F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A R Y M A T S O N , Plaintiff-Appellant
,

v.

U N I T E D P A R

C E L S E R V I C E , I N C ., Defendant-Appellee. No. 13-36174

D.C. No. 2:10-cv-01528-RAJ

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Richard A. J ones, District J udg e , Presiding

Arg ued and Submitted May 3, 2016 Seattle, W a shing ton

F iled November 4, 2016

B efore: Susan P. Graber, Marsha S. B erz o n, and Mary H. Murg u ia, Circuit J udg es.
Opinion by J udg e B e rz onM A T S O N V

. UPS 2

SUMMARY *

Labor Law / P reem ption

The panel reversed the district court’s preemption ruling ; held that the district court erred in holding that an e mploy ee’s
state law g ender-based h ostile work e nvironmental claim was p r e e mpted under § 301 of the L abor Manag ement Relation s Act (L MRA); reinstated the jury verdict from the first trial in favor of the employ

ee; and remanded.

The p an e l noted the two-part test used to determine whether a state law claim is preempted u n d er § 3 01 of the L MRA. At the first step, the court asks “whether a particular rig ht inheres in state law or, instea d
, i s grounded in a [ col l e c t i v e b a

r g a i n i n g ag reement (CB A)] ,” Burnside v

. Kiewit Pac. Co r p

. , 491 F

. 3d 1053, 1060 (9th Cir. 2007); a nd preemption is warranted at this step only if t h e claim is directly f ounded on rig hts created by the CB A. At step two, the court asks whether the state law claim can be r esolved b y

“ l o o k ing to” the CB A, in which case the claim is no t pr e e m pted; or whether the claim “interprets” the CB A, in which case the claim is preempted.

The panel held that adjudication of the employ e e’s hostile work environment claim did not r equire interpretation of a provision o f the CB A
, and preemption un d e r § 301 of the L M R A was not warranted. Specifically
, the panel reject e d the employ er’s sug g estion that the employ ee’s cla i m w a s nothing more than a repackag ed “contractual dispute” over

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A T S O N V

. UPS 3

the assig nment of ex tra work. T he p a n e l concluded that the claim was no t p reempted under the first Burnside factor because it w as not g rounded in any rig ht created by the CB A

. T he panel further held that nothing in the nature o f t h e employ e e’s hostile work env i ronment claim r equired interpretation of the CB A. The p a n el a lso rejected the employ e r’s arg ument 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 damag es award was “ gr o ssly ex c essive” rested in part on its erroneous p reemption ruling
, that determination was also reversed, and the panel remanded for reconsideration of the damag es question.

COUNSEL

Donald H

. Mullins ( a rg ued) and J acob D.C. Humphrey s, B adg ley Mullins T u rner PL L C, Seattle, W ashing ton, for Plaintiff-Appellant.

Eric D. Miller (arg

u ed), Tobias S

. P i e r i ng , J avier F

. Garcia, and Michael T. Rey

n vaan, Perkins Coie L L P, S e a ttle, W a shing ton, for Defendant-Appellee.M A T S O N V

. UPS 4

OP INION

B ERZ ON, Circuit J udg e :

W e once ag ain address whether a state employ ment claim

can g o forward where the employ ee’s terms and conditions o f employ ment are covered by a collective barg ai n i ng ag reement. See Kobold v. Good Samaritan Reg’l Med. Ctr.
, 832 F .3d 1024 (9th Cir. 2016).

This case, unlike a

n y of the three appeals consolidated in the recent Kobold opinion, c once r n s a state equal

e m ploy ment c laim alleg ing a hostile work environment. Mary Mats o n broug ht suit ag ainst her employ er, United Parcel Service, I

nc. (“UPS”), asserting
, among other claims,

a state law g ender-based hostile work environment claim. A jury returned a verdict for Matson o n that claim, but her victory was short-lived. The district c o u rt g ranted UPS’s motion for a new trial on the g round that t h e c laim was preempted u nder § 301 o f the L abor Manag ement R e l a t ions Act ( “L MRA”), 29 U.S.C. § 185(a). The j u r y i n t h e second trial found for UPS. Matson cha l l en g es the district court’s preemption ruling

. W e conclude that the district court erred in holding Matson’s claim preempted and so reverse.

I

.

