Faculty Members At Middle E. Sch. v. Donovan
| Decision Date | 15 April 2016 |
| Docket Number | Case No. 15-cv-03974-BLF |
| Parties | FACULTY MEMBERS AT MIDDLE EASTERN SCHOOLS, et al., Plaintiffs, v. RICHARD DONOVAN, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
[Re: ECF 14, 26]
Plaintiffs, thirty-four faculty members at the Defense Language Institute Foreign Language Center, bring this action involving allegations of discriminatory practices and favoritism with respect to promotions. FAC 3:21-25, ECF 13. Before the Court are Defendant American Federation of Government Employees, AFL-CIO, Local 1263's ("AFGE") and Defendant Richard P. Donovan's motions to dismiss. For the reasons stated herein, the Court GRANTS AFGE's motion to dismiss without leave to amend and GRANTS Mr. Donovan's motion to dismiss with partial leave to amend.1
The following allegations are taken from Plaintiffs' First Amended Complaint. In April 2013, Defendant Richard Donovan, head of the Faculty Personnel System at the Defense Language Institute, held a meeting with faculty members to discuss promotions to the position of Associate Professor for 2013-2014. FAC 4:9-12, ECF 13. According to Mr. Donovan, a facultymember needed to have two areas of specialization to be promoted to the position of Associate Professor. FAC 4:20-21. At the April 2013 meeting, attendees allegedly asked Mr. Donovan whether serving as a Team Leader qualified as one area of specialization to which Mr. Donovan answered it did not. FAC 4:10-14. In a meeting held in 2011 about similar issues, Mr. Donovan also responded to a similar question with the same answer. FAC 4:17-19. In March 2014, promotions were announced and to the dissatisfaction of Plaintiffs, serving as Team Leader counted as an area of specialization. FAC 4:22-25. Moreover, Plaintiffs allege that less experienced teachers were promoted over more qualified teachers. FAC 4:25-28.
As a result Plaintiffs filed complaints with the "EEO, OSP, [their] Union, and direct grievances to FPS." FAC 5:5. In April 2014, six of the Plaintiffs sought the help of AFGE. FAC 7:15-16. They met with Mr. Philip White, where they gave him a copy of their EEO petition and requested to speak with AFGE's attorney regarding the possibility of arbitration if they could not resolve their dispute with Mr. Donovan. FAC 7:17-20. According to Plaintiffs, Mr. White refused to help them and told them to use Google to find an attorney. FAC 7:20-24.
Meanwhile, in response to Plaintiffs' complaints, Mr. Donovan met with dissatisfied faculty members in May 2014 and July 2014. FAC 5:6-16. At the second meeting, AFGE President Reuf Borovac and Provost Dr. Betty Leaver were also present. Id. According to Plaintiffs, at these meetings, Mr. Donovan denied telling them that serving as a Team Leader would not count as one area of specialization. Id. Dr. Leaver also claimed she researched this issue and did not hear Mr. Donovan tell faculty members that serving as a Team Leader would not qualify as an area of specialization. FAC 5:23-26. After the May 2014 meeting, Plaintiffs wrote a petition, that was signed by 11 of them, to Assistant Commander Colonel Ginger L. Wallace over Mr. Donovan's alleged misrepresentation of facts at the May 2014 meeting. FAC 5:20-23.
In late May 2014, Plaintiffs met and communicated with Mr. Borovac several times. FAC 7:25-8:3. Plaintiffs agreed with Mr. Borovac that they would not seek to arbitrate their grievances until the appeal process was finished. FAC 8:4-5. In August 2014, Plaintiffs also met with AFGE's regional attorney who promised to look into the case but never did. FAC 8:5-10.
In November 2014, Plaintiffs' appeal process finished and disappointed by the results ofthe appeal, Plaintiffs wanted to pursue arbitration led by AFGE. FAC 6:14-15; FAC 8:11-15. Mr. Borovac sought advice from Dr. Toth Ben, AFGE's national representative, who on January 20, 2015 suggested Plaintiffs attempt more negotiations with management. FAC 8:15-16. Plaintiffs informed Dr. Ben that management was no longer interested in negotiation and on January 26, 2015, Dr. Ben gave Mr. Borovac instructions on how to file a complaint with the Federal Labor Relations Authority ("FLRA"). FAC 8:17-18. Mr. Borovac delegated filing of the complaint to his Chief Steward, Mr. Mark Chitwood. FAC 8:18-21. According to Plaintiffs, Mr. Chitwood did not have the experience, knowledge, or training to file a FLRA complaint. Id.
