Abdulhussain v. MV Pub. Transp.
| Decision Date | 21 April 2023 |
| Docket Number | CV-22-01458-PHX-SMB |
| Parties | Hameed Abdulhussain, Plaintiff, v. MV Public Transportation Incorporated, Defendant. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Defendant MV Public Transportation's[1] (“MV”) Motion to Dismiss Plaintiff Hameed Abdulhussain's Complaint. (Doc. 10.) Plaintiff filed a Response (Doc. 12), and MV filed a Reply (Doc. 15). After considering the parties' briefs and the relevant law, the Court will grant MV's Motion to Dismiss for the reasons discussed herein.
This is a dispute between an employer and its former employee. In July 2022, Plaintiff filed a Complaint in state court alleging MV discriminated and retaliated against him based on his national origin and/or religion when MV terminated him. Plaintiff also alleges he was defamed. (Doc. 1-3 at 2-11.) Plaintiff served MV with the Complaint on August 19, 2022. (Doc. 10 at 3.) MV removed the action to this Court on August 30, 2022. (Id.)
Plaintiff is a middle eastern, Muslim man who began working for MV on August 3, 2009. (Doc. 1-3 at 4.) At some point the parties entered into a Collective Bargaining Agreement (“CBA”). (Id.) Plaintiff alleges that in August 2020, he requested to cash out 160 hours of vacation hours he accumulated from ten years' work for MV. (Id.) Plaintiff contends that on August 8, 2020, MV offered him only 80 hours. (Id.) In November 2020, Plaintiff alleges MV increased this amount to 95 hours, an offer he rejected. (Id.)
On February 25, 2021, Plaintiff alleges his union president attempted to set up a meeting with Plaintiff's human resources agent, Donna Harper. (Id.) Plaintiff alleges he called Harper, who stated she would get back to Plaintiff on March 1, 2021, but never did. (Id.) Furthermore, on March 19, 2021, Plaintiff alleges his supervisor Paulette Johnson stopped him at MV's entrance to “check the van for damage.” (Id.) While stopped, Plaintiff alleges someone by the name Edna Garcia questioned why he was late, but Garcia did not ask a simultaneously arriving, non-Muslim driver the same question. (Id. at 4-5.) The following day Plaintiff alleges he made a complaint to MV about Garcia's questioning, and MV advised that disciplinary action would be taken against Garcia. (Id. at 5.) However, Plaintiff contends that between March 2021 and July 2021, Garcia further discriminated against Plaintiff by incorrectly adjusting his timecards, harassing him before and after shifts, assigning him challenging routes and passengers, and filing false complaints against him to management. (Id.)
On June 24, 2021, Plaintiff filed a grievance with the Arizona Industrial
Commission regarding his alleged unpaid wages. (Id.) In response, Plaintiff contends that Harper notified his Union representative, Dana Kraiza, that Harper had spoken on the phone with Plaintiff twice about two offers, but that Plaintiff refused them. (Id.) Plaintiff asserts this exchange never happened, and that upon confronting Harper about the “false claims,” Plaintiff received no response. (Id.)
Soon after, Garcia placed Plaintiff on administrative leave on July 1, 2021. (Id.) Plaintiff alleges Garcia made false accusations against him in retaliation for his complaints against her, and because of his race/ethnic background. (Id.) The following day, Plaintiff was notified that he was under investigation for threatening MV employees in violation of company policies. (Id. at 6.) Plaintiff contends he denied threatening any employees and again raised the issue with his vacation time and the fact that Harper never contacted him. (Id.) Plaintiff alleges he requested camera footage to prove he didn't threaten anyone, but that MV stated there was no audio. (Id.)
On July 22, 2021, MV allegedly terminated Plaintiff with nothing in writing, no paid leave, no hearing, and no union representation. (Id.) That same day, Plaintiff recalls speaking to MV's previous general manager, Jon Huynh, and Kraiza about his vacation pay. (Id.) Then, on September 11, 2021, Plaintiff alleges MV falsely accused him of being on the premises and made inferences that he was a terrorist. (Id.)
Plaintiff brings claims for national origin/religious discrimination and retaliation under Title VII and state law, as well claims of defamation relating to his termination from MV. (Id. at 7-11.) MV moves to dismiss Plaintiffs Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 10 at 2.) MV argues that Plaintiff's claims for discrimination and retaliation arising under Title VII and state law are governed by the parties' CBA, thus requiring this matter to follow the CBA's grievance and arbitration procedures. (Id. at 1-2.) Plaintiff argues the discrimination and retaliation claims are not covered by the CBA, but that if they were, they were followed internally by the Union and the EEOC, but MV failed to participate. (Doc. 12 at 1-2.)
Courts may dismiss a claim for “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). When reviewing motions to dismiss under Rule 12(b)(1), the Court asked to either look at facial challenges, where review is limited to the complaint itself, or factual questions, where review may expand into extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). As such, when Rule 12(b)(1) review is factual in nature, “the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). In such a motion, the burden of proof rests with the party asserting jurisdiction, and “no presumption of truthfulness attaches to plaintiff's allegations.” Owen v. United States, No. CIV S-06-2531 DFL DAD PS, 2007 WL 628662, at *1 (E.D. Cal. Feb. 28, 2007) (citing Thornhill Publ'g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 (9th Cir. 1979)).
Additionally, under Rule 12(b)(6) claims may be dismissed for “failure to state a claim upon which relief can be granted.” Thus, Courts may dismiss claims failing to allege a “cognizable legal theory” or “sufficient facts . . . under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). The Court looks at the four corners of the complaint, but it need not accept conclusory allegations as true, nor any unreasonable inferences, legal characterizations, or unwarranted deductions of fact. Transphase Sys., Inc., v. S. Cal. Edison Co., 839 F.Supp. 711, 718 (C.D. Cal. 1993). Typically, if Courts are considering a Rule 12(b)(6) motion and considers evidence outside the pleadings, it must convert the motion to a motion for summary judgment and allow the nonmoving party an opportunity to respond. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, if the Court is considering “documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice,” the Court may do so without converting the motion to one of summary judgment. Id. at 908 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002)). “Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.” Id.
Plaintiff did not attach the CBA to the Complaint. Nevertheless, Plaintiff incorporated the CBA by reference in the Complaint. (See Doc. 1-3 at 4). The Court also finds that the CBA helps form the basis of Plaintiff's alleged discrimination and wrongful termination/retaliation claims against MV, seeing as the CBA outlines required grievance and arbitration procedures for such claims. (See Doc. 10-1 at 7.) For these reasons, in considering MV's Motion to Dismiss the Court will also consider the CBA. See McCarthy, 850 F.2d at 560 (regarding Rule 12(b)(1) dismissal); see also Ritchie, 342 F.3d at 908 (regarding Rule 12(b)(6) dismissal).
MV moves the Court to dismiss Plaintiff's federal and state discrimination and retaliation claims because Plaintiff failed to raise them through the CBA's mandatory grievance procedure. MV points to the CBA's following provisions:
(Doc. 10-1 at 4, 7) (emphasis added).
“It is well settled an employer and union can waive employees' rights to a judicial forum and compel the use of arbitration for adjudication of federal and state statutory claims.” Sanchez v. Securitas Sec. Servs USA, Inc., No. 2:17-cv-08462-SVW-E, 2018 WL 5861258, at *2 (C.D. Cal. July 17, 2018) (citing 14 Penn Plaza LLV v. Pyett, 556 U.S. 247, 256 (2009)). In Pyett, the Supreme Court held...
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