Opinion
Civil Action No. 1:19-cv-01349-REB-STV
2020-04-06
Silvia SORIANO and Maricela Perez, Plaintiffs, v. SEALY MATTRESS MANUFACTURING CO. LLC., Defendant.
Robert Mark Liechty, Robert M. Liechty PC, Denver, CO, for Plaintiffs. Erin Ashley Webber, Grace LaVance McGuire, Stephen E. Baumann, II, Littler Mendelson PC-Denver, Denver, CO, for Defendant.
Robert Mark Liechty, Robert M. Liechty PC, Denver, CO, for Plaintiffs.
Erin Ashley Webber, Grace LaVance McGuire, Stephen E. Baumann, II, Littler Mendelson PC-Denver, Denver, CO, for Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak, Magistrate Judge
This matter comes before the Court on Defendant's Motion to Dismiss Plaintiffs’ Amended Complaint [#27] ("the Motion"), which has been referred to this Court [#28]. This Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, this Court respectfully RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART .
The facts are drawn from the allegations in Plaintiffs’ Amended Complaint and Jury Demand [#22], which must be taken as true when considering the Motion to Dismiss. See Wilson v. Montano , 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya , 662 F.3d 1152, 1162 (10th Cir. 2011) ).
This case arises out of the termination of Plaintiffs’ employment with Defendant Sealy Mattress Manufacturing Co., LLC. [See generally #22] Plaintiff Silvia Soriano worked for Defendant for approximately four and one-half years, and Plaintiff Maricela Perez worked for Defendant for approximately three and one-half years. [Id. at ¶ 5] Both Plaintiffs worked in the same department with approximately 30 employees operating various machines involved in the manufacture of box springs and mattresses. [Id. ] Ms. Soriano could operate approximately six machines and worked primarily on box springs. [Id. ] Ms. Perez could operate approximately four machines and worked primarily on regular mattresses. [Id. ]
During their employment with Defendant, both Plaintiffs were members of the United Steel Workers, AFL-CIO-CLC, Local 12-477 ("the Union"). [Id. at ¶ 2] From May 21, 2017 through their termination, Plaintiffs’ employment with Defendant was controlled by the Collective Bargaining Agreement ("CBA") entered between Defendant and the Union. [Id. at ¶ 6; see also #27-1 ] Pursuant to Article 6.01 of the CBA, Defendant "reserves the right to discipline or discharge any employee for proper cause." [#27-1 at 6] Pursuant to Article 31.05, "[w]henever overtime is available in a department, the overtime shall be offered ... [t]o Senior employees in [the] department." [Id. at 19] "If there is still a need for overtime the junior employee(s) in the department shall be required to work the overtime assignment." [Id. ]
The Court may consider the copy of the CBA submitted by Defendant as an exhibit to the Motion [#27-1] without converting the Motion into a motion for summary judgment. See GFF Corp. v. Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997) ("[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss."); Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (holding that court "must consider the complaint in its entirety ... [and] documents incorporated into the complaint by reference").
In mid-November of 2018, Plaintiffs noticed that an employee named Kim, who had only been working for Defendant for approximately one year and had been taught by Ms. Perez how to operate 2 or 3 of the machines, was working overtime without the overtime having been offered to Plaintiffs. [#22 at ¶ 7] Plaintiffs complained to their supervisor, Lee Tarrant, that an employee with less seniority was provided an opportunity to work overtime before the overtime work was offered to Plaintiffs. [Id. at ¶ 8] In response, Mr. Tarrant stated that he was unaware of the situation but would investigate it. [Id. ] Approximately two weeks later, both Plaintiffs again spoke to Mr. Tarrant about the fact that Kim was working overtime without them first being offered the opportunity to work the overtime. [Id. at ¶ 9] Between mid-November 2018 and mid-December 2018, Kim worked overtime on approximately four more occasions than Ms. Perez and on approximately six more occasions than Ms. Soriano. [Id. ] On December 11, 2018, upon leaving work, Plaintiffs noticed Kim's truck still parked in the parking lot. [Id. at ¶ 10] Based on this observation, Plaintiffs went back into work to inquire why Kim was working overtime that they had not been offered. [Id. ] Plaintiffs first spoke to Steve Garza, a lead employee on their team, who allegedly told them that they could fight for their seniority rights under the CBA, but then laughed because he thought it would be futile. [Id. ] Mr. Tarrant then appeared, and Plaintiffs made the same complaint to him about Kim working overtime that had not been offered to them. [Id. at ¶¶ 10-11] Nothing was resolved and Plaintiffs left work. [Id. at ¶ 11]
Later that same evening, on December 11, 2018, Kim—apparently having been notified by Mr. Tarrant or Mr. Garza of Plaintiffs’ complaint regarding overtime—brought a complaint against both Plaintiffs for harassment and intimidation. [Id. at ¶ 12] According to Plaintiffs, they had not harassed or intimidated Kim and, in fact, had been on friendly terms with Kim until she made the complaint against them. [Id. ]
