               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARY MATSON,                          No. 13-36174
          Plaintiff-Appellant,
                                        D.C. No.
              v.                   2:10-cv-01528-RAJ

UNITED PARCEL SERVICE, INC.,
          Defendant-Appellee.           OPINION


     Appeal from the United States District Court
       for the Western District of Washington
      Richard A. Jones, District Judge, Presiding

         Argued and Submitted May 3, 2016
                Seattle, Washington

               Filed November 4, 2016

      Before: Susan P. Graber, Marsha S. Berzon,
        and Mary H. Murguia, Circuit Judges.

              Opinion by Judge Berzon
2                         MATSON V. UPS

                            SUMMARY*


                    Labor Law / Preemption

    The panel reversed the district court’s preemption ruling;
held that the district court erred in holding that an employee’s
state law gender-based hostile work environmental claim was
preempted under § 301 of the Labor Management Relations
Act (LMRA); reinstated the jury verdict from the first trial in
favor of the employee; and remanded.

    The panel noted the two-part test used to determine
whether a state law claim is preempted under § 301 of the
LMRA. At the first step, the court asks “whether a particular
right inheres in state law or, instead, is grounded in a
[collective bargaining agreement (CBA)],” Burnside v. Kiewit
Pac. Corp., 491 F.3d 1053, 1060 (9th Cir. 2007); and
preemption is warranted at this step only if the claim is
directly founded on rights created by the CBA. At step two,
the court asks whether the state law claim can be resolved by
“looking to” the CBA, in which case the claim is not
preempted; or whether the claim “interprets” the CBA, in
which case the claim is preempted.

    The panel held that adjudication of the employee’s hostile
work environment claim did not require interpretation of a
provision of the CBA, and preemption under § 301 of the
LMRA was not warranted. Specifically, the panel rejected
the employer’s suggestion that the employee’s claim was
nothing more than a repackaged “contractual dispute” over

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      MATSON V. UPS                          3

the assignment of extra work. The panel concluded that the
claim was not preempted under the first Burnside factor
because it was not grounded in any right created by the CBA.
The panel further held that nothing in the nature of the
employee’s hostile work environment claim required
interpretation of the CBA. The panel also rejected the
employer’s argument that Perugini v. Safeway Stores, Inc.,
935 F.2d 1083 (9th Cir. 1991), controlled this case.

    The panel held that because the district court’s conclusion
that the jury’s damages award was “grossly excessive”
rested in part on its erroneous preemption ruling, that
determination was also reversed, and the panel remanded for
reconsideration of the damages question.


                         COUNSEL

Donald H. Mullins (argued) and Jacob D.C. Humphreys,
Badgley Mullins Turner PLLC, Seattle, Washington, for
Plaintiff-Appellant.

Eric D. Miller (argued), Tobias S. Piering, Javier F. Garcia,
and Michael T. Reynvaan, Perkins Coie LLP, Seattle,
Washington, for Defendant-Appellee.
4                     MATSON V. UPS

                         OPINION

BERZON, Circuit Judge:

    We once again address whether a state employment claim
can go forward where the employee’s terms and conditions of
employment are covered by a collective bargaining
agreement. See Kobold v. Good Samaritan Reg’l Med. Ctr.,
832 F.3d 1024 (9th Cir. 2016).

     This case, unlike any of the three appeals consolidated in
the recent Kobold opinion, concerns a state equal
employment claim alleging a hostile work environment.
Mary Matson brought suit against her employer, United
Parcel Service, Inc. (“UPS”), asserting, among other claims,
a state law gender-based hostile work environment claim. A
jury returned a verdict for Matson on that claim, but her
victory was short-lived. The district court granted UPS’s
motion for a new trial on the ground that the claim was
preempted under § 301 of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185(a). The jury in the second
trial found for UPS. Matson challenges the district court’s
preemption ruling. We conclude that the district court erred
in holding Matson’s claim preempted and so reverse.

                              I.

    Mary Matson worked for UPS at its Boeing Field
International hub in Seattle from 2002 to 2010. During most
of that time Matson was employed as a “combination
worker,” meaning that she was responsible both for unloading
and sorting packages that arrived on airplanes and for
delivering them locally. Matson was part of a unit of
employees represented by the International Brotherhood of
                      MATSON V. UPS                        5

Teamsters, Local 174 (“Teamsters”). The terms and
conditions of her employment were governed by a collective
bargaining agreement (“CBA”) between UPS and the
Teamsters.