M a r y Matson worked for UPS at its B oeing F ie l d I nternational hub in Seattle from 2002 to 2010. During most of that time Matson was employ ed as a “combination worker,” meaning that she was responsible both for unloading and sorting packag es that arri v ed o n airplanes and for delivering them locally

. Matson was p a r t of a unit o f

e mploy e es represented by the I nternational B rotherhoo d o fM A T S O N V

. UPS 5

Teamsters, L ocal 1 7 4 (“Teamsters”). The terms a nd conditions of her employ

ment were g overned by a collective barg a ining a g reement (“CB A ”) between UPS a nd the Teamsters.

Matson f requently complained during her em p l oy ment that, because o f her g ender, she was subject to unf a i r a nd demeaning treatment in the workplace. Among other

ex a mples o f s uch treatment, she a lleg ed, her supervisors routinely fa v o r e d male employ ees when assig ning what she called “ex tra work”—that is, packag e deliveries not previously assig ned to a p articular route. Matson valued such additional work assig nments because they enabled her to “stay on the c lock long e r than n ormal, thereby increasing her
pay .” She filed nu m e ro us g rievances throug h her union seeking redress for these p ractices. UPS responded to Matson’s g r ievances several times by ag reeing th a t it would consider the seniority of Matson and o t h e r employ e es when assig ning work. Occasionally
, UPS ag reed t o compensate Matson for thirty

minutes to one hour at her overtime rate.

Unsatisfied with the results of the g rievances, Matson in 2008 fi l e d an employ

ment discrimination and retaliation complaint with the W ashing ton State H uman Rig hts C o m m i s s i o n ( “ W SHRC”), alleg ing
, a mong other m a t t e r s , t h a t UPS “has a pattern and practice o f favoring male employ ees by offering ex tra work to them.” The commission denied the complaint. Matson also f iled a similar charg e with the E q ual Employ ment O pport unity Commission, which adopted the finding s of the W SHRC.

“Ex tra w ork” is not a defined term in M a t s o n ’s CB A

. The term appears just o n c e , in a “Sort Addendum” that applies only to “Sorters, Pre-L oaders, Clerks, Car Washers,M A T S O N V

. UPS 6

and all o ther I nside Employ ees.” The Sor t Ad d e ndum does

n o t define “ex tra work,” but provides that UPS “recog niz e s that the princip l e s o f seniority shall be g iven p rime

c o nsideration for ex tra w ork.” A separate addendum to t h e CB A p rovides generally that UPS “recog niz es that the principles of seniority s h a l l b e g iven prime consideration in the every day operation of the business.”

I n F ebruary 2010, UPS f ired Matson for “proven dishonesty ,” relying on the resu l t s o f an investig ation into whether Matson had falsified delivery records

. Matson initially contested her d ischarg e by filing a g rievance in

a c c o r d w i th the procedures outlined in her CB A. 1 A joint Teamsters/UPS labor p ane l a f f irmed h e r discharg e , so her case was not sent to arbitration.

Matson then filed suit ag ainst UPS in W ashing ton state

c o u r t, asserting several state law causes of action: (1) race and g ender discrimination; (2) a race- and ge n d er-based hostile work environment; (3) discrimination and retaliatory termination based on Matson’s opposition to unlawful labor practices; and (4) wrong ful termination, based on the filing o f

a workers’ compensation claim. 2 U P S removed the case to

1 T h e C B A p erm itted a term in ated em p lo y ee to f

i le a g riev an ce w i th th e T eam s ters ap p ealin g h e r term in atio n

. On ce an em plo y ee f iled a g riev an ce, th e em

p lo y ee receiv ed a h earin g bef o re a “ la b o r p an el”

co m po sed o f an eq u al n

u m ber o f T eam s ters an d UP S rep resen tativ es. T h e lab o r pan el th en v o ted o n w h eth er to af

f irm th e t erm in atio n o r to rein state th e em plo y ee. T h e CB A req u ired th at th e p an el v o te b e u n an im o u s. If th e p an el d id n o t reach u n an im i ty , th e g riev an ce p ro ceed ed to arb i tratio n

.

2 Neith er Matso n ’ s race- b ased claim s n o r h er w r o n g fu l term in atio n claim s are at issu e o n

ap peal.M A T S O N V

. UPS 7

federal court o n t h e b a sis of diversity of citiz enship. See 28 U.S.C. § 1332.

