Lucas v. Am. Fed'n of Gov't Emps.
| Decision Date | 29 March 2023 |
| Docket Number | Civil Action 22-0777 (ABJ),22-1540 (ABJ) |
| Parties | NIA SHENE' LUCAS, Plaintiff, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants. NIA SHENE' LUCAS, Plaintiff, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
On March 21, 2022, plaintiff Nia Lucas brought an action in this court arising out of events connected to her employment at the Small Business Administration (“SBA”). Compl. [Dkt. # 1] (SEALED) (“22-777 Compl.”), Case No 22-cv-0777.[1]She alleges that her union, the American Federation of Government Employees (“AFGE”), and the union's local chapter, AFGE Local 228 (“Local”), which represented bargaining unit employees at SBA, discriminated and retaliated against her on the basis of her sex and disability, and created a hostile work environment. 22-777 Compl. ¶¶ 74-117. According to plaintiff, these events arose after she solicited the union's help with filing a grievance against the SBA. 22-777 Compl. ¶ 27.
Two months later, on May 27, 2022, plaintiff initiated another lawsuit in this court, also against AFGE and the Local, as well as against two union officials. Compl. [Dkt. # 1] (“22-1540 Compl.”), Case No. 22-cv-1540. The allegations again stem from the union's assistance with the grievance against the SBA. 22-1540 Compl. ¶ 19. But this time, plaintiff alleges that the defendants unlawfully retaliated against her after she filed the grievance, and inappropriately interfered with her efforts to gain relief from the SBA. 22-1540 Compl. ¶¶ 62-127.
Defendants in both cases filed motions to dismiss, arguing that the Court does not have subject matter jurisdiction to consider the allegations in either case. Defs.' Mot. to Dismiss [Dkt. # 13], Defs.' Mem. of P. & A. in Supp. of Its Mot. to Dismiss [Dkt. # 13] (“22-777 Mot.”), Case No. 22-cv-0777, at 8-19; Defs.' Mot. to Dismiss, [Dkt. # 9], Mem. of Law in Supp. of Defs.' Rule 12(b)(1) and 12(b)(6) Mot. to Dismiss All of the Claims Set Out in Pl.'s Compl. [Dkt. # 9-1] (“22-1540 Mot.”) Case No. 22-cv-1540, at 5-13.[2] The motions in both cases are fully briefed.[3]Because the arguments concerning subject matter jurisdiction are the same, and the Court's reasoning will rely on the same legal principles, it will address both motions in a single memorandum opinion. For the reasons to be set forth below, the motions to dismiss will be GRANTED as the Court lacks subject matter jurisdiction.
Nia Lucas is an African American woman and an Army veteran with a service-connected disability. 22-777 Compl. ¶ 14. These cases stem from her work as a program analyst for the SBA where she was employed from January 2017 until April 2020. 22-777 Compl. ¶ 6; 22-1540 Compl. ¶ 14.[4] AFGE Local 228 was the exclusive representative of bargaining unit employees at SBA. 22-777 Compl. ¶ 17; 22-1540 Compl. ¶ 16. At that time, Keith Lucas was the Local President. 22-777 Compl. ¶ 21. In 2018, Johnnie Green assumed that role. 22-777 Compl. ¶ 22; 22-1540 Compl. ¶ 17. Plaintiff alleges that Green was her “elected representative from January 2018 until May 2019 when he was replaced by union steward Susan Rhodes.” 22-777 Compl. ¶ 23; see 22-1540 Compl. ¶ 17.
According to plaintiff, in October 2017, she “requested union representation from Keith Lucas for a discrimination harassment, hostile work environment, retaliation and wage and hour dispute against her former employer the [SBA].” 22-777 Compl. ¶ 27. But Lucas “refused to investigate the 2017 matters” or represent plaintiff, even though the Local represented a male employee with “almost identical claims.” 22-777 Compl. ¶¶ 28-29. In January 2018, the new union President, Green, allegedly told plaintiff that he and his colleague Eric Fuller would file an unfair labor practice (“ULP”)[5]against Lucas for his failure to provide plaintiff with the representation she had requested. 22-777 Compl. ¶ 30. Green also allegedly told plaintiff that “AFGE had a history of animus towards female bargaining unit employees with disabilities.” 22777 Compl. ¶ 31. Despite these statements, Green and Fuller did not file anything on plaintiff's behalf against the union or Lucas. 22-777 Compl. ¶ 30.
Green did file a union grievance though - number 1-31-2018-1 - on plaintiff's behalf in January 2018 against the SBA.[6]22-777 Compl. ¶ 32. This grievance “was amended in February 2018 to include a wage and hour dispute from 2018,” but the amended grievance “failed to include disputes for 2017 wages,” as plaintiff had requested. 22-777 Compl. ¶¶ 32-33. A month after Green initially filed the grievance, plaintiff alleges, “[he] began sexually harassing” her. 22777 Compl. ¶ 34. Throughout 2018, he “continuously made unwanted sexual advances” toward her that were witnessed by other people. 22-777 Compl. ¶¶ 35-36, 38.