    Matson frequently complained during her employment
that, because of her gender, she was subject to unfair and
demeaning treatment in the workplace. Among other
examples of such treatment, she alleged, her supervisors
routinely favored male employees when assigning what she
called “extra work”—that is, package deliveries not
previously assigned to a particular route. Matson valued such
additional work assignments because they enabled her to
“stay on the clock longer than normal, thereby increasing her
pay.” She filed numerous grievances through her union
seeking redress for these practices. UPS responded to
Matson’s grievances several times by agreeing that it would
consider the seniority of Matson and other employees when
assigning work. Occasionally, UPS agreed to compensate
Matson for thirty minutes to one hour at her overtime rate.

    Unsatisfied with the results of the grievances, Matson in
2008 filed an employment discrimination and retaliation
complaint with the Washington State Human Rights
Commission (“WSHRC”), alleging, among other matters, that
UPS “has a pattern and practice of favoring male employees
by offering extra work to them.” The commission denied the
complaint. Matson also filed a similar charge with the Equal
Employment Opportunity Commission, which adopted the
findings of the WSHRC.

   “Extra work” is not a defined term in Matson’s CBA.
The term appears just once, in a “Sort Addendum” that
applies only to “Sorters, Pre-Loaders, Clerks, Car Washers,
6                          MATSON V. UPS

and all other Inside Employees.” The Sort Addendum does
not define “extra work,” but provides that UPS “recognizes
that the principles of seniority shall be given prime
consideration for extra work.” A separate addendum to the
CBA provides generally that UPS “recognizes that the
principles of seniority shall be given prime consideration in
the every day operation of the business.”

     In February 2010, UPS fired Matson for “proven
dishonesty,” relying on the results of an investigation into
whether Matson had falsified delivery records. Matson
initially contested her discharge by filing a grievance in
accord with the procedures outlined in her CBA.1 A joint
Teamsters/UPS labor panel affirmed her discharge, so her
case was not sent to arbitration.

    Matson then filed suit against UPS in Washington state
court, asserting several state law causes of action: (1) race
and gender discrimination; (2) a race- and gender-based
hostile work environment; (3) discrimination and retaliatory
termination based on Matson’s opposition to unlawful labor
practices; and (4) wrongful termination, based on the filing of
a workers’ compensation claim.2 UPS removed the case to



     1
       The CBA permitted a terminated employee to file a grievance with
the Teamsters appealing her termination. Once an employee filed a
grievance, the employee received a hearing before a “labor panel”
composed of an equal number of Teamsters and UPS representatives. The
labor panel then voted on whether to affirm the termination or to reinstate
the employee. The CBA required that the panel vote be unanimous. If the
panel did not reach unanimity, the grievance proceeded to arbitration.
    2
      Neither Matson’s race-based claims nor her wrongful termination
claims are at issue on appeal.
                       MATSON V. UPS                           7

federal court on the basis of diversity of citizenship. See
28 U.S.C. § 1332.

    UPS then moved for summary judgment. The district
court granted the motion on the merits with respect to
Matson’s claims for race discrimination, race-based hostile
work environment, and wrongful discharge in violation of
public policy, but denied summary judgment with respect to
Matson’s claims of gender discrimination, gender-based
hostile work environment, and discrimination on the basis of
opposition to unlawful practices. With regard to Matson’s
gender-based hostile work environment claim, UPS
maintained that the claim was preempted under LMRA § 301
because it was “inextricably intertwined” with an
interpretation of the CBA, but the district court rejected that
contention. “[N]o interpretation would be necessary for
purposes of Ms. Matson’s gender-based hostile work
environment claim, and plaintiff does not dispute the meaning
of any of its terms,” the district court concluded.

    The case proceeded to trial. At trial, Matson testified that,
in her view, what she termed “extra work” should have been
assigned to her but was, instead, performed by male
employees with less seniority. She testified that she would be
“humiliated in front of [her] coworkers” and treated as “some
kind of troublemaker just because [she was] asking for extra
work.”