UPS then moved for summary judg ment. The di strict

cou r t g ranted the motion on the merits w ith respect to Matson’s claims for ra c e d iscrimination, race-based hostile

wor k e n v ironment, and wrong ful discharg e in violation o f public policy
, but denied summary judg ment with respect to Matson’s claims of g ender discr imination, g ender-based hostile work e nvironment, and discrimination on the basis o f opposition to unlawful p ractices. W ith reg a rd t o M atson’s g ender-based hostile work e nvironm e nt claim, UPS maintained that the claim w as p reempted under L MRA § 301 because it was “i n ex tricably intertwined” w ith an interpretation o f the CB A, but the district court rejected that contention. “[ N] o interpretat ion would be necessary for
purpose s of Ms. Matson’s g ender-based hostile work

e n v ironment claim, and plaintiff d oes 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 “ex tra work” should have been assig ned to her but w as, instead, performed by male employ e es w ith less seniority

. She testified that she would be “humiliated in front of [ her] c oworkers” and treated as “some kind of troublemaker just b ecause [ she was] asking for ex tra work.”

I n addition to her alleg ations reg arding work assig nments, Matson testified t o numerous other incidents that, she contended, contributed to a hostile wor k environment including :M A T S O N V

. UPS 8

! A supervisor and other employ ees refused to help her l i ft a 150-pound packag e, and laug hed at her as she strug g led to do it alone. Duri n g t h a t incident, o ne

s u p e rvisor acted in an intimidating manner, as he “clenched up his fists, put them behind his back, a nd stepped rig ht into [Matson’s] face, g ritted his teeth.” Ma t s o n w as forced to seek o ut another coworker to help her lif

t the packag e. Matson’s effort to lift the packag e resulted in a serious back injury that cause d her to miss more than a y ear of work.

! Various U PS manag ers disreg arded her complaints o f

w o rkplace hostility and threatened to file char g e s ag ainst her if she continued to make what they called “false statements.”

! A male coworker scre a m e d at her and “beg a n to choke [her] ” after she h ad p l a y f ully tapped his knee. I n response to this incident her su p ervisors did nothing

.

! Matson’s s u p ervisors assig ned her a less desirable packag e car rather than a van. All of the male employ ees, many of whom ha d l e s s seniority than Matson, were g iven vans.

! I n the meeting in which she was terminated, she was confronted by se v e n m e n, all of whom w ere “very hostile.” Matson was a c cused of both l y ing a nd stealing ti m e, while a man involved in the same activity was not charg ed with stealing time.

At the close of Matson ’s case-in-chief, UPS moved for judg ment a s a matter o f law, a rg u ing once more that Matson’sM A T S O N V

. UPS 9

hostile work environment claim was preempted u nder § 301. The court determined that ruling on the motion before h earing the defense witnesses would be premature.

UPS then presented witnesses who disputed Matson’s claim that the additional packag e deliveries constituted ex tra work. One UPS employ ee stated that such deliveries were “really what I called part of normal dispatch.”

After hearin g U PS’s witnesses, the district court denied UPS’s motion for judg ment as a matter of law. I t ex p lained that “preemption is not mandate d simply because defendant refers to the CB A in mounting its defense.” The court specifically noted that Matson had presented evidence “ th at work was g iven to men instead o f her.” That fact, a long with the other incidents of hostility she described, “ in t h eory , support a hostile work environment claim without r e ference
to the CB A.” F inally
, the court noted that for the purposes o f Matson’s claim, “ex tra work, seniority
, and p rime consideration are simply a reference point that elucidates her claims. W hether or not seniority was a ctually g iven p rime consideration is not necessary for determ i nation of these claims.”

M atson nex t offered rebuttal testimony in which sh e disag reed w ith UPS’s evidence reg arding the d i s puted work assig nments. She maintained that certain packag e deliveries

were work that should h a v e be e n a warded in “seniority order,” and that other such w o rk was improperly dispatched by a male hourly e m ploy ee rather than by a supervisor. W h en asked on cross-ex amination whether she had e ver filed
g rievances a g ainst hig h e r -seniority employ ees, Matson stated that “ this is a very muddy area, b e c a u s e

. . . in the c ontract, there’s a lot of w ork th a t ’ s considered full-time work a ndM A T S O N V

. UPS 10

part-time work. And there’s a lot of different categ ories.

. . . A nd all that people are try ing to do is separate wh o s e j o b i s whose so that y ou know whether or not y ou can b i d on it. And that’s considered ex tra work.”

