 County of Stanislaus. Fed. R. Evid. 201; United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (stating that courts “may take [judicial] notice of proceedings in other courts, both within and without the federal judicial system, 27 if those proceedings have a direct relation to matters at issue.”). On March 10, 2020, the court granted Gallo’s motion for summary judgment, and on March 11, 2020, the court entered its judgment. Eshun v. Gallo, docket entries dated 28 March 10, 2020 and March 11, 2020. 1 On February 22, 2019, the Union removed the action to federal court on the basis of 2 federal question jurisdiction under 28 U.S.C. § 1331. Specifically, the Union contends that 3 although Plaintiff styles his claims as state-law claims, those claims arise under and are 4 preempted by § 301 of the Labor Management Relations Action. 5 On March 20, 2020, the Union filed a motion for summary judgment (ECF Nos. 22, 23, 6 28, 29) and on March 30, 2020, Plaintiff filed a cross-motion for summary judgment (ECF Nos. 7 25, 26, 32). On June 5, 2020, the Court held a telephonic hearing on the motions at which 8 Plaintiff appeared pro se, and the Union appeared through counsel Antonia Domingo. (ECF No. 9 31). The Court allowed the parties to file supplemental briefs to address the legal standards for 10 conflicts of interest in union cases. (Id.). The Union filed its supplemental brief on June 17, 2020 11 (ECF No. 33); Plaintiff filed his supplemental brief on June 22, 2020 (ECF No. 35). On August 12 28, 2020, the Court informed Plaintiff that he failed to support his motion for summary with 13 admissible evidence. (ECF No. 37). Plaintiff filed two declarations, in the form of motions, on 14 September 30, 2020. (ECF Nos. 38 & 39). Defendant filed evidentiary objections to those 15 declarations on October 13, 2020. (ECF No. 40). 16 II. SUMMARY JUDGMENT STANDARD 17 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as 18 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 19 56(a); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine 20 dispute about material facts, summary judgment will not be granted.”). “A party asserting that a 21 fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts 22 of materials in the record, including depositions, documents, electronically stored information, 23 affidavits or declarations, stipulations (including those made for purposes of the motion only), 24 admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do 25 not establish the absence or presence of a genuine dispute, or that an adverse party cannot 26 produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 27 A party moving for summary judgment “bears the initial responsibility of informing 28 the . . . court of the basis for its motion, and identifying those portions of ‘the pleadings, 1 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 2 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 3 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 4 moves for summary judgment on the basis that a material fact lacks any proof, the court must 5 determine “whether a fair-minded jury could reasonably find for the [non-moving party].” 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of 7 evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 8 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 9 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 10 immaterial.” Celotex, 477 U.S. at 322. “[C]onclusory allegations unsupported by factual data” are 11 not enough to rebut a summary judgment motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 12 1989) (citation omitted). 13 In reviewing a summary judgment motion, the Court may consider other materials in the 14 record not cited to by the parties but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. 15 San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 16 In judging the evidence at the summary judgment stage, the Court “must draw all 17 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 18 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only 19 draw inferences, however, where there is “evidence in the record . . . from which a reasonable 20 inference . . . may be drawn”; the court need not entertain inferences that are unsupported by fact. 21 Celotex, 477 U.S. at 330 n.2. But, “if direct evidence produced by the moving party conflicts with 22 direct evidence produced by the nonmoving party, the judge must assume the truth of the 23 evidence set forth by the nonmoving party with respect to that fact.” Leslie v. Grupo ICA, 198 24 F.3d 1152, 1158 (9th Cir. 1999) (citation omitted). 25 III. DISCUSSION 26 A. Preemption by § 301 of the LMRA 27 Defendant contends that Plaintiff’s state law claims are subsumed by the Union’s duty of 28 fair representation and that the claims are therefore completely preempted by § 301 of the LMRA. 1 (ECF No. 23 at 12-15). 