On December 12, 2018, Plaintiffs were informed that they were being investigated based upon a complaint of harassment and intimidation. [Id. at ¶ 13] Ms. Soriano asked Mr. Tarrant what the problem was, and he told her not to have contact with Kim. [Id. ] Defendant conducted a "quick investigation," during which it allegedly only interviewed "employees related to each other who had criticized [P]laintiffs" and did not speak to any of the witnesses offered by Plaintiffs. [Id. at ¶ 14] On December 13, 2018, during a meeting with the shop manager, Mr. Tarrant, human resources representative Tricia Knapps, union representative Maria Angelica, and union representative Juan Marquez, Plaintiffs were both terminated from their employment. [Id. at ¶ 15] Ms. Perez's termination document stated that Ms. Perez persisted in trying to talk to Kim, but, according to the Amended Complaint, Defendant knew this to be false, because Ms. Perez did not speak English and Kim did not speak Spanish. [Id. at ¶ 16]
After their termination, Plaintiffs approached the Union to assist them in being reinstated. [Id. at ¶ 23] Mr. Marquez, a Union representative, indicated to Plaintiffs that reinstatement would not be a problem because they had no prior discipline and Defendant did not have a good reason to terminate them. [Id. ] According to the Amended Complaint, the Union knew that Defendant had manufactured the reason for Plaintiffs’ termination. [Id. at ¶ 24]
Pursuant to Article 27 of the CBA, all employees seeking to file a grievance, dispute, or controversy must follow a three-step grievance procedure. [#27-1 at 16] Step One requires that, within five working days of the dispute or controversy arising, the employee orally discuss their complaint with their immediate supervisor in the presence of the appropriate committeeman or shop steward in order to provide the supervisor with a reasonable opportunity to resolve the problem. [Id. ] If the complaint is not satisfactorily resolved in Step One, within three working days, the complaint shall be identified as a grievance in writing and discussed between the employee, the shop steward, the grievance committee, and management. [Id. ] Within three working days, the supervisor is required to provide an answer, in writing, to the grievance. [Id. ] If not resolved, then at Step Three, "within five (5) days, the grievance discussed [sic] between the grievance committee, the shop steward, representatives of the Union and management" with an "[a]nswer in writing within the next two (2) working days." [Id. ] Although the grievance procedure specifies that "[f]ailure of the moving party to comply with the above time limits will serve to declare the grievance as settled, either in favor of or against the aggrieved party, and no further action can be taken," it further states that "[t]he above time limits or steps may be waived by the parties by mutual agreement." [Id. ] If the grievance is not resolved through the three-step grievance procedure, "then the matter in dispute shall be submitted within twenty (20) days following the date of receipt of the Company's Step 3 answer by the Union to arbitration." [Id. at 17] "Any grievance that is not either settled or processed to arbitration (an arbitrator selected) within twelve (12) months of the date of the grievance, will be considered withdrawn by the moving party," but "the time limits ... may be waived by mutual agreement of the parties." [Id. ]
Plaintiffs allege that Step One of the grievance procedure did not apply to Plaintiffs, "because [the complaint involved] a termination." [#22 at ¶ 25] Plaintiffs contend that they complied with Step Two by submitting a written grievance through the Union on December 19, 2018. [Id. ] On January 17, 2019, Ms. Knapps, the human resources representative, provided Plaintiffs a written response in which Defendant refused to reinstate Plaintiffs. [Id. at ¶¶ 17, 25] Although Defendant acknowledged that it had not administered progressive discipline prior to Plaintiffs’ termination, Defendant stated that the lack of progressive discipline was justified, because Plaintiffs allegedly had violated Defendant's workplace-violence policy. [Id. at ¶ 17] Plaintiffs contend that they actually were terminated in retaliation for requesting that Defendant honor the CBA's requirement that overtime opportunities be offered first to senior employees. [Id. at ¶ 21] Plaintiffs allege that Defendant's January 17, 2019 written response completed Step Three of the grievance procedure. [Id. at ¶ 25] After submitting the written grievance on Plaintiffs’ behalf on December 19, 2018, the Union took no steps on Plaintiffs’ behalf to have them reinstated and did not communicate with Plaintiffs about the grievance again until February 8, 2019, when the Union sent Plaintiffs a letter stating that the Union would not pursue Plaintiffs’ grievance, because it did not think that Plaintiffs would be successful in arbitration. [Id. at ¶¶ 26, 27]