The jury found for UPS o n Matson’s discrimi n a tion a nd retaliation claims. T he jury returned a verdic t f o r Matson, however, on her hostile work environment claim a nd awarded $500,000 in damag es for emot i o n al distress. The district court’s jury instruction reg arding Matson’s hostile work environment claim did not use the term “ex tra w o rk ” o r “seniority ” or r efer to the CB A; it simply stated the elements of the claim that Matson had the burden of proving

. 3

3 T h e co u rt in stru cted th e j u ry o n Matso n ’ s h o stile w o rk en v i ro n m en t claim as f o llo w s:

T o estab lish

h er claim o f h o stile w o rk

en v iro n m en t o n th e b asis o f g en d er, Ms. Matso n h as th e b u r d en of
p ro v in g each o f t h e f

o llo w in g p ro p ositio n s: (1 ) T h at th ere w as co n d u ct th at o ccu rred b ecau s e o f Ms. Matso n ’ s g en d er; (2 ) T h at th is co n du ct w as u n w elco m e in th e sen se th at Ms. Matso n reg ard ed th e c o n d uct as

u n d esirab le an d o f

f en siv e, an d did n o t so licit o r in c i t e it ; ( 3 ) T h at th is co n d u ct w as so o f f en siv e o r p erv asiv e th at i t a l t ered th e co n d itio n s o f Ms. Matso n ’ s

em p l o y m en t; an d (4 ) T h at m an ag em en t k n ew , t h ro u g h

co m plain ts o r oth er circu m stan ces, o f th is co n d u ct, an d UP S f ailed to tak e reaso n ab ly p ro m p t an d ad eq u ate

co rrectiv e actio n

reaso n ab ly

d esig n ed to en d it.

I f y ou f in d f ro m y o u r co n s id eratio n o f all o f th e

ev i d e n ce th at each o f t h ese p ro p o sitio n s h as been
p ro v ed
, th en y o u

r v erd ict sh o u ld b e f

o r Ms. Matso n on th is claim

. On th e o t h e r h an d, i f an y o f th ese p ro p ositio n s h as n o t b een p ro v ed
, y o u r v e r d i ct sh ou ld b e f o r UP S o n

th is claim

.M A T S O N V

. UPS 11

Fo llowing the verdict, UPS filed a renewed motion f o r judg ment as a m at ter of law under F ederal Rule of Civil Procedure 50(b), or, alternatively
, f or a p a rtial new trial under F ederal Rule of Civil P r o cedure 59, ag ain arg uing § 301 preemption of the hostile w o rk e nvironment claim. This time, the court g ranted the motion.

I n so ruling
, the district court concluded that Matson’s rebuttal testimony acknowledg ed that the definition of “ex tra work” was “ a very muddy a rea” a nd so “put the interpretation of ex tra work under the CB A d irectly in dispute.” The court

w e n t on to hold that Matson’s hostile work environme n t claim “with respect to ‘ ex tra work’ assig nments i s substantially dependent on analy sis o f the C BA b ecause the
court would have to interpret the meaning of ‘ ex tra w o rk.’” The court ordered a new trial, holding tha t j u r y questions remained reg arding w hether Matson had suffered a hostile work environment on the basis of incidents she had described that were unrelated to the assig nment of “ ex tra work.” The

c o u r t f urther held that, in lig ht of its p reemption ruling
, the jury ’s award of $ 50 0
, 0 00 was “ g rossly ex cessive” and, “[ a] ccording ly
, the question of d amag es must be tried ag ain as well.”

After the second trial, the jury returned a verdict f o r U PS. This appeal followed. 4

J u ry In stru ctio n s at 1 5
, Ma tso n v. UPS
, No

. 2 : 1 0- cv

- 0 1 52 8 (W .D. W ash

. J u ly 1 8 , 2 01 2 ).

4 Matso n m ak es sev eral claim s o n ap peal reg a r d i ng v ario u s d istrict

co u rt ru lin g s du rin g t

h e seco n d trial. B ecau se w e rev erse th e i n i t i al
p reem p tio n ru l in g an d h o ld th at th e f irst j u ry v erd ict m

u st b e rein stated
, w e n eed n o t an d d o n o t co n sid er th o s e claim s.M A T S O N V

. UPS 12

I I

.

Section 301 provides that “[ s] uits for violation o f

c ontracts between an employ er and a labor org aniz a t i o n representing employ ees in a n industry affecting comme r c e

. . . may be broug ht 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 cong ressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes a rising
out o f labor co n tracts.” Allis-Chalmers Corp. v. Lueck
, 471 U.S. 202, 209 (1985) (citin g T e x tile W orkers U nion of A m

. 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 CB A interpretation and enforcement.” Cramer v

. Consol. Freightways
, Inc.
, 255 F .3d 683, 6 89 (9th Cir. 2001) ( en banc) (citing Local 1 7 4, Teamster s o f A m. v

. Lucas Flour Co.
, 369 U.S. 95, 1 0 3–04 (1962)). Preemption under § 301 is not limited to “ cases sp e c i f i c ally alleg ing
contract violation,” id

. (citing Lueck
, 471 U.S

. a t 220), but also applies “when resolution of a state-law claim is substantially dependent upon analy sis of the ter m s of an ag reement made between the parties in a labor contr a ct , ” Lueck , 471 U.S. at 220.

