Opinion
Case No. 21-cv-2197 (APM)
2021-10-19
Sito PANTOJA et al., Plaintiffs, v. Robert MARTINEZ et al., Defendants.
Michelle Owens, Pro Hac Vice, Agee Owens, LLC, Nashville, TN, Stephen Craig Leckar, Kalbian Hagerty LLP, Washington, DC, for Plaintiffs. Bruce Richard Lerner, Jacob R. Karabell, Bredhoff & Kaiser, P.L.L.C., Washington, DC, Daniel M. Nesbitt, Pro Hac Vice, Eyad Asad, Pro Hac Vice, Evan Hudson-Plush, Pro Hac Vice, Susan Davis, Pro Hac Vice, Cohen, Weiss and Simon LLP, New York, NY, for Defendants.
Michelle Owens, Pro Hac Vice, Agee Owens, LLC, Nashville, TN, Stephen Craig Leckar, Kalbian Hagerty LLP, Washington, DC, for Plaintiffs.
Bruce Richard Lerner, Jacob R. Karabell, Bredhoff & Kaiser, P.L.L.C., Washington, DC, Daniel M. Nesbitt, Pro Hac Vice, Eyad Asad, Pro Hac Vice, Evan Hudson-Plush, Pro Hac Vice, Susan Davis, Pro Hac Vice, Cohen, Weiss and Simon LLP, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER
Amit P. Mehta, United States District Court Judge
I.
Plaintiff Sito Pantoja is an elected General Vice President of the International Association of Machinists and Aerospace Workers ("IAM"). He brings this action against IAM and the members of its Executive Committee under the Labor Management Reporting and Disclosure Act ("LMRDA"), alleging that the union stripped him of various leadership roles for opposing the re-election of its incumbent General Secretary-Treasurer. Joining Pantoja as Plaintiffs are Maria Tusa and Edmund Walsh, III, union members who assert that Pantoja's removal from leadership positions denies them representation by their elected union official and chills the exercise of their expressive rights. Plaintiffs now move for a preliminary injunction, asking the court to restore Pantoja to his leadership positions with IAM.
Plaintiffs’ motion is denied. As explained below, Plaintiffs have not established a likelihood of success on the merits, and the equities do not favor an injunction.
II.
A.
Pantoja is a long-time member of IAM, who first joined the union while employed as a shop mechanic for Trans World Airlines. Pls.’ Mot. for Prelim. Inj., ECF No. 2 [hereinafter Pls.’ Mot.], Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot., ECF No. 2-2 [hereinafter Pls.’ Mem.], at 2. Pantoja attained his first leadership role with the national union in 1999 when he became a full-time IAM Transportation Department Special Representative and a Grand Lodge Representative. Id. In 2005, he became the Chief of Staff to Robert Roach, the General Vice President in charge of the union's Transportation Department. Id. In 2012, when Roach became the General Secretary-Treasurer, Plaintiff was elected as General Vice President and succeeded Roach as the head of the Transportation Department. Id. In that role, he "administered approximately 150 contracts in the railroad and air transport sectors in the United States and for many of them he was the chief negotiator." Id. at 3. Pantoja was also appointed to serve as IAM's designated member on the United Airlines Board of Directors and as a member of the Executive Board of the International Transportation Workers’ Federation. Id. at 2–3. The events leading to Pantoja's removal from various leadership positions started in 2017. At the time, Dora Cervantes was the General Secretary-Treasurer of IAM. See Id. at 5–6. In late 2017, Pantoja learned that Cervantes's sister and two associates were responsible for embezzling local union funds. Id. at 6. Plaintiff urged that the local union chapter be placed under supervision, but Cervantes opposed such action and the IAM Executive Council followed suit. Id. After collecting additional evidence, Pantoja prevailed upon the Executive Council to supervise the local. Id. at 6–7. Pantoja also began to question Cervantes's spending of union funds for travel and personal expenses. Id. at 7-8. Pantoja asked to see her expense reports but was told the requested records were in storage and would take weeks to obtain. Id. at 8. Nevertheless, Pantoja obtained access to those records from another source, and he learned that Cervantes frequently flew first class to her hometown of Houston for extended stays and submitted mileage expenses for use of her personal vehicle. Id. at 8. Ultimately, a cursory audit resulted in Cervantes repaying the union $6,000 for vehicle-related expenses. Id. at 9.