On May 10, 2019, Plaintiffs filed the instant lawsuit against Defendant, asserting a claim for breach of the CBA against Defendant pursuant to Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, based upon Defendant giving overtime assignments to junior employees without first offering them to Plaintiffs and for terminating Plaintiffs without "proper cause." [#1] In addition to filing the instant lawsuit, Plaintiffs, who are Hispanic and were born in Mexico, also filed charges of race or national origin discrimination with the Equal Employment Opportunity Commission ("EEOC") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. [#22 at ¶¶ 3, 31, 34] Plaintiffs claim that instances of "violence in the workplace," reported by an Hispanic employee against another Hispanic employee, were not taken seriously and did not result in discipline, whereas reports of violence made by a white employee against Plaintiffs were taken seriously and resulted in their termination. [Id. at ¶¶ 31-34] More specifically, Plaintiffs assert that an Hispanic employee, Anna Garcia, purposefully pushed a cart into an Hispanic employee and twice opened a door in another Hispanic employee's face. [Id. at ¶ 31] Despite receiving complaints about these instances, Defendant did not discipline Ms. Garcia because both parties to each incident were Hispanic and thus Defendant did not believe they warranted serious consideration. [Id. at ¶¶ 31, 32] By contrast, when Kim, a white employee, raised a complaint for harassment against Plaintiffs, Defendant took the complaint seriously and ultimately terminated Plaintiffs, because the complaint was made by a white employee. [Id. at ¶¶ 31, 33] On September 9, 2019, the EEOC issued a right-to-sue letter to Plaintiffs based upon their charges of discrimination. [Id. at ¶ 3]
On September 19, 2019, Plaintiffs filed the Amended Complaint to add claims for differential treatment based on race or national origin under Title VII to the LMRA breach of contract claim asserted in the initial complaint. [#22] On October 22, 2019, Defendant moved to dismiss all of Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(6). [#27] Plaintiffs filed a response opposing the Motion [#29], and Defendant filed a reply [#34].
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." In deciding a motion under Rule 12(b)(6), a court must "accept as true all well-pleaded factual allegations ... and view those allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri , 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States , 561 F.3d 1090, 1098 (10th Cir. 2009) ). Nonetheless, a plaintiff may not rely on mere labels or conclusions, "and a 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).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’ " Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The court's ultimate duty is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren , 478 F.3d 1149, 1160 (10th Cir. 2007).
III. ANALYSIS
Through the Motion, Defendant argues that Plaintiffs’ Amended Complaint should be dismissed in its entirety, "because (1) [Plaintiffs] cannot, as a matter of law, plausibly allege a claim under [the LMRA] for breach of a collective bargaining agreement, and (2) they have not, as a matter of law, alleged a facially plausible claim for race or national origin discrimination under Title VII." [#27 at 1] The Court addresses Defendant's challenges to each of Plaintiffs’ claims below.
A. LMRA Hybrid Claim
Generally, "federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox , 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). As is the case here, collective bargaining agreements typically authorize and require the labor union to pursue grievances on behalf of their members. See id. at 653, 85 S.Ct. 614 ("[U]nless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf." (footnote omitted)) As the exclusive agent for the protection of its members’ rights against their employer, the union has "a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes , 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). This obligation is referred to as the "duty of fair representation" or "DFR." Id.
Generally, an employee is only permitted to enforce their rights under a collective bargaining agreement against their employer directly—rather than through the union—if the union has breached its DFR. See Webb v. ABF Freight Sys., Inc. , 155 F.3d 1230, 1238 (10th Cir. 1998). Such an action—referred to as a "hybrid claim" under Section 301—"combines two conceptually independent causes of action, the first against the company for breach of the contract (a standard § 301 claim) and the second against the union for breach of the duty of fair representation (a claim implied by operation of a union's status under federal law as the sole bargaining representative of the employee)." Id. (citing DelCostello v. Int'l Bhd. of Teamsters , 462 U.S. 151, 164, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) ). To prevail on a hybrid claim, even if only asserted against the employer, a discharged employee must prove: (1) some conduct by the worker's union that breached the DFR; (2) a causal connection showing that the union's breach affected the integrity of the arbitration process; and (3) a violation of the CBA by the company. Id. at 1239 ; see also Hines v. Anchor Motor Freight, Inc. , 424 U.S. 554, 568-71, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) ; Buck v. CF & I Steel, L.P. , 531 F. App'x 936, 937 (10th Cir. 2013).