W e have fashioned a two-part test to determine whether

a state law claim is preempted under § 301. At the f irst step,

we ask “whether a p articular rig ht inheres in state law or, instead, is grounded in a CB A.” B urnside v. Kiewit Pac. Corp.
, 49 1 F. 3 d 1053, 1060 (9th Cir. 2007). I n making this determination we focus on “the leg al character of a claim, a s ‘independent’ of rig hts under the collective-barg ain ing

a gr eement,

. . . and not whether a g r ievance arising f r o m ‘precisely the same set of facts’ could be pursued.” LivadasM A T S O N V

. UPS 13

v. Bradshaw
, 512 U .S. 107, 1 23–24 (1994) (citation omitted) (quoting Lingle v

. Norge Div. of M a g i c Chef, I

nc. , 486 U.S. 399, 41 0 (1988)). Only if the claim is “ founded directly on rig hts created by collective-barg a ining ag reements ” i s preemption warranted a t this step. Caterpillar Inc. v

. W illiams , 482 U.S. 386, 394 (1987).

At step two, “to determine whether a state l a w rig ht is ‘substant i a lly dependent’ on the terms of a CB A,” we ask “whether the claim can b e resolved by ‘look[ ing ] to’ versus interpreting the C BA

. ” B u rnside
, 491 F .3d at 1060 (alterations in orig inal) (quoting Caterpillar
, 482 U.S. at 394; Livadas
, 512 U.S. a t 1 2 5 )

. “ I f the latter, the claim is preempted; if the former, it i s n o t

. ” I d

. “W e have stressed that

. . . the term ‘interpret’ is defined narrowly [ in this
contex t] —it means something mo r e than ‘consider,’ ‘ refer to,’ or ‘ apply .’” Balcorta v. Twent i e th Century-Fox Film Corp.
, 208 F .3d 1102, 1 108 (9th Cir. 2000). Merely “alleg ing

a hy pothetical connection between the claim and the terms o f the CB A is not enoug h to preempt the claim
, ” nor is “[ a] creative linkag e between the subject matter of the claim a nd the wording of a CB A provisi o n

. ” C r amer , 255 F .3d at 691–92. Moreover, preemption is warranted only where “the need to interpret t h e C BA

. . . inhere[ s] in the nature of the plaintiff’s claim. I f the claim is

. . . based on state law, § 301 preemption is not mand a t e d simply b ecause the defendant refers to the CB A in mounting a defense.” Id

. at 691.

As we rec e ntly observed, the “ Burnside factors reflect
two driving conc er n s of preemption doctrine.” Kobold
, 832 F .3d at 1033. M a n dating preemption when a purported

s tate law claim is founded on a rig ht g rounded in a C BA prevents “parties’ efforts to reneg e on their [ CB A] arbitration promises by

‘relabeling ’ as tort suits actions simply alleg ingM A T S O N V

. UPS 14

breaches of duties assumed in c ollective-bar gaining
ag reements.” Livadas
, 512 U.S. at 1 23 (quoting Lueck
, 471 U .S. at 211). B y

contrast, requiring preemption when a state law c laim require s i n t e rpretation of a CB A serves a separate interest: preserving “a central tenet of federal laborcontract law

. . . that it is the arbitrator, not the court, who has the responsibilit y t o interpret the labor contract in the first instance. ” Lueck

, 471 U.S. a t 220. Put differently
, because of the pivotal role that an arbitrator play s in interpreting and

a dministering CB As, a court “can determine questions o f
state law involving labor-manag ement relations only if such questions do not r equire construing collective-barg aining
ag reements.” Lingle
, 486 U.S. at 411.

B e cause the second step of the B ur n s i de test is c entrally concerned with safeg

uarding t h e role of the contractual
g rievance/arbitrati o n sy stem, “there is no basis for scuttling the state law c ause of action if any necessary CB A interpretation can in some fashion be cond ucted via the appropriate g r ievance/arbitration forum.” Kobold , 832 F .3d
at 1033. As we ex p l a i ned in Kobold
, “[ t] o allow such scuttling disadvantag e s employ e es covered by CB As, as they lose state law protections because of an embedded CB A i s sue possibly peripheral to their core cause o f a ctio n

. The interest in sending substantial C B A issues throug h
gr i e v a n c e / a r

b i t r at i o n d o e s not justi f y c re a t i n g t h i s disadvantag e unless the interest c annot be othe rw i se accommodated.” Id.

