Judd v. Serv. Emps. Int'l Union
| Decision Date | 23 September 2020 |
| Docket Number | Civil Action No. 19-2925 (RDM) |
| Parties | DALE JUDD, Plaintiff, v. SERVICE EMPLOYEES INTERNATIONAL UNION, Local 32BJ et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Dale Judd, proceeding pro se, sues to challenge the loss of his job as a general house cleaner at the headquarters of the Department of Justice ("DOJ building"), a position he held for more than a quarter century. Plaintiff was the odd man out when Melwood Horticultural Training Center, Inc. ("Melwood") took over the cleaning contract at the DOJ building. Plaintiff sues both Melwood and the Service Employees International Union, Local 32BJ ("the Union"). He alleges that Melwood violated its Collective Bargaining Agreement ("CBA") with the Union and that the Union breached its duty of fair representation by failing to protect Plaintiff's rights. Melwood and the Union (collectively, "Defendants") each move to dismiss Plaintiff's claims as barred by the National Labor Relation Act's six-month statute of limitations.
For the following reasons, the Court will GRANT Defendants' motions to dismiss but will give Plaintiff an opportunity to file an amended complaint.
The following factual allegations are drawn from the complaint, as well as documents incorporated in Plaintiff's pleadings by reference, or are subject to judicial notice. For purposes of Defendants' motions to dismiss, the Court accepts Plaintiff's factual allegations as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007).
Plaintiff worked for more than twenty-five years as a general house cleaner at the DOJ building. Dkt. 1 at 2. In 2017, Melwood was awarded the janitorial services contract that included the DOJ building through the AbilityOne program, which provides employment on federal government contracts to people with disabilities. Dkt. 15-2 at 5 (Ex. 5), see also AbilityOne, AbilityOne.gov (last visited September 23, 2020). Although most of the workforce on the new contract was to comprise disabled people hired by Melwood, the contract permitted Melwood to retain workers without disabilities for up to 25% of the work hours. Dkt. 15-2 at 5 (Ex. 5). Pursuant to that exception, Melwood and the Union agreed that a small number of employees who worked for the prior contractor, R&R Building Services, would be retained. Id. Melwood recognized the Union as the representative of those employees, and in June 2017, Melwood and the Union negotiated a CBA and corresponding Neutrality and Card Check Agreement ("NCCA"). Dkt. 1 at 2-3; Dkt. 8-4 at 1-2 (Ex. A).
Plaintiff alleges that under the CBA, he should have been among the employees retained to work at the DOJ building based on his seniority and his status as a union steward. Dkt. 1 at 4-5 (Compl. ¶¶ 7-11). Section 7.1 of the CBA provided that an employee's seniority, as relevant for the order of layoffs, "shall be computed from the date on which he/she is hired by the Employer or his/her date of employment at the Department of Justice, whichever is longer" and that "[o]ne shop steward per shift shall have super seniority for purposes of layoff and recall."Dkt. 13-1 at 8 (Ex. 1). The NCCA, however, provided that only two general cleaners would be retained at the DOJ building and that those two would be chosen by seniority among only those cleaners holding top-secret clearances. Dkt. 8-4 at 2 (Ex. A). Because Plaintiff did not hold a top-secret clearance, he was ineligible to continue to work at the DOJ building under the NCCA. Id. Plaintiff further alleges that once it became clear that he could not work at the DOJ building, the Union promised him a position at a Secret Service building. Dkt. 15 at 3-4. But the Union went back on that promise and later told Plaintiff that he was being assigned to a Federal Bureau of Investigation building, where his pay would be cut from more than $20 per hour to $12.33 per hour. Dkt. 1 at 7-8 (Compl. ¶¶ 18-22). Melwood took over janitorial services at the DOJ building on October 1, 2017, and Plaintiff lost his job at the DOJ building at that time. Dkt. 1 at 4 (Compl. ¶ 4); Dkt. 8-1 at 1; Dkt. 8-5 at 1 (Ex. B).