Plaintiffs do not offer evidentiary support for many of their factual averments, but because Defendants do not contest those averments described below, the court accepts them as true.
Defendants do not address any of these allegations in their Opposition brief or supporting evidence, and so the court accepts these facts as true for present purposes.
As a result of these alleged improprieties, Pantoja opposed Cervantes's re-election as General Secretary-Treasurer. Id. He instead backed another candidate, Ian Anderman. Id. ; Defs.’ Mem. in Opp'n to Pls.’ Mot for Prelim. Inj., ECF No. 18 [hereinafter Defs’. Mem.] at 8. Cervantes prevailed in a closely contested election. Pls.’ Mem. at 13.
B.
Pantoja claims that, both during and after the campaign, he was subject to retaliation for backing Cervantes’ opponent. First, on January 26, 2021, after Pantoja's support for Alderman became public, International President Robert Martinez, Jr., the head of the union, announced that due to "deep financial cuts" the Transportation Department's office in Washington, D.C., would have to be shuttered and the Department would have to move back to Headquarters in Upper Marlboro, Maryland. Pls.’ Mem. at 10; Compl., ECF No. 1 [hereinafter Compl.], Ex. B, ECF No. 1-2. Two days later, Martinez removed Pantoja's Chief of Staff, Joe Tiberi, and demoted him to a lesser position. Pls.’ Mem. at 10–11; Compl., Ex. C, ECF No. 1-3. Then, in early February, Martinez warned various lower-level union officials about maintaining loyalty to him. Pls.’ Mem. at 11. He wrote in a memorandum that, "[i]f you, as appointed, non-elected employees of the Union, are viewed as supporting policies or agenda (including candidates) that are contrary to my administration, you will undermine my ability to carry out the will of the membership [that] elected me." Pls.’ Mem. at 11; Compl., Ex. D, ECF No. 1-4.
The membership re-elected Pantoja as a General Vice President, but following the election, he lost certain leadership roles. Pls.’ Mem. at 14. On June 1, 2021, Martinez informed Pantoja that he had "received a letter from the majority of the Executive Council members raising concerns about their ability to trust you going forward, particularly in a position dealing directly with the members, staff and the upcoming negotiations." Compl., Ex. H, ECF No. 1-8. As a consequence, "pursuant to Article VI, Section 6 of the IAM Constitution," Martinez removed Pantoja as the head of the Transportation Department and reassigned him to oversee IAM's "National Apprenticeship Strategic Initiative," a new initiative designed to bolster the union's long-term recruiting efforts. Id. Martinez advised that "[n]either your salary, benefits nor your rights as a member of our Executive Council are impacted by this change in your appointed position." Id. A nonelected staff member—apparently for the first time in the union's history—replaced Pantoja as head of the Transportation Department. Pl.s’ Mem. at 13. Additionally, Pantoja "was also told that he would no longer be a United Airlines board member or an ITF officer." Id.
Following Pantoja's removal and reassignment, on or about June 17, 2021, the IAM Executive Council adopted a Proposition that imposed a mandatory retirement age of 65 for Executive Council members. Id. at 14; Compl., Ex. J, ECF No. 1-10. Pantoja will turn 65 on March 28, 2022. Pls.’ Mem. at 14. The Council's action means that Pantoja, who had been re-elected to a four-year term as General Vice President, will be forced to retire in eight months. Id.
III.
Preliminary injunctive relief is an "extraordinary and drastic remedy" that is "never awarded as [a matter] of right." Munaf v. Geren , 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (citations and internal quotation marks omitted). A court may only grant the "extraordinary remedy ... upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)). The movant's burden is still higher where, as here, the movant's requested "injunction is mandatory—that is, ... its terms would alter, rather than preserve, the status quo by commanding some positive act." Singh v. Carter , 185 F. Supp. 3d 11, 17 (D.D.C. 2016) (quoting Elec. Priv. Info. Ctr. v. Dep't of Just. , 15 F. Supp. 3d 32, 39 (D.D.C. 2014) ). Courts in this Circuit have required the party seeking such a mandatory injunction to "meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from the denial of the injunction." Id. (internal quotation marks omitted) (quoting Elec. Priv. Info. Ctr. , 15 F. Supp. 3d at 39 ).