    In addition to her allegations regarding work assignments,
Matson testified to numerous other incidents that, she
contended, contributed to a hostile work environment
including:
8                     MATSON V. UPS

    ! A supervisor and other employees refused to help her
      lift a 150-pound package, and laughed at her as she
      struggled to do it alone. During that incident, one
      supervisor acted in an intimidating manner, as he
      “clenched up his fists, put them behind his back, and
      stepped right into [Matson’s] face, gritted his teeth.”
      Matson was forced to seek out another coworker to
      help her lift the package. Matson’s effort to lift the
      package resulted in a serious back injury that caused
      her to miss more than a year of work.

    ! Various UPS managers disregarded her complaints of
      workplace hostility and threatened to file charges
      against her if she continued to make what they called
      “false statements.”

    ! A male coworker screamed at her and “began to
      choke [her]” after she had playfully tapped his knee.
      In response to this incident her supervisors did
      nothing.

    ! Matson’s supervisors assigned her a less desirable
      package car rather than a van. All of the male
      employees, many of whom had less seniority than
      Matson, were given vans.

    ! In the meeting in which she was terminated, she was
      confronted by seven men, all of whom were “very
      hostile.” Matson was accused of both lying and
      stealing time, while a man involved in the same
      activity was not charged with stealing time.

   At the close of Matson’s case-in-chief, UPS moved for
judgment as a matter of law, arguing once more that Matson’s
                      MATSON V. UPS                          9

hostile work environment claim was preempted under § 301.
The court determined that ruling on the motion before hearing
the defense witnesses would be premature.

    UPS then presented witnesses who disputed Matson’s
claim that the additional package deliveries constituted extra
work. One UPS employee stated that such deliveries were
“really what I called part of normal dispatch.”

    After hearing UPS’s witnesses, the district court denied
UPS’s motion for judgment as a matter of law. It explained
that “preemption is not mandated simply because defendant
refers to the CBA in mounting its defense.” The court
specifically noted that Matson had presented evidence “that
work was given to men instead of her.” That fact, along with
the other incidents of hostility she described, “in theory,
support a hostile work environment claim without reference
to the CBA.” Finally, the court noted that for the purposes of
Matson’s claim, “extra work, seniority, and prime
consideration are simply a reference point that elucidates her
claims. Whether or not seniority was actually given prime
consideration is not necessary for determination of these
claims.”

    Matson next offered rebuttal testimony in which she
disagreed with UPS’s evidence regarding the disputed work
assignments. She maintained that certain package deliveries
were work that should have been awarded in “seniority
order,” and that other such work was improperly dispatched
by a male hourly employee rather than by a supervisor.
When asked on cross-examination whether she had ever filed
grievances against higher-seniority employees, Matson stated
that “this is a very muddy area, because . . . in the contract,
there’s a lot of work that’s considered full-time work and
10                        MATSON V. UPS

part-time work. And there’s a lot of different categories. . . .
And all that people are trying to do is separate whose job is
whose so that you know whether or not you can bid on it.
And that’s considered extra work.”

    The jury found for UPS on Matson’s discrimination and
retaliation claims. The jury returned a verdict for Matson,
however, on her hostile work environment claim and awarded
$500,000 in damages for emotional distress. The district
court’s jury instruction regarding Matson’s hostile work
environment claim did not use the term “extra work” or
“seniority” or refer to the CBA; it simply stated the elements
of the claim that Matson had the burden of proving.3


     3
     The court instructed the jury on Matson’s hostile work environment
claim as follows:

         To establish her claim of hostile work environment on
         the basis of gender, Ms. Matson has the burden of
         proving each of the following propositions: (1) That
         there was conduct that occurred because of Ms.
         Matson’s gender; (2) That this conduct was unwelcome
         in the sense that Ms. Matson regarded the conduct as
         undesirable and offensive, and did not solicit or incite
         it; (3) That this conduct was so offensive or pervasive
         that it altered the conditions of Ms. Matson’s
         employment; and (4) That management knew, through
         complaints or other circumstances, of this conduct, and
         UPS failed to take reasonably prompt and adequate
         corrective action reasonably designed to end it.

         If you find from your consideration of all of the
         evidence that each of these propositions has been
         proved, then your verdict should be for Ms. Matson on
         this claim. On the other hand, if any of these
         propositions has not been proved, your verdict should
         be for UPS on this claim.
                          MATSON V. UPS                               11

    Following the verdict, UPS filed a renewed motion for
judgment as a matter of law under Federal Rule of Civil
Procedure 50(b), or, alternatively, for a partial new trial under
Federal Rule of Civil Procedure 59, again arguing § 301
preemption of the hostile work environment claim. This
time, the court granted the motion.