2 In relevant part, section 301 states: Suits for violation of contracts between an employer and a labor organization 3 representing employees in an industry affecting commerce as defined in this 4 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 5 amount in controversy or without regard to the citizenship of the parties. 6 29 U.S.C. § 185(a). 7 “[T]he preemptive force of § 301 [of the LMRA] is so powerful as to displace entirely any 8 state cause of action for violation of contracts between an employer and a labor organization. Any 9 such suit is purely a creature of federal law, notwithstanding the fact that state law would provide 10 a cause of action in the absence of § 301.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers 11 Vacation Tr. for S. Cal., 463 U.S. 1, 23 (1983) (internal quotation marks and footnote omitted). 12 Section 301 also preempts any state law claim that is “‘substantially dependent upon analysis of 13 the terms of an agreement made between the parties in a labor contract.’” Adkins v. Mireles, 526 14 F.3d 531, 539 (9th Cir. 2008) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)). 15 Thus, for example, a claim for intentional infliction of emotional distress that requires 16 interpretation of an employer’s reasonableness, which in turn requires interpretation of the 17 applicable CBA, is preempted by § 301. See Miller v. AT&T Network Svs., 850 F.2d 543, 549 (9th 18 Cir. 1988). Put another way, § 301 preempts any state law claim the resolution of which relies on 19 the meaning of a CBA even if the state law claim does not allege violation of the CBA. Id. 20 On the other hand, “[i]f a state law cannot be waived or modified by private contract, and 21 if the rights it creates can be enforce without resort to the particular terms, express or implied, of 22 the labor contract, the LMRA does not preempt a claim for violation of the law.” Soremekun v. 23 Thrifty Payless, Inc., 509 F.3d 978, 990 (9th Cir. 2007). In other words, § 301 “does not grant the 24 parties to a collective bargaining agreement the ability to contract for what is illegal under state 25 law. . . .” Id. (quoting Allis-Chalmers, 471 U.S. at 212). Thus, there is a distinction “between state 26 laws that require interpretation of a labor contract and those that prohibit parties from including 27 particular terms in such a contract.” Id. State law claims are not preempted when the court is 28 simply required to apply the terms of a CBA; they are preempted only when the court must 1 interpret the provisions of the CBA. Id. 2 The Ninth Circuit has articulated a two-pronged test for determining whether § 301 3 preemption applies. Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059-60 (9th Cir. 2007). First, 4 a court must determine “whether the asserted cause of action involves a right conferred upon an 5 employee by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, 6 then the claim is preempted and our analysis ends there.” Id. at 1059. If, however, the right 7 underlying the state law claim(s) “exists independently of the CBA” the court must proceed to the 8 second prong and consider whether the right is nevertheless “substantially dependent on analysis 9 of a collective bargaining agreement.” Id. (internal quotation marks omitted). “If such dependence 10 exists, then the claim is preempted by § 301; if not, then the claim can proceed under state law.” 11 Id. at 1059-60. 12 Claims under FEHA are generally not preempted by the LMRA. See Ramirez v. Fox 13 Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“In every case in which we have 14 considered an action brought under the California Employment Act, we have held that it is not 15 preempted by section 301.”); Schrader v. Noll Mfg. Co., 91 F. App'x 553, 555 (9th Cir. 2004) 16 (unpublished) (“We have consistently held that state law discrimination claims under the FEHA 17 do not require courts to interpret the terms of a CBA and are therefore not preempted by § 301.”); 18 Detabali v. St. Luke's Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007) (“We see no need to depart 19 from a long line of our cases holding that FEHA employment discrimination claims are not ipso 20 facto preempted by § 301 of the LMRA.”). Moreover, “reference to or consideration of the terms 21 of a collective-bargaining agreement is not the equivalent of interpreting the meaning of the 22 terms.” Ramirez at 749. 23 When an employee’s claim is preempted, “most often ‘that claim must either be treated as 24 a § 301 claim, or dismissed as pre-empted by federal labor-contract law.’” Kobold v. Good 25 Samaritan Regional Med. Ctr., 832 F.3d 1024, 1034 (9th Cir. 2016) (quoting Allis-Chalmers 26 Corp. v. Lueck, 471 U.S. 202, 220 (1985)). 27 Here, Plaintiff brings claims under state law for breach of contract, discrimination, and 28 wrongful termination in violation of public policy. The Union argues that because Plaintiff’s 1 claims concern the Union’s handling of the grievance and arbitration challenging Gallo’s 2 termination of Plaintiff, that this is “exactly the sort of suit that may be brought only as a claim 3 for breach of the duty of fair representation” and that all of Plaintiff’s claims are therefore 4 preempted by § 301. (ECF No. 23 at 14). 