Plaintiff alleges that Melwood and the Union violated the CBA and that the Union breached its duty of fair representation by amending the CBA with the NCCA in a manner that was prejudicial to him and by failing to retain him at the DOJ building based on his seniority. Dkt. 1 at 4-5 (Compl. ¶¶ 7-11). On November 2, 2017, Plaintiff, through a non-lawyer representative, filed a charge against Melwood and the Union with the National Labor Relations Board ("NLRB"). Dkt. 15-2 at 1-4 (Exs. 1-4). On February 28, 2018, the acting director for the NLRB's Region 5 wrote to Plaintiff's representative "refusing to issue [a] complaint" with respect to Plaintiff's charge against the union. Id. at 6 (Ex. 5). Because "the Union's actions were rational, and not arbitrary, discriminatory, or in bad faith," the acting director found that "further proceedings [were] not warranted." Id. In a substantially similar letter sent the same day, the acting director also declined to issue a complaint against Melwood. Id. at 9 (Ex. 6).
On January 18, 2018, Plaintiff filed a race discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Id. at 11-12 (Ex. 8). On February 13, 2018, the EEOC dismissed Plaintiff's charge. Id. at 13 (Ex. 9). The EEOC notified Plaintiff that he had 90 days to file a lawsuit alleging discrimination under federal law in either federal or state court. Id.
In March 2018, Plaintiff's representative submitted a variety of correspondence to the NLRB, including an administrative appeal. Id. at 14-21 (Exs. 14 & 15); id. at 24-25 (Ex. 17). Ten months later, on January 24, 2019, Plaintiff filed an amended charge, and on May 31, 2019, the Region 5 acting director again declined to issue a complaint. Id. at 28-30 (Ex. 21). The acting director explained that the amended charge was subject to the six-month statute of limitations in § 10(b) of the NLRA. Id.; see also 29 U.S.C. § 160(b) () ("§ 10(b)"). Because the amended charge was filed more than a year after the alleged unfair labor practices occurred, the charge was time-barred. Dkt. 15-2 at 28-30 (Ex. 21). On June 13, 2019, Plaintiff filed another administrative appeal. Id. at 31-32 (Ex. 22). On July 16, 2019, the NLRB General Counsel denied Plaintiff's appeals. Id. at 35-36 (Ex. 24). On October 8, 2019, the General Counsel denied Plaintiff's motion for reconsideration as untimely. Id. at 40-41 (Ex. 26).
Plaintiff filed this lawsuit on September 30, 2019. Melwood and the Union each moved to dismiss. Dkt. 8; Dkt. 11. Plaintiff filed oppositions to those motions. Dkt. 13; Dkt. 15. Defendants replied. Dkt. 14; Dkt. 16. Plaintiff then filed a pair of sur-reply briefs. Dkt. 17; Dkt. 18. The motions to dismiss are accordingly fully briefed and ripe for decision.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating a Rule 12(b)(6) motion, the Court "must first 'tak[e] note of the elements a plaintiff must plead to state [the] claim to relief,' and then determine whether the plaintiff has pleaded those elements with adequate factual support to 'state a claim to relief that is plausible on its face.'" Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)) (alterations in original) (internal citation omitted). The complaint, however, need not include "detailed factual allegations" to withstand a Rule 12(b)(6) motion. Twombly, 550 U.S. at 555. A plaintiff may survive a Rule 12(b)(6) motion even if "recovery is very remote and unlikely," so long as the facts alleged in the complaint are "enough to raise a right to relief above the speculative level." Id. at 555-56.
In assessing a Rule 12(b)(6) motion, a court may consider only "the facts contained within the four corners of the complaint," Nat'l Postal Prof'l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 28 (D.D.C. 2006), along with "any documents attached to or incorporated into the complaint, matters of which the court may take judicial notice, and matters of public record," United States ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 (D.D.C. 2011). In addition, where a plaintiff proceeds pro se, the Court must consider other documents the plaintiff has filed in the case, including filings responsive to the motion to dismiss. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) () (quoting Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)).
Defendants argue that Plaintiff's principal claims are subject to § 10(b)'s six-month statute of limitations. Dkt. 8-1 at 3-4; Dkt. 11 at 6-8. They further contend that Plaintiff's claims accrued on October 1, 2017, when Melwood took over the contract at the Department of Justice and removed Plaintiff from his position at that worksite or, at the latest, on November 2, 2017, when Plaintiff filed his initial charge with the NLRB. Dkt 8-1 at 4; Dkt. 11 at 7-8. Because far more than six months elapsed between either of those dates and when Plaintiff filed his complaint in this action on September 30, 2019, Defendants assert that Plaintiff's claims are time-barred and must be dismissed.
Because Plaintiff is proceeding pro se, the Court will construe his pleadings liberally. See Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015) (...
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