Defendant challenges Plaintiffs’ hybrid claim on three separate grounds. [#27 at 6-13] First, Defendant argues that Plaintiffs’ LMRA claims are barred because Plaintiffs did not exhaust their contractual remedies as provided by the CBA's grievance procedures. [Id. at 8-10] Second, Defendant contends that Plaintiffs fail to plausibly allege that the Union breached its DFR. [Id. at 10-12] Third, Defendant argues that Plaintiff failed to plausibly allege that Defendant breached any provision of the CBA. [#27 at 12-13] The Court considers each argument in turn.
1. Exhaustion of the CBA
Generally, where a plaintiff seeks judicial enforcement of a CBA, "the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been exhausted." Vaca , 386 U.S. at 184, 87 S.Ct. 903 ; see Webb , 155 F.3d at 1244 (citing United Food & Commercial Workers Local 7R v. Safeway Stores, Inc. , 889 F.2d 940, 945 (10th Cir. 1989) ). Defendant argues that Plaintiffs’ LMRA claims thus are barred, because Plaintiffs failed to comply with Step One, untimely submitted a grievance pursuant to Step Two, and did not invoke the mandatory arbitration procedure. [#27 at 9]
Although Defendant argues that there were alleged deficiencies with Plaintiffs’ compliance with Step One and Step Two of the grievance process regarding Plaintiffs’ grievance over their termination, the Amended Complaint alleges that Defendant responded (in an untimely manner) at Step Three. [#22 at ¶ 25] There is no indication that Defendant's response at Step Three complained of Plaintiff's alleged failure to timely comply with the grievance process at Step One or Step Two. [Id. at ¶¶ 17, 25] To the contrary, the response at Step Three addressed the substance of Plaintiffs’ grievance without asserting any procedural deficiency. [Id. at ¶ 17] The CBA expressly states that the "time limits or steps may be waived by the parties by mutual agreement." [#27-1 at 16] The Court thus finds the allegations sufficient to plausibly allege that Plaintiff complied with the grievance process through Step Three and/or that any deficiency in Plaintiffs’ compliance with Step One and/or Step Two was waived by Defendant.
The Motion also argues that "Plaintiffs do not allege that they invoked the mandatory grievance process at all for the overtime issue." [#27 at 9 (emphasis in original) ] Plaintiffs do not respond to this argument, but instead focus their discussion of exhaustion entirely on their grievance for wrongful termination. [#29 at 4-8] Similarly, in responding to Defendant's contention that Plaintiff failed to plausibly allege a violation of the CBA, Plaintiffs do not argue a breach of the overtime provision of the CBA. [Id. at 13] Instead, Plaintiffs argue only that "[D]efendant terminated them without ‘proper cause’ " in violation of the CBA. [Id. ] To the extent the Amended Complaint asserts a claim for breach of the CBA based upon Defendant offering more junior employees overtime without first offering the overtime to Plaintiffs, the Court thus understands Plaintiffs to have abandoned that claim. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent it seeks dismissal of Plaintiffs’ LMRA hybrid claim premised upon a breach of the overtime provision of the CBA.
In their response to the Motion, Plaintiffs argue that "there is no allegation [in Defendant's Step Three response] that [Defendant] raised a timeliness argument and, thus, it waived this argument." [#29 at 6]
It is undisputed that Plaintiffs’ grievance has not been submitted to arbitration and thus that the arbitration procedure has not been exhausted. [#22 at ¶¶ 26-27; #27 at 9; #29 at 6] Plaintiff, however, contends that their failure to submit the grievance to arbitration was the result of the Union's breach of its DFR. [#22 at ¶¶ 26-27; #29 at 6-7] It is well-established that a "wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance." Vaca , 386 U.S. at 186, 87 S.Ct. 903 ; see also DelCostello , 462 U.S. at 164, 103 S.Ct. 2281 (finding that, where the union has breached its DFR, "an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding"); Webb , 155 F.3d at 1244 (holding that "a union's DFR breach relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures" (quotation omitted)). The Court thus turns to whether Plaintiffs have plausibly alleged that the Union breached its DFR in its handling of Plaintiffs’ grievance of their termination.
In the Motion, Defendant contends that "[e]ven now, if Plaintiffs believe the [grievance] process was not completed, they could still invoke the arbitration process ..." [#27 at 10 (emphasis omitted) ] Defendant, however, fails to offer any citation to the CBA for its contention that Plaintiffs have the right—independent of the Union—to initiate the arbitration process. Pursuant to Article 28 of the CBA, if the three-step grievance procedure fails, "the matter in dispute shall be submitted ... by the Union to arbitration." [#27-1 at 17 (emphasis added) ] "[U]nless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf." Republic Steel Corp. , 379 U.S. at 653, 85 S.Ct. 614 (footnote omitted). The Court thus finds no basis in the CBA or the law for Defendant's contention that Plaintiffs—individually and separate from the Union—had the right (or obligation) to initiate an arbitration, and, notably, Defendant has not moved to compel arbitration.
