Opinion
Civil No. CCB-03-2647
May 14, 2004
MEMORANDUM
Now pending before the court are (1) a motion by the defendant, Teamsters Local Union No. 570, to dismiss, or in the alternative, for summary judgment, (2) a motion by the plaintiff, Melvin Abdullah El-Amin, to amend his complaint, (3) a motion by the plaintiff for summary judgment against the defendant, Bakery Express-Ms. Desserts, and (4) a motion by Bakery Express-Ms. Desserts for a delay in ruling on the plaintiff's motion for summary judgment to permit discovery. For the reasons stated below, the Teamsters Local Union No. 570's motion for summary judgment will be granted, the plaintiff's motion to amend will be denied, and Bakery Express-Ms. Desserts's motion for a delay in ruling on the plaintiff's summary judgment motion will be granted.
BACKGROUND
The plaintiff, Melvin Abdullah El-Amin ("El-Amin") was employed by the defendant, Bakery Express-Ms. Desserts ("Bakery Express"), for two periods between October 2002 and May 2003. Defendant Teamsters Local Union No. 570 ("the Union") is the exclusive bargaining agent under the National Labor Relations Act ("NLRA"), 29 U.S.C. § 159(a), for regular full-time employees of Bakery Express.
El-Amin was hired by Bakery Express as a Freezer Warehouseman on October 30 or 31, 2002. El-Amin subsequently contracted pneumonia and took leave for several weeks, starting around mid-December 2002. When he returned to work, in December 2002 or January 2003, El-Amin was switched to a new position as a Maintenance Mechanic, which he alleges resulted in an involuntary pay-cut. (Am. Compl. at ¶ 11-12.)
On April 17, 2003, El-Amin left work sick. El-Amin called in sick for the next several days, but he never returned to work. Bakery Express claims that El-Amin voluntarily quit, but El-Amin disputes this. (Id. at ¶ 5-6.) El-Amin states that his application for unemployment benefits was denied because Bakery Express incorrectly reported that he had voluntarily quit. (Id. at ¶ 6.) El-Amin also alleges that he was wrongfully denied benefits from Bakery Express's health insurance provider. (Id. at ¶ 4.) Finally, El-Amin states that he is entitled to benefits under an independent disability insurance policy, which he purchased shortly before he left Bakery Express and paid for with $30.00 weekly deductions from his paychecks. (Id. at ¶ 10.) On September 13, 2003, El-Amin sent a letter to Sean Cedenio, a business agent for the Union who is responsible for administering the collective bargaining agreement ("CBA") between the Union and Bakery Express. (Def.'s Mem. at Ex. A, Cedenio Aff., at Ex. 3.) In this letter, El-Amin requested that the Union file a grievance on his behalf seeking back-pay for wrongful discharge, stating that the company had misconstrued his absence for medical reasons as El-Amin voluntarily quitting. El-Amin also requested that the Union contact the insurance carrier through which he had purchased independent disability insurance, and let them know that he wished to file a claim for benefits.
El-Amin's grievance for wrongful discharge was untimely under the CBA, which requires an employee to present a grievance to his immediate supervisor within five working days after the reason for the grievance occurred, and then to present a written grievance to the human resources manager within five working days. (Id. at Ex. 1, CBA, at § 7.1(a).) Cedenio nonetheless filed a grievance on El-Amin's behalf on September 16, 2003, alleging unjust termination. (Id. at Ex. 4.) Cedenio listed "ongoing" as the date on which the reason for the grievance occurred, attempting to suggest that any violation of the CBA was continuing and the grievance was therefore timely. On September 18, 2003, Bakery Express denied El-Amin's grievance, stating that it was untimely and any alleged violation was not ongoing. (Id. at Ex. 5.) The Union did not pursue El-Amin's grievance further, because the Union agreed that it was untimely. (Id. at Ex. A., Cedenio Aff., at ¶ 13-14.)
El-Amin never applied to join the Union during his employment with Bakery Express. El-Amin states that each time he inquired about joining the Union he was referred to the human resources manager. (Pl.'s Opp. Mem. at Ex. 1, El-Amin Aff., at ¶ 3.) Cedenio states that he was not aware that El-Amin was not a Union member, and notes that under the CBA El-Amin was entitled to all of the same rights as Union members by virtue of his membership in the bargaining unit. (Def.'s Mem. at Ex. A, Cedenio Aff., at ¶ 15.)
ANALYSIS
The Union has moved to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where the parties present matters outside of the pleadings and the court considers those matters, as here, the motion is treated as one for summary judgment. See Fed.R.Civ.P. 12(b);Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997); Paukstis v. Kenwood Golf Country Club, Inc., 241 F. Supp.2d 551, 556 (D. Md. 2003). The parties, however, "shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). The requirement of "reasonable opportunity" means that all parties must be provided with notice that a Rule 12(b)(6) motion may be treated as a motion for summary judgment, which is satisfied when a party is "aware that material outside the pleadings is before the court." Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985); see also Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998) (commenting that a court has no obligation "to notify parties of the obvious").
El-Amin has had more than adequate notice that the motion of the Union might be treated as one for summary judgment. The motion's alternative caption and attached materials are in themselves sufficient indicia.See Laughlin, 149 F.3d at 260-61. Moreover, El-Amin responded to the motion by including his own affidavit and arguing that a genuine dispute exists as to material facts. If El-Amin had thought that further discovery was necessary to adequately oppose summary judgment, Rule 56(f) obligated him to indicate his need for discovery and set out reasons for his need in an affidavit, which he has not attempted to do.See Fed.R.Civ.P. 56(f); see also Laughlin, 149 F.3d at 261 (refusing to overturn district court's grant of summary judgment on assertions of inadequate discovery when the nonmoving party failed to make an appropriate motion under Rule 56(f)). Therefore, the court will consider the affidavits and additional materials submitted by the parties and will treat the motion of the Union as a motion for summary judgment.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club. Inc. 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial."Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24(1986)).
