Luongo v. Vill. Supermarket, Inc.

• Decision Date: 02 June 2017
• Docket Number: Civ. No. 17–0659 (KM)(JBC)
• Citation: 261 F.Supp.3d 520
• Parties: Lisa LUONGO, Plaintiff, v. VILLAGE SUPERMARKET, INC. and The Shop Rite of Greater Morristown, Defendants.
• Court: U.S. District Court — District of New Jersey

261 F.Supp.3d 520

Lisa LUONGO, Plaintiff,

v.VILLAGE SUPERMARKET, INC. and The Shop Rite of Greater Morristown, Defendants.

Civ. No. 17–0659 (KM)(JBC)

United States District Court, D. New Jersey.

Signed June 2, 2017

Bruce D. Nimensky, Gray Law Group, Whippany, NJ, for Plaintiff.

Andrew M. Moskowitz, Javerbaum Wurgaft Hicks Kahn Wikstrom and Sinins, Springfield, NJ, for Defendants.

Kevin McNulty, United States District Judge

The gist of this action is an employee's hybrid claim under Section 301 of the Labor Management Relations Act of breach of a collective bargaining agreement and her union's duty of fair representation that she was wrongfully discharged. The defendants filed a motion (ECF no. 4) to dismiss the original complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The plaintiff filed a brief in response (ECF no. 7), but simultaneously filed a proposed amended complaint. (ECF no. 6) The defendants then filed a reply brief (ECF no. 8), which was directed to the allegations of the proposed amended complaint. The Court granted leave to file the amended complaint and deemed the defendants' motion to dismiss to be directed to the amended complaint. (ECF no. 9) The plaintiff, with leave of the court, filed a surreply. (ECF no. 12) The matter is now fully briefed and ripe for decision.

For the reasons stated herein, the motion will be granted in part and denied in part. As to Count One of the amended complaint, the motion is denied; Counts Two and Three of the amended complaint, however, will be dismissed. The dismissals are without prejudice to the submission of a motion to file a second amended complaint within 30 days.

I. The Amended Complaint

The allegations of the amended complaint (ECF no. 6, cited as "AC"), taken as true for purposes of this motion, are as follows.

Count One: Breach of collective bargaining agreement and duty of fair representation.

The plaintiff, Lisa Luongo, was employed by defendants Village Supermarket, Inc., and The Shop Rite of Greater Morristown (together, the "Company") for 33 years. The introductory paragraph announces that the complaint proceeds as a hybrid action against the Company and UFCW Local 1262 (the "Union"), for breach of the duty of fair representation, although the Union is not named as a defendant.

The collective bargaining agreement ("CBA") between the Company and the Union requires just cause for discharge and commits disputes to grievance and arbitration procedures. On March 14, 2016, Luongo was "verbally" discharged. On April 15, 2016, Luongo was "formally" discharged. The reason, she alleges, was that she had eaten a piece of cookie, worth 35 cents, from the supermarket's inventory. Other employees routinely did the same, without any sanction being applied.

On the day of the informal discharge, March 14, 2016, Luongo asked her union representative, Carmen Pizzi, to file a grievance. On March 22, 2016, having heard nothing, Luongo through her counsel filed a formal written grievance. (A copy of the Notice of Grievance and Notice of Intent to Arbitrate is attached to the amended complaint. (ECF no. 6 at 11)) The Union did not follow the grievance procedure, investigate, or give Luongo the opportunity to protest her discharge.

Luongo alleges on information and belief that her complaints of harassment by a fellow employee gave rise to hostility on the part of both the Company and the Union. She also states that the Company and the Union also had an understanding that they would limit the number of grievances pursued.

Count Two: Breach of contract based on employee manual

Through an Employee Manual disseminated widely to employees, and long-standing practices and procedures in the workplace, the Company entered into an implied contract with Luongo. That contract included a commitment to abide by certain procedures, including the use of corrective action, prior warnings, and consistency in the application of discipline to employees. The discharge of Luongo without warning or corrective action breached that contract.