2. Breach of the Union's DFR
Defendant next argues that Plaintiffs fail to plausibly allege that the Union breached its DFR. [#27 at 10-12] A union breaches its DFR in the context of representing an employee in a grievance or arbitration procedure when it "acts in a ‘discriminatory, dishonest, arbitrary, or perfunctory fashion.’ " Webb , 155 F.3d at 1239 (quoting Int'l Bhd. Elec. Workers v. Hechler , 481 U.S. 851, 864 n.6, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) ). "To be arbitrary, ... the union's decision must fall ‘so far outside the wide range of reasonableness accorded union representatives as to be irrational.’ " Buck , 531 F. App'x at 937 (10th Cir. 2013) (quoting Young v. UAW Labor Emp't & Training Corp. , 95 F.3d 992, 998 (10th Cir. 1996) ). "[A] union handles a claim in a perfunctory manner by ‘act[ing] without concern or solicitude, or g[iving] a claim only cursory attention.’ " Id. (quoting Webb , 155 F.3d at 1240 ). Although "a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion," an individual employee does not have "an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement." Vaca , 386 U.S. at 191, 87 S.Ct. 903. "Any substantive examination of a union's performance ‘must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.’ " Lampkin v. Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am. (UAW) , 154 F.3d 1136, 1144 (10th Cir. 1998) (quoting Air Line Pilots Ass'n v. O'Neill , 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) ).
Defendant contends that Plaintiffs have not plausibly alleged a violation of the Union's DFR, because they "fault the Union only for ‘not pursu[ing] [P]laintiffs’ grievance because it did not think that [P]laintiffs would be successful in arbitration.’ " [#27 at 11 (quoting #22, ¶ 27) ] The Court disagrees. In the same paragraph of the Amended Complaint quoted by Defendant, Plaintiffs expressly allege that "[t]he Union took no steps on [P]laintiff's [sic] behalf to have them reinstated." [#22, ¶ 27] The Amended Complaint alleges that the Union did not communicate with Plaintiffs at all between the time the Union filed a grievance on their behalf on December 19, 2018 and when the Union sent them the letter on February 8, 2019 informing them that it would not pursue arbitration on their behalves. [Id. at ¶¶ 25, 26, 27] Accepting these allegations as true and drawing all reasonable inferences in favor of Plaintiffs, as the Court must do at this phase of the proceedings, the Court finds these allegations sufficient to allege that the Union handled Plaintiffs’ grievance in a perfunctory manner by "g[iving] [the] claim only cursory attention." Buck , 531 F. App'x at 937.
Plaintiffs also argue that the Union's decision not to pursue arbitration was arbitrary, because the Union, despite its representation in the February 8, 2019 letter, knew that Plaintiffs had a meritorious claim for reinstatement of their employment. [#29 at 12] Although Plaintiffs "cannot succeed on [their] hybrid claim simply by proving that [their] grievance was meritorious," the merits of Plaintiffs’ claim are relevant to a determination of whether the Union's conduct was arbitrary and thereby violative of the DFR. See Buck , 913 F. Supp. 2d at 1052. "[T]o show that the Union's refusal to arbitrate was arbitrary, Plaintiff[s] must show that [their] claim was so strong that the Union's decision was irrational." Id. at 1052-53. In support of the merits of their claim, Plaintiffs allege (1) Plaintiffs did not threaten any violence against Kim or any other employee and did not have a history of violence or making threats [#22, ¶¶ 12, 17, 24]; (2) although Defendant contended that Ms. Perez had persisted in trying to talk to Kim after Kim made a complaint against Plaintiffs, Ms. Perez does not speak English and Kim does not speak Spanish [ id. at ¶16]; (3) Defendant did a quick, one-day investigation into Kim's complaint against Plaintiffs, in which Defendant did not speak to any of Plaintiffs’ suggested witnesses and instead only spoke to employees related to each other who had criticized Plaintiffs [id. at ¶ 14]; (4) Mr. Marquez, a Union representative, indicated to Plaintiffs that reinstatement would not be a problem because they had no prior discipline and Defendant did not have a good reason to terminate them [id. at ¶ 23]; and (5) the Union knew that Defendant manufactured the alleged rationale for Plaintiffs’ termination [id. at ¶ 24]. Plaintiffs have not alleged any facts that support the Union's alleged conclusion that Plaintiffs would not succeed if their grievance went to arbitration. The Court thus finds the allegations in the Amended Complaint sufficient to allege that the Union acted arbitrarily in refusing to pursue the arbitration on Plaintiffs’ behalf.
