                                                                           FILED
                           NOT FOR PUBLICATION                             APR 25 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GEORGE BROWN,                                    No. 12-56905

              Plaintiff - Appellant,             D.C. No. 2:12-cv-07030-R-PJW

  v.
                                                 MEMORANDUM*
BROTMAN MEDICAL CENTER, INC.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted April 10, 2014
                              Pasadena, California

Before: FARRIS and HURWITZ, Circuit Judges, and FRIEDMAN, Senior District
Judge.**

       George Brown appeals from the district court’s dismissal of various claims

against defendant Brotman Medical Center that arose when Brotman terminated



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
Brown’s employment following his altercation with a patient. We have jurisdiction

under 28 U.S.C. § 1291.We affirm in part and reverse in part.

      The district court held that each of Brown’s claims was preempted under

Section 301 of the Labor Management Relations Act. The LMRA authorizes the

development of “a federal common law of CBA interpretation” and “preempts the

use of state contract law in CBA interpretation and enforcement.”Cramer v.

Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001) (en banc). A state law

claim is preempted if it “necessarily requires the court to interpret an existing

provision of a CBA that can reasonably be said to be relevant to the resolution of

the dispute.” Id. at 693.

      We reverse the district court’s decision that Brown’s assault and battery tort

claim is preempted by the LMRA. The LMRA does not give parties “the ability to

contract for what is illegal under state law.” Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 212 (1985). State law prohibitions against assault and battery “exist

independent of any contract,” Galvez v. Kuhn, 933 F.2d 773, 777 (9th Cir. 1991),

and Brown’s tort claim thus does not require interpretation of the CBA. See Ward

v. Circus Circus Casinos, Inc., 473 F.3d 994, 998-9 (9th Cir. 2007).

      We reverse the district court’s decision that Brown’s claim for intentional

infliction of emotional distress is preempted by the LMRA. We have held that an


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IIED claim will not be preempted if the CBA does not cover the allegedly extreme

and outrageous conduct. Humble v. Boeing Co., 305 F.3d 1004, 1013 (9th Cir.

2002). Brown’s IIED claim is based on allegations of assault and battery and age

discrimination by Brotman, behavior not covered by the CBA. See Galvez, 933

F.2d at 780; Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1088 (9th Cir. 1991).

      We reverse the district court’s decision that Brown’s claim under

California’s Fair Employment and Housing Act is preempted by the LMRA. We

have consistently held that the LMRA does not preempt FEHA claims. Detabali v.

St. Luke's Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007). The rights that FEHA

claims assert are “independent of collective-bargaining agreements.” Ramirez v.

Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993). Brotman argues

that Brown’s cause of action is preempted since it included an allegation that

Brotman failed to follow the procedures for termination set forth in the CBA.

Brown’s claim, however, is that Brotman discriminatorily enforced the terms of the

CBA; resolution of the claim will be based on Brotman’s motivations for applying

the CBA rather than the meaning of the CBA’s terms. See e.g., Detabali, 482 F.3d

at 1203.

      We reverse the district court’s decision that Brown’s claim under section

1102.5(b) of the California Labor Code is preempted by the LMRA.


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Under § 1102.5(b) of the California Labor Code, an employer may not retaliate

against an employee for disclosing a violation of a state or federal statute,

regulation, or rule. Cal. Lab. Code § 1102.5. To bring an § 1102.5(b) retaliation

cause of action, an employee must meet three elements: “(1) the plaintiff establish

a prima facie case of retaliation, (2) the defendant provide a legitimate,

nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is

merely a pretext for the retaliation.” Patten v. Grant Joint Union High Sch. Dist.,

134 Cal. App. 4th 1378, 1384 (2005). To establish a prima facie case for

retaliation, a plaintiff must show that “(1) [h]e engaged in a protected activity, (2)

h[is] employer subjected h[im] to an adverse employment action, and (3) there is a

causal link between the two.” Id.

