Walker v. Houston Fed'n of Teachers/Aft Local 2415

• Decision Date: 31 March 2016
• Docket Number: Civ. A. H-15-1176
• Parties: DOREATHA WALKER, Pro Se Plaintiff, v. HOUSTON FEDERATION OF TEACHERS/AFT LOCAL 2415, Defendant.
• Court: U.S. District Court — Southern District of Texas

DOREATHA WALKER, Pro Se Plaintiff, v. HOUSTON FEDERATION OF TEACHERS/AFT LOCAL 2415, Defendant.

Civ. A. H-15-1176

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: April 1, 2016

March 31, 2016

OPINION AND ORDER

Pending before the Court in the above referenced cause, removed from state court under 28 U.S.C. §§ 1441(a) and 1331 and alleging breach of fiduciary duties, breach of the collective bargaining agreement ("CBA")¹ between Defendant union Houston Federation of Teachers ("HFT") and pro se Plaintiff Doreatha Walker's ("Plaintiff's" or "Walker's") former employer, The Camelot Schools of Texas, LLC ("Camelot"),² and violation of "the Labor Law," is HFT's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)(instrument #3).

Walker did not contest the removal, based on the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 158(b) and159(a),³ which the Fifth Circuit has ruled governs the duties owed by a labor organization to its members and preempts any claim against a labor organization for a violation of a state fiduciary duty. Vaca v. Sipes, 386 U.S. 171, 177 (1967)(The implied duty of fair representation [under the NLRA] requires the union "fairly to represent all of those employees, both in the collective bargaining agreement with [the employer] . . . and in its enforcement of the resulting collective bargaining agreement," and "to serve the interests of all [bargaining unit] members without hostility or discrimination toward any."); Richardson v. United Steelworkers of America, 864 F.2d 1162, 1165, 1166 (5^th Cir. 1989)(interpreting Vaca as holding that the federal duty of fair representation preempts state substantive law; "The Union's right to act as plaintiffs' bargaining agent is conferred by the NLRA, and we hold that the duties corresponding to this right conferred by federal labor law are likewise defined solely by federal labor law. As a result of this complete preemption of state law, we further hold that the district court had removal jurisdiction over these actions."), cert. denied, 495 U.S. 946 (1990).

Factual Allegations

After Walker, a member of HFT, was fired by Camelot on December 3, 2014, HFT represented her in a grievance contesting her termination. The grievance was unsuccessful and hertermination was upheld. The CBA did not allow Walker to arbitrate or further appeal that decision because she was a probationary employee. CBA, Ex. A, Article VI(C)("An employee who has completed probation may appeal a discharge, return to probation, or suspension without pay through the arbitration procedures contained in Article VII of the contract. A probationary employee may [only] appeal discharge or suspension without pay through Step 2 of the grievance procedure.").

Subsequently in January 2015 Camelot notified Walker by letter that it had discovered evidence that she had failed to disclose in her application for employment by Camelot that she had been fired by two prior employers and that if Camelot had known this information, it would have had two more reasons to support her termination. Ex. B. Walker sought help from the union, but after not hearing from HFT, on January 30, 2015 she filed a grievance (Ex. C), contesting this notification of after-acquired evidence. When she did not receive a response from the union, she filed a lawsuit against Camelot, which is still pending in another court. Walker alleges in this suit that HFT breached its fiduciary duties to her when it failed to tell her before March 20, 2015, by a telephone call from its attorney, that she needed to attend a hearing that Camelot scheduled on March 23, 2015, regarding her second grievance, and therefore HFT violated "the Labor law." Walker did not attend the grievance hearing, choosing instead to pursue her lawsuit against Camelot. Walker filed the instant suit against union HFT in the 215^th Judicial District Courtof Harris County, Texas, and served the union on April 13, 2015, and it was removed on May 4, 2015.

Standard of Review

When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5^th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5^th Cir. 2009). The plaintiff's legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."), citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed. Appx. 280, 283 (5^th Cir. Jan. 7, 2012).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . ." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] alegally cognizable right of action"). "Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)["a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"], and instead required that a complaint allege enough facts to state a claim that is plausible on its face." St. Germain v. Howard,556 F.3d 261, 263 n.2 (5^th Cir. 2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5^th Cir. 2007)("To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'"), citing Twombly, 127 S. Ct. at 1974). "'A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5^th Cir. 2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is not akin to a "probability requirement," but asks for more than a "possibility that a defendant has acted unlawfully." Twombly, 550 U.S. at 556. Dismissal is appropriate when the plaintiff fails to allege "'enough facts to state a claim to relief that is plausible on its face'" and therefore fails to "'raise a right to relief above the speculative level.'" Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.

In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court stated that "only a complaint that states a plausible claim for relief survives a motion to dismiss," a determination involving "acontext-specific task that requires the reviewing court to draw on its judicial experience and common sense." "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" under Rule 12(b). Iqbal, 129 S. Ct. at 1949. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5^th Cir. 2000). "Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief . . . ." Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5^th Cir. 2006), cert. denied, 549 U.S. 825 (2006).

Dismissal under Rule 12(b)(6) is proper not only where the plaintiff fails to plead sufficient facts to support a cognizable legal theory, but also where the plaintiff fails to allege a cognizable legal theory. Kjellvander v. Citicorp, 156 F.R.D. 138, 140 (S.D. Tex. 1994), citing Garrett v. Commonwealth Mortgage Corp., 938 F.2d 591, 594 (5^th Cir. 1991); ASARCO LLC v. Americas Min. Corp., 832 B.R. 49, 57 (S.D. Tex. 2007). "A complaint lacks an 'arguable basis in law' if it is based on 'an indisputedly meritless legal theory' or a violation of a legal interest that does not exist." Ross v. State of Texas, Civ. A. No. H-10-2008, 2011 WL 5978029, at *8 (S.D. Tex. Nov. 29, 2011).

When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. Great Plains Trust Co v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5^th Cir. 2002)("District courtsoften afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal."); United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5^th Cir. 2004)("Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification . . . is considered an abuse of discretion. [citations omitted]"). The court should deny leave to amend if it determines that "the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face . . . ." 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Proc. § 1487 (2d ed. 1990).

As noted, on a Rule 12(b)(6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to ...