    In so ruling, the district court concluded that Matson’s
rebuttal testimony acknowledged that the definition of “extra
work” was “a very muddy area” and so “put the interpretation
of extra work under the CBA directly in dispute.” The court
went on to hold that Matson’s hostile work environment
claim “with respect to ‘extra work’ assignments is
substantially dependent on analysis of the CBA because the
court would have to interpret the meaning of ‘extra work.’”
The court ordered a new trial, holding that jury questions
remained regarding whether Matson had suffered a hostile
work environment on the basis of incidents she had described
that were unrelated to the assignment of “extra work.” The
court further held that, in light of its preemption ruling, the
jury’s award of $500,000 was “grossly excessive” and,
“[a]ccordingly, the question of damages must be tried again
as well.”

   After the second trial, the jury returned a verdict for UPS.
This appeal followed.4



Jury Instructions at 15, Matson v. UPS, No. 2:10-cv-01528 (W.D. Wash.
July 18, 2012).
    4
      Matson makes several claims on appeal regarding various district
court rulings during the second trial. Because we reverse the initial
preemption ruling and hold that the first jury verdict must be reinstated,
we need not and do not consider those claims.
12                    MATSON V. UPS

                              II.

      Section 301 provides that “[s]uits for violation of
contracts between an employer and a labor organization
representing employees in an industry affecting commerce
. . . may be brought in any district court of the United States
having jurisdiction of the parties.” 29 U.S.C. § 185(a). The
Supreme Court has long construed this provision “as a
congressional mandate to the federal courts to fashion a body
of federal common law to be used to address disputes arising
out of labor contracts.” Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 209 (1985) (citing Textile Workers Union of
Am. v. Lincoln Mills of Ala., 353 U.S. 448, 456–57 (1957)).
This federal common law, in turn, “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) (citing Local 174, Teamsters of Am. v.
Lucas Flour Co., 369 U.S. 95, 103–04 (1962)). Preemption
under § 301 is not limited to “cases specifically alleging
contract violation,” id. (citing Lueck, 471 U.S. at 220), but
also applies “when resolution of a state-law claim is
substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract,”
Lueck, 471 U.S. at 220.

    We have fashioned a two-part test to determine whether
a state law claim is preempted under § 301. At the first step,
we ask “whether a particular right inheres in state law or,
instead, is grounded in a CBA.” Burnside v. Kiewit Pac.
Corp., 491 F.3d 1053, 1060 (9th Cir. 2007). In making this
determination we focus on “the legal character of a claim, as
‘independent’ of rights under the collective-bargaining
agreement, . . . and not whether a grievance arising from
‘precisely the same set of facts’ could be pursued.” Livadas
                       MATSON V. UPS                           13

v. Bradshaw, 512 U.S. 107, 123–24 (1994) (citation omitted)
(quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 410 (1988)). Only if the claim is “founded directly on
rights created by collective-bargaining agreements” is
preemption warranted at this step. Caterpillar Inc. v.
Williams, 482 U.S. 386, 394 (1987).

    At step two, “to determine whether a state law right is
‘substantially dependent’ on the terms of a CBA,” we ask
“whether the claim can be resolved by ‘look[ing] to’ versus
interpreting the CBA.” Burnside, 491 F.3d at 1060
(alterations in original) (quoting Caterpillar, 482 U.S. at 394;
Livadas, 512 U.S. at 125). “If the latter, the claim is
preempted; if the former, it is not.” Id. “We have stressed
that . . . the term ‘interpret’ is defined narrowly [in this
context]—it means something more than ‘consider,’ ‘refer
to,’ or ‘apply.’” Balcorta v. Twentieth Century-Fox Film
Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). Merely “alleging
a hypothetical connection between the claim and the terms of
the CBA is not enough to preempt the claim,” nor is “[a]
creative linkage between the subject matter of the claim and
the wording of a CBA provision.” Cramer, 255 F.3d at
691–92. Moreover, preemption is warranted only where “the
need to interpret the CBA . . . inhere[s] in the nature of the
plaintiff’s claim. If the claim is . . . based on state law, § 301
preemption is not mandated simply because the defendant
refers to the CBA in mounting a defense.” Id. at 691.

