Soremekun v. Thrifty Payless, Inc.

• Citation: 509 F.3d 978
• Decision Date: 27 November 2007
• Docket Number: No. 06-55035.,06-55035.
• Parties: Adediji Adesola SOREMEKUN, Plaintiff-Appellant, v. THRIFTY PAYLESS, INC., d/b/a Rite Aid Corporation, a California corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

509 F.3d 978

Adediji Adesola SOREMEKUN, Plaintiff-Appellant, v. THRIFTY PAYLESS, INC., d/b/a Rite Aid Corporation, a California corporation, Defendant-Appellee.

No. 06-55035.

United States Court of Appeals, Ninth Circuit.

Submitted November 9, 2007.^*

Filed November 27, 2007.

B. Kwaku Duren, Esq., Los Angeles, CA, for Plaintiff-Appellant.

Glenn L. Briggs, Esq., Hodel Briggs Winter, Irvine, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California; Margaret M. Morrow, District Judge, Presiding. D.C. No. CV-04-06868-MMM.

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.

AFFIRMED.

APPENDIX A

                UNITED STATES DISTRICT COURT
                FOR THE CENTRAL DISTRICT OF
                CALIFORNIA
                Adediji Adesola SOREMEKUN, Plaintiff
                v
                THRIFTY PAYLESS, INC. d/b/a Rite Aid
                Corporation, a California corporation
                Does 1 through 100, inclusive, Defendants
                CASE NO. CV 04-06868 MMM (VBKx)
                

ORDER GRANTING DEFENDANT THRIFTY PAYLESS, INC.'S MOTION FOR SUMMARY JUDGMENT

Adediji Adesola Soremekun filed this action against Rite Aid Corporation, Ismail Keekeebha, Sharim Manek, and certain 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 purportedly 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 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 judgment, or in the alternative, partial summary judgment.

I. FACTUAL BACKGROUND

Adediji Soremekun was employed by Rite Aid as a pharmacist from approximately January 15, 1998, until his resignation on June 27, 2003.⁴ Soremekun's employment at Rite Aid was governed by successive collective bargaining agreements ("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 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 alternate 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 regular 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 addition 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 agreement for the period from July 8, 2002 to July 10, 2005 (the "2002-2005 CBA") contained similar provisions regarding pharmacists' hours and wages.¹⁵

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 interpretation 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 compensation," had to file the claim with the Union "promptly upon discovery."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 discovery 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 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 limitation.

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 settle 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 provision 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, either party may request a formal grievance meeting. Upon receipt of written notice from either party, representatives 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 arbitration 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 California 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 Agreement; and no one ever discussed with [him] any of the provisions of the Agreement while [he] was employed with Rite Aid."²⁴

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 correspondence.²⁵ Soremekun also wrote numerous letters to his Union representatives detailing his complaints.²⁶ He did not, however, 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

In December 2001, Soremekun communicated a grievance regarding warning notices and a suspension that he had...