Count Three: Breach of implied covenant of good faith and fair dealing

By arbitrarily and capriciously singling out Luongo to be terminated for violation of a policy that had never before been strictly enforced, the Company breached the implied covenant of good faith and fair dealing inherent in every contract, including the CBA and the Employee Manual.

II. Standard on a Motion to Dismiss

Fed. R. Civ. P. 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States , 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss, a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ; Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc. , 140 F.3d 478, 483 (3d Cir. 1998) ; see also Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008) ("reasonable inferences" principle not undermined by later Supreme Court Twombly case, infra ).

Fed. R. Civ. P. 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570, 127 S.Ct. 1955 ; see also Umland v. PLANCO Fin. Serv., Inc. , 542 F.3d 59, 64 (3d Cir. 2008). 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). While "[t]he plausibility standard is not akin to a ‘probability requirement’ ... it asks for more than a sheer possibility." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (2009).¹

The Court in considering a Rule 12(b)(6) motion is confined to the allegations of the complaint, with certain exceptions:

"Although phrased in relatively strict terms, we have declined to interpret this rule narrowly. In deciding motions under Rule 12(b)(6), courts may consider "document[s] integral to or explicitly relied upon in the complaint," In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original), or any "undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document," PBGC v. White Consol. Indus. , 998 F.2d 1192, 1196 (3d Cir. 1993)."

In re Asbestos Products Liability Litigation (No. VI) , 822 F.3d 125, 134 n.7 (3d Cir. 2016). See also Schmidt v. Skolas , 770 F.3d 241, 249 (3d Cir. 2014) ("However, an exception to the general rule is that a ‘document integral to or explicitly relied upon in the complaint’ may be considered ‘without converting the motion to dismiss into one for summary judgment.’ ") (quoting In re Burlington Coat Factory , 114 F.3d at 1426 ); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993).

A copy of the collective bargaining agreement ("CBA") is attached to the Defendants' reply submission. (ECF no. 8–1) The CBA is integral to and explicitly relied on by Counts One and Three of the amended complaint. A copy of the Village Supermarket Associate Handbook ("Employee Handbook") is attached to the Defendants' motion. (ECF no. 4–1) The Employee Handbook is integral to and explicitly relied on by Counts Two and Three of the amended complaint. I therefore consider both documents on this Rule 12(b)(6) motion.

III. Analysis

A. "Hybrid" Claim

Count One asserts a hybrid claim. Such a claim is called "hybrid" because the employee alleges under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, that the employer breached the CBA, and also alleges that that the Union breached its duty of fair representation ("DFR") by failing to press the employee's grievance. See, e.g., Jimenez v. GCA Servs. Grp., Inc. , No. CV 16-1871, 2016 WL 6877738, at *2 (D.N.J. Nov. 21, 2016) (Vazquez, J.). The requisites of such a hybrid § 301 /DFR action have been cogently summarized by Judge Walls:

The two claims ... are inextricably linked. "To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to contract but also carry the burden of demonstrating a breach of duty by the Union." DelCostello v. International Bhd. of Teamsters , 462 U.S. 151, 165, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983) (quoting Hines v. Anchor Motor Freight, Inc. , 424 U.S. 554, 570–71, 96 S.Ct. 1048, 1059–60, 47 L.Ed.2d 231 (1976) ). This is so because a hybrid suit is essentially a challenge to private settlements reached pursuant to collective bargaining agreements. See id.

"A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes , 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). If a union arbitrarily ignores a meritorious grievance or "process[es] it in perfunctory fashion," the Union may be found to have violated its implied statutory obligation. Id. at 191, 87 S.Ct. at 917. This does not mean that an employee has an absolute right to have his grievance taken to arbitration. See id. ; see alsoFajardo v. Foodtown Supermarkets , 702 F.Supp. 502,

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