5 As discussed below, Plaintiff’s claims for breach of contract and discrimination in 6 violation of the CBA are preempted by § 301, but Plaintiff’s FEHA claim for discrimination 7 against the Union is not. 8 1. Breach of Contract Claim 9 Plaintiff’s breach of contract claim alleges that the Union violated its duties by advocating 10 for the interests of Rose to get his job back over the interests of Plaintiff to get his job back, 11 including characterizing Rose as the victim of Plaintiff’s violent conduct. Plaintiff claims that, for 12 example, during the arbitration hearing, Hoffman asked him some questions with the wrongful 13 intent of getting Rose his job back but not getting Plaintiff’s job back. Plaintiff also claims that 14 Hoffman told Gallo and the arbitrator off the record to reinstate Rose but uphold his termination. 15 The breach of contract claim relates directly to the duties of the union under the CBA, 16 including the duty of fair representation. This duty exists solely as a result of the CBA and 17 requires interpretation of the CBA. Accordingly, the claim is preempted by § 301. See Burnside, 18 491 F.3d at 1059-60; Jackson v. S. California Gas Co., 881 F.2d 638, 643 (9th Cir. 1989) (cause 19 of action for breach of contract “is clearly preempted” by § 301); Newberry v. Pac. Racing Ass'n, 20 854 F.2d 1142, 1146 (9th Cir. 1988) (“A suit for breach of a collective bargaining agreement is 21 governed exclusively by federal law under section 301.”). 22 As such, as the Union urges, (see ECF No. 23 at 12), the Court will treat this claim as a 23 breach of the duty of fair representation under § 301. See Adkins, 526 F.3d at 540 (finding 24 plaintiff’s breach of contract claim preempted and displaced by section 301). 25 2. Discrimination Claims 26 Plaintiff’s complaint lists two causes of action for discrimination. (ECF No. 1-1 at 2-3). It 27 appears that, at times, Plaintiff has alleged the discrimination claims were for discrimination 28 based on race and national origin. (ECF No. 22-24 at 7-8) (Plaintiff’s administrative agency 1 complaint alleging that he “believe[s] [he] was terminated due to my Race (African American) 2 and National Origin (African)”); (ECF No. 1-1 at 4) (in complaint’s portion concerning wrongful 3 termination in violation of public policy, “The above -described conduct of defendants constitutes 4 Racial discrimination, and Retaliation of speaking truth about wrongful attitude which violate 5 your right, And wrongful termination of plaintiff in violation of public policy embodied in the 6 FEHA.”); (see also ECF No. 39 at 5) (Plaintiff averring that Hoffman “chose to defend Mr. Rose 7 because he is white man and I am black man from Africa”). 8 Reading Plaintiff’s complaint and motions liberally, his claims appear to fall into two 9 categories. The first category is that the alleged bias and discrimination violates duties owed 10 under the CBA. (ECF No. 32 at 2) (“I think the Union job is to protect the members right of any 11 circumstances not to throw the member on board That’s wrong no matter what that person may 12 be.”). The second category arises under FEHA. (See ECF No. 1-1 at 4) (listing “Racial 13 discrimination” and referencing “FEHA” in complaint).8 14 Plaintiff’s first claim—concerning alleged bias and discrimination by Defendant in 15 connection with duties it owes under the CBA—is based on, and will require interpretation of, the 16 CBA and is therefore preempted by § 301. See Burnside, 491 F.3d at 1059-60; Jackson, 881 F.2d 17 at 643; Newberry, 854 F.2d at 1146. 18 Plaintiff’s FEHA claim is not. This action is comparable to Guidry v. Marine Engineers’ 19 Beneficial Association. 2007 WL 707511 (N.D. Cal. Mar. 6, 2007). There, Guidry alleged his 20 union improperly processed his grievance in violation of FEHA. After a detailed discussion of 21 preemption, id. at *3-6, the court found no preemption there: although “Plaintiff's [FEHA] claim 22 for retaliation rests upon a theory that requires some reference to his contractual relationship with 23 the union,” the claim did not require interpreting the collective-bargaining agreement. Id. at *6. 24 Just as Guidry alleged his union improperly processed his grievance in violation of FEHA, 25 so too does Plaintiff. As in Guidry, the Court will not need to interpret the CBA to consider 26 Plaintiff’s claim. Thus, Plaintiff’s FEHA claim that Defendant and its representatives defended 27 8 Although Plaintiff does not name any particular portion of FEHA, the Court will analyze Plaintiff’s claim under California Government Code § 12940(b), which makes it unlawful “[f]or a labor organization, . . . because of the 28 race, . . . color, [or] national origin . . . to discriminate in any way against any of its members . . . .”). 