Warren v. Fraternal Order of Police, Ohio Labor Council, Inc.

• Decision Date: 23 March 2022
• Docket Number: Case No. 1:21-cv-01655-PAB
• Parties: Kimberlee WARREN, Plaintiff, v. FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

593 F.Supp.3d 666

Kimberlee WARREN, Plaintiff,

v.FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., Defendant.

Case No. 1:21-cv-01655-PAB

United States District Court, N.D. Ohio.

Signed March 23, 2022

Frank D. Garrison, IV, Pacific Legal Foundation, Arlington, VA, Robert D. Alt, The Buckeye Institute, Columbus, OH, William L. Messenger, National Right to Work Legal Defense Foundation, Springfield, VA, Jay R. Carson, Wegman Hessler, Cleveland, OH, for Plaintiff.

Joshua A. Engel, Engel & Martin, Mason, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

PAMELA A. BARKER, UNITED STATES DISTRICT JUDGE

Currently pending is Defendant Fraternal Order of Police, Ohio Labor Council, Inc.’s ("the FOP") Motion to Dismiss Plaintiff's Complaint ("Defendant's Motion"). (Doc. No. 5.) Plaintiff Kimberlee Warren filed an Opposition to Defendant's Motion on October 8, 2021, to which Defendant replied on October 19, 2021. (Doc. Nos. 6, 10.) For the following reasons, Defendant's Motion to Dismiss is denied.

I. Background

Warren has worked as a Cuyahoga County probation officer since 1990. (Doc. No. 1, ¶ 6.) Warren has worked for the County in a bargaining unit represented exclusively by the FOP since 2013. (Id. ) Warren has never been an FOP member, nor has she ever signed a dues deduction authorization form consenting to the collection of union dues or fees from her wages. (Id. at ¶ 7.) However, from 2017 through 2020, the FOP and the County were parties to a collective bargaining agreement that required nonunion members, including Warren, to pay fees to the FOP. (Id. at ¶ 8-9.) According to the CBA, "[a]ll bargaining unit employees, as a condition of employment, shall pay to the Union, through payroll deduction, either union dues or a fair share fee as a contribution toward the administration of" the CBA. (Id. ; see also Collective Bargaining Agreement, Doc. No. 1-1, PageID# 13.) The CBA further provides that "[t]he deduction of the fair share fee from any earnings of the employee shall be automatic and does not require authorization for payroll deduction." (Id. ) Thus, the County automatically deducted Warren's fair share fees from her wages pursuant to the CBA and transmitted those fees to the FOP. (Id. )

On June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). (Id. at ¶ 10.) In Janus , the Supreme Court held that public employees who are represented by a union but do not belong to that union cannot be required to pay fair share fees to cover the union's collective bargaining costs, and that the state and unions must obtain a nonmember employee's affirmative consent before deducting and collecting union dues. (Id. ) Warren alleges that the County continued to deduct, and the FOP continued to collect, fees from Warren's wages after June 27, 2018 without her affirmative consent, in contravention of Janus . (Id. at ¶ 11.)

According to Warren, in November 2020, she "discovered that she no longer was required to pay union dues or fees to FOP as a condition of employment." (Id. at ¶ 12.) On November 16, 2020, Warren requested that the County stop deducting union fees from her wages and requested reimbursement for the fees deducted from her wages after August 2018 through November 2020. (Id. ) On December 7, 2020, the FOP notified Warren that it would stop treating her as a union member. (Id. at ¶ 15.) In December 2020, the County stopped deducting union fees from Warren's wages. (Id. at ¶ 16.) On or about December 7, 2020, the FOP notified Warren that it would stop treating her as a union member. (Id. at ¶ 15.) On information and belief, the FOP and the County stopped taking union dues or fees from Warren's wages in December 2020. (Id. at ¶ 16.) On or about February 8, 2021, the County again notified the FOP that union dues or fees had been taken from Warren in error by the County and remitted to the FOP, and that she should be reimbursed for these monetary exactions. (Id. at ¶ 17.) On or about February 19, 2021, the FOP responded to the County's request and refused to reimburse Warren for the union dues or fees it had exacted. (Id. at ¶ 18.) On May 24, 2021, Warren sent, by certified mail, a letter requesting that the FOP provide her with any dues deduction authorization that she might have signed. (Id. at ¶ 19.) In response, on June 10, 2021, the FOP sent a letter to Warren stating, in part, that:

Prior to May 2019, a fair share fee was deducted from your paycheck which did not require a signed authorization. In May 2019, the Employer converted you to a membership dues deduction. Despite the fact that the dues deductions were clearly reflected on your check stubs, you did not request to stop membership dues until December 2020.¹

(Id. at ¶¶ 17-20.)

Warren filed the instant Complaint on August 25, 2021. (Doc. No. 1.) Warren brings a single claim under 42 U.S.C. § 1983 against the FOP. Warren alleges that the FOP violated her First Amendment rights to free speech and association when it collected and retained union dues or fees from Warren's wages without her affirmative consent. (Id. at ¶¶ 25-26.) The FOP filed its Motion to Dismiss on September 8, 2021. (Doc. No. 5.) Warren filed her Opposition on October 8, 2021, to which the FOP replied on October 19, 2021. (Doc. Nos. 6, 10.) Thus, the FOP's Motion is now ripe for a decision.

II. Standard of Review

The FOP moves to dismiss Warren's Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Under Fed. R. Civ. P. 12(b)(6), the Court accepts the plaintiff's factual allegations as true and construes the Complaint in the light most favorable to the plaintiff. See Gunasekera v. Irwin , 551 F.3d 461, 466 (6th Cir. 2009). In order to survive a motion to dismiss under this Rule, "a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’ " Tackett v. M & G Polymers, USA, LLC , 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief above the speculative level—"does not ‘require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.’ " Bassett v. National Collegiate Athletic Ass'n. , 528 F.3d 426, 430 (6th Cir. 2008) (quoting in part Twombly , 550 U.S. at 555-56, 127 S.Ct. 1955 ). "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). Deciding whether a complaint states a claim for relief that is plausible is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.

Consequently, examination of a complaint for a plausible claim for relief is undertaken in conjunction with the "well-established principle that ‘ Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ "

Gunasekera , 551 F.3d at 466 (quoting in part Erickson v. Pardus , 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) ) (quoting Twombly, 127 S.Ct. at 1964 ). Nonetheless, while " Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

III. Analysis

The FOP argues that Warren fails to set forth a cognizable claim under § 1983 because she cannot establish that the FOP, a private entity, acted under color of state law. (Doc. No. 5, PageID# 55.) Specifically, the FOP argues that Warren cannot demonstrate under the symbiotic relationship/nexus test that the state was "intimately involved in the [FOP's] challenged private conduct" such that the conduct could be fairly attributed to the state. (Id. ) The FOP argues that it is a private labor union and such organizations generally are not state actors for purposes of § 1983. (Id. at PageID# 56.) The FOP further argues that Janus never held that unions were violating the Constitution, only that the state statutes authorizing agency-shop arrangements were unconstitutional. (Id. at PageID# 56-57.) Further, according to the FOP, it is irrelevant that the state withheld certain fees from Warren's wages pursuant to a contract with the FOP because the mere existence of a contract between a public and a private entity does not transform the private entity into a state actor. (Id. at PageID# 57.) While the FOP acknowledges that a private actor may act under color of state law if it "is a willful participant in joint activity" with the state, the FOP asserts that Warren offers no more than a conclusory allegation that the FOP and the state engaged in joint activity. (Id. at PageID# 58.) Finally, the FOP cites to a bevy of federal district and appellate cases from outside this Circuit to support its assertion that "unions receiving dues post- Janus are not state actors so there is no federal claim under [§] 1983." (Id. )

In her Opposition, Warren argues that the FOP's motion should be dismissed because the FOP acted under color of state law when it jointly participated with the state to seize agency fees from Warren's wages without her consent post- Janus . (Doc. No. 6, PageID# 64.) Warren argues that Janus itself made clear that "[s]tates and public-sector...