Ag ainst this doctrinal backdrop we turn to the present

case.M A T S O N V

. UPS 15

I I I

.

The thrust of U PS’s a r g u ment f or preemption is that because Matson’s hostile work environment c laim focused in part on her alleg ation that UPS improperly g ave “ex tra work” assig nments to male e mploy ees with less seniority
, that claim
cannot b e resolved without interpreti n g the term “ex tra work,” a s used in the CB A, to determine whether Matson was in f a ct e ntitled to the work she claimed. More specifically
, UPS maintains that “to pro v e that particular work was improperly assig ned because of h er g ender, Matson first h ad
to establish that she, a s oppos e d to other e mploy ees, was entit l e d to the work under the CB A.” UPS’s premise is
wrong , for several reasons.

As an initial matter, we re j ect UPS’s sug g e stion that Matson’s claim is n othing more th an a repackag ed “contractual dispute” over the a ssig nment of ex tra work. This

a s s e r tion mischaracteriz es her claim. Matson’s claim included the alleg ation that UPS sy stematically assig ned men work to which they were not entitled by seniority
, but only a s

one element of a pervasively hostile work environment. The hos t i l e en v i r o n m e n t , Matson maintained, was also characteriz ed by intimidation and derision having nothing to do with work assig nments. Matson ’ s rig ht not to w ork in a g ender-based hostile work environment is a “n o n n e g otiable state-law rig ht[ ]

. . . independent of any rig ht e s t a b l i shed b y contract.” Lueck

, 471 U.S. a t 213. The claim, therefore, is
not preempte d u n d e r the first Burnside factor, a s it is not g rounded in any

rig ht created by

the CB A.

Nor does a

ny t h ing “in the n ature of” Matson’s hostile work environment claim require interpretation of the C B A

. Cramer
, 255 F .3d at 691. As the d istrict court instruct ed,M A T S O N V

. UPS 16

“[ t] o find for plaintiff, the jury had to find that ‘there was conduct that occurred because of Ms. Matson’s g ender’; ‘this conduct w as unwelcome in the sense that Ms. Mat s on reg arded the conduct as undesirable and offensive, a nd d i d
not solicit or incite it’; ‘this conduct w as so offensive o r p ervasive that it altered the conditions o f Ms. Matson’s emp l o y m e n t ’; and ‘manag ement knew

. . . of this conduct, and UPS failed to take reasonably prompt and adequate corrective action reasonably desig ned 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 a nd t h e a c tual practice of the
manage m ent in responding —or contributing

—

to that
t r e a tment. UPS’s alleg ed discrimination in assig ning ex t r a work was just one of several facto r s 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 w ithout interpreting
any provision of the CB A

.

Even were we to g rant that Matson’s hostile environment claim rested on the alleg edly discri m i n a t ory assig nment o f certain work assig nments to me n, and, further, that whether the CB A g ave Matson a seniority -based right to that wo r k requires interpretation of the CB A, Matson’s h ostile work environment claim sti l l w ould not require interpretation o f
any contractual provision.

W e note, first, that the only CB A provision that uses the
term “ex tra work” applies to “[ i] nside employ ees, ” an d so does not apply

to the deliveries here in dispute. I n using the
term “ex tra work,” with reg ard to outside deliveries, Matson

was relying on that p ro v i sion. I nstead, she was moreM A T S O N V

. UPS 17

colloquially referring to sporadic work not covered b y p re-set assig nments.

Ma t s o n could have a viable h ostile environment claim whether o r not the CB A a ctually requires assig nment o f that work based on seniority

. Contra ry to UPS’s assumption, nothing in Matson’s arg ument d epends on her having been
contractu al l y entitled to the disputed w ork. Even if she did
not have a right to the work under the CB A, manag ement’s sy stematic favoring of men in a s s ig ning the disputed work could contribute to a hostile work e n vironment. The correct interpretation of the CB A, in other w ords, is purely peripheral
to the relevant question with respect to assig ning work. That question w as whether UPS showed sy stematic f avoritism toward men in making its wo r k assig nments, thereby contributing to a hostile work envi r o n m ent for Matson a nd other women.

