The full case caption appears at the
end of this opinion. RYMER, Circuit Judge: These appeals raise the familiar issue of when state law claims by employees covered by a collective bargaining agreement arepreempted.
[FOOTNOTE 1]They all arise out of the surreptitious videotaping of restrooms through two-way mirrors, an activitythat is arguably criminal in California. Employees at the trucking terminal where this happened filed related actions seekingrecovery from their employer, Consolidated Freightways Corporation of Delaware, for invasion of privacy (Cramer andAlfaro); emotional distress (Alfaro); and discharge in retaliation for their own conduct related to the surveillance (Hoffman). The district court held that all the claims in each action are preempted by Section 301 of the Labor Management Relations Act,29 U.S.C. � 185,
[FOOTNOTE 2] because determining whether privacy rights have been violated requires an interpretation andapplication of the collective bargaining agreement. The employees contend otherwise, primarily for the reason that parties to acollective bargaining agreement cannot negotiate for considerations that violate criminal statutes. Following a long line ofauthority in this circuit, we agree with the district court in Cramer and Alfaro that adjudication of these civil claims based onprivacy rights depends on the reasonableness of the employees’ expectations and this, in turn, depends on the extent to whichthey may have bargained away their privacy interests. Therefore these claims are preempted, whether or not the specificconduct at issue may also be subject to criminal prosecution. The same is true of Alfaro’ s claims for emotional distress; theemployer’ s conduct is not outrageous just because a statutory prohibition may have been violated, rather it depends upon therelationship between the parties. Thus, we affirm both Cramer and Alfaro. However, claims based upon retaliatory discharge in violation of public policy are different. Under California law, they turn onthe employer’ s motivation — not the employees’ expectations. Accordingly, we reverse Hoffman. I Consolidated Freightways is a large trucking company whose drivers and non-supervisory employees at the Mira Loma,California trucking terminal are subject to a collective bargaining agreement between Consolidated and the InternationalBrotherhood of Teamsters, Local No. 63. Article 26, Section 2 of the Master Agreement provides that “[t]he Employer may notuse video cameras to discipline or discharge an employee for reasons other than theft of property or dishonesty” and stipulatesto a procedure to be followed if video tapes are used to support discipline or discharge. Other provisions acknowledge concernabout substance abuse, prescribe drug testing procedures, and establish a process for grieving disputes arising under theagreement. Evidently as part of an effort to detect and deter the use of drugs by its drivers, Consolidated installed video cameras and audiolistening devices behind two-way mirrors in the restrooms at the Mira Loma terminal.
[FOOTNOTE 3] Employees discoveredthe surveillance equipment in September 1997. Local 63 filed a grievance on September 22, 1997, and on September 27 Lloyd Cramer, a truck driver employed at the MiraLoma terminal, brought a class action in the Superior Court for the State of California in Riverside County alleging invasion ofprivacy on behalf of all “individuals lawfully on the premises . . . who had a reasonable expectation of privacy while usingdefendants’ restrooms.” Another suit was filed in state court by Guillermo Alfaro (joined by 281 others), seeking damages forinvasion of privacy as well as for infliction of emotional distress, and an injunction to stop Consolidated’ s use of the allegedlyillegal devices. Consolidated removed both actions to federal district court, asserting that the claims fall within the preemptivereach of � 301. Consolidated moved in both actions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure; conversely, Alfarofiled a motion to remand for lack of federal jurisdiction, in which Cramer joined. Various motions were filed with respect toclass certification in Cramer, but the district court considered the remand and dismissal motions first. The court denied themotions to remand; granted Consolidated’ s motion to dismiss in Cramer and denied the request for certification as moot; andgranted the motion