    As we recently observed, the “Burnside factors reflect
two driving concerns of preemption doctrine.” Kobold,
832 F.3d at 1033. Mandating preemption when a purported
state law claim is founded on a right grounded in a CBA
prevents “parties’ efforts to renege on their [CBA] arbitration
promises by ‘relabeling’ as tort suits actions simply alleging
14                      MATSON V. UPS

breaches of duties assumed in collective-bargaining
agreements.” Livadas, 512 U.S. at 123 (quoting Lueck,
471 U.S. at 211). By contrast, requiring preemption when a
state law claim requires interpretation of a CBA serves a
separate interest: preserving “a central tenet of federal labor-
contract law . . . that it is the arbitrator, not the court, who has
the responsibility to interpret the labor contract in the first
instance.” Lueck, 471 U.S. at 220. Put differently, because
of the pivotal role that an arbitrator plays in interpreting and
administering CBAs, a court “can determine questions of
state law involving labor-management relations only if such
questions do not require construing collective-bargaining
agreements.” Lingle, 486 U.S. at 411.

    Because the second step of the Burnside test is centrally
concerned with safeguarding the role of the contractual
grievance/arbitration system, “there is no basis for scuttling
the state law cause of action if any necessary CBA
interpretation can in some fashion be conducted via the
appropriate grievance/arbitration forum.” Kobold, 832 F.3d
at 1033. As we explained in Kobold, “[t]o allow such
scuttling disadvantages employees covered by CBAs, as they
lose state law protections because of an embedded CBA
issue possibly peripheral to their core cause of action.
The interest in sending substantial CBA issues through
grievance/arbitration does not justify creating this
disadvantage unless the interest cannot be otherwise
accommodated.” Id.

    Against this doctrinal backdrop we turn to the present
case.
                      MATSON V. UPS                         15

                             III.

    The thrust of UPS’s argument for preemption is that
because Matson’s hostile work environment claim focused in
part on her allegation that UPS improperly gave “extra work”
assignments to male employees with less seniority, that claim
cannot be resolved without interpreting the term “extra
work,” as used in the CBA, to determine whether Matson was
in fact entitled to the work she claimed. More specifically,
UPS maintains that “to prove that particular work was
improperly assigned because of her gender, Matson first had
to establish that she, as opposed to other employees, was
entitled to the work under the CBA.” UPS’s premise is
wrong, for several reasons.

    As an initial matter, we reject UPS’s suggestion that
Matson’s claim is nothing more than a repackaged
“contractual dispute” over the assignment of extra work. This
assertion mischaracterizes her claim. Matson’s claim
included the allegation that UPS systematically assigned men
work to which they were not entitled by seniority, but only as
one element of a pervasively hostile work environment. The
hostile environment, Matson maintained, was also
characterized by intimidation and derision having nothing to
do with work assignments. Matson’s right not to work in a
gender-based hostile work environment is a “nonnegotiable
state-law right[] . . . independent of any right established by
contract.” Lueck, 471 U.S. at 213. The claim, therefore, is
not preempted under the first Burnside factor, as it is not
grounded in any right created by the CBA.

   Nor does anything “in the nature of” Matson’s hostile
work environment claim require interpretation of the CBA.
Cramer, 255 F.3d at 691. As the district court instructed,
16                    MATSON V. UPS

“[t]o find for plaintiff, the jury had to find that ‘there was
conduct that occurred because of Ms. Matson’s gender’; ‘this
conduct was unwelcome in the sense that Ms. Matson
regarded the conduct as undesirable and offensive, and did
not solicit or incite it’; ‘this conduct was so offensive or
pervasive that it altered the conditions of Ms. Matson’s
employment’; and ‘management knew . . . of this conduct,
and UPS failed to take reasonably prompt and adequate
corrective action reasonably designed to end it.’” As these
elements illustrate, the focus of inquiry in a hostile work
environment case is properly on the actual workplace
treatment of the plaintiff and the actual practice of the
management in responding—or contributing—to that
treatment. UPS’s alleged discrimination in assigning extra
work was just one of several factors that Matson contends
contributed to a hostile work environment. The multi-factor,
fact-based inquiry required to decide Matson’s hostile
environment claim could be conducted without interpreting
any provision of the CBA.

    Even were we to grant that Matson’s hostile environment
claim rested on the allegedly discriminatory assignment of
certain work assignments to men, and, further, that whether
the CBA gave Matson a seniority-based right to that work
requires interpretation of the CBA, Matson’s hostile work
environment claim still would not require interpretation of
any contractual provision.