Put differently
, Matson’s contention is not that UPS created a hostile work environment b y violating her contractual seniority rig hts. Rather, h er position is that failing to assig n her the work despite her seniority is evidence of U P S ’ s hostility toward h er because of her g ender. Matson’s central contention was that she sh o u l d h ave been awarded the disputed work on any of the usual rationales for work assig nment—seniority
, prox imity to the location where the work was to beg in, or temporal availability —and that all those usual criteria were disreg arded. 5 As UPS did not assig n the work o n the basis of any of those criteria, Matson

5 F o r ex am

p l e, o n e o f

Matso n ’ s f

em ale co w o rk ers testif

ied th at bo th sh e an d Matso n w e r e den ied w o rk assig n m en ts ev en th o u g h th ey w ere im m ed iately av ailab le an d ev en t h o u g h th ey h ad g reater sen io rity th an th e

m ale em p lo y ees w

h o receiv ed th e assig n m en t s.M A T S O N V

. UPS 18

m aintained, hostility toward her because of her sex is th e likely ex p lanation for the failure to assig n her the work.

A d d itionally
, to the ex tent UPS chose to emphasiz e i t s interpretation of the CB A to dispute Matson’s rig ht t o the work as p art of its defense, that defense does not undermine Matson’s r eliance on the assig nment of the disputed work a s part of her host i l e wo rk environment claim. F or one thing
, “§ 30 1 preemption is not mandated simply because the defendan t refers to the CB A in mounting a d efense.” Cr a m e r , 255 F .3d at 691. F or another, UPS does not put forward any interp re t a t i o n of the CB A under which it was required to award the work as it did. At best, the company ’s contention is that nothing in the CB A required that the work be awarded to Matson. W hether tha t i s s o o r not does not detract from Matson’s statutory g en d e r-based hostile work environment claim. An employ er wh o i s free to make job assig nments as it chooses can still v i o l a t e the state law proscriptio n on c reating a g ender-based hostile work environmen t b y , among other thing s, favoring men over women when assig ning work.

F urther
, even if any interpretation of the CB A had been required, the r elevant i n t e rpretive issues were addressed in formal settlements after i n vocation of the g rievance procedure. F or ex ample, f ollowing one of M a t s o n’s g rievances, the parties r eached a settlement a c c o rd ing to which UPS agr e ed that “[ t] h e Company will recog niz e that the principles of seniority be g iven prime consideration in the assig ning of e x tra work to unassig ned g eog raphic d e l i very

areas of the combination air delivery drivers d i s p a t ched out of the [B oeing F ield I nter n ational] facility .” The record includes fifteen o t her g rievances filed by Matson. Of these,

seven w ere ultimately withdrawn. Three were resolved whenM A T S O N V

. UPS 19

UPS ag r eed to compensate Matson for lost work. One was settle d w h e n UPS ag reed to “use by seniority Monday throug h F riday air drivers f or the Saturday air shuttles when needed.” F our were set t l e d when UPS ag reed to “abide by ”

or “ consider” Matson’s seniority in the “day to day dispatching of [ early

morning ] routes.”

One could view these ag reements as ag reed-upon CB A interpretatio n s o n the very issue that UPS contends remains disputed: that w ork Matson complained about was supposed
to be a s s i gn ed in accord with seniority principles. Or o ne could view them as independent labor-m anag ement ag reements, w h i c h would also be covered by § 301 of the L MRA. See Retail Clerks Int’l. A ss’n, Local Union Nos. 128 & 633 v. Lion Dry G o o d s , I n c

. , 369 U .S. 17, 28 (1962). Either w ay , the clarity of t h e a gr eements means that no further interpretation was required; the g rievance settlements need only b e looked to or applied. See Burnside
, 491 F

. 3d at 1060; Balcorta
, 208 F .3d at 1108. F in a l l y , the g rievance settlements were, at the very least, e vidence that seniority was

as a p r actical matter a factor usuall y u s e d in making work assig nments in the workplace.

However the se t t l ements a r e viewed, the jury w as not asked to interpret the CB A d i f ferently from the
rep r e s e n t at i o n s UPS made when settling Matson’s g rievances, and n o t h i n g i n the e lements of the hostile work environment claim required it to do so. As we recog niz ed in Kobold
, “there is no basis for scuttling the state law cause o f action if any necessary CB A interpretation can

. . . be conduc t e d via the appropriate g rievance/arbitration forum.” 832 F .3d at 1033. H ere, use o f that forum r e sulted in resolutions consistent with Matson’s partial r eliance on workM A T S O N V

. UPS 20

assig nment patterns to support her hostile work environment claim.