to dismiss in Alfaro as to the 273 employees and remanded the claims of nine non-employees to state court. Meanwhile, Theresa Hoffman and Masao Shobe also filed an action in state court. Hoffman claimed that while at work, shewitnessed installation of some of the surveillance devices and that she was fired as part of a cover-up. As a “casual employee”under the collective bargaining agreement, Shobe regularly worked short stints for Consolidated at the Mira Loma terminal.Although he was not working at the time, he joined as a party in the Alfaro action. Thereafter, Shobe applied to be rehired butalleges that he was rejected because of his participation in the Alfaro suit. Both claim that installation of the secret camerasviolated California Penal Code � � 632, 635, 647k and 653n as well as their constitutional rights of privacy under Article 1,Section 1 of the California Constitution, and that Consolidated’ s job actions were taken to conceal the existence of crimes inHoffman’ s case, and in Shobe’ s, to punish him for filing a lawsuit to protect and enforce his constitutional privacy rights.Consolidated removed and moved to dismiss on grounds of preemption; Hoffman and Shobe in turn sought a remand. Thedistrict court found both claims preempted, and dismissed the action. All parties have timely appealed. II Invasion of Privacy (Hoffman and Alfaro) Cramer
[FOOTNOTE 4] and Alfaro argue that the LMRA cannot preempt a lawsuit by union employees who claim they arevictims of illegal surveillance and eavesdropping activities by their employers. They point out that the LMRA only preemptsstate lawsuits which are “substantially dependent” on a CBA, see Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), and thatemployees covered by a collective bargaining agreement may assert legal rights “independent” of the agreement. Id. at 396.”Independent” means that “resolution of the state-law claim does not require construing the collective bargaining agreement.”See Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 407 (1988). Specifically relying on Allis-Chalmers, and Miller v.AT&T Network Sys., 850 F.2d 543 (9th Cir. 1988), Cramer and Alfaro submit that their state law claims are independent of theCBA because the collective bargaining agreement cannot, as a matter of law, authorize conduct that is illegal under state law.In their view, Consolidated’ s conduct was illegal and prohibited by at least four sections of the California Penal Code: �653n,
[FOOTNOTE 5] which makes it a misdemeanor to install a two-way mirror in a bathroom; � 647(k),
[FOOTNOTE 6]which criminalizes viewing the interior of a bathroom; � 632,
[FOOTNOTE 7] which makes it illegal to eavesdrop by means ofelectronic recording devices; and � 635,
[FOOTNOTE 8] which prohibits the possession of eavesdropping devices. As there isno possible interpretation of the CBA that would allow the criminal surveillance at issue in this case, Cramer and Alfaromaintain there will be no need to interpret the collective bargaining agreement in the course of the litigation. Consolidated counters that no matter how the employees’ privacy claim is cast, it cannot be determined without interpretationand application of the collective bargaining agreement, which specifically addresses the use of video surveillance and druginterdiction, because the employees allege (and must prove) that they reasonably expected to be free from video surveillanceand that the surveillance undertaken unreasonably intruded on their reasonable expectations of privacy. Consolidated furthercontends that � 301 preemption does not turn on whether a privacy claim is based upon an alleged violation of a criminal statute,a constitutional provision, or some other source of substantive rights under state law but instead, depends upon whether the stateclaim can be resolved without consideration of the collective bargaining agreement. Finally, it submits, the general propositionthat parties to a collective bargaining agreement cannot agree to something illegal under state law is largely irrelevant in thiscase, where the critical issue is whether Consolidated’ s alleged violation invaded the employees’ reasonable expectations ofprivacy. We do not write on a clean slate in this area. It is by now well-settled that Section 301 preempts state law claims which arefounded on rights created by a collective bargaining agreement, or which are “substantially dependent on analysis of a collectivebargaining agreement.” Stikes v. Chevron U.S.A., Inc., 914 F.2d 1265, 1268 (9th Cir. 1990). More particularly, we have held ina long line of cases that employee suits for violation of privacy interests arising under California law are inextricably intertwinedwith the collective bargaining agreement. “This is because a violation of California’ s constitutional right to privacy requires boththat an individual have a ‘ personal and objectively reasonable expectation of privacy’ and that the expectation ‘ has beeninfringed by an unreasonable . . . intrusion.’ “Id. at 1269 (quoting Alarcon v. Murphy, 248 Cal. Rptr. 26, 29 (Cal. Ct. App.1988)). Thus, in Stikes, we confronted a union employee’ s claim for violation of his right to privacy on account of Chevron’ spolicy requiring employees to submit to random searches of their persons and property. We concluded that the “district courtcould not ascertain Stikes’ expectations of privacy at the workplace without considering the conditions of his employmentenumerated in the collective bargaining agreement.” Id. at 1269. Before that, in Laws v. Calmat, 852 F.2d 430, 431-32 (9thCir. 1988), and Utility Workers of America v. Southern California Edison Co., 852 F.2d 1083, 1085-87 (9th Cir. 1988), we heldthat state law privacy challenges to a union employer’ s drug and alcohol testing programs are substantially dependent upon thecollective bargaining agreement, whether or not specifically discussed in the agreement, because a drug or alcohol program is aworking condition and the conditions of a union employee’ s employment are governed by the collective bargaining agreement.Most recently, we revisited whether claims for invasion of privacy rights arising out of an employer’ s drug testing programwere preempted in Schlacter-Jones v. General Telephone of California, 936 F.2d 435 (9th Cir. 1991). Again holding theywere, we reasoned that a collective bargaining agreement governs the working conditions of employment, a testing program is aworking condition whether or not it is specifically discussed, and “[w]hen a working condition such as drug testing is subject tobargaining, and the employee’ s claim is rooted in the expectations of the parties, determining liability will necessarily involvecontract interpretation and the claim will be preempted.” Id. at 441. Cramer and Alfaro contend that we need not follow this line of authority because restroom surveillance is different from drugtesting in that drug testing is not illegal in California whereas it is illegal to install a two-way mirror in a bathroom. See Cal. PenalCode � 653n. We cannot agree. While the level of culpability and the consequences may be different, the claim for relief is not;here as in the random search and drug-testing cases, the employees complain of an invasion of privacy contrary to their rightsunder the California Constitution. As we recognized in Stikes, under California law plaintiffs asserting an invasion of privacyclaim must show that they had a personal and objectively reasonable expectation of privacy that was infringed by anunreasonable intrusion. Stikes, 914 F.2d at 1269. This depends on the “deal struck between labor and management.”Schlacter-Jones, 936 F.2d at 441. The reason is that consent is normally a defense to a privacy action.
[FOOTNOTE 9] As theCalifornia Supreme Court articulated the point in Hill v. National Collegiate Athletic Ass’ n, 26 Cal. Rptr.2d 834, 849 (Cal.1994): [T]he plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant’ s conduct will rarely be deemed “highly offensive to a reasonable person” so as to justify tort liability. Further, [i]n determining the “‘ offensiveness’ “of an invasion of a privacy interest, common law courts consider, among other things: “the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’ s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.” Id. at 850 (quoting Miller v. National Broadcasting Co., 187 Cal. App.3d 1463, 1483-84, 232 Cal. Rptr. 668, 679 (Cal. Ct. App.1986)). Thus, in this case as in the case of employer search or drug testing programs that we have previously considered, thereasonableness of the employees’ expectations of privacy will depend upon the level of management oversight allowed in thecollective bargaining agreement and the extent to which this particular surveillance exceeds what Cramer and Alfaro couldreasonably expect.