The preliminary injunction factors are well established: a plaintiff must show that (1) he "is likely to succeed on the merits"; (2) he "is likely to suffer irreparable harm in the absence of preliminary relief"; (3) "the balance of equities tips in his favor"; and (4) "an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365 (citations omitted). In this jurisdiction, courts evaluate the four preliminary injunction factors on a "sliding scale"—if a "movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor." Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). Winter , however, called that approach into question and sparked disagreement over whether the "sliding scale" framework continues to apply, or whether a movant must make a positive showing on all four factors without discounting the importance of a factor simply because one or more other factors have been convincingly established. See Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. , 897 F.3d 314, 334 (D.C. Cir. 2018) (explaining that the D.C. Circuit "has not yet decided whether Winter ... is properly read to suggest a ‘sliding scale’ approach to weighing the four factors be abandoned").
It matters not in this case whether the court applies the sliding scale: either way, Plaintiffs have not met their burden. IV.
Title I of the LMRDA guarantees equal voting rights, and the rights of speech and assembly, to "[e]very member of a labor organization." 29 U.S.C. § 411(a)(2). The Act also protects members against retaliation for exercising a protected right. A union cannot "fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of [the LMRDA]." 29 U.S.C. § 529.
Two key Supreme Court cases demarcate the scope of the LMRDA's anti-retaliation protections. In Finnegan v. Leu , the Court held that "removal from appointive union employment is not within the scope of those union sanctions explicitly prohibited" by the LMRDA. 456 U.S. 431, 439, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982) ; see also Gilvin v. Fire , 259 F.3d 749, 757 (D.C. Cir. 2001) (observing that, under Finnegan , the LMRDA "does not protect appointed union officials from discharge on account of the expression of their opinions"). The Court in Finnegan explained that the term "discipline" as used in 29 U.S.C. § 529 "refers only to retaliatory actions that affect a union member's rights or status as a member of the union." 456 U.S. at 438, 102 S.Ct. 1867. "In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees." Id. at 437–38, 102 S.Ct. 1867. As a result, the Court stated, the LMRDA "does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own." Id. at 441, 102 S.Ct. 1867 ; see also id. (stating "the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election").
Seven years later, in Sheet Metal Workers’ International Ass'n v. Lynn , 488 U.S. 347, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989), the Court announced a different rule for discipline of elected union officials by their superiors. In Lynn , an elected business agent was removed from his position for opposing dues increases. Id. at 350, 109 S.Ct. 639. The Court held that the "the consequences of the removal of an elected official are much different" than an appointed official. Id. at 355, 109 S.Ct. 639. "[W]hen an elected official ... is removed from his post, the union members are denied the representative of their choice." Id. Moreover, "the potential chilling effect on ... free speech rights is more pronounced when elected officials are discharged" and filters down to the rights of "the members who voted for him." Id. (citing Hall v. Cole , 412 U.S. 1, 8, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973) ). Thus, the Court held in Lynn , "Lynn's retaliatory removal stated a cause of action." Id.
Pantoja insists that this case falls squarely within Lynn ’s prohibition against retaliating against elected union officials. The court disagrees. Central to Plaintiffs’ claim is that Pantoja "was elected General Vice President-Transportation," Pls.’ Mem. at 2, but the IAM's Constitution recognizes no such position. Rather, it establishes at least seven "General Vice Presidents." See Defs.’ Mem., Ex. B, ECF No. 18-2 [hereinafter, IAM Const.], at 36 (IAM Const., Art. III § 1); id. at 47 (Art. III § 21) (authorizing up to nine "General Vice Presidents"). And the recent election ballot confirms that Pantoja ran for the office of "General Vice President." Defs.’ Mem., Ex. I, ECF No. 18-5, at 7. Moreover, the IAM Constitution vests exclusive authority in the International President to designate a General Vice President to oversee territories or industries, including the Transportation Department. The Constitution states that General Vice Presidents "shall act as general organizers, or shall perform such duties, in such territories or industries as may be decided by the [International President] to be for the best interests of the I.A.M.," IAM Const. at 71 (Art. VIII § 1), and grants the International President the authority to "assign elected [General Vice Presidents] to such territories or industries as are necessary to promote the best interests of the I.A.M." IAM Const. at 57 (Art. VI § 6). Thus, contrary to Pantoja's position, his elected office was not that of "General Vice President-Transportation" but that of "General Vice President," and he served at the pleasure of the International President as the head of the Transportation Department. Pantoja's reassignment thus was not removal from elected office of the kind that Lynn found to be unlawful.
