Bimler v. Stop & Shop Supermarket Co.

Decision Date31 March 1997
Docket NumberCivil Action No. 3:96CV770 (AHN).
Citation965 F.Supp. 292
CourtU.S. District Court — District of Connecticut
PartiesMarcia BIMLER, Plaintiff, v. The STOP & SHOP SUPERMARKET COMPANY a/k/a The Stop & Shop Supermarket Companies, Inc. and the United Food and Commercial Workers' Union Local 919, Defendants.

Kerin M. Woods, Anderson & Ferdon, P.C., Norwich, CT, for Marcia A. Bimler.

Michael D. O'Connell, Matthew W. Den Ouden, O'Connell, Flaherty & Attmore, Hartford, CT, Ann M. O'Neill, Michael F.X. Dolan, Murphy, Hesse, Toomey & Lehane, Quincy, MA, for Stop & Shop Co., Inc.

J. William Gagne, Jr., Jason W. Cohen, J. William Gagne & Assoc., Wethersfield, CT, for United Food & Commercial Workers Union, Local 919.

NEVAS, District Judge.

The Magistrate Judge's recommended ruling is hereby APPROVED, ADOPTED, and RATIFIED over objection. Plaintiff shall file, within thirty days hereof, an amended complaint conforming with the Magistrate Judge's recommended ruling. SO ORDERED.


MARTINEZ, United States Magistrate Judge.

The plaintiff, Marcia Bimler, brings this action against her former employer, The Stop & Shop Supermarket Company a/k/a The Stop & Shop Supermarket Companies, Inc. ("Stop & Shop") and the United Food and Commercial Workers Union, Local 919 ("the union"), her exclusive bargaining unit representative while she was employed by Stop & Shop. Pending before the court are two motions to dismiss filed by Stop & Shop and one motion to dismiss filed by Local 919. For the reasons that follow, Stop & Shop's motion to dismiss filed on May 9, 1996 (doc. # 10) should be denied and Stop & Shop's motion to dismiss filed June 7, 1996 (doc. # 22) should be granted in part and denied in part. Local 919's motion to dismiss (doc. # 8) also should be granted in part and denied in part.


This action was originally brought in Connecticut Superior Court by a seven-count complaint dated March 29, 1996 and was removed to the district court on May 2, 1996. Thereafter, the defendant Stop & Shop moved to dismiss all six counts of the complaint that were directed against it and the defendant union moved to dismiss the single count directed against it. On May 28, 1996, the plaintiff filed an amended complaint containing four counts and also filed objections to the defendants' motions. Both defendants filed reply briefs and in addition Stop & Shop filed another motion to dismiss in which it incorporated many of the arguments it previously had made in support of its first motion to dismiss. No opposition to Stop & Shop's second motion to dismiss was filed.


When considering a Rule 12(b) motion to dismiss, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims." United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn. 1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. at 1684-85).


Keeping this standard in mind, the court accepts as true the following facts which are alleged in the plaintiff's amended complaint.

The plaintiff was an employee of Stop & Shop who worked at the customer service desk at the Stop & Shop in Norwich, Connecticut. As an employee of Stop & Shop, the plaintiff was represented by the union. A collective bargaining agreement existed between Stop & Shop and the union and provided for a formal grievance procedure.

On February 18, 1994, she and other co-workers met with a Stop & Shop manager and discussed store policy regarding the staffing of the Stop & Shop customer service desk and the utilization of customer service desk staff as cashiers. That same day, a co-worker of the plaintiff, acting on behalf of herself, the plaintiff and another co-worker, contacted a union representative about the meeting with the Stop & Shop manager. Upon the advice of the union representative, the co-worker documented what occurred in the meeting and provided copies of that documentation to the union representative and to Stop & Shop management.