[FOOTNOTE 10] They argue that this cannot be so for several reasons directly related to the illegality of the surveillance activities. First, Cramerand Alfaro emphasize the Supreme Court’ s statement in Allis-Chalmers that “� 301 does not grant the parties to acollective-bargaining agreement the ability to contract for what is illegal under state law.” Allis-Chalmers, 471 U.S. at 212.They maintain that criminal conduct is, by definition, outrageous, see Galvez v. Kuhn, 933 F.2d 773, 780 (9th Cir. 1991), andcannot be a condition that it is possible for a collective bargaining agreement to condone. While the argument has considerableforce, it ultimately fails to save their claim because the civil right to privacy, regardless of source, can be waived for the reasonswe have already explained. As the Court went on to explain the difference between obligations that are “independent” of a laborcontract from those that are not: In extending the pre-emptive effect of � 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract. Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements. Allis-Chalmers, 471 U.S. at 212-13 (footnote omitted). This is precisely the situation here, as privacy rights can be altered orwaived under California law and must be considered in context. See Hill, 26 Cal. Rptr.2d at 850. No one suggests that thesubject of surveillance is an improper subject for collective bargaining. Cf. Utility Workers, 852 F.2d at 1086 (noting that drugtesting is proper subject for collective bargaining and does not implicate the sort of “nonnegotiable state-law rights” thatAllis-Chalmers indicates might preclude preemption); Schlacter-Jones, 936 F.2d at 441 (noting that “the question is notsolely whether a state law claim is ‘ nonnegotiable’ ; it is whether it is ‘ independent’ of the collective bargaining agreement”). Thus, the extent to which the collective bargaining agreement and the relationship between the parties in the workplace allowfor surveillance will inevitably inform the decision about how reasonable the employees’ expectations were that it would notoccur as it did. Galvez represents quite a different situation. There, the employee sued for damages for an assault. Being assaulted by asupervisor is not only outrageous, it is non-waivable. Further, Galvez’ s claim could be resolved without interpreting the collectivebargaining agreement because liability for the assault turned entirely on the employer’ s intent. Unlike these cases, the outcomein Galvez in no way depended on the reasonableness of the employee’ s expectations. The same is true of other cases upon which Cramer and Alfaro rely. Miller, Jineno v. Mobil Oil Corp., 66 F.3d 1514 (9thCir. 1995), Ramirez v. Fox Television Station, Inc., 998 F.2d 743 (9th Cir. 1993), and Chmiel v. Beverly Wilshire Hotel Co.,873 F.2d 1283 (9th Cir. 1989), all involve claims by a union employee arising out of alleged discrimination by the employercontrary to state law. In this context we have held that when a state construes its discrimination statutes to rely on standards ofdiscriminatory discharge that are independent of any standard of reasonable treatment set forth in the collective bargainingagreement, then termination of employment allegedly in violation of those statutory standards can be resolved under thosestandards without reference to the collective bargaining agreement. In other words, a Miller-type case only raises a factualdispute under an established state standard; such cases can be fully determined by deciding if the employer intended todiscriminate. Unlike these cases, the California “standard” for privacy assumes that it can be altered by agreement. Because itcan be, it plainly is not a “nonnegotiable, independent state-law right” under Allis-Chalmers. As we recognized in Miller, “[t]heconcept ‘ nonnegotiable’ is clear. A right is nonnegotiable if the state law does not permit it to be waived, alienated, or altered byprivate agreement.” Miller, 850 F.2d at 546. Given the negotiable right at issue here, there is no basis for concluding that adifferent analysis applies to a privacy claim founded on arguably illegal, by contrast with legal but also invasive, activities. Next, Cramer and Alfaro submit that California Penal Code � � 653n and 647(k) flatly ban surveillance through two-waymirrors in bathrooms regardless of whether there is an expectation of privacy. Whether or not this is so for purposes of criminalprosecution, there is no question that the civil tort on which they proceed in this case does turn on the existence of a reasonableexpectation of privacy. Alternatively, they contend that California case law interpreting � 653n is clear that the expectation ofprivacy that people have in a restroom is reasonable as a matter of law. They point to People v. Metcalf, 98 Cal. Rptr. 925, 927(Cal. App. 1971), in which the court held that “the enactment of [Penal Code] section 653n enunciates a public policy againstclandestine observation of public restrooms and renders it reasonable for users thereof to expect that their privacy will not besurreptitiously violated,” and to People v. Triggs, 106 Cal. Rptr. 408, 414 (Cal. 1973), overruled on other grounds People v.Lilienthal, 150 Cal. Rptr. 910, 912 n.4 (Cal. 1978), and Young v. Superior Court of Tulare County, 129 Cal.Rptr. 422, 425(Cal. Ct. App. 1976), which also indicate that the expectation of privacy a person has when he enters a restroom