In March 2018, Green “invoked arbitration on grievance on 1-31-2018-1,” and a hearing was set for January 2019. 22-777 Compl. ¶ 37. The next month, Green allegedly informed plaintiff that she should find and pay for her own counsel to represent her in the arbitration. 22-777 Compl. ¶ 39. At that time, the Collective Bargaining Agreement prohibited the union from requiring its members to pay for their own attorney when the union represented them in a grievance. 22-777 Compl. ¶ 41.
In January 2019, the arbitration date for plaintiff's union grievance was pushed to May 2019. 22-777 Compl. ¶ 42. When May 2019 arrived, plaintiff alleges, she “complained to [] Green regarding the sexual harassment and told him to stop.” 22-777 Compl. ¶ 43. She also alleges that she complained to Michael Kelly, the National Vice President of the Local, and Robert Harrison, the National Representative for AFGE and a member of the Local's Executive Counsel, “regarding the sexual harassment, discrimination and wage and hour claims.” 22-777 Compl. ¶¶ 24-25, 44.
Plaintiff alleges that a week before the arbitration hearing was set to occur, Green replaced himself as her representative with Susan Rhodes, an “inexperienced steward who had limited preparation time.” 22-777 Compl. ¶¶ 45-46. According to plaintiff, in May 2019, Green also told her that “she did not have a right or need to be at the arbitration hearing based on the additional expenses and logistics associated with her being a nursing mother,” and that plaintiff's “having a newborn was a burden to the union.” 22-777 Compl. ¶¶ 48-49. These comments were also reported to Kelly and Harrison. 22-777 Compl. ¶ 50.
At some point in May before the hearing, plaintiff alleges, she “decided to represent herself in the arbitration hearing,” “[i]nstead of continuing to pay for the union attorney.”[7] 22-777 Compl. ¶ 56. She informed the arbitrator, Felicia Busto, that she would represent herself, but then, plaintiff alleges, the arbitration hearing was postponed after Busto “ruled in [p]laintiff's favor sustaining charges against the Agency,” despite plaintiff's “repeated requests” not to postpone the date. 22-777 Compl. ¶¶ 56-58.
As of November 2019, “no action [had been] taken by AFGE to address [p]laintiff's harassment claims.” 22-777 Compl. ¶ 60. Plaintiff emailed Kelly on November 1 to ask about her harassment report, 22-777 Compl. ¶ 61, and informed him: “I do intend to file my ULP for failure to represent which you never intervened in” and “the harassement [sic] also needs to be addressed.” Email from Nia Lucas to Michael Kelly (Nov. 1, 2019), Ex. 3 to 22-777 Compl. [Dkt. # 1-3] (SEALED), Case No. 22-cv-0777, at 1.
On November 20, 2019, plaintiff filed a ULP charge with the Federal Labor Relations Authority (“FLRA”)[8]against the Local for “violation of the duty of fair representation regarding continuous postponement of the arbitration hearing.” 22-777 Compl. ¶ 62; see Nov. 20, 2019 ULP.[9]She also included “claims for sexual harassment she endured from Johnnie Green.” 22777 Compl. ¶ 63. Plaintiff concluded that the Local had violated 5 U.S.C. §§ 7116(b)(1)-(8), and 5 U.S.C. §§ 7116(c)(1)-(2). Nov. 20, 2019 ULP at 3. To support her submission, she attached an affidavit about Green's sexual harassment and another affidavit about the sexual harassment and failure to represent claims. Id. at 5.
Plaintiff alleges that after the ULP was filed, Green called her a “bitch” and told her “he would ruin her federal career if she did not withdraw the complaints made to [] Harrison and [] Kelly along with the complaint to the FLRA for violation of [the] duty to represent.” 22-777 Compl. ¶ 64. Plaintiff was expelled from the union in November 2019, and the union dropped all of her grievances. 22-777 Compl. ¶ 65.
On January 22, 2020, Green emailed Busto to “withdr[a]w the arbitration in its entirety,” which left plaintiff “without a venue to redress her injuries (because statutes of limitations had run) or avenue for reimbursement of her attorney fees.” 22-777 Compl. ¶ 68; see Email from Johnnie Green to Felicia Busto (Jan. 22, 2020), Ex. 4 to 22-777 Compl. [Dkt. # 1-4] (SEALED), Case No. 22-cv-0777, at 3. But plaintiff alleges that she still wished to continue with the arbitration at that point in time. 22-777 Compl. ¶ 70.[10]
Plaintiff submitted another ULP to the FLRA on July 23, 2020, complaining about AFGE See Ex. 2 to 22-777 Mot. [Dkt. # 13-2] (“July 23, 2020 ULP”), Case No. 22-cv-0777, at 1. She claimed that the union violated 5 U.S.C. §§ 7116(b)(1)-(8), and 5 U.S.C. §§ 7116(c)(1)-(2), and said:
Michael Kelly . . . aided Johnnie Green . . . in the restriction of my union rights and expelling me from the union. Furthermore, he sought to support the discrimination I experienced as...
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