Charles Davis; v. ABM INDUSTRIES, INC., a Delaware corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES DAVIS; et al.,
Plaintiffs-Appellants,
v.
ABM INDUSTRIES, INC., a Delaware
corporation; et al.,
Defendants-Appellees.
No. 22-55059
D.C. No. 2:21-cv-05623-ODW-
MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted November 17, 2022
Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KENNELLY,**
District Judge.
FILED
DEC 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.

-- 1 of 5 --

Charles Davis and other employees of ABM Industries (“ABM”) appeal the
district court’s order dismissing their complaint with prejudice. The employees
formerly worked as Skycaps at the United Airlines Terminal at the Los Angeles
International Airport (“LAX”). They filed suit against ABM and their union,
United Service Workers West (SEIU Local 1877) (“Union”), alleging a violation
of the California Fair Employment and Housing Act (“FEHA”) and intentional
infliction of emotional distress (“IIED”). We have jurisdiction under 28 U.S.C. §
1291. We affirm.
Because the COVID-19 pandemic caused declines in air travel, United
needed fewer Skycaps at LAX. As a result, ABM transferred the plaintiffs to
different bargaining unit positions in the airport. In their new positions, the
plaintiffs could not use their seniority rights. Those seniority rights are governed
by the Union’s collective bargaining agreement (“CBA”). Without seniority,
plaintiffs lost income and job opportunities.
The district court granted ABM’s motion to dismiss and the Union’s motion
for judgment on the pleadings, dismissing the complaint with prejudice. The court
held that § 301 of the Labor Management Relations Act (“LMRA”) preempted
both claims. We review de novo a district court’s finding of preemption under the
LMRA. Milne Emps. Ass’n v. Sun Carriers, 960 F.2d 1401, 1406 (9th Cir. 1991).
2

-- 2 of 5 --

We may affirm “on any basis supported by the record even if the district court did
not rely on that basis.” United States v. Washington, 969 F.2d 752, 755 (9th Cir.
1992).
To evaluate whether § 301 preempts state law claims, we first consider
whether the right exists solely as a result of the CBA. Burnside v. Kiewit Pac.
Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). If it does, then the claim is
preempted, and the analysis ends. Id. But if the right asserted by the employee
exists independently of the CBA, the court next determines “whether it is
nevertheless substantially dependent on analysis of a collective-bargaining
agreement.” Id. (quotation marks omitted). “Where there is such substantial
dependence, the state law claim is preempted by § 301. If there is not, then the
claim can proceed under state law.” Kobold v. Good Samaritan Reg’l Med. Ctr.,
832 F.3d 1024, 1033 (9th Cir. 2016) (footnote omitted).
The FEHA claim is preempted by § 301 under the second prong of the
analysis. The antidiscrimination right under FEHA is independent of the CBA.
See Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993). But
the FEHA claim in this case substantially depends on an interpretation of the CBA,
for CBA-conferred seniority rights are the cause of plaintiffs’ losses and are at the
core of plaintiffs’ claim. Thus, the FEHA claim’s success substantially depends on
3

-- 3 of 5 --

interpreting the rights and obligation under the CBA. See Dent v. Nat’l Football
League, 902 F.3d 1109, 1118, 1121 (9th Cir. 2018); Audette v. Int’l
Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1113 (9th Cir. 1999).
The IIED claim is also preempted by § 301. Plaintiffs allege that they suffered
emotional distress because ABM “refus[ed] to enforce contract provisions which
properly recognized Plaintiffs’ airport and terminal seniority; engag[ed] in blatant
age discrimination and refus[ed] to address Plaintiffs’ complaint about same.”
Section 301 preempts their claim because the alleged outrageous conduct—the
alleged contract violation—is not independent of the CBA. Chmiel v. Beverly
Wilshire Hotel Co., 873 F.2d 1283, 1286 (9th Cir. 1989) (finding that an IIED
claim was preempted because it was “inextricably intertwined” with the conduct
that formed the plaintiffs’ contract-based claims). Additionally, the claim
substantially depends on the CBA to the extent the plaintiffs rely on age
discrimination to allege outrageous conduct. As noted above, the age
discrimination analysis would turn on whether the Union and ABM violated the
CBA. See Miller v. AT & T Network Sys., 850 F.2d 543, 551 (9th Cir. 1988); see
also Newberry v. Pac. Racing Ass’n, 854 F.2d 1142, 1149 (9th Cir. 1988) (“A
determination of the validity of her emotional distress claim will require us to
4

-- 4 of 5 --

decide whether her discharge was justified under the terms of the collective
bargaining agreement.”).
AFFIRMED.
5

-- 5 of 5 --