is reasonable. However, these are Fourth Amendment cases in which a person accused of criminal conduct occurring in a public restroom haschallenged the use of evidence obtained through surreptitious surveillance on the footing that it was an unreasonable search ofan area in which he had a reasonable expectation of privacy. See also In re Deborah C., 177 Cal. Rptr. 852, 858 (Cal. 1981)(prosecution for theft based on fitting room surveillance). We are aware of no California authority interpreting � 653n to applyto employees who are parties to a collective bargaining agreement, or applying the constitutional right of privacy in the contextof surveillance other than in Hill. Hill expressly conditions the right to privacy on consent and circumstances. Accordingly,while � 653n undoubtedly accords with a person’ s reasonable expectations of privacy in general — and probably with theexpectations of Consolidated’ s employees — we cannot say that it absolutely does without examining the extent to whichsurveillance, which the collective bargaining agreement assumes will occur, is conducted at the terminal with the employees’knowledge and consent. Additionally, Cramer and Alfaro argue that their actions are not preempted under the test for preemption we adopted in Millerand applied in Jimeno. In deciding whether Miller’ s discrimination claim was preempted we considered (1) whether the CBA contains provisions that govern the actions giving rise to a state claim, and if so, (2) whether the state has articulated a standard sufficiently clear that the state claim can be evaluated without considering the overlapping provisions of the CBA, and (3) whether the state has shown an intent not to allow its prohibition to be altered or removed by private contract. Miller, 850 F.2d at 548 (footnote omitted). For reasons we have already discussed, none of these factors cuts in favor ofnon-preemption of a privacy claim. Finally, Cramer and Alfaro suggest that we should not hold their claims preempted because to do so would give employerslicense to violate the criminal laws without recourse. We fail to see how, as employers can be criminally prosecuted forviolations of � 653n, and will surely lose in the grievance process itself if, as the employees here contend, surveillance has infact been conducted without authority. Our decision in no way sanctions what Consolidated did; it merely prescribes the forumand the form in which the dispute must go forward. Accordingly, the privacy claims are preempted, and were properlydismissed. III Emotional Distress (Alfaro) Alfaro asserts additional causes of action for the intentional and negligent infliction of emotional distress. In effect these are”parasite” claims that track the principal claim for invasion of privacy. We therefore address them summarily, as for essentiallythe same reasons, they, too, are preempted. To demonstrate intentional infliction of emotional distress, a plaintiff must show that the conduct was “extreme andoutrageous,” Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996) (applying California law), “‘ exceed[ing] all bounds ofthat usually tolerated in civilized society.’ “Id. at 1455 (quoting Davidson v. Westminster, 185 Cal. Rptr. 252, 259 (Cal.1982)). Whether the employees consented to surveillance affects the extent to which the surveillance about which Alfarocomplains is “outrageous.” See Sariakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir. 1999) (under California law”determining whether an employer’ s conduct is outrageous requires an interpretation of the terms of the CBA . . .” ); see alsoMiller, 850 F.2d at 551 (construing Oregon law, but noting that outrageousness could depend upon the collective bargainingagreement and that “we cannot assume that the employer’ s behavior was outrageous for purposes of an emotional distressclaim just because the employer may have violated a statutory prohibition against discrimination” ). The tort of negligent infliction of emotional distress is simply a negligence claim alleging that the defendant breached a duty toprotect the plaintiff’ s mental well-being. See Potter v. Firestone Tire & Rubber Co. 25 Cal. Rptr.2d 550, 562 (Cal. 1993)(“[T]here is no independent tort of negligent infliction of emotional distress” ); Burgess v. Superior Court, 9 Cal. Rptr.2d 615,618 (Cal. 1992) (“We have repeatedly recognized the negligent causing of emotional distress is not an independent tort, but thetort of negligence.” ) (internal quotations and alterations omitted). For the same reason that resort to the collective bargainingagreement is required to adjudicate Alfaro’ s claim for intentional infliction of emotional distress, it is necessary to resolve thenegligence claim: the extent to which the employees consented to surveillance is a factor in determining whether Consolidatedhad a duty not to be surveillant in the restrooms. Alfaro argues that we have repeatedly held that outrageous and illegal conductis outside the terms of a collective bargaining agreement, citing Galvez as an example. However, as we have discussed, anassault such as happened in Galvez is neither more nor less outrageous depending upon the conditions governing conduct in theworkplace, whereas the outrageousness of the conduct here does depend on the degree of surveillance contemplated throughthe collective bargaining agreement. Accordingly, Alfaro’ s claims for emotional distress are preempted.
