Logie v. Mass. Bay Transp. Auth.

• Decision Date: 12 July 2018
• Docket Number: CIVIL ACTION NO. 1:17-cv-10949-PBS
• Parties: ROSALIND LOGIE, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, BOSTON CARMEN'S UNION LOCAL 589, NORMAN W. MICHAUD, SCOTT C. ANDREWS, JOHN J. LEE, LARRY KELLY, Defendants.
• Court: U.S. District Court — District of Massachusetts

ROSALIND LOGIE, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,BOSTON CARMEN'S UNION LOCAL 589,NORMAN W. MICHAUD, SCOTT C. ANDREWS,JOHN J. LEE, LARRY KELLY, Defendants.

CIVIL ACTION NO. 1:17-cv-10949-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Filed: July 31, 2018

July 12, 2018

REPORT AND RECOMMENDATION ON DEFENDANT BOSTON CARMEN'S UNION'S MOTION TO DISMISS (#21).

KELLEY, U.S.M.J.

I. Introduction.

Plaintiff Rosalind Logie is a former employee of the Massachusetts Bay Transportation Authority (MBTA). Plaintiff contends both that she was wrongfully terminated by the MBTA because of her diabetes, and that the Boston Carmen's Union, Local 589 (the Union) failed to represent her and preserve her job. Where Plaintiff has failed to plead a cause of action against the Union, the Court RECOMMENDS that DEFENDANT Boston Carmen's Union, Local 589's Motion to Dismiss (#21) be GRANTED.¹

II. Facts.

The facts of the case are laid out more completely in the Report and Recommendation on the MBTA defendants' motion to dismiss, which serves as a companion to this Report and Recommendation. A limited recital of the facts, focused on plaintiff's allegations regarding the union, is required here. Plaintiff was hired by the MBTA as a part-time Red Line train operator on December 7, 2009. (#1 at 2.)² Plaintiff was a member of the Union. See #1. Defendant John J. Lee was, according to plaintiff, president of the Union at all relevant times. Id. at 2 ¶ 6. Defendant Larry Kelly was, according to plaintiff, a delegate of the rapid transit division of the Union at all relevant times. Id. at 2 ¶ 7. Beginning in 2012, plaintiff took a series of medical leaves because of "brittle" or not-well-controlled diabetes, worked for a period as a customer service representative (CSA), and did not return to driving the train. See, e.g., id. at 3 ¶¶ 4, 6, Ex. B, Ex. F, Ex. V.

On July 1, 2014, after her extended medical leave had apparently expired, see id. at 5 ¶¶ 11-12, plaintiff filed a grievance with her union. Id. at 5 ¶ 12, Ex. T. The Union presented the grievance to the MBTA, which denied the grievance on July 18, 2014, based on plaintiff's absence from August 5, 2013 to June 25, 2014, and her failure "to provide the Authority with an expected return to work date during her absence." Id. at 5 ¶ 12, Ex. U.

The MBTA sent plaintiff a letter dated July 23, 2014, stating plaintiff had not contacted the MBTA regarding her leave, but that the MBTA had received information from her doctor. Id. at 13, Ex. V. The letter noted that the MBTA had provided plaintiff with accommodation since she was medically disqualified as a train operator in June 2012, including "temporary assignment to a [CSA] position and, when that position ended, an extended leave of absence." Id. Ex. V at 1. The letter stated, further, that plaintiff was still unable to perform the motorperson position and thatthere was "no clear time frame for resuming [her] job duties. At this point, you have been unable to perform your regular job duties for over two years and it is still unclear when you will be able to perform your job duties." Id. Ex. V at 1. Plaintiff was invited to meet with the MBTA in person or by telephone before the MBTA made a final decision. Id. Ex. V at 2. There is no record that plaintiff responded.

The MBTA discharged plaintiff on September 29, 2014. Id. at 6 ¶ 14, Ex. Y.

On December 10, 2014, plaintiff's primary care physician again contacted the MBTA stating that plaintiff could return to work as a CSA but not as a train conductor and "[i]f this is not a possibility, then she will be unable to come back to work." Id. Ex. W. A grievance was apparently presented by the Union on her behalf on December 17, 2014, and was denied on January 14, 2015. Id. Ex. Y. The denial states that plaintiff had not "demonstrate[d] an ability to return to work as a Motorperson" and was found to have violated MBTA rules, including the attendance policy. Id.