F inally
, contrary to UPS’s arg ument, Perugini v

. Safeway S t o r es, Inc.
, 935 F .2d 1 083 ( 9th Cir. 1 991) does not cont r o l
t h e r e sult here. I n Perugini
, the plaintiff charg ed her employ e r with intentional infliction of emotional distress (“I I E D”) in part based o n its refusal to assig n her to lig ht duty while she was pre g nant. To establish her I I E D c laim, Perug ini h ad t o s how that Safeway ’ s conduct was “ex treme and outrag eous.” Id. at 1087. This court concluded that, “if S afeway ’s manag e rial f

reedom is not constrained in a n y material way by t h e C BA
, a rational jury could not find that Safeway ’s conduct in discharg ing Perug ini from heavy work instead o f r e assig ning her to lig ht work” met this standard. Id. at 1088. T h erefore, the c ourt concluded, it was r equired
t o “ look to the CB A to judg e the appropriateness o f Safeway ’s behavior in reg ard to this alleg ation.” Id.

B y contrast, here, even if UPS’s “manag erial fr e edom is
not constrained in any material way by the CBA ” —i.e., if Matson had n o contractual rig ht to the dispu ted work assig nments—for the c o m p a ny consistently to assig n the work to men rather than to equally elig ible, or more elig ible,

women was e vidence of a g ender-based hostile environment. Matson’s g ender-based hostile work environment claim was thus viable even if UPS h ad c omplete “ manag erial freedom” over the assig nment of the disputed work under the CB A

. Notably
, the I I ED preemption analy sis in Perugini did not

concern a sex discr i m ination or hostile work environmentM A T S O N V

. UPS 21

claim. 6 I f it had
, t h e n the ex istence of employ er discretion under the CB A would n ot have been di s positive, or even pertinent; discriminatory e x erc i s e o f that d iscretion would still be actionable.

I V.

F or all these reasons, t h e “ a djudication of [ Matson’s] cl a i m [ d o es not] require interpretation of a provision of the CB A,” and § 301 preemption i s n o t w arranted. Cramer
, 255 F .3d at 691–92.

Kobold noted that “althoug h § 301 preemption questions arise fairly frequently
, ‘[ f] amiliarity

. . . has not bred facility .’” 832 F .3d a t 1032 ( alterations in o rig inal) (quoting Cramer
, 255 F .3d at 689). This case illustrates the pitfalls o f

ex p anding the preemptive e f fect of t h e f

ederal c ommon law
g overning the interpretation o f collective ba rg aining
ag reements to limit the enforcement of state law employ ment discrimination protections. L itig a tion concern ing such protections ordinarily focuses on a dverse workpla c e incidents, probing into whether discriminatory motives underlay those incidents. As t h e f ocus is not only on what happened but why it happened, resolving such litig ation will rarely rest o n r i gh ts created by CB As or require interpreting CB As in the sense required for § 301 preemption.

6 P eru g in i d id alleg e em o tio n al d istress cau sed b y “ on

- th e- j o b h arassm en t” b ased o n h er sex , as w ell as th e r e fu s a l t o assig n h er lig h t

w o rk

. Peru g i n i
, 9 3 5 F.2 d at 1 0 8 8

. W e h eld th at th e em o tio n al d i s t r e s s claim s p rem ised o n h er em p l o y er’ s alleg ed sex

- b ased h arassm en t w ere no t p reem p ted

. Id

. at 1 0 8 8

– 8 9

.M A T S O N V

. UPS 22

I n this instance, however “muddy ” the CB A was

concer ning the assig nment of the d isputed work, the questions for the jury

—to the ex tent it con s i d e r e d the assig nment issue at all—w e r e not whether the disputed

a s s i g nments were “ex tra w ork” as the term is used in t h e CB A, or whether the CB A required that they be awarded b y seniority

. Rather, the jury ’s focus was directed to whether the assig nments were discriminatory in that men were sy stematically f

avored over similarly situated women. Making that determination did not require the jury to decide what any p rovision of the CB A r e q u ires. And the jury h ad the r e s o lutions of Matson’s g rievances as evidence that, in fact, seniority

was usually

or often considered.

W e therefore reverse the d ecision of the district court that Matson’s c laims were p reempted to the ex tent they relied on her alleg ations reg arding UPS’s e x tra work assig nments, a nd we reinstate the jury v erdict from the first trial. B ecause the district c ourt’s conclusion that the jury ’s damag es award was “g rossly ex c essive” rested in part on its erroneous preemption ruling
, we reverse that determination as well, and remand for reconsideration of the damag es question.

REVERSED AND REMANDED.