The cases relied upon by Defendant are inapposite. Defendant argues that "Plaintiffs’ same arguments regarding ‘arbitrary’ or ‘perfunctory’ conduct were rejected by the Tenth Circuit in Buck ." [#34 at 6] In Buck , however, the district court evaluated the plaintiff's hybrid claim at the summary judgment stage and determined "[b]ased on the record as a whole" that the plaintiff "failed to present sufficient evidence that the Union acted arbitrarily in refusing to arbitrate his grievance." 913 F. Supp. 2d at 1054. In affirming the district court's decision, the Tenth Circuit expressly noted that, while a union was not necessarily required to provide the union member a contemporaneous explanation for its decision not to pursue a grievance, an explanation must be provided to the court to explain why a seemingly meritorious grievance was not pursued. 531 F. App'x at 938. Here, the Court is assessing Plaintiff's claim at the pleadings stage and thus no explanation has yet been provided to the Court to support the Union's decision not to pursue Plaintiff's claim, which is plausibly alleged to have been meritorious.
Defendant cites only one case that supports dismissal at the pleadings stage, but that case too is inapposite. In Jara v. Standard Parking , the plaintiff did not expressly assert an LMRA hybrid claim, but, given the plaintiff's pro se status, the Court evaluated the plaintiff's allegations to determine whether they might be sufficient to support such a claim. 701 F. App'x 733, 736 (10th Cir. 2017). Ultimately, the court found the plaintiff's allegations insufficient to state a breach of the DFR, because "[t]he second amended complaint alleged that the Union withdrew various grievances [the plaintiff] filed, but alleged no facts to suggest that the Union acted in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its [DFR]." Id. at 737. Here, by contrast and as detailed above, Plaintiffs have asserted numerous factual allegations in support of their contention that the Union acted arbitrarily and perfunctorily in pursuing their grievance.
Defendant's reliance on the decision of the National Labor Relations Board (the "NLRB") in Painters Local 1310 (Reliance Elec.) (referred to herein as " Painters Local ") also is misplaced. [#34 at 7-8 (citing 270 NLRB 506 (1984) ) ] In Painters Local , the NLRB found that a union had not breached its DFR where a union member was terminated by his employer for failing to attend a training school after a shop steward had told the union member that he could not be terminated for failing to attend the training school. 270 NLRB at 507. More specifically, the NLRB found that "[a]lthough ... [the] shop steward ... was negligent in his response to [the union member's] question about the warning, [there was] not ... sufficient evidence to establish that [the shop steward's] response was so arbitrary as to be ‘deliberate.’ " Id. The claim in Painters Local thus was premised upon the union member's detrimental reliance upon false information provided by the shop steward. Here, by contrast, Plaintiffs do not allege that they detrimentally relied upon the Union representative's contention that their reinstatement would not be a problem but rather offer that statement as evidence that their grievance had merit. Moreover, there is no evidence at this stage to suggest that the Union representative's statement to Plaintiffs was mistaken or false. To the contrary, Plaintiffs allege that their grievance was meritorious and they should have been reinstated. The NLRB's decision in Painters Local thus is inapplicable here.
"[T]he courts are not constrained or bound by NLRB precedent with respect to DFR claims that initiate with a lawsuit," but, "when the NLRB initially hears a DFR claim, and the matter in dispute involves a question of statutory interpretation, [the courts] owe considerable deference to the [NLRB]’s interpretation." Jacoby v. N.L.R.B. , 325 F.3d 301, 307–08 (D.C. Cir. 2003).
Accordingly, the Court finds that Plaintiffs have plausibly alleged that the Union breached its DFR.
3. Defendant's Breach of the CBA
Defendant next argues that Plaintiffs fail to plausibly allege that it breached the CBA. [#27 at 12-13] More specifically, Defendant argues that "Plaintiffs’ allegations of an alleged breach of the CBA are only general, conclusory statements that [Defendant] violated various provisions of the collective bargaining agreement absent facts to support these allegations" and that "Plaintiffs do not cite any provision of the CBA they believe was breached." [#27 at 12 (quotations omitted) ] The Court disagrees.