    We note, first, that the only CBA provision that uses the
term “extra work” applies to “[i]nside employees,” and so
does not apply to the deliveries here in dispute. In using the
term “extra work,” with regard to outside deliveries, Matson
was relying on that provision. Instead, she was more
                          MATSON V. UPS                               17

colloquially referring to sporadic work not covered by pre-set
assignments.

    Matson could have a viable hostile environment claim
whether or not the CBA actually requires assignment of that
work based on seniority. Contrary to UPS’s assumption,
nothing in Matson’s argument depends on her having been
contractually entitled to the disputed work. Even if she did
not have a right to the work under the CBA, management’s
systematic favoring of men in assigning the disputed work
could contribute to a hostile work environment. The correct
interpretation of the CBA, in other words, is purely peripheral
to the relevant question with respect to assigning work. That
question was whether UPS showed systematic favoritism
toward men in making its work assignments, thereby
contributing to a hostile work environment for Matson and
other women.

     Put differently, Matson’s contention is not that UPS
created a hostile work environment by violating her
contractual seniority rights. Rather, her position is that
failing to assign her the work despite her seniority is evidence
of UPS’s hostility toward her because of her gender.
Matson’s central contention was that she should have been
awarded the disputed work on any of the usual rationales for
work assignment—seniority, proximity to the location where
the work was to begin, or temporal availability—and that all
those usual criteria were disregarded.5 As UPS did not assign
the work on the basis of any of those criteria, Matson


    5
     For example, one of Matson’s female coworkers testified that both
she and Matson were denied work assignments even though they were
immediately available and even though they had greater seniority than the
male employees who received the assignments.
18                    MATSON V. UPS

maintained, hostility toward her because of her sex is the
likely explanation for the failure to assign her the work.

    Additionally, to the extent UPS chose to emphasize its
interpretation of the CBA to dispute Matson’s right to the
work as part of its defense, that defense does not undermine
Matson’s reliance on the assignment of the disputed work as
part of her hostile work environment claim. For one thing,
“§ 301 preemption is not mandated simply because the
defendant refers to the CBA in mounting a defense.”
Cramer, 255 F.3d at 691. For another, UPS does not put
forward any interpretation of the CBA under which it was
required to award the work as it did. At best, the company’s
contention is that nothing in the CBA required that the work
be awarded to Matson. Whether that is so or not does not
detract from Matson’s statutory gender-based hostile work
environment claim. An employer who is free to make job
assignments as it chooses can still violate the state law
proscription on creating a gender-based hostile work
environment by, among other things, favoring men over
women when assigning work.

    Further, even if any interpretation of the CBA had been
required, the relevant interpretive issues were addressed in
formal settlements after invocation of the grievance
procedure. For example, following one of Matson’s
grievances, the parties reached a settlement according to
which UPS agreed that “[t]he Company will recognize that
the principles of seniority be given prime consideration in the
assigning of extra work to unassigned geographic delivery
areas of the combination air delivery drivers dispatched out
of the [Boeing Field International] facility.” The record
includes fifteen other grievances filed by Matson. Of these,
seven were ultimately withdrawn. Three were resolved when
                       MATSON V. UPS                         19

UPS agreed to compensate Matson for lost work. One was
settled when UPS agreed to “use by seniority Monday
through Friday air drivers for the Saturday air shuttles when
needed.” Four were settled when UPS agreed to “abide by”
or “consider” Matson’s seniority in the “day to day
dispatching of [early morning] routes.”

    One could view these agreements as agreed-upon CBA
interpretations on the very issue that UPS contends remains
disputed: that work Matson complained about was supposed
to be assigned in accord with seniority principles. Or one
could view them as independent labor-management
agreements, which would also be covered by § 301 of the
LMRA. See Retail Clerks Int’l. Ass’n, Local Union Nos. 128
& 633 v. Lion Dry Goods, Inc., 369 U.S. 17, 28 (1962).
Either way, the clarity of the agreements means that no
further interpretation was required; the grievance settlements
need only be looked to or applied. See Burnside, 491 F.3d at
1060; Balcorta, 208 F.3d at 1108. Finally, the grievance
settlements were, at the very least, evidence that seniority was
as a practical matter a factor usually used in making work
assignments in the workplace.