On February 6, 2015, Mr. Borovac received a completed complaint that was ready for filing with the FLRA. FAC 8:22-23. Plaintiffs allege that they had an agreement with Mr. Borovac that he would have Mr. Chitwood file the complaint that same day in order to meet the statute of limitations. FAC 8:24-27. However, Plaintiffs claim that Mr. Chitwood apparently changed his mind and the complaint was never filed. FAC 9:1-7. Plaintiffs did not learn of Mr. Chitwood's inaction until more than a month later in March 2015. Id. On March 22, 2015, Plaintiffs filed a complaint with the FLRA but it was dismissed for being outside the statute of limitations. FAC 6:15-17. Plaintiffs appealed the FLRA decision and on July 31, 2015, Plaintiffs' appeal was denied. FAC 6:17-23. Plaintiffs have now filed the pending action alleging that their union failed to fulfill its duty and seeking a fair review of the facts. FAC 6:24-25; FAC 9:27-28.
Federal courts are courts of limited jurisdiction, and are "presumed to lack subject matter jurisdiction until the contrary affirmatively appears." Dragovich v. U.S. Dep't of Treasury, 764 F. Supp. 2d 1178, 1184 (N.D. Cal. 2011). As courts of limited jurisdiction, a federal district court is obligated to dismiss a case when it lacks subject matter jurisdiction over the claims alleged. Fed. R. Civ. P. 12(b)(1). On a motion to dismiss pursuant to Rule 12(b)(1), the burden is on the plaintiff to establish subject-matter jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A jurisdictional challenge may be either facial or factual. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge asserts that the factualallegations in a complaint, even if assumed true, "are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). By contrast, "a factual attack...disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. The Court need not presume the truthfulness of the plaintiff's allegations. See, e.g., White, 227 F.3d at 1242. Once the factual basis for jurisdiction is challenged, the plaintiff bears the burden of coming forward with "competent proof to support his allegations of jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936).
A motion to dismiss under Rule 12(b)(6) concerns what facts a plaintiff must plead on the face of the complaint. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Any complaint that does not meet this requirement can be dismissed pursuant to Rule 12(b)(6). A "short and plain statement" demands that a plaintiff plead "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which requires that "the plaintiff plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Under Rule 15(a), a court should grant leave to amend "when justice so requires," because Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). A court may deny leave to amend for several reasons, including Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
AFGE argues the Court lacks subject matter jurisdiction over Plaintiffs' First AmendedComplaint. Mot. 2-5, ECF 15. AFGE contends that the gravamen of Plaintiffs' First Amended Complaint is that it failed in its duty of fair representation and committed an unfair labor practice. Id. at 2. According to AFGE, such claims may only be brought before the Federal Labor Relations Authority ("FLRA"), with judicial review reserved for the Court of Appeals. Id. (citing Federal Service Labor Management Relations Statute, 5 U.S.C. § 7101, et seq. ("FSLMRS")).
Before describing Plaintiffs' allegations, the Court notes only three Plaintiffs, Ahmed Nuri, Abdul Khogali, and Omar Mohamed Ali, signed the opposition brief. Opp. at 6, ECF 23. As this Court has repeatedly indicated to Plaintiffs, the Federal Rules of Civil Procedure require each Plaintiff to sign each document filed. ECF 11 (citing Fed. R. Civ. P. 11); ECF 24. The Court cannot ascribe the arguments signed only by Messrs. Nuri, Khogali, and Ali to the remaining Plaintiffs. Moreover, as non-attorneys Messrs. Nuri, Khogali, and Ali may not submit arguments on behalf of the other Plaintiffs. Thus, "Plaintiffs" in this section refers only to Messrs. Nuri, Khogali, and Ali. The remaining Plaintiffs2 did not submit an opposition to AFGE's motion to dismiss.
Plaintiffs oppose AFGE's motion and argue that the Court has subject matter jurisdiction for two reasons. First, Plaintiff...
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