[FOOTNOTE 11] IV Discharge in Violation of Public Policy (Hoffman) The gist of Hoffman’ s claim is that she was preemptively fired in an attempt to keep her from reporting illegal surveillanceactivity to law enforcement officials. Her theory is that whistleblowers are protected from retaliation by statute in California, seeCal. Labor Code � 1102.5(b),
[FOOTNOTE 12] and that California courts have held that terminations in violation of � 1102.5give rise to a cause of action for wrongful termination in violation of public policy. See, e.g., Garcia v. Rockwell Int’ l, 232Cal.Rptr. 490 (Cal. App. 1987) (public policy forbids retaliation by employer against employee who disclosed informationregarding employer’ s violation of law to government agency), abrogated on other grounds, Gantt v. Sentry Ins., 4 Cal.Rptr.2d 874 (Cal. 1992). She points out that the conduct she witnessed is criminalized by Cal. Penal Code � � 653n, 647(k), 632,and 635, and that privacy is explicitly protected in the California Constitution. Shobe rests his claim that he was not rehired inretaliation for being a party in the Alfaro litigation on the right to bring a lawsuit alleging violation of his privacy rights. Bothargue that it will be unnecessary to interpret the collective bargaining agreement because the issue of whether Consolidatedfired Hoffman to cover-up its criminal acts, and refused to rehire Shobe because of his legal action, is strictly a factual inquiryunder state law. Consolidated’ s position is that because an essential element of all “public policy” wrongful termination claims is that theemployer’ s conduct must have violated some fundamental public policy, and the violation upon which Hoffman and Shobe relyis the alleged invasion of their privacy rights, they must establish that Consolidated in fact violated the statutory or constitutionalprovisions protecting the right to privacy. This Consolidated believes they cannot do without interpreting the collective bargainingagreement. If this were the issue — that is, if the claim could be made out only if the employees first prove that Consolidated infact violated their privacy rights — then this case would be exactly like Cramer and Alfaro. However, the focus here isdifferent: “[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.” Green v. Ralee Engineering Co., 78 Cal.Rptr.2d 16, 29 (Cal. 1998). Putanother way, Hoffman and Shobe do not need to show that their own privacy rights were actually violated (which would dependupon the reasonableness of their expectations), rather that their claim for retaliatory wrongful termination is predicated onimportant public policy — which they allege is privacy. Under California law, “[a]part from the terms of an express or implied employment contract, an employer has no right toterminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutoryprovision.” Turner v. Anheuser-Busch, Inc., 32 Cal.Rptr.2d 223, 231 (Cal. 1994). To state a cause of action for wrongfuldischarge in violation of fundamental public policy, an employee must prove that his dismissal violated a policy that isfundamental, beneficial for the public, and embodied in statute or constitutional provision. “Tort claims for wrongful dischargetypically arise when an employer retaliates against an employee for ‘ (1) refusing to violate a statute . . . [,] (2) performing astatutory obligation . . . [,] (3) exercising a statutory right or privilege . . . [, or] (4) reporting an alleged violation of a statute ofpublic importance.” Id. at 234 (quoting Gantt v. Sentry Ins., 4 Cal. Rptr.2d 874, 878 (Cal. 1992)). Thus the cause of actionturns on why the employer took the action it did, and the existence of a source of public policy to which the employee’ s claim is”tethered.” Gantt, 4 Cal. Rptr.2d at 881. Consolidated argues that public policy wrongful discharge claims must be based upon a fundamental policy that is not subjectto revision through agreement of private parties (as privacy rights are), see Green, 78 Cal. Rptr.2d at 21 (discussing genesis ofrequirement that Tameny
[FOOTNOTE 13] claim implicate public policy); and that there can be no viable public policy claimbased upon privacy rights because they may be altered by agreement. However, it seems to us that both points have to do withwhether a viable cause of action is stated under California law, which is an issue that the federal courts cannot reach withoutjurisdiction.