    However the settlements are viewed, the jury was not
asked to interpret the CBA differently from the
representations UPS made when settling Matson’s
grievances, and nothing in the elements of the hostile work
environment claim required it to do so. As we recognized in
Kobold, “there is no basis for scuttling the state law cause of
action if any necessary CBA interpretation can . . . be
conducted via the appropriate grievance/arbitration forum.”
832 F.3d at 1033. Here, use of that forum resulted in
resolutions consistent with Matson’s partial reliance on work
20                     MATSON V. UPS

assignment patterns to support her hostile work environment
claim.

    Finally, contrary to UPS’s argument, Perugini v. Safeway
Stores, Inc., 935 F.2d 1083 (9th Cir. 1991) does not control
the result here. In Perugini, the plaintiff charged her
employer with intentional infliction of emotional distress
(“IIED”) in part based on its refusal to assign her to light duty
while she was pregnant. To establish her IIED claim,
Perugini had to show that Safeway’s conduct was “extreme
and outrageous.” Id. at 1087. This court concluded that, “if
Safeway’s managerial freedom is not constrained in any
material way by the CBA, a rational jury could not find that
Safeway’s conduct in discharging Perugini from heavy work
instead of reassigning her to light work” met this standard.
Id. at 1088. Therefore, the court concluded, it was required
to “look to the CBA to judge the appropriateness of
Safeway’s behavior in regard to this allegation.” Id.

    By contrast, here, even if UPS’s “managerial freedom is
not constrained in any material way by the CBA”—i.e., if
Matson had no contractual right to the disputed work
assignments—for the company consistently to assign the
work to men rather than to equally eligible, or more eligible,
women was evidence of a gender-based hostile environment.
Matson’s gender-based hostile work environment claim was
thus viable even if UPS had complete “managerial freedom”
over the assignment of the disputed work under the CBA.

   Notably, the IIED preemption analysis in Perugini did not
concern a sex discrimination or hostile work environment
                          MATSON V. UPS                              21

claim.6 If it had, then the existence of employer discretion
under the CBA would not have been dispositive, or even
pertinent; discriminatory exercise of that discretion would
still be actionable.

                                  IV.

    For all these reasons, the “adjudication of [Matson’s]
claim [does not] require interpretation of a provision of the
CBA,” and § 301 preemption is not warranted. Cramer,
255 F.3d at 691–92.

    Kobold noted that “although § 301 preemption questions
arise fairly frequently, ‘[f]amiliarity . . . has not bred
facility.’” 832 F.3d at 1032 (alterations in original) (quoting
Cramer, 255 F.3d at 689). This case illustrates the pitfalls of
expanding the preemptive effect of the federal common law
governing the interpretation of collective bargaining
agreements to limit the enforcement of state law employment
discrimination protections. Litigation concerning such
protections ordinarily focuses on adverse workplace
incidents, probing into whether discriminatory motives
underlay those incidents. As the focus is not only on what
happened but why it happened, resolving such litigation will
rarely rest on rights created by CBAs or require interpreting
CBAs in the sense required for § 301 preemption.




    6
      Perugini did allege emotional distress caused by “on-the-job
harassment” based on her sex, as well as the refusal to assign her light
work. Perugini, 935 F.2d at 1088. We held that the emotional distress
claims premised on her employer’s alleged sex-based harassment were not
preempted. Id. at 1088–89.
22                     MATSON V. UPS

    In this instance, however “muddy” the CBA was
concerning the assignment of the disputed work, the
questions for the jury—to the extent it considered the
assignment issue at all—were not whether the disputed
assignments were “extra work” as the term is used in the
CBA, or whether the CBA required that they be awarded by
seniority. Rather, the jury’s focus was directed to whether the
assignments were discriminatory in that men were
systematically favored over similarly situated women.
Making that determination did not require the jury to decide
what any provision of the CBA requires. And the jury had
the resolutions of Matson’s grievances as evidence that, in
fact, seniority was usually or often considered.

    We therefore reverse the decision of the district court that
Matson’s claims were preempted to the extent they relied on
her allegations regarding UPS’s extra work assignments, and
we reinstate the jury verdict from the first trial. Because the
district court’s conclusion that the jury’s damages award was
“grossly excessive” rested in part on its erroneous preemption
ruling, we reverse that determination as well, and remand for
reconsideration of the damages question.

     REVERSED AND REMANDED.