1 and advocated for Rose over Plaintiff as a result of racial discrimination is not preempted. See 2 also Ramirez, 998 F.2d at 748 (“Fox also argues that our prior cases are distinguishable because 3 those cases did not require us to ‘reference’ any bargaining agreements, and here we will have to 4 ‘consider’ the Bargaining Agreement. Preemption is appropriate, however, only when the 5 provisions of a collective-bargaining agreement must be interpreted.”). 6 3. Wrongful Termination in Violation of Public Policy 7 Plaintiff’s complaint also purports to bring a claim for wrongful termination. Plaintiff’s 8 alleges that he was terminated and not reinstated as a result of racial discrimination and in 9 retaliation for Plaintiff “speaking truth about wrongful attitude” and that this was a violation of 10 public policy embodied in the California Fair Employment and Housing Act (“FEHA”). 11 However, the entity that terminated him, i.e., Gallo, is not a party in this lawsuit. See 12 Weinbaum v. Goldfarb, Whitman & Cohen, 46 Cal. App. 4th 1310, 1315 (1996) (“[T]he duty on 13 which the tort [of wrongful termination in violation of public policy] is based is a creature of the 14 employer-employee relationship, and the breach of that duty is the employer’s improper discharge 15 of an employee otherwise terminable at the will or whim of the employer.”); 3 Witkin, Summary 16 11th Agency § 257 (2020) (“Generally, only an employer may be sued for wrongful termination 17 of employment in violation of public policy, because the tort does not impose a duty on anyone 18 other than the employer, given that only an employer can discharge an employee.”). 19 Thus, although Plaintiff’s allegations of wrongful discharge may be a necessary feature of 20 Plaintiff’s claims under the LMRA, as discussed below, see Snyder v. Consol. Freightways, Inc., 21 15 F.3d 1089 (9th Cir. 1994) (table) (“To prevail on a claim against a union for breach of its duty 22 of representation, the plaintiff must prove that the duty was breached and that the underlying 23 grievance would have been meritorious.” (citing DelCostello v. International Brotherhood of 24 Teamsters, 462 U.S. 151, 165 (1983))); accord Billingsley v. MV Transportation, Inc., 242 F. 25 Supp. 3d 1011, 1019 (E.D. Cal. 2017) (citing DelCostello), it is not a separate cause of action 26 against the Union and is not relevant for purposes of preemption.9 27 9 To the extent Plaintiff did intend his claim for wrongful termination as a separate cause of action, such a claim would also be subject to summary judgment because the Union was not the entity that terminated Plaintiff’s 28 employment. 1 4. Conclusion 2 Plaintiff’s claim for breach of contract is preempted by § 301. Plaintiff’s claims for 3 discrimination are preempted by § 301 to the extent that these claims contend that the Union’s 4 actions and those of the Union’s representatives violated the Union’s duties under the CBA. 5 Therefore, the Court will treat those claims as ones for breaches of the duty of fair representation. 6 However, Plaintiff’s claim that the Union violated California state law prohibiting racial 7 discrimination when the Union defended Rose and advocated for the interests of Rose over 8 Plaintiff on the basis of Plaintiff’s race is not preempted by § 301. The Court will review that 9 claim under the relevant state law. 10 B. Statute of Limitations of LMRA Claims 11 Defendant next argues it is entitled to summary judgment on Plaintiff’s LMRA claim 12 against it because Plaintiff’s LMRA claims are barred by the six-month statute of limitations. 13 (ECF No. 23 at 15). 14 1. Legal Framework 15 The statute of limitations for lawsuits brought against a union for breaching the duty of 16 fair representation is six months. Moore v. Local Union 569 of Int’l Bhd. of Elec. Workers, 989 17 F.2d 1534, 1541 (9th Cir. 1993), as amended (June 28, 1993) (citing DelCostello v. Int’l Bhd. of 18 Teamsters, 462 U.S. 151, 172 (1983)). “[W]here a duty of fair representation suit seeks to 19 overturn an unfavorable arbitration award on the ground that the union committed errors in the 20 arbitration proceedings, the claim accrues when the employee learns of the arbitrator’s award.” 21 Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986). 22 However, the statute of limitations can be tolled for various reasons. One such reason is 23 fraudulent concealment. “The following elements are required to toll a statute of limitations on 24 the basis of fraudulent concealment: (1) fraudulent concealment by the party raising the statute of 25 limitations defense; (2) the other party’s failure to discover the facts that are the basis for a cause 26 of action despite (3) the exercise of due diligence.” Eason v. Waste Mgmt. of Alameda Cty., No. 27 C-06-06289JCS, 2007 WL 2255231, at *6 (N.D. Cal. Aug. 3, 2007) (citing NLRB v. Don Burgess 28 Const. Co., 596 F.2d 378, 383 n.2 (9th Cir. 1979)); accord Hexcel Corp. v. Ineos Polymers, Inc., 1 681 F.3d 1055, 1060 (9th Cir. 2012) (“The plaintiff carries the burden of pleading and proving 2 fraudulent concealment; it must plead facts showing that the defendant affirmatively misled it, 3 and that the plaintiff had neither actual nor constructive knowledge of the facts giving rise to its 4 claim despite its diligence in trying to uncover those facts.” (cleaned up)); Thibodeaux v. 5 Teamsters Local 853, 263 F. Supp. 3d 772, 778 (N.D. Cal. 2017) (quoting Hexcel in section 301 6 action). 