Rogers v. Amalgamated Transit Union Local 682

• Decision Date: 11 October 2017
• Docket Number: Case No. 1:16-CV-284
• Parties: DOROTHEA FAY ROGERS, Plaintiff, v. AMALGAMATED TRANSIT UNION LOCAL 682, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

DOROTHEA FAY ROGERS, Plaintiff, v. AMALGAMATED TRANSIT UNION LOCAL 682, et al., Defendants.

Case No. 1:16-CV-284

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

October 11, 2017

OPINION AND ORDER

This matter is before the Court on the motion to dismiss filed by Defendants Amalgamated Transit Union, Ernest Johnson, Steve Sustek, Sheila Roberson, Christopher Phillip, and Robert Almarode on July 20, 2017 (ECF 37).¹ Plaintiff Dorothea Rogers filed aresponse in opposition to the motion on August 3, 2017 (ECF 40). The Defendants chose not to file a reply brief and so the motion is ripe for resolution. For the reasons discussed below, the motion to dismiss is GRANTED and this case is DISMISSED WITH PREJUDICE.

FACTUAL AND PROCEDURAL BACKGROUND

Dorothea Rogers, proceeding pro se, filed her original complaint on July 21, 2016 (ECF 1). The Defendants filed a motion to dismiss the complaint on October 27, 2016 (ECF 23) but the Court denied the motion as moot after Rogers filed an Amended Complaint on November 3, 2016 (ECF 26). See Opinion and Order, July 5, 2017 (ECF 36). The Defendants then filed this second motion to dismiss, which challenges the now controlling Amended Complaint. The Defendants bring their motion pursuant to Federal Rule 12(b)(6), arguing that Rogers' Amended Complaint fails to state any claim upon which relief can be granted. They are correct, although for the reasons discussed below, the Court also concludes that this case must be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).

In her Amended Complaint, which specifically states that it is brought pursuant to 29 U.S.C. §§ 185 and 301 of the National Labor Relations Act, Rogers makes the following assertions and allegations:

1) As to Defendant Amalgamated Transit Union, Rogers contends that "Amalgamated . . . failed to represent [me] in unjustified termination from employer." Amended Complaint, p. 3, ¶ 1.

2) As to the individual Defendants, Rogers contends that they are liable to her because they did not permit her "to file a grievance over loss of health insurance," "did not defend[] the currentcollective bargaining agreement concerning medical leave time," did "not follow[] the direction of the union attorney on action plan to reinstate petitioner to employment," "did not communicat[e] with petitioner," did "not keep[] themselves abreast to status of grievance and the communications of union attorney," and because they "acted with malice." Id., ¶¶ 2-3.

3) As to FWPTC, Rogers contends that this public entity is liable to her for "dismissing petitioner while on medical leave and before contractual time of leave expired[,]" not providing her with medical insurance while she was on leave, "per collective bargaining agreement[,]" changing her job title so "as to interfere with short term disability requirement[,]" and not reinstating her to her job, all of which she claims violated the collective bargaining contract between FWPTC and Amalgamated. Id., p. 4, ¶ 4.²

It doesn't take much in the way of inference to understand that Rogers is suing the Defendants on the basis that they failed to represent her in her challenge to her termination, that they did so out of malice, and that their actions (or failure to act) violated the collective bargaining agreement. The Defendants argue that Rogers' allegations, even when taken as true for purposes of the present motion, lack a legal foundation. The Defendants state in their motion that "[b]ecause Plaintiff's former employer was a governmental entity, the Union owes Plaintiff no duty of fair representation under federal law, and therefore Plaintiff has failed to state a claimagainst the Union or its officers." Motion to Dismiss, p. 1. The Defendants contend that:

Plaintiff's amended complaint is styled as a claim for breach of the duty of fair representation and makes allegations consistent with such a claim. But . . . the complaint and the collective-bargaining agreement which it incorporates by reference make plain that Plaintiff cannot state such a claim against the Union or the individual defendants. Because the amended complaint does not state any other basis for liability under federal law, the Court should grant Defendants' Rule 12(b)(6) motion and dismiss Plaintiff's complaint in its entirety as to [all Defendants].