      The elements of this claim require an inquiry into the respective actions of

the employer and employee in order to determine whether Brotman retaliated

against Brown after he engaged in whistleblowing activity. This inquiry will not

depend on interpretation of terms in the CBA. Brotman argues that Brown’s claim

is preempted since the CBA established a set of procedures for reporting hazardous

incidents and those procedures must be interpreted in order to determine whether

they prevented Brotman from engaging in protected whistleblowing activity. The

CBA will not need to be interpreted, however, as whether or not Brotman’s


                                           4
procedures limited Brown’s ability to engage in protected whistleblowing activity

is not part of the claim.

      We reverse the district court’s decision that Brown’s wrongful termination

claim is preempted by the LMRA. A claim for wrongful termination in violation of

public policy is not preempted if it “poses no significant threat to the collective

bargaining process and furthers a state interest in protecting the public

transcending the employment relationship.” Young v. Anthony's Fish Grottos, Inc.,

830 F.2d 993, 1001 (9th Cir.1987). California has established a clear public policy

against workplace discrimination. See Cal. Gov’t Code § 12920. Brown’s wrongful

termination claim is partially premised on allegations of age discrimination and

would further a state interest in preventing workplace discrimination. This claim

also does not require interpretation of the CBA as it focuses on Brotman’s

motivations for terminating Brown.

      We affirm the district court’s decision that Brown’s claim under §6400 of

the California Labor Code is preempted. Section 6400 establishes a potential duty

of care for an employer regarding the physical conditions of the workplace. See

Burnette v. Godshall, 828 F. Supp. 1439, 1446 (N.D. Cal. 1993). It does “not

require an employer to take all conceivable steps to ensure safety, nor forbid an

employer from adopting practices or methods which might conceivably result in


                                           5
harm to an employee.” Cal. Corr. Supervisors Org., Inc. v. Dep't of Corr., 96 Cal.

App. 4th 824, 831 (2002). Rather, §6400 gives employers “room for discretion” in

their decisions about workplace safety. Id. In previous cases, plaintiffs have

brought tort claims that alleged defendants violated a duty of care established by

§6400. See, e.g., Waste Mgmt. Inc. v. Superior Court, 119 Cal. App. 4th 105, 110

(2004).

      Unlike Brown’s intentional tort claims, this claim largely focuses on the

general decisions that Brotman made in setting up its workplace. The CBA gives

Brotman wide latitude in making determinations about management of the

workplace as it reserves Brotman’s right to “adopt rules of safety…to determine

the type and scope of work to be performed and for the services to be provided to

patients….to determine the methods processes, means and places of providing

service to patients….[and] to determine the quality of patient’s services.” For this

claim, it will be necessary for a court to interpret the terms of the CBA to

determine the standard of care that Brotman agreed to assume and, in turn, whether

Brotman’s actions violated that duty. See Burnette, 828 F. Supp. at 1447. LMRA

preemption replaces the plaintiff’s claim with a claim under section 301 of the

LMRA. Lingle v. Norge Div., 486 U.S. 399, 403-406 (1988). Brown’s claim is

barred as it was not filed within the applicable six-month statute of limitations for


                                           6
Section 301 claims. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169

(1983).

      We have held that a district court may exercise supplemental jurisdiction

over claims that are brought in conjunction with claims that are preempted by the

LMRA. See Ellis v. Gelson's Markets, 1 F.3d 1246 (9th Cir. 1993). A district

court’s exercise of supplemental jurisdiction is reviewed for abuse of discretion.

Acri v. Varian Associates, Inc., 114 F.3d 999, 1000 (9th Cir. 1997). Brown’s

California Labor Code § 203 claim for waiting time penalties was brought in

conjunction with the preempted § 6400 claim. There is no evidence that the district

court abused its discretion in exercising supplemental jurisdiction over that claim.

      The judgment of the District Court is AFFIRMED IN PART AND

REVERSED IN PART. In so holding, we make no comment on the merits of

Brown’s claims or whether the district court should exercise supplemental

jurisdiction over the non-preempted claims.

      Each side shall bear their own costs.




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