Page references to Defendants’ exhibits are to the CM/ECF page number.
At this stage of the proceedings, the action taken against Pantoja appears to have been lawful under Finnegan . The discretionary removal of Pantoja's appointed duties, even though he was an elected official, is not prohibited by the LMRDA. Cf. Vought v. Wis. Teamsters Joint Council No. 39 , 558 F.3d 617, 623 (7th Cir. 2009) ("Nothing in Lynn suggests that an appointed business agent is shielded from termination merely because he also happens to hold an elected office."). Martinez stripped Pantoja of his assigned role and duties with respect to the Transportation Department; the same is seemingly true with respect to his outside board positions with United Airlines and the International Transportation Federation. The basic duties and incidents of his elected office, however, remain intact: his salary, benefits, and ability to participate and vote in Executive Council meetings remain unchanged. See Compl., Ex. H, ECF No. 1-8. Finnegan thus controls, and Pantoja has not shown otherwise.
Plaintiffs’ heavy reliance on McCormick v. Zero , 110 F. Supp. 2d 716 (N.D. Ill. 2000), vacated as moot , 2 F. App'x. 559 (7th Cir. 2001), see Pls.’ Mem. at 25–26, does not alter the court's view. There, the court held that Zero, the union's Secretary-Treasurer, had "deliberately destroyed [the plaintiffs’] ability to ... carry out their fiduciary duties as Union officers." Zero , 110 F. Supp. 2d at 727. Among other things, Zero had cut the plaintiffs’ salaries in excess of his constitutional authority; directed them to turn in their office keys, parking passes, union equipment, and files, books, and records; and ordered them to vacate their offices. See id. Here, by contrast, Plaintiffs have shown that, at most, Martinez took action against Pantoja consistent with Martinez's discretionary authority under the IAM Constitution. And, unlike the plaintiffs in Zero , Pantoja was not stripped of any obvious duties or incidents of the office of General Vice President. He seemingly remains fully capable of carrying out his official duties.
Pantoja has suggested that the Executive Council recently adopted the mandatory retirement age of 65 in reprisal for his opposing Cervantes. See Defs.’ Mem. at 24. But even if that were the case—and, to be clear, Plaintiffs have come nowhere close to proving as much—Plaintiffs have not sought to enjoin that new rule. See Pls.’ Mot, Proposed Order Granting Prelim. Inj., ECF No. 2-1. The court therefore need not address here whether the new mandatory retirement rule was retaliatory.
In a footnote, see Pls.’ Mem. at 21, Plaintiffs allude to an exception to Finnegan recognized by the Second Circuit, for cases in which "the removal of a union officer was part of ‘purposeful and deliberate attempt ... to suppress dissent within the union.’ " Maddalone v. Loc. 17, United Bhd. of Carpenters & Joiners of Am. , 152 F.3d 178, 184 (2d Cir. 1998) (quoting Schonfeld v. Penza , 477 F.2d 899, 904 (2d Cir. 1973) ). The court does not reach the applicability of that exception as it is not sufficiently developed. See Hutchins v. District of Columbia , 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) ("We need not consider cursory arguments made only in a footnote ..."). Moreover, the D.C. Circuit has not adopted the exception. See Gilvin , 259 F.3d at 759 n.14. The court will not rely on an untested proposition of law in this Circuit to grant mandatory injunctive relief.
Because of Pantoja's failure to establish a likelihood of success, Plaintiffs Tusa and Walsh have likewise not met their burden.
V.
Since Plaintiffs have not shown a likelihood of success, the equities clearly favor restraint by the court. "Absent a showing that union members’ rights under the LMRDA will be violated, the Court is not to interfere with internal union affairs." Shelley v. Am. Postal Workers Union , 775 F. Supp. 2d 197, 210 (D.D.C. 2011). Here, Plaintiffs ask as relief for Pantoja to be reinstated to all leadership positions as they existed prior to June 1, 2021, and for the court to "restore his staff to the positions they held prior to Plaintiff Pantoja's removal." Pls.’ Mot., Proposed Order Granting Prelim. Inj., ECF No. 2-1. Such a dramatic interference with union governance must be avoided absent a clear entitlement to relief. Plaintiffs have not carried their burden.
VI.
For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction is denied.