Defendants' Memorandum, p. 5. In other words, the Defendants argue that Rogers' Amended Complaint does not (and more importantly cannot) state a legally viable claim against them under the NLRA, rendering it facially insufficient and therefore subject to dismissal. The reason, according to the Defendants, is because Rogers' former employer, FWPTC, is a public employer and as such is "excluded from the definition of 'employer' in, and thus from the coverage of, the NLRA. 29 U.S.C. § 152(2); NLRB v. Yeshiva University, 444 U.S. 672, 704 n.17 (1980) ('the NLRA is not applicable to any public employer'). Thus the Union . . . owes its members no duty of fair representation enforceable by this Court. Plaintiff therefore fails to state a claim against the Union for breach of the duty of fair representation." Id., p. 4.³

The individual defendants argue that "regardless of whether the Union owed Plaintiff a duty of fair representation arising under federal law, there is no cause of action against individuals for breach of such a duty. Evangelista v. Inland Boatmen's Union of Pac., 777 F.2d 1390, 1400 (9th Cir. 1985) (holding that the language of § 301(b) of the National LaborRelations Act and the Supreme Court's holding in Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962) that individual union members are immune from liability under . . . Section 301(b) 'also provide a shield for individual union members in suits for breach of the duty of fair representation'). See also Bey v. Williams, 590 F.Supp. 1150, 1154-55 (W.D. Pa. 1984), aff'd without opinion, 782 F.2d 1026 (3d Cir. 1986). Plaintiff fails to state a claim against the individual defendants, regardless of FWPTC's status as a public employer." Id., pp. 4-5.

Rogers' response in opposition to the motion to dismiss consists of a verbatim copy of her Amended Complaint, to which she adds at the end: "plaintiff . . . request[s] the court not dismiss this claim." Plaintiff's Response (ECF 40). Rogers does not address the Defendants' arguments directly (or even indirectly). That doesn't matter though, since the issue before the Court is not whether Rogers' Amended Complaint is factually sufficient to state a plausible claim, but whether it has any legal foundation in the first place. The Court agrees with the Defendants that it does not.

STANDARD OF REVIEW

The Defendants bring their motion pursuant to Federal Rule 12(b)(6), which allows a defendant to move to dismiss a complaint that fails to "state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege facts that are "enough to raise a right to relief above the speculative level."Twombly, 550 U.S. 544, 555 (2007). The complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must allow "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).

The Court is also mindful that in ruling on the motion to dismiss, Rogers' pro se pleadings must be liberally interpreted. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Hart v. Amazon.com, Inc., 191 F.Supp.3d 809, 816 (N.D. Ill. 2016), aff'd, 845 F.3d 802 (7th Cir. 2017) ("Because Plaintiff is proceeding pro se, the Court construes his complaint 'liberally' and holds it to a 'less stringent standard than formal pleadings drafted by lawyers.'") (quoting Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)). Notwithstanding a plaintiff's pro se status, the Court must dismiss the complaint if, after drawing all reasonable inferences in favor of the plaintiff, it fails to state a legally sufficient claim.⁴

The Defendants do not rely on subsection (b)(1) of Rule 12, or even mention it anywhere in their motion or memorandum, but the Court concludes that this subsection also mandates dismissal of this case. "Subject-matter jurisdiction is the first question in every case, and if the court concludes that it lacks jurisdiction it must proceed no further." Ill. v. City of Chi., 137 F.3d 474, 478 (7th Cir. 1998); see also, Gann v. Richardson, 43 F.Supp.3d 896, 900 (S.D. Ind. 2014) ("The Federal Rules . . . command that courts dismiss any suit over which they lack subjectmatter jurisdiction-whether acting on the motion of a party or sua sponte.") (citing Fed.R.Civ.P. 12(b)(1)). As with a motion under Rule 12(b)(6), when assessing whether dismissal under Rule 12(b)(1) is appropriate, the court "must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiff's favor." Id. (citing Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002); Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001)). The standard for evaluating a facial challenge to subject matter jurisdiction is "the same standard used to evaluate facial challenges to claims under Rule 12(b)(6)." Herndon v. Hous. Auth. of S. Bend, 2016 WL 8201134, at *2 (N.D. Ind. May 20, 2016), ...