On March 23, 2017, plaintiff a filed charge with the EEOC, and she filed a charge with the Massachusetts Commission Against Discrimination (MCAD) on April 5, 2017. (#10-1 Ex. A) The EEOC issued a right to sue letter to plaintiff on April 25, 2017. Id. Ex. B.

Plaintiff filed the present action, pro se, on May 22, 2017. (#1.)³

Plaintiff was initially given 90 days from August 14, 2017 to serve defendants, and was permitted to "have service completed by the United States Marshals Service (USMS)." (#7.) Summonses were issued the same day. (#8.) Plaintiff claims to have provided the USMS with papers for service by giving the papers to her son, in federal custody, to pass on to the USMS. (#29 at 11.) Plaintiff claims her son's account was not charged and the paperwork was not mailed until October 16, 2017. (#29 at 6, 11; #29-2, Exs. 1, 2.) The USMS received the paperwork for serviceon Michaud on or before October 23, 2018 and for the remaining defendants on or before November 7, 2017. See, ##9, 14-16, 18-19. The Union was served on November 20, 2017. (#19.) The Union moved to dismiss the claims against it on December 15, 2017 based on late service and plaintiff's alleged failure to state a claim for which relief may be granted. (#21.)

III. Legal Standard.

Defendant moves to dismiss plaintiff's claim both because service was allegedly untimely, and because the complaint fails to state a claim for which relief may be granted. (#20.)

A. Requirement to Make Timely Service.

Under the Federal Rules,

If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Local Rule 4.1(b) states:

(a) Time Limit. Any summons not returned with proof that it was served within 90 days of the filing of the complaint is deemed to be unserved for the purpose of Fed. R. Civ. P. 4(m).

(b) Showing of Good Cause for Failure to Comply. Counsel and parties appearing pro se who seek to show good cause for the failure to make service within the 90-day period prescribed by Fed. R. Civ. P. 4(m) shall do so by filing a motion for enlargement of time under Fed. R. Civ. P. 6(b), together with a supporting affidavit. If on the 14th day following the expiration of the 90-day period good cause has not been shown as provided herein, the clerk shall forthwith automatically enter an order of dismissal for failure to effect service of process, without awaiting any further order of the court. The clerk shall furnish a copy of this local rule to counsel or pro se plaintiffs, together with the summons. Such notice shall constitute the notice required by Fed. R. Civ. P. 4(m). No further notice need be given by the court.

B. Failure to State a Claim, Rule 12(b)(6).

Under Rule 12(b)(6), plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads 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) (citing Twombly, 550 U.S. at 556). As the First Circuit has stated, "dismissal for failure to state a claim is appropriate if the complaint fails to set forth 'factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (citing Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005) (quoting Berner v. Delahanty, 129 F.3d 20, 25 (1^st Cir. 1997)). Courts employ a two-step process to evaluate a motion to dismiss, "[a]t the first step, we distinguish the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited. . . . At step two, we must determine whether the factual allegations are sufficient to support the reasonable inference that the defendant is liable." Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (internal quotations and citations omitted) (affirming motion to dismiss).

As a pro se litigant, plaintiff is entitled to have her complaint construed liberally. Wedeen v. Green River Power Sports, 14 F. App'x 6, 6-7 (1st Cir. 2001) (quoting Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st Cir.1997)). Pro se plaintiffs are not entirely relieved of the pleading requirements:

[A] plaintiff, even one proceeding pro se, may not rely on "bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, [and] outright vituperation." Berner v. Delahanty, 129 F.3d 20, (1st Cir. 1997) (internal citations omitted). In addition, the "duty to be less stringent with pro se complaints does not require [the court] to conjure up implied allegations." McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (internal citations omitted).

Baxter v. Conte, 190 F. Supp. 2d 123, 126 (D. Mass. 2001) (allowing motions to dismiss).

IV. Discussion.

Interpreted broadly, plaintiff claims the Union violated its duty of fair representation (DFR), and violated Section 1983. In her complaint, plaintiff states, as Ground II,

Defendants and Union breached their duty of fair representation to the Plaintiff when they failed to adequately represent her at any/all disciplinary proceedings in the suspension and subsequent discharging of her by the MBTA, when, as a handicap [sic] union member and employee, she was protected under the ADA and FMLA, and that alternative work placement should have been sought and was not by the union. . . .

(#1 at 7 (citing the FMLA and Section 1983).) This argument is echoed in plaintiff's opposition to the Union's motion to dismiss,...