Thomas v. Vulcan Materials Company

Background

Gary Price Thomas sued Vulcan Materials Company, Jeff Nehmens, Phil Miller, Teamsters Union Local 665, Teamsters Union Local 853, Mike Yates, Mark Gleason, and Rodney Smith. Thomas alleged that he was terminated after raising concerns about earthquake safety and filing a grievance. His complaint asserted seven claims: whistleblower retaliation under California Labor Code section 1102.5; violation of California Code of Regulations section 1509(a), which concerns an employer’s injury and illness prevention program; wrongful constructive termination under Labor Code section 1102.5 and the California Fair Employment and Housing Act; conspiracy; fraud; another Labor Code section 1102.5 claim; and intentional infliction of emotional distress.

The Union Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. The court considered the allegations in the complaint and did not consider new facts Thomas raised in later filings that were not included in the complaint.

Court’s analysis

For the first and sixth claims under Labor Code section 1102.5, the court held that the Union Defendants were not Thomas’s employers. The court also stated that the statute imposes liability only on the employer. It therefore dismissed those claims against the Union Defendants with prejudice.

For the second claim under California Code of Regulations section 1509(a), the court held that Local 665 could not be liable because it was not Thomas’s employer. The court dismissed that claim with prejudice as to Local 665.

For the third claim, the court dismissed the portion based on Labor Code section 1102.5 with prejudice for the same employer-related reason. The court could not determine what facts supported the Fair Employment and Housing Act portion, which sections of that law Thomas relied on, or whether the claim would be displaced by federal rules governing a union’s duty to represent employees fairly. The court dismissed that portion with leave to amend and required Thomas to identify the specific wrongful acts and statutory provisions involved.

For the fourth claim, the court rejected Thomas’s reliance on 18 U.S.C. section 371 because it is a criminal statute that does not provide a private right to sue. The court dismissed the conspiracy claim against the Union Defendants with prejudice.

For the fifth claim, the court held that the fraud claim was displaced by section 301 of the Labor Management Relations Act because deciding whether the collective bargaining agreement was legally void required interpreting that agreement. The court dismissed the fraud claim against the Union Defendants with prejudice.

For the seventh claim, intentional infliction of emotional distress, the court found that Thomas had alleged only general statements about discriminatory, harassing, and retaliatory conduct. Because the court could not determine which specific actions allegedly caused his distress or whether the claim was governed by the union’s duty of fair representation, it dismissed the claim without prejudice and with leave to amend.

Disposition

The court granted the Union Defendants’ motion to dismiss. Claims one, two, four, five, and six, and claim three to the extent it relied on Labor Code section 1102.5, were dismissed with prejudice as to the Union Defendants. Claim three to the extent it relied on the Fair Employment and Housing Act and claim seven were dismissed with leave to amend. The court ordered Thomas to file an amended complaint by January 3, 2020. Judge Kandis Westmore signed the order.