7 2. Plaintiff’s LMRA Claims 8 Defendant argues that Plaintiff “knew on May 19, 2017 that the arbitrator had ruled 9 against him and denied his grievance. But he did not file his Complaint until January 17, 2019, 10 almost 20 months after his cause of action accrued,” rendering Plaintiff’s complaint untimely. 11 (ECF No. 23 at 15). 12 There are five basic allegations concerning Defendant’s alleged wrongdoing: (1) Hoffman 13 called Rose the victim of Plaintiff’s violent act in front of the arbitrator, (2) Hoffman represented 14 both Rose and Plaintiff at the arbitration proceeding, (3) Hoffman discriminated against Plaintiff 15 on account of his race, (4) Hoffman did not like Plaintiff, and (5) Hoffman told Gallo and the 16 arbitrator off the record to reinstate only Rose. 17 a) Claims Other Than Hoffman’s Off-the-Record Comments 18 Plaintiff provides no reason to toll the first four allegations. Under the law cited above, 19 the claim relying on those facts accrued on the day Plaintiff learned of the arbitrator’s decision, 20 which was May 19, 2017. The statute of limitations for those claims expired the first business day 21 six months later: November 20, 2017.10 Plaintiff filed his complaint on January 17, 2019, which 22 was nearly 14 months after the statute of limitations expired. 23 Moreover, Plaintiff has not asserted any basis for tolling or fraudulent concealment 24 regarding these allegations. The facts underlying these allegations occurred, and were known to 25 Plaintiff, before May 19, 2017. There are no facts establishing concealment by Defendant as to 26 those facts. 27 /// 28 10 November 19, 2017 was a Sunday. 1 As such, the Court will grant summary judgment to Defendant on Plaintiff’s LMRA claim 2 to the extent it is based on the underlying allegations that (1) Hoffman called Rose the victim of 3 Plaintiff’s violent act in front of the arbitrator, (2) Hoffman represented both Rose and Plaintiff at 4 the arbitration proceeding, (3) Hoffman discriminated against Plaintiff on account of his race, and 5 (4) Hoffman did not like Plaintiff. See Galindo, 793 F.2d at 1509. 6 b) Claim Concerning Hoffman’s Off-the-Record Comments 7 Plaintiff alleged that he did not learn that Hoffman told Gallo and the arbitrator off the 8 record to reinstate only Rose until after May 19, 2017. Specifically, Plaintiff alleges that on 9 September 14, 2018, Plaintiff asked Arceneaux why Rose got his job back but he did not. 10 “Arceneaux told me that it was Mr. David Hoffman told the Gallo Glass Company and the 11 Arbitrator not to reinstate my employment[.]” (ECF No. 39 at 3). 12 Construing this allegation as true for purposes of summary judgment only, the Court finds 13 that Plaintiff is entitled to tolling as to this specific allegation only. Again, “[t]he following 14 elements are required to toll a statute of limitations on the basis of fraudulent concealment: (1) 15 fraudulent concealment by the party raising the statute of limitations defense; (2) the other party’s 16 failure to discover the facts that are the basis for a cause of action despite (3) the exercise of due 17 diligence.” Eason, 2007 WL 2255231 (citing NLRB v. Don Burgess Const. Co., 596 F.2d 378, 18 383 n.2 (9th Cir. 1979)). Here, Plaintiff’s alleges that Defendant’s representative, Hoffman, 19 stated off the record, and outside Plaintiff’s hearing, something contrary to what he was saying on 20 the record, i.e., that the arbitrator should not reinstate him. This, if true, indicates that Defendant, 21 acting through Hoffman, concealed the fact; that Plaintiff failed to discover the fact until 22 September 14, 2018; and Plaintiff sufficiently exercised due diligence. Plaintiff is thus entitled to 23 tolling until that date. 24 In Defendant’s motion papers and at oral argument, Defendant failed to explain why the 25 statute of limitations bars an LMRA claim based on this specific allegation. Instead, Defendant 26 challenged this allegation on the grounds that it is based on inadmissible hearsay and is contrary 27 to the evidence. 28 /// 1 i. Hearsay 2 “‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the 3 current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted 4 in the statement.” Fed. R. Evid. 801(c) (paragraph breaks omitted). “Hearsay is not admissible” 5 unless it falls within an exception to the rule. Fed. R. Evid. 802. 6 However, a statement is not hearsay if “[t]he statement is offered against an opposing 7 party and . . . was made by the party’s agent or employee on a matter within the scope of that 8 relationship while it existed[.]” Fed. R. Evid. 801(d)(2). “This rule requires the proffering party to 9 lay a foundation to show that an otherwise excludable statement relates to a matter within the 10 scope of the agent’s employment.” Sea-Land Serv., Inc. v. Lozen Int'l, LLC., 285 F.3d 808, 821 11 (9th Cir. 2002). 