United States District Court, D. Montana, Butte Division
JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE
United Parcel Service, Inc. (“UPS”) moves to
dismiss Plaintiff Timothy Edward MacMillan's Complaint
for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the reasons set forth below,
UPS's motion is granted.
began working for UPS in 2006 as a feeder driver at its
Butte, Montana center. In late April 2014, UPS suspended
Plaintiff without written warning pending an investigation.
On April 30, 2014, UPS terminated Plaintiff's employment
because he had been taking personal time to make stops at a
local casino for a soda during work hours. UPS advised
Plaintiff in its termination letter that it considered his
on-the-clock stops for food and drink to be “an act of
proven dishonesty” and discharged him on that basis.
(Doc. 1-1, at ¶ 24).
employment was subject to a collective bargaining agreement
(“CBA”) negotiated between UPS and
Plaintiff's union, the Teamsters Union Local No. 2
(“Union”). UPS recognizes the Union as the
exclusive representative of all employees covered by the CBA.
(Doc. 19-1, at 11). Article 28, Section 2 of the CBA
establishes a grievance procedure for cases pertaining to a
discharge or suspension from employment. (Doc. 19-1, at
114-115). This section of the CBA provides, in part, that all
panel filings regarding a discharge or suspension
“shall be referred immediately to the UPS
Labor-Management Committee for determination in accordance
with the grievance procedure.” (Doc. 19-1, at 114). In
those cases where the UPS Labor-Management Committee
“reaches a deadlock, either party may submit the matter
to an impartial arbitrator for final decision.” (Doc.
19-1, at 115).
his discharge, Plaintiff, through his Union, filed a
grievance and requested reinstatement to his position. The
parties have stipulated that Plaintiff's grievance
“was heard and denied by the joint UPS/Union grievance
panel in May 2014.” (Doc. 9, at 3). Nearly three years
later, in April 2017, Plaintiff commenced this action against
UPS. Plaintiff takes the position that the CBA did not
provide for or require arbitration under the circumstances,
and alleges he exhausted the CBA's grievance procedures
prior to filing suit.
filed his Complaint in state court, asserting state law
claims against UPS for breach of contract, tortious violation
of the covenant of good faith and fair dealing, and negligent
infliction of emotional distress. Plaintiff's breach of
contract claim alleges that UPS breached Article 28, Section
2 of the CBA by failing to provide him with a written warning
notice prior to his termination. Plaintiff further claims
that in breaching its contractual duties, UPS tortiously
violated the covenant of good faith and fair dealing.
Finally, Plaintiff's negligent infliction of emotional
distress claim alleges that as a result of UPS's actions,
he has suffered and continues to embarrassment, humiliation,
and other forms of emotional distress. The Complaint
expressly makes clear that “Plaintiff is not suing his
Union for any breach of duty, but is only suing [UPS] based
upon its violation of the terms of the contract grievance
procedures in the CBA.” (Doc. 1-1, at ¶ 23).
removed the case to this Court based on federal question
jurisdiction under Section 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. §§
141 to 197. UPS has since moved to dismiss the Complaint
under Rule 12(b)(6) on the ground that Plaintiff's claims
derive exclusively from the CBA and are thus preempted by
Section 301. Alternatively, UPS argues Plaintiff's claims
are preempted by the Montana Wrongful Discharge from
Employment Act (“WDEA”), Mont. Code Ann.
§§ 39-2-901 et seq.
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). Dismissal is proper under Rule
12(b)(6) when the complaint “either (1) lacks a
cognizable legal theory or (2) fails to allege sufficient
facts to support a cognizable legal theory.”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir.
2013). Plaintiff must state a claim for relief that is
“plausible on its face” to survive a motion to
dismiss. Zixiang Li, 710 F.3d at 999 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). At the
motion to dismiss stage, the Court “take[s] all
well-pleaded factual allegations in the complaint as true,
construing them in the light most favorable to the nonmoving
party.” Keates v. Koile, 883 F.3d 1228, 1234
(9th Cir. 2018) (citation omitted).
“conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss for
failure to state a claim.” National Association for
the Advancement of Psychoanalysis v. California Board of
Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (citing
Halkin v. VeriFone, Inc. 11. F.3d 865, 868 (9th Cir.
1993)). Additionally, “the court is not required to
accept legal conclusions cast in the form of factual
allegations if those conclusions cannot reasonably be drawn
from the facts alleged. Clegg v. Cult Awareness
Network, 18 F.2d 752, 754-55 (9th Cir. 1994). Finally,
dismissal without leave to amend is appropriate when it is
“clear that the complaint cannot be saved by further
amendment.” Dumas v. Kipp, 90 F.3d 386, 389
(9th Cir. 1996).
301 of the LMRA states that “[s]uits for violation of
contracts between an employer and a labor organization
representing employees in an industry affecting
commerce…may be brought in any district court of the
United States having jurisdiction of the parties.” 29
U.S.C. § 185(a). Section 301 thus “provides a
statutory mechanism for vindicating contract rights under a
collective bargaining agreement.” Lerwill v.
Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th
Cir. 1978). “The preemptive force of section 301 is so
powerful as to displace entirely any state cause of action
for violation of contracts between an employer and a labor
organization.” Burnside v. Kiewit Pacific
Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).
Section 301 “preempts state law claims that are based
directly on rights created by a collective bargaining
agreement as well as claims that are substantially dependent
on an interpretation of a collective bargaining
agreement.” Niehaus v. Greyhound Lines, Inc.,
173 F.3d 1207, 1211 (9th Cir. 1999). See also
Allis-Chalmers v. Lueck, 471 U.S. 202, 220 (1985)
(preemption appropriate where resolution of a state claim is
“inextricably intertwined with” or
“substantially dependent upon” analysis of the
terms of a CBA). The purpose of Section 301 preemption is to
“ensure uniform interpretation of collective-bargaining
agreements, and thus to promote the peaceable, consistent
resolution of labor-management disputes.” Lingle v.
Norge Division of Magic Chef, Inc., 486 U.S. 399, 413
Ninth Circuit applies a two-step analysis to determine
whether a state law claim is preempted by Section 301.
Kobold v. Good Samaritan Regional Medical Center,
832 F.3d 1024, 1032 (9th Cir. 2016). First, the
court must determine “whether the asserted cause of
action involves a right conferred upon an employee by virtue
of state law, not by a CBA.” Kobold, 832 F.3d
at 1032. “If the right exists solely as a result of the
CBA, then the claim is preempted, and the analysis ends
there.” Kobold, 832 F.3d at 1032 (citation
omitted). But if the court determines that the right
underlying the state law claim “exists independently of
the CBA, ” the court moves to the second step ...