[FOOTNOTE 14] The only question for us to decide is whether the collective bargaining agreement will have to beconstrued in the course of litigating this action. We think not, for if Consolidated is correct that a public policy which can bealtered by agreement is not the kind of public policy upon which a wrongful discharge claim may be based, a state court canmake that determination with respect to California’ s policy on privacy simply by looking to state law. Thus, Consolidated’ sreliance on Stikes, Laws, Utility Workers, and Schlacter-Jones, each of which involves a job action taken as a result of asearch that the employee later contends invaded his privacy rights, is misplaced. Instead, this case is closer to Lingle, where anemployee covered under a collective bargaining agreement brought an action for retaliatory discharge for filing a workers’compensation claim, and the Court held that the state claims were not preempted because their resolution turns on the employer’s motivation in discharging the employee — not on interpretation of the agreement. Lingle, 486 U.S. at 407. In sum, whereas the claims for invasion of privacy in Cramer and Alfaro rest on the expectations of the parties, the Hoffmanclaims for retaliatory wrongful discharge rest on Consolidated’ s motivation in firing Hoffman and not rehiring Shobe. SeeSchlacter-Jones, 936 F.2d at 441 (contrasting a Lingle claim that centers on the motivation of the employer with a privacyclaim which rests “primarily on the expectations of the parties and the powers” of the employer). This can be determinedwithout reference to the collective bargaining agreement. Accordingly, neither Hoffman’ s nor Shobe’ s claim is preempted. Wetherefore reverse dismissal and remand with instructions for Hoffman to be remanded to the Superior Court for RiversideCounty. AFFIRMED as to Cramer and Alfaro; REVERSED AND REMANDED as to Hoffman. :::FOOTNOTES:::
FN1 Cramer v. Consolidated Freightways, Inc., No. 98-55657, and Alfaro v. Consolidated Freightways Corp., No.98-56041, were consolidated in the district court and for calendaring purposes on appeal. We consider the invasion of privacyclaim that is common to both Cramer and Alfaro in Part II, and the emotional distress claim and other statutory claims raisedonly in Alfaro in Part III. We also heard argument on the appeal in a related case, Hoffman v. Consolidated Freightways,No. 98-56154, at the same time. Counsels’ cooperation in presenting a coordinated argument was helpful and appreciated by thecourt. The issues raised in Hoffman are slightly different, as the claims are for retaliatory discharge in violation of public policy.We address these claims in Part IV.
FN2 The claims of several non-employees in Alfaro were remanded to state court and are not at issue on this appeal.
FN3 The parties appear to differ on whether the surveillance was entirely of the common areas, but the dispute is not materialto our decision.
FN4 Cramer preliminarily contends that federal jurisdiction cannot exist because his complaint does not mention anemployer/employee relationship. However, these facts were evident in his request for class certification and were, in any event,properly before the court through Consolidated’ s petition for removal. See Olguin v. Inspiration Cons. Copper Co., 740 F.2d1468, 1473 (9th Cir. 1984) (court may look beyond facts pleaded in complaint to ascertain facts that would appear in a “wellpleaded” complaint), overruled on other grounds, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985).
FN5 Any person who installs or who maintains after April 1, 1970, any two-way mirror permitting observation of any restroom,toilet, bathroom, washroom, shower, locker room, fitting room, motel room, or hotel room, is guilty of a misdemeanor. Cal. Penal Code � 653n.
FN6 Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (K) Anyone who looks through a hole or opening, into, or otherwise views, by means of an instrumentality, including [a] . . .camera, . . . the interior of a bathroom . . . with the intent to invade the privacy of a person or persons inside. Cal. Penal Code � 647(k).
FN7 Every person who, intentionally and without the consent of all parties to a confidential communication, by means of anyelectronic amplifying or recording device, eavesdrops upon or records the confidential communication, . . . shall be punished . . .. Cal. Penal Code � 632(a).
FN8 Every person who manufactures, assembles, sells, offers for sale, advertises for sale, possesses, transports, imports, orfurnishes to another any device which is primarily or exclusively designed or intended for eavesdropping upon thecommunication of another . . . shall be punished . . . . Cal. Penal Code � 635(a).