12 “Hearsay within hearsay is not excluded by the rule against hearsay if each part of the 13 combined statements conforms with an exception to the rule.” Fed. R. Evid. 805. 14 Here, Plaintiff declares that “Mr. Arceneaux told me on September 14, 2018 that Mr. 15 David Hoffman who told Gallo Glass Company and arbitration not to reinstate me . . . .” (ECF 16 No. 39 at 4-5). Both Arceneaux and Hoffman are agents of the opposing party, i.e., Defendant. 17 (ECF Nos. 22-12 at 5 (Arceneaux’s declaration that he was Defendant’s president); 22-3 at 3-4 18 (Hoffman’s declaration that as international representative to Defendant, he was Plaintiff’s 19 representative at arbitration)). Moreover, the statement relates to a matter within the scope of each 20 agent’s employment, i.e., the Union’s representation of Plaintiff against Gallo. Therefore, this 21 allegation is not hearsay when used against Defendant because the two statements referenced are 22 admissions of party opponent. See Fed. R. Evid. 801(d)(2)(D). Defendant’s objection to this 23 evidence is overruled for purposes of this motion for summary judgment. 24 ii. Genuine Dispute of Material Fact 25 Next, Defendant argues that Plaintiff’s claim that he heard this statement does not create a 26 genuine dispute of material fact for two reasons. 27 First, Defendant submits evidence from both Arceneaux and Hoffman denying that they 28 made the alleged statements. (ECF Nos. 22-12 at 5 (Arceneaux declaring: “In all my 1 conversations with Mr. Eshun, I never told Mr. Eshun that Mr. Hoffman told the arbitrator or the 2 Company not to reinstate Mr. Eshun.”); 22-3 at 6 (Hoffman declaring: “Never did I say, to any 3 representative of Gallo Glass or Arbitrator Kagel or anyone else, that Mr. Eshun should not be 4 reinstated to his former position at Gallo Glass.”)). However, Plaintiff has also proffered 5 admissible evidence to the contrary, in the form of his declaration under penalty of perjury (ECF 6 No. 39 at 3 (statement), 7-8 (declaration of personal knowledge of facts under perjury)). Courts 7 “view the evidence in light most favorable to the non-moving party. Where disputed facts exist, 8 the plaintiff’s representations of these facts are assumed to be correct for the purposes of deciding 9 [the defendant’s] summary judgment motion.” Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1177 10 (9th Cir. 2016) (citations omitted). Thus, notwithstanding Arceneaux’s and Hoffman’s denials, 11 the Court finds there is a dispute of fact precluding summary judgment. 12 Second, Defendant argues that “Mr. Hoffman zealously advocated for Mr. Eshun 13 throughout the process,” and “no rational factfinder could conclude that Local 17 breached its 14 duty of fair representation by telling an unidentified ‘someone’ not to reinstate Mr. Eshun.” (ECF 15 No. 23 at 22). The Court disagrees with Defendant’s conclusion. Unlikely or not, it is plausible 16 that a union official, finding one case stronger than another, would tell an arbitrator off the record 17 to reinstate the employee with the stronger case. The Court does not find that the allegation is so 18 implausible that it can be disregarded for purposes of summary judgment 19 c) Conclusion 20 Plaintiff’s claim for breach of fair representation based on the allegation that Hoffman told 21 Gallo and the arbitrator not to reinstate Plaintiff is not barred by the statute of limitations. All 22 other LMRA claims are barred and the Court will grant Defendant’s motion for summary 23 judgment with respect to those barred claims. 24 C. Merits of Plaintiff’s Remaining LMRA Claim 25 Next, the Court turns to the merits of Plaintiff’s remaining LMRA claim. Defendant 26 argues it is entitled to summary judgment because (1) the Union did not breach its duty of fair 27 representation in handling the grievance and (2) Gallo did not breach the collective bargaining 28 agreement by terminating Plaintiff’s employment. (ECF No. 23 at 15-23). 1 1. Breaches of Duty of Fair Representation 2 “A breach of the statutory duty of fair representation occurs only when a union’s conduct 3 toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” 4 Vaca v. Sipes, 386 U.S. 171, 190 (1967). “Whether a union acted arbitrarily, discriminatorily or in 5 bad faith requires a separate analysis, because each of these requirements represents a distinct and 6 separate obligation.” Simo v. Union of Needletrades, Indus. & Textile Employees, Sw. Dist. 7 Council, 322 F.3d 602, 617 (9th Cir. 2003). “[A] union's actions are arbitrary only if, in light of 8 the factual and legal landscape at the time of the union’s actions, the union's behavior is so far 9 outside a wide range of reasonableness, as to be irrational.” Air Line Pilots Ass'n, Int'l v. O'Neill, 10 499 U.S. 65, 67 (1991) (internal