Litvinova v. Kaiser Foundation Hospitals

Background

Tatyana Litvinova alleged that she was a nurse employed by Kaiser Foundation Hospitals and acted as a union representative who advocated for patient and staff safety. She alleged that, after raising concerns about unsafe patient-care conditions, severe staffing shortages, and violent or threatening conduct by a colleague, defendants retaliated against and harassed her. The alleged conduct included denying her income-generating shifts, excluding her from training and advancement opportunities, removing her from union-related activities, publicly disparaging her, and professionally isolating her.

A collective bargaining agreement governed the terms and conditions of her employment. The agreement addressed shift assignments, wages, holiday and overtime matters, training and advancement opportunities, and grievance procedures. Litvinova sued Kaiser Foundation Hospitals, Kaiser Permanente, and five individuals in California state court, asserting eight causes of action: retaliation under California Labor Code section 1102.5; harassment and a hostile work environment under the Fair Employment and Housing Act; failure to investigate and prevent harassment; violation of whistleblower protections; breach of contract; failure to provide a safe working environment; intentional infliction of emotional distress; and negligent supervision and retention. Kaiser removed the case to federal court and moved to dismiss.

Labor-law preemption

The court explained that section 301 of the Labor Management Relations Act can preempt state-law claims when resolving them requires substantial analysis of a collective bargaining agreement. Under the Ninth Circuit’s two-part test, the court first asks whether the claimed right exists independently of the agreement. If it does, the court then asks whether resolving the claim substantially depends on interpreting the agreement. Merely consulting the agreement does not necessarily cause preemption; an active dispute about the agreement’s meaning, scope, or application generally is required.

The fifth cause of action alleged that Kaiser breached the collective bargaining agreement. The court stated that a claim for breach of such an agreement is governed exclusively by federal law under section 301. It dismissed that cause of action and, in the discussion of that claim, granted Litvinova leave to amend to assert a section 301 claim. The court stated that any such claim would need to address exhaustion of the agreement’s grievance and arbitration procedures and the dates of the relevant events.

The first and fourth causes of action concerned retaliation and whistleblower protections based on the same alleged conduct. The court concluded that the right to be free from retaliation under California Labor Code section 1102.5 exists independently of the collective bargaining agreement. However, the sparse allegations made it difficult to determine whether resolving the claims would require interpreting the agreement. The court allowed amendment so Litvinova could provide more facts showing why the retaliation claims were not preempted.

The second and third causes of action alleged harassment, a hostile work environment, and failure to investigate and prevent harassment under the Fair Employment and Housing Act. The court found that the complaint lacked facts describing the harassment or the alleged failure to investigate. It also found that Litvinova had not alleged harassment based on a protected characteristic, which is required for a Fair Employment and Housing Act harassment claim. The court granted leave to amend so she could address both preemption and the protected-characteristic requirement.

Unsafe-workplace claim

The sixth cause of action alleged that Kaiser failed to maintain a workplace free from violence, threats, and harassment, violating California labor law and workplace-safety standards. The court held that violations of federal Occupational Safety and Health Administration requirements do not themselves create a private cause of action. It also cited decisions holding that California Labor Code section 6400 does not provide a private cause of action. The court therefore dismissed the sixth cause of action without leave to amend.

National Labor Relations Act preemption

Kaiser also argued that the claims were preempted under the National Labor Relations Act. This doctrine can prevent state regulation of conduct protected or prohibited by that Act. The court concluded that Litvinova’s allegations implicated the Act because she alleged that she acted as a union representative and was retaliated against for raising safety concerns. The court stated that the first through fourth causes of action appeared, on the face of the complaint, to be preempted because the alleged conduct involved activities potentially protected by the Act. If Litvinova pursued those claims, the amended complaint had to allege facts explaining why they were not preempted.

The seventh cause of action for intentional infliction of emotional distress appeared to rely on the same retaliation and harassment allegations. The court therefore found that it might also be preempted and granted leave to amend to explain why it was not. The eighth cause of action for negligent supervision and retention did not identify the specific conduct involved. To the extent it was based on supervisors’ alleged retaliation and harassment because of Litvinova’s union advocacy, the court stated that it appeared preempted and granted leave to amend so she could allege specific facts addressing that issue.

Disposition

Judge Susan Illston granted Kaiser’s motion to dismiss Litvinova’s complaint. The court granted leave to amend the first through fourth and seventh and eighth causes of action. It dismissed the fifth and sixth causes of action without leave to amend. The order also stated that Litvinova could allege section 301 claims if she pleaded facts showing that those claims were timely and that she had exhausted the collective bargaining agreement’s grievance procedures. Any amended complaint had to be filed by November 7, 2025, and had to include specific facts addressing preemption, the dates of the events, and federal pleading standards.