Kovach v. Turner Dairy Farms, Inc.

• Decision Date: 08 March 2013
• Docket Number: Civil Action No. 2:12–CV–00432.
• Citation: 929 F.Supp.2d 477
• Parties: Nick KOVACH, Plaintiff, v. TURNER DAIRY FARMS, INC.; Service Personnel & Employees of the Dairy Industry, Local Union No. 205; Greg Shafer; and William Lickert, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

929 F.Supp.2d 477

Nick KOVACH, Plaintiff,

v.TURNER DAIRY FARMS, INC.; Service Personnel & Employees of the Dairy Industry, Local Union No. 205; Greg Shafer; and William Lickert, Defendants.

Civil Action No. 2:12–CV–00432.

United States District Court,

W.D. Pennsylvania.

March 8, 2013.

James B. Lieber, Lieber Hammer Huber & Bennington, P.C., Pittsburgh, PA, for Plaintiff.

John A. McCreary, Jr., Marla N. Presley, Alana E. Fortna, Babst, Calland, Clements & Zomnir, P.C., John David Newborg, Pittsburgh, PA, for Defendants.

OPINION

MARK R. HORNAK, District Judge.

Plaintiff Nick Kovach claims in his 313 paragraph Third Amended Complaint that his labor union, and certain of its representatives, forced him to quit his job with Turner Dairy Farms, Inc., and placed him at the risk of serious bodily harm when a co-worker/Union steward threatened to beat him up and repeatedly tried to run him over with a truck all in retaliation for Plaintiff's actions as a Union member. He claims that Turner failed to put a stop to such activity when it had the duty and opportunity to do so.

Kovach filed this action against Turner Dairy Farms, Inc. (“Turner”), his Union—Service Personnel and Employees of the Dairy Industry Local Union No. 205 (“Union”),—and Union officials Greg Shafer and William Lickert, Jr. He alleges a wide variety of federal civil claims, some obvious in the circumstances alleged, many not. Plaintiff brings Counts I and II under the Labor–Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. §§ 411, 501. Counts III, IV, V, and VI allege state law tort claims for Interference with Contractual Relations and Economic Opportunities, Negligent Supervision and Retention, and Assault. Count VII is brought under the Labor–Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. Count VIII is brought under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Counts IX, X, and XI are brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

Turner filed a Motion to Dismiss all claims against it, which consist of Counts V, VII, VIII, IX, X, and XI. The Union, Shafer, and Lickert filed a Motion to Dismiss all federal claims brought against them, which consist of Counts I, II, VII, IX, X, and XI.

The Motions to Dismiss are granted in part and denied in part. Specifically, the Motions to Dismiss are granted with regard to claims under 29 U.S.C. § 411(a)(1) asserted in Count I, and as to Counts VII, VIII, IX, X, and XI. The Motions to Dismiss are otherwise denied.

I. PROCEDURAL POSTURE

Plaintiff brought this suit on April 4, 2012 and then amended his Complaint twice. ECF Nos. 1, 17, 33. All Defendants filed Motions to Dismiss following the original Complaint, the First Amended Complaint, and the Second Amended Complaint. ECF Nos. 12, 15, 18, 20, 34, 36. At oral argument the Defendants did not object to Plaintiff's request to file a Third Amended Complaint (“TAC”) and stated that such Third Amended Complaint would not alter any existing Motions to Dismiss. The parties then stipulated that all previous Motions to Dismiss would apply with full force to the TAG.¹ Consequently, the Court will rely on Plaintiff's TAC, ECF No. 46, in considering the Motions to Dismiss.

II. FACTUAL BACKGROUND

When considering a motion to dismiss under Fed.R.Civ.P. 12, the Court must accept the factual allegations in the TAC as true and draw all reasonable inferences in the Plaintiff's favor. Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011). The factual allegations related here are taken from the TAC. ECF No. 46. Therefore, solely for the purposes of the disposition of Defendants' Motions to Dismiss, the essential facts are as follows.

Plaintiff is a 55–year–old male employed as a track driver for Turner for 23 years. TAC at ¶¶ 8, 10. Local Union No. 205 represents the truck drivers at Turner. Id. at ¶ 3. Greg Shafer is also an employee at Turner, has been the Steward for the Union for at least five years, and allegedly held animosity towards Plaintiff for ten years prior to his becoming the Steward. Id. at ¶¶ 4, 28. William Lickert, Jr. is the Secretary–Treasurer and a principal officer of the Union. Id. at ¶ 5.

