FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY MATSON,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant-Appellee.

No. 13-36174

D.C. No.

2:10-cv-01528-RAJ

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 ofTeamsters 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 regardingwork 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-seniorityemployees, 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 verymuddy 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) (quotingCaterpillar, 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 laborcontract 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 senioritywas

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.6If 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.