quotation marks and citation omitted). “Whereas the arbitrariness 11 analysis looks to the objective adequacy of the Union's conduct, the discrimination and bad faith 12 analyses look to the subjective motivation of the Union officials.” Simo, 322 F.3d at 618. “A 13 union’s decision to discriminate against its members on an impermissible basis will violate the 14 duty of fair representation only where the aggrieved members set forth ‘substantial evidence of 15 discrimination that is intentional, severe, and unrelated to legitimate union objectives.’” Demetris 16 v. Transp. Workers Union of Am., AFL-CIO, 862 F.3d 799, 806 (9th Cir. 2017) (quoting 17 Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 18 301 (1971)). “To state a plausible claim that [a union] breached its duty of fair representation 19 through bad-faith conduct, [a plaintiff] must plead facts that, if true, show substantial evidence of 20 fraud, deceitful action or dishonest conduct.” Demetris, at 808. 21 Viewing the evidence in the light most favorable to Plaintiff, the non-moving party, the 22 Court finds that a rationale jury could find that the Union breached its duty of fair representation 23 by telling the company and arbitrator off the record not to reinstate Plaintiff. A rationale jury 24 could determine that it is deceitful and dishonest for a union official to argue in favor of an 25 employee’s reinstatement in public but against him while off the record. 26 2. Claims Against Employer 27 Next, Defendant claims it is entitled to summary judgment on the ground that the 28 company did not violate the collective bargaining agreement by terminating Plaintiff’s 1 employment. (ECF No. 23 at 23). Defendant’s argument on this point is a single paragraph that 2 points to the fact that “Mr. Eshun violently attacked a coworker,” and that “[d]espite the Union’s 3 best efforts to win Mr. Eshun’s job back, a well-respected and experienced arbitrator found that 4 the Company had just cause to terminate Mr. Eshun’s employment.” Defendant also puts in a 5 footnote an acknowledgment that it took the opposite position at the arbitration. (ECF No. 23 at 6 23) (“The Union acknowledges the obvious fact that this position conflicts with the position it 7 took during the grievance process. It suffices to state that the Union occupies a different role as a 8 defendant in this litigation than it did when it was Plaintiff’s advocate during the grievance 9 process.”). 10 The Court declines to grant summary judgment on this basis. Far from being beyond 11 dispute, this issue was the subject of a lengthy arbitration where the Union itself represented that 12 the Company did violate the collective bargaining agreement by terminating Plaintiff. Moreover, 13 Plaintiff has put forth disputed facts regarding his culpability in the altercation. Defendant has 14 failed to meet its burden on summary judgment to show that it is undisputed that the Company 15 did not violate the collective bargaining agreement by terminating him. See Fed. R. Civ. P. 56(a) 16 (“The court shall grant summary judgment if the movant shows that . . . the movant is entitled to 17 judgment as a matter of law.” (emphasis added)). 18 Accordingly, the Court denies summary judgment on the sole claim that the Union 19 breached its duty of fair representation when its representative, Mr. Hoffman, allegedly told the 20 arbitrator off the record to fire Plaintiff and reinstate Mr. Rose.11 21 D. FEHA Claim 22 Defendant argues that Plaintiff’s FEHA discrimination claim fails on the merits because 23 he does not show he “was singled out and treated less favorably than others similarly situated on 24 account of race or any other criterion impermissible under the statute.” (ECF No. 23 at 25) 25 (quoting Beck v. United Food & Com. Workers Union, Local 99, 506 F.3d 874, 882 (9th Cir. 26 2007)). 27 11 Again, the Court is only finding there is a dispute of fact as to this claim that is sufficient under the legal standards 28 to proceed to a jury. It is not making any determination as to the weight of the evidence regarding that allegation. 1 The California Court of Appeals has discussed what makes others similarly situated for 2 FEHA purposes: 3 Plaintiffs in FEHA cases can prove their cases by presenting either direct 4 evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence. 5 Comparative evidence is evidence that the plaintiff was treated differently from 6 others who were similarly situated but are outside the plaintiff's protected class. Evidence that an employer treated similarly situated employees outside the 7 plaintiff's protected class more favorably is probative of the employer's 8 discriminatory or retaliatory intent. 9 To be probative, comparative data must be directed at showing disparate treatment between employees who are similarly situated to the plaintiff in 10 all relevant respects. In general, individuals are similarly situated when they have similar jobs and display similar conduct. 