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Munger v. Cascade Steel Rolling Mills, Inc.

United States District Court, D. Oregon

September 18, 2018

JOSEPH J. MUNGER, SR., Plaintiff,
v.
CASCADE STEEL ROLLING MILLS, INC., Defendant.

          Benjamin Rosenthal, Of Attorneys for Plaintiff.

          Anthony D. Kuchulis and Chris M. Morgan, Barran liebman llp, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Plaintiff, Joseph J. Munger, Sr. (“Munger”), formerly was employed by Defendant, Cascade Steel Rolling Mills, Inc. (“Cascade”). After Cascade terminated Munger's employment based on asserted violations of its attendance policy, Munger filed a grievance with his union, challenging Cascade's employment action. Munger's union grieved his challenge under the collective bargaining agreement between Cascade and the union, requiring the parties to engage in binding arbitration. After a hearing, the arbitrator ruled in favor of Cascade, finding that Cascade had just cause to terminate Munger's employment and dismissing Munger's grievance. Munger then filed this lawsuit in federal court. Cascade moves to dismiss solely under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Munger lacks standing thus depriving this Court of subject matter jurisdiction. Cascade reserves all other defenses for another time. For the reasons that follow, the Court denies Cascade's motion to dismiss for lack of subject matter jurisdiction.

         STANDARDS

         Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation marks omitted). A court must presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss for lack of subject matter jurisdiction, “because it involves a court's power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). Thus, an objection that a court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). Further, the Court must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).

         A motion to dismiss for lack of subject matter jurisdiction may be either “facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations in the complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A factual challenge “can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997) (citation and quotation marks omitted).

         BACKGROUND

         Cascade employed Munger from February 2, 1993, through June 2, 2016, most recently as a crane operator. Munger alleges that he requested medical leave for September 21-23, 2015, October 5-9, 2015, and May 25-26, 2016. Munger also alleges that Cascade wrongfully treated his absences on those dates as non-medical events. Munger adds that Cascade wrongfully suspended Munger on October 26, 2015, and wrongfully terminated his employment on June 2, 2016. In this lawsuit, Munger asserts claims alleging retaliation and discrimination in violation of the federal Family and Medical Leave Act (“FMLA”), the Oregon Family Leave Act, and the Oregon Sick Time Leave Act. Munger also alleges common law wrongful discharge.

         United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, for and on behalf of Local Union 8378 (the “Union”) and Cascade are parties to a Collective Bargaining Agreement (“CBA”).[1] Among other things, the CBA states: “It is agreed that the Company [Cascade] and the Union shall comply with all the appropriate state and federal statutes dealing with discrimination.” CBA, § 3.2. The CBA also contains, in Article 28, a process for the adjustment of grievances. The preamble to that article provides:

Should any dispute arise between the Company and the Union or the employees represented by the Union during the term of this Agreement, there shall be no interruption of work at any time but the matter shall be settled in accordance with the following provisions.

CBA, § 28.1 (emphasis added). Article 28 continues by describing the grievance adjustment process, including, ultimately, arbitration. The CBA also states: “The award of the arbitrator shall be final and binding on all parties.” CBA, § 28.3(D).

         While employed by Cascade, Munger was represented by the Union. After the termination of his employment, Munger filed a grievance, challenging his discharge under Cascade's “modified strict attendance policy.” The Union grieved Munger's challenge through arbitration. The arbitrator held hearings on March 23, 2017, and April 20, 2017. Both Cascade and the Union were represented, and Munger participated as a witness for the Union. The parties agree that the issue presented in arbitration was whether Cascade had “just cause to terminate Joe Munger, and if not, what is the appropriate remedy.” Cascade and the Union each submitted a post-hearing brief to the arbitrator. On July 7, 2017, the arbitrator issued a 15-page decision, ...


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