FN9 Cal. Penal Code � 653n, upon which Cramer and Alfaro principally rely, does not provide a private cause of action forinvasion of privacy. Thus they must proceed on a general tort claim for invasion of privacy under the California Constitution,Article 1, Section 1. While civil remedies are provided for violations of Penal Code � � 632 and 635, � 632 explicitly hinges onthe absence of consent. Section 637.2, which provides the private cause of action for violations of Section 635, requires proofthat the plaintiff was “injured” by the eavesdropping equipment, which in turn also depends on consent. See Cal. Penal Code �632; People v. Canard, 65 Cal. Rptr. 15, 29 (Cal. Ct. App. 1967).
FN10 Faced with a somewhat similar situation, where eight female workers complained they had been subjected to videosurveillance in the locker room in violation of their right to privacy, the Seventh Circuit deemed the action to arise under � 301because the employer had a non-frivolous argument that this kind of surveillance was implicitly authorized by the managementrights clause of the CBA. See Brazinski v. AMOCO Petroleum Additives Co., 6 F.3d 1176 (7th Cir. 1993), earlier opinion,In re AMOCO Petroleum Additives Co., 964 F.2d 706 (7th Cir. 1992). However, there is no indication that the surveillanceAMOCO conducted was prohibited by the state’ s criminal laws, so it does not speak directly to the point before us.
FN11 Although Alfaro appears also to allege causes of action for violation of Cal. Penal Code � 635, which criminalizes thepossession of eavesdropping equipment, and Cal. Penal Code � 632, which prohibits eavesdropping on confidentialcommunications, he does not argue these claims separately. We therefore deem them abandoned on appeal but note that, in anyevent, consent is a defense.
FN12 Section 1102.5(b) provides: No employer shall retaliate against an employee for disclosing information to a government or law enforcement agency, wherethe employee has reasonable cause to believe that the information discloses a violation of state or federal statute. Cal. Labor Code � 1102.5(b).
FN13 Tameny v. Atlantic Richfield Co., 164 Cal.Rptr. 839 (Cal. 1980) (holding that at-will employees may recover tortdamages from employers if they can show they were discharged in contravention of fundamental public policy).
FN14 The same is true of Consolidated’ s further argument that Hoffman’ s reliance on � 1102.5 of the Labor Code ismisplaced. Whether it is or isn’ t is a question that goes to the merits (or lack thereof) of her claim, not to whether interpretationof the collective bargaining agreement is required.
FN15 These actions were assigned to Hon. Irving Hill, who entered judgment in Cramer v. Consolidated Freightways, Inc.,CV 97-7860-IH, No. 98-56154. Alfaro v. Consolidated Freightways Corp., SA CV 98-331, No. 98-56041, and Davidson v.Consolidated Freightways Corp. (Hoffman), SA CV 98-332-LMG, No. 98-56154, were reassigned following Judge Hill’ sdeath in March 1998 to Hon. Linda H. McLaughlin.
FN16 Judge O’ Scannlain was drawn to replace Judge Wiggins. He has read the briefs, reviewed the record, and listened to theoral argument tapes.
Cramer v. Consolidated Freightways, Inc. LLOYD W. CRAMER; DANIEL E. LIPICH, Plaintiffs-Appellants, v. CONSOLIDATED FREIGHTWAYS, INC., Defendant-Appellee. No. 98-55657 D.C. No. CV-97-07860-IH United States Court of Appeals for the Ninth Circuit D.C. No. CV-98-00332-LHM(ANx) Appeals from the United States District Court for the Central District of California Irving Hill, District Judge,Presiding
[FOOTNOTE 15] Argued and Submitted February 9, 2000 — Pasadena, California Before: Diarmuid F. O’Scannlain,
[FOOTNOTE 16] Pamela Ann Rymer, and Raymond C. Fisher, Circuit Judges. COUNSEL Jay C. Horton (argued), William O. Humphreys, and Malena R. Leclair, Horton, Barbaro & Reilly, Santa Ana, California, forplaintiffs-appellants Cramer et al. Michael D. Myers, Christine Pollard, and Matthew L. Taylor (argued), Myers & Pollard,Claremont, California, for plaintiffs-appellants Alfaro et al. and Hoffman et al. Robert E. Mangels, Marc Marmaro, Louis Ann Fernandez (argued), and Neil O. Andrus, Jeffer, Mangels, Butler, andMarmaro, Los Angeles, California, for the defendants-appellees. Filed April 26, 2000