11 12 Gupta v. Trustees of Cal. State Univ., 40 Cal. App. 5th 510, 519–20 (cleaned up). 13 Defendant argues that Plaintiff “does not provide any direct or circumstantial evidence 14 that Mr. Hoffman’s alleged actions were based on a protected characteristic, such as Mr. Eshun’s 15 race, age, or sex.” (ECF No. 23 at 25). 16 The Court agrees that Plaintiff does not provide any direct evidence, such as statements or 17 admissions, or discrimination. 18 Regarding circumstantial evidence, the Court finds that Plaintiff’s sole piece of evidence 19 of racial discrimination, which is the allegation that Mr. Rose was treated differently based on his 20 race, is insufficient to prove this claim. Plaintiff, at times, alleges racial discrimination because 21 he is black and African and was treated differently than Rose, who is white. (ECF No. 38 at 4). 22 However, Rose was not so similarly situated to Plaintiff to be a probative comparison in this 23 discrimination case. Again, “[t]o be probative, comparative data must be directed at showing 24 disparate treatment between employees who are similarly situated to the plaintiff in all relevant 25 respects. In general, individuals are similarly situated when they have similar jobs and display 26 similar conduct.” (emphases added). Here, however, it is undisputed that Plaintiff physically 27 accosted Rose. Even if Plaintiff is correct that he had cause to do so, and that such an altercation 28 was not sufficient cause for his termination, this difference in conduct prevents Mr. Rose’s 1 disparate treatment to be a sufficient basis for a racial discrimination claim against the Union. 2 Thus, Plaintiff has failed to make a prima-facie case for discrimination. As such, 3 Plaintiff’s state-law discrimination claim fails, and the Court will grant summary judgment to 4 Defendant with respect to Plaintiff’s FEHA claim. 5 E. Plaintiff’s Motion for Summary Judgment 6 Plaintiff also filed a motion for summary judgment. (ECF No. 25). As discussed above, 7 Plaintiff’s remaining claim is against Defendant for breaching its duty of fair representation by 8 allegedly telling Gallo and the arbitrator off the record not to reinstate Plaintiff. As discussed 9 above, Defendant has put forward disputed evidence regarding this fact, including declarations 10 from the two persons who allegedly made the statements denying that they made such statements. 11 The Court finds that disputes of fact preclude summary judgment in favor of Plaintiff on this 12 claim. Therefore, the Court will deny Plaintiff’s motion for summary judgment. 13 IV. CONCLUSION 14 Plaintiff and Defendant filed cross-motions for summary judgment. As discussed above, 15 Defendant’s motion for summary judgment is denied with respect to Plaintiff’s claim under the 16 LMRA that Defendant breached its duty of fair representation when its representative, Mr. 17 Hoffman, allegedly told Gallo and the arbitrator off the record not to reinstate him. Defendant’s 18 motion for summary judgment is otherwise granted. Plaintiff’s motion for summary judgment is 19 denied. 20 In addition, the Court will require the parties to attend either a settlement conference or 21 mediation. See United States v. U.S. Dist. Court for N. Mariana Islands, 694 F.3d 1051, 1057 22 (9th Cir. 2012), as amended (Oct. 16, 2012) (“We conclude that the district court has broad 23 authority to compel participation in mandatory settlement conference.”). A representative of 24 Defendant with the authority to bind it must be present or immediately available during the 25 settlement conference or mediation. Id. at 1057-58; 28 U.S.C. § 473(b)(5); Fed. R. Civ. P. 26 16(c)(1) (“If appropriate, the court may require that a party or its representative be present or 27 reasonably available by other means to consider possible settlement.”). 28 /// ] Accordingly, IT IS ORDERED: 2 1. Plaintiffs’ motion for summary judgment (ECF No. 22) is DENIED; 3 2. Defendant’s motion for summary judgment (ECF No. 25) is GRANTED, IN PART, 4 and DENIED, IN PART, as set forth above; 5 3. The parties shall participate in a settlement conference or a mediation as set forth 6 above. The parties shall meet and confer to decide whether will participate in a 7 settlement conference before another magistrate judge of this court or before a private 8 mediator of their choosing. Within fourteen days, the parties shall file a joint statement 9 that informs the Court which option they have selected or that they have failed to 10 reach an agreement; and 1] 4. The Clerk of the Court is directed to correct the docket to indicate that the Defendant, 12 Local Union No. 17, is also known as United Steel, Paper and Forestry, Rubber, 13 Manufacturing, Energy, Allied Industrial and Service Workers International Union, 14 AFL-CIO, CLC, Local 17. 15 16 IT IS SO ORDERED. 17 Dated: _ December 14, 2020 [sf my — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 | 2 The Court will set the remaining schedule for this action if the parties do not settle after such a conference. 20