The Amended Complaint expressly alleges that "Article 6.01 of the CBA states that Plaintiffs could be terminated only ‘for proper cause,’ " and that Defendant breached that provision by terminating Plaintiffs "in retaliation for requesting [D]efendant to honor the collective bargaining agreement by providing them, and not less senior employees, with overtime opportunities." [#22, ¶¶ 6, 19, 21] The Amended Complaint contains the following additional allegations to support Plaintiff's claim for breach of the CBA: (1) Plaintiffs did not threaten any violence against Kim or any other employee and did not have a history of violence or making threats [id. at ¶¶ 12, 17, 24]; (2) although Defendant contended that Ms. Perez had persisted in trying to talk to Kim after Kim made a complaint against Plaintiffs, Ms. Perez does not speak English and Kim does not speak Spanish [id. at ¶16]; (3) Defendant did a quick, one-day investigation into Kim's complaint against Plaintiffs, in which Defendant did not speak to any of Plaintiffs’ suggested witnesses and instead only spoke to employees related to each other who had criticized Plaintiffs [id. at ¶ 14]. The Court finds these allegations sufficient to plausibly allege that Defendant violated Article 6.01 of the CBA by terminating Plaintiffs without "proper cause." [#27-1 at 6]
The Amended Complaint also alleges that Defendant violated Article 31.05 of the CBA by offering overtime to employees with less seniority than Plaintiffs without first offering the overtime to Plaintiffs. [#22, ¶¶ 6, 18] As explained above, however, Plaintiffs appear to have abandoned any such claim in their response to the Motion. [See supra note 3] Moreover, Plaintiffs have not alleged either (1) that they exhausted the grievance procedure available under the CBA with regard to the overtime claim or (2) that the Union breached its DFR to Plaintiffs with regard to the overtime claim.
4. Conclusion
Accordingly, the Court finds that Plaintiffs have adequately alleged both a violation of the Union's DFR and Defendant's breach of the CBA with regard to their termination. Plaintiffs, however, appear to have abandoned any claim based upon a breach of the CBA's overtime provision and, even if not abandoned, Plaintiffs have not alleged either (1) that they exhausted the grievance procedure available under the CBA with regard to the overtime claim or (2) that the Union breached its DFR to Plaintiffs with regard to the overtime claim. The Court thus respectfully RECOMMENDS that the Motion be GRANTED with regard to Plaintiffs’ LMRA hybrid claim based upon a breach of the CBA's overtime provision but that the Motion be DENIED with regard to Plaintiffs’ LMRA hybrid claim based upon breach of the CBA's provision prohibiting termination without "proper cause."
B. TITLE VII CLAIM
Plaintiffs allege that Defendant discriminated against them on the basis of their race/national origin in violation of Title VII by terminating them in response to a complaint of harassment asserted by a Caucasian employee, whereas other Hispanic employees received no discipline at all in response to complaints of harassment made by other Hispanic employees. [#22, ¶¶ 31-37] Defendant argues such allegations do not plausibly allege either "an adverse employment action tied to [Plaintiffs’] race or national origin, or that [Plaintiffs] were treated less favorably than others not in the protected class ." [#27 at 14 (emphasis in original) ] More specifically, Defendant contends that Plaintiffs’ Title VII claim fails, because the allegation that they were treated differently than another Hispanic employee cannot give rise to an inference of discrimination on the basis of race/national origin, and Plaintiffs have not alleged that they have made complaints that were taken less seriously than those of the Caucasian employee. [Id. ] In response, Plaintiffs acknowledge that their discrimination claim is "unusual" but analogize it to the "classic discrimination" experienced when a criminal defendant is discriminated against based upon the race of the alleged victim of the crime. [#29 at 13]
Under Title VII, it is unlawful for an employer to "discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "[A]n unlawful employment practice is established," if the plaintiff can demonstrate that her race "was a motivating factor for any employment practice, even though other factors also motivated the practice." Id. § 2000e-2(m). A plaintiff can prove a Title VII claim "either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in [ McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ]." Young v. United Parcel Serv., Inc. , 575 U.S. 206, 213, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015).
"Direct evidence is evidence that—if believed—proves the existence of a fact in issue without inference or presumption." Eddy v. City and Cty. of Denver , No. 15-cv-02539-MSK-STV, 2018 WL 1470196, at *12 (D. Colo. Mar. 26, 2018) (citing Punt v. Kelly Servs. , 862 F.3d 1040, 1047-48 (10th Cir. 2017) ). Plaintiffs have failed to plead any such direct evidence of discrimination. As a result, Plaintiffs must rely upon the burden-shifting framework set forth in McDonnell Douglas . Under that framework, to make a prima facie case, a plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position at issue; and (4) she was treated less favorably than others not in the protected class. Piercy v. Maketa , 480 F.3d 1192, 1203 (10th Cir. 2007). If the plaintiff makes this showing, then the employer must have an opportunity to articulate some legitimate, non-discriminatory reason for its action. Young , 135 S. Ct. at 1345. If the employer articulates such a reason, then the burden shifts back to the plaintiff to prove the employer's proffered reason was pretextual. Id.