A Union ratification meeting was scheduled for May 1, 2011 to address Turner's proposal that it be permitted to assign Turner truck drivers to a four-day route (where the driver worked four (4) ten hour works days), instead of a five-day route (where the driver worked five (5) eight hour work days), without regard to seniority. Id. at ¶ 12. Union leadership favored the proposal and wanted the rank-and-file Union members to ratify it. Id. at ¶ 18. Plaintiff informed Shafer that he opposed this proposal and gave Shafer a signed document as his opposition vote in the event he did not make the Union meeting. Id. at ¶¶ 14–15. Because Plaintiff's wife suffered an eye injury, he was unable to attend the Union meeting. Id. at ¶¶ 16–17. Shafer later confronted Plaintiff about his absence from the meeting, and Plaintiff explained that he had to take care of his wife. Id. at ¶¶ 20–21. Shafer allegedly challenged this as being untrue and stated that Plaintiff had planned to not attend all along. Id. at ¶ 22.²

On May 2, 2011, Plaintiff says he tried to discuss a seniority issue with Shafer. Id. at ¶ 23. Plaintiff opposed Turner's desire to change routes from five 8–hour days to four 10–hour days without posting the routes for bid because Plaintiff believed it disregarded seniority rights and permitted management to treat younger drivers more favorably. Id. at ¶¶ 24–25. Shafer responded by allegedly threatening and cursing at Plaintiff. Id. at ¶ 26. More specifically, Shafer told Plaintiff to “shut the f* *k up, I'm tired of hearing your sh*t, ... fifteen years I've been hearing it.” Id. at ¶ 27. Shafer also challenged Plaintiff to a fight, saying “Go f* *k yourself. Let's go down over the hill right now.” Id. at ¶ 29.

A. Plaintiff's interaction with the Union regarding Shafer

On May 4, 2011, Plaintiff spoke to Lickert by telephone regarding what he perceived as Shafer's abusive conduct and requested a meeting to discuss Shafer's removal as Union steward. Id. at ¶ 31. Plaintiff also asked Lickert if the truck drivers' seniority was being compromised and Lickert told him that it was not. Id.

On May 26, 2011, Plaintiff met with Lickert, Shafer, and Union official John Winters. Id. at ¶ 32. Lickert minimized Shafer's previous behavior by stating that Shafer had had a “bad day,” and that Shafer should not have “lost it” on Plaintiff. Id. at ¶¶ 33–34. Plaintiff presented a doctor's note regarding his wife's eye injury in an effort to explain his absence from the previous meeting, but Lickert refused to look at it. Id. at ¶¶ 35–36. Shafer also told Plaintiff that “[y]ou should have put your big boy pants on and come talk like a man.” Id. at ¶ 37. Finally, Plaintiff asked that Shafer be removed as the Union Steward but Lickert said that he would not do this. Id. at ¶ 38. Shafer then continued to verbally abuse Plaintiff on a daily basis, and told Plaintiff that he was not going to stop his abuse and harassment. Id. at ¶¶ 39–40.

In a letter dated May 30, 2011, Kovach complained in writing to Lickert about Shafer's abusive and threatening behavior. Id. at ¶ 41. Lickert responded by letter dated June 3, 2011 that he would not replace Shafer because Plaintiff “would only start on the new Steward with your same complaints and after a period of time we would be back in this same position.” Id. at ¶¶ 42–43. Lickert also accused Plaintiff of harassing Shafer. Id. at ¶ 42. Lickert stated that if the matter between Kovach and Shafer escalated, that Kovach alone would be responsible as a “grown man.” Id. at ¶ 44. Plaintiff alleges that at that point felt that further use of the Union's internal grievance procedure would be futile. Id. at ¶ 46.

Plaintiff alleges that the Union has retaliated against members who file grievances. Id. at ¶ 49. For instance, Bob Janicki, who had filed grievances in 2010, was “called into the office” for the two times he was late and was told by a plant foreman and the then union steward that “[i]f you didn't file grievances, we wouldn't be sitting here right now.” Id. at ¶ 52. The second time he was “called into the office” for being late the plant foreman told him “[p]eople like you that file grievances should know better than to be late for work.” Id. at ¶ 53. Moreover, Union stewards are allegedly told by their superiors to not file grievances and are then treated favorably for following these orders. Id. at ¶ 54.

Plaintiff also points to incidents involving the Union that occurred nearly two decades ago. In 1993 Plaintiff was allegedly not permitted to speak to and was “personally attacked” by former Union President William Lickert, Sr. at a Union meeting. Id. at ¶ 47. Plaintiff at that time wrote a letter to Lickert Sr., with a copy to Lickert, Jr., complaining about this mistreatment and setting forth his views on the manner in which the Union conducts its business. Id. Plaintiff also attempted to give his suggestions for contract improvements in writing to Lickert, Sr., through a third party, Mickey Thorn, but Lickert, Sr. took the envelope with Plaintiff's suggestions, tore it up without opening it, stuffed it in an empty soda pop can, and told Thorn, “You can tell him I did that.” Id. at ¶ 48. Plaintiff does not clearly specify when this latter event took place.³

B. Plaintiff's Interaction with Turner Dairy regarding Shafer

Plaintiff claims to have reported his co-worker Shafer's misconduct to Turner. Id. at ¶ 55. Turner Dairy's “Corporate Safety and Health Policy” prohibits fighting and harassment. Id. at ¶ 59. On May 13, 2011, Plaintiff met with Turner President Chuck Turner, Jr. and Human Resources Manager Cathy Turner. Id. at ¶ 56. President Turner requested that Plaintiff put his concerns in writing and advised him to ignore Shafer. Id. at ¶ 57. In a letter dated May...