On March 25, 1994, Stop & Shop reported allegations of improper and unlawful activities at the customer service desk to criminal investigators. The criminal investigators spoke with the plaintiff on March 28, 1994 and, on May 26, 1994, the plaintiff was arrested on charges of third degree larceny based upon allegedly unlawful balancing of coupon tabulations at Stop & Shop's courtesy desk. On the day of her arrest, the plaintiff was suspended by Stop & Shop. After a jury trial on the criminal charges in September, 1995, the plaintiff was found not guilty.

The plaintiff thereafter, informed the union that she was acquitted of the criminal charges. She also requested that the union undertake contractual grievance procedures on her behalf pursuant to the collective bargaining agreement between the union and Stop & Shop. On October 20, 1995, a meeting was held between union representatives, Stop & Shop and the plaintiff. After the plaintiff refused to accept certain terms offered by Stop & Shop at this meeting, a union representative informed the plaintiff that she was terminated.

Based on these allegations, the plaintiff claims in count one of the amended complaint that she was suspended "because she exercised her right to free speach [sic] as to union matters regarding working conditions" and that her suspension was in violation of the First Amendment to the United States Constitution, Article 1 Section 4 of the Constitution of the State of Connecticut, and Connecticut General Statutes § 31-51q.

In the second count of the amended complaint, the plaintiff alleges that Stop & Shop was reckless and/or negligent in the manner in which it handled the criminal charges against her and in refusing to reinstate her after she was acquitted.

In the third count of the amended complaint, the plaintiff alleges that Stop & Shop defamed and disparaged the plaintiff's character and placed the plaintiff in a false light by communicating to her co-workers and peers that she had misappropriated funds and aided another co-worker in stealing from Stop & Shop.

The fourth count of the plaintiff's amended complaint alleges that the union breached the duty of fair representation that it owed to the plaintiff in connection with the plaintiff's complaints about working conditions and in connection with the criminal charges that were brought against the plaintiff.


On May 9, 1996, Stop & Shop moved to dismiss all six of the counts asserted against it in the original complaint. The plaintiff amended her complaint and opposed Stop & Shop's motion to dismiss. In her opposition, the plaintiff argued that the issues raised in Stop & Shop's motion to dismiss were rendered moot by virtue of the plaintiff having amended her complaint. Stop & Shop contested the plaintiff's argument that the amended complaint rendered moot the issues raised in its motion, but nevertheless, filed another motion to dismiss on June 7, 1996. In its second motion to dismiss, Stop & Shop addressed the three counts asserted against it in the plaintiff's amended complaint and, in support thereof, expressly incorporated several arguments originally asserted in its first motion to dismiss.

The issues raised in Stop & Shop's original motion to dismiss were not automatically rendered moot by the amendment of the plaintiff's complaint. Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 76 F.Supp. 335 (D.C.N.Y. 1948) (motion challenging sufficiency of plaintiff's complaint deemed addressed to plaintiff's amended complaint). However, because Stop & Shop has filed a second motion to dismiss which incorporates the arguments made in its original motion, there is no need to separately decide both the original and the second motions to dismiss. For the sake of procedural clarity, the court recommends that the first motion to dismiss be denied. The court's recommended ruling on the second motion to dismiss addresses those arguments which were made in the original motion and incorporated in the second motion.1


Stop & Shop contends that the First Count of the plaintiff's amended complaint claiming wrongful termination should be dismissed for failure to state a claim upon which relief may be granted. Stop & Shop offers the following alternative arguments in support of its contention: (1) the plaintiff's claim is preempted by section 10 of the National Labor Relations Act (NLRA), 29 U.S.C. § 160; (2) the plaintiff's claim fails to aver that the plaintiff's termination was unlawful or that the plaintiff suffered any resulting damages; (3) the claim is preempted under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185; (4) the plaintiff is not entitled to the relief sought because she is a union member covered by a collective bargaining agreement; (5) Connecticut General Statutes § 31-51q provides the exclusive remedy for the plaintiff's claim of wrongful termination; and (6) the plaintiff's factual allegations are insufficient to state a claim for which...

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