"The prima facie case under McDonnell Douglas , however, is an evidentiary standard, not a pleading requirement." Swierkiewicz v. Sorema N. A. , 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). As the Supreme Court explained, "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case"—e.g. , where a plaintiff is able to produce direct evidence of discrimination. Id. at 511, 122 S.Ct. 992. The Supreme Court further cautioned that "the precise requirements of a prima facie case can vary depending on the context" and thus "it may be difficult to define the precise formulation of the required prima facie case in a particular case" before "discovery has unearthed relevant facts and evidence." Id. at 512, 122 S.Ct. 992.
Although a plaintiff thus is not required to set forth a prima facie case of discrimination in the complaint, "she is required to set forth plausible claims." Khalik v. United Air Lines , 671 F.3d 1188, 1193 (10th Cir. 2012). The plaintiff may not merely rely upon "the type of conclusory and formulaic recitations disregarded by the Court in Iqbal ." Id. "While specific facts are not necessary, [ ] some facts are." Id. (internal quotation omitted). Moreover, although the plaintiff is not required to allege a prima facie case, "[t]he inferences offered by the McDonnell Douglas framework assist judges in resolving motions to dismiss by providing an analytical framework to sift through the facts alleged." Morman v. Campbell Cty. Mem'l Hosp. , 632 F. App'x 927, 933 (10th Cir. 2015) ; see also Khalik , 671 F.3d at 1192 (finding that "the elements of each alleged cause of action help to determine whether [the plaintiff] has set forth a plausible claim").
Here, Plaintiffs have plausibly pled that they were members of a protected class and that they suffered an adverse employment action. "Adverse employment action includes significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Piercy , 480 F.3d at 1203.
Plaintiffs assert that Defendant's decision to terminate them amounted to discrimination because the decision was made in response to a Caucasian employee's harassment complaint against them, whereas when an Hispanic employee made a complaint of harassment against another Hispanic employee, Defendant took no action against the accused employee. [See #22 at ¶¶ 31-34; see also #29 at 13] In essence, Plaintiffs argue that they were discriminated against based upon the race of the employee who made the accusation against them—e.g. , complaints made by Caucasian employees are taken seriously and, when made against Hispanic employees, result in significant discipline, whereas complaints made by Hispanic employees against other Hispanic employees are not taken seriously and do not result in any disciplinary measures. Neither party has identified any Title VII case addressing a similar claim, and the Court was unable to locate any.
In the context of a Due Process claim based upon an allegedly discriminatory prosecution, the Supreme Court has rejected the argument that a plaintiff "has no standing to contend that he was discriminated against on the basis of his victim's race." McCleskey v. Kemp , 481 U.S. 279, 291 n.8, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) ; see also United States v. Taylor , 583 F. Supp. 2d 923, 930 n.6 (E.D. Tenn. 2008) ("The Supreme Court has held that a defendant has standing to raise a claim of discrimination based on the race of the victim."), aff'd , 814 F.3d 340 (6th Cir. 2016). The Supreme Court explained that the habeas petitioner there did not "seek to assert some right of his victim, or the rights of black murder victims in general" but rather was arguing that the government impermissibly "base[d] enforcement of its criminal laws on an unjustifiable standard"—i.e. , race. Id. Similarly, here, the Court does not understand Plaintiffs to argue discrimination based upon the rights of the victims of the alleged harassment but rather to argue that Defendants took discriminatory action against Plaintiffs based upon their race and the race of the alleged victim of their harassment.
Given the apparently novel nature of this theory of liability and the absence of any contrary authority, the Court is not inclined to dismiss the claim at this stage of the proceedings. As numerous courts have recognized, "courts should generally be reluctant to grant a motion to dismiss when the claim in question asserts a novel theory of recovery," because "[n]ovel theories of recovery are best tested for legal sufficiency in light of actual, rather than alleged facts." Branch v. F.D.I.C. , 825 F. Supp. 384, 397 (D. Mass. 1993) ; see also Mansfield Heliflight, Inc. v. Freestream Aircraft USA, Ltd. , No. 2:16-CV-28, 2016 WL 7176586, at *14 (D. Vt. Dec. 7, 2016) ("At the pleading stage, dismissal of a novel claim without the benefit of discovery and a factual record is not warranted."); 5B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1357 (3d ed.) ("The district court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or even ‘extreme,’ since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions.")
Accordingly, the Court respectfully RECOMMENDS that the Motion be DENIED to the extent it seeks dismissal of Plaintiffs’ Title VII claim.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion to Dismiss [#27] be GRANTED IN PART and DENIED IN PART and that Plaintiffs’ LMRA hybrid claim based upon a breach of the CBA's overtime provision be DISMISSED WITHOUT PREJUDICE .
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b) ; Griego v. Padilla (In re Griego) , 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street , 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers , 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc. , 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States , 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS , 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).