I.
In response to the Union's reply to El-Amin's opposition to the Union's motion to dismiss, El-Amin has filed a second reply and an affidavit which raise new arguments and allegations. These filings must be considered as a surreply to the motion to dismiss. Local Rule 105.2.a prohibits the filing of surreply memoranda unless otherwise ordered, and this court did not order El-Amin to file a surreply. The filing of the second reply and affidavit is improper, and they will not be considered by the court.
El-Amin also has filed a motion to amend his complaint. Federal Rule of Civil Procedure 15(a) directs that "leave [to amend] shall be freely given when justice so requires." "Although the decision whether to grant leave rests within the sound discretion of the district court, the federal rules strongly favor granting leave to amend." Medigen of Ky., Inc. v. Pub. Serv. Comm'n, 985 F.2d 164, 167-68 (4th Cir. 1993) (internal citation omitted). Leave to amend may be denied, however, when the amendment would be futile. See Franks v. Ross, 313 F.3d 184, 193 (4th Cir. 2002). A proposed amendment would be futile if the facts alleged fail to state a claim upon which relief could be granted.See GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 551 (4th Cir. 2001); Curtis v. Pracht, 202 F. Supp.2d 406, 420 (D. Md. 2002).
El-Amin seeks to add allegations that Bakery Express withheld premiums for a disability insurance policy from his paychecks and then wrongfully failed to turn these payments over to the insurance provider, Colonial Supplemental Insurance. El-Amin was issued the policy in question with an April 7, 2003 effective date, just ten days before his last day of work. The first premiums were due on May 5, 2003. El-Amin's coverage never became effective because Bakery Express did not submit his premiums with its May 5, 2003 bill, but instead canceled his coverage. (Pl.'s Mot. to Amend at Ex. 1.) By this time it appears that El-Amin had voluntarily quit or been terminated. Bakery Express subsequently sent El-Amin a check for $163.20 to reimburse him for all premiums that had been deducted from his paychecks. These facts fail to state a claim against Bakery Express upon which relief could be granted, and the amendment therefore must be denied as futile.
Colonial apparently gave El-Amin the option to reinstate his coverage by paying the premiums directly, but he never responded. (PL's Mot. to Amend at Ex. 1.)
El-Amin's amendment also seeks to supplement his allegations regarding the Union's refusal to represent him on his disability insurance claim. For the reasons stated below, El-Amin cannot state a claim for breach of the Union's duty of fair representation on this matter, and this amendment also must be denied as futile.
II.
Construing El-Amin's pro se complaint liberally, see De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003), he alleges that the Union: (1) improperly failed to initiate him or denied him membership; (2) discriminated against him based on his disability; and (3) did not fairly represent his interests against Bakery Express.
El-Amin has failed to raise a genuine dispute of material fact as to any claim related to the Union not granting him membership. Under the NLRA, a union may not restrain or coerce employees in the exercise of their right to organize and join a labor union. See 29 U.S.C. § 157, 158(b)(1). A union nonetheless may "prescribe its own rules with respect to the acquisition or retention of membership."See id. § 158(b)(1). El-Amin alleges that he was "denied Union membership and full rights and benefits other Union members received." (Am. Compl. at ¶ 2.) He states that he repeatedly requested to be initiated into the Union, and each time he was told to see the company's human resources manager. (Pl.'s Opp. Mem. at Ex. 1, El-Amin Aff., at ¶ 3.) El-Amin does not state whether he ever spoke to the human resources manager or applied for membership. Moreover, El-Amin does not dispute that Cedenio did not realize that El-Amin was not a Union member, and that El-Amin was entitled to the same rights as Union members under the CBA, by virtue of his membership in the bargaining unit. El-Amin's allegations are insufficient to raise a genuine dispute as to any material fact on this claim.
The NLRA also prohibits a union from causing or attempting to cause an employer to discriminate against an employee to discourage or encourage union membership, or discriminating against an employee whose membership in the union has been denied or terminated. See 29 U.S.C. § 158(b)(2). Although El-Amin states generally that the Union discriminated against him, he does not allege any discrimination based on his union membership status. (Am. Compl. at ¶ 2; Pl.'s Opp. Mem.;id. at Ex. 1, El-Amin Aff., at ¶ 4-5.)
The Union's files indicate that El-Amin never applied for membership. (Def.'s Opp. Mem. at Ex. A, Cedenio Aff., at ¶ 15.)
It appears that El-Amin did not qualify for fringe benefits under the CBA, but this was due to his length of service rather than his union membership status. (Def.'s Mem. at Ex. A, Cedenio Aff., at Ex. 1, CBA, at ¶ 15.)
El-Amin also alleges that the Union discriminated against him in violation of the Americans with Disabilities Act ("ADA") by denying him union membership, after being informed of his alcoholism and drug addiction. The claim must be dismissed because El-Amin has failed to exhaust his administrative remedies by filing a charge with the Equal Employment Opportunity Commission ("EEOC"). See 42 U.S.C. § 12117(a); id. § 2000e-5(e)(1). Even if El-Amin had filed a timely charge with the EEOC, he has failed to state a prima facie claim for disability discrimination under the ADA. El-Amin contacted the Union's business agent, Sean Cedenio, to inquire about treatment for a substance abuse problem in April 2003, shortly before he stopped working at Bakery Express on April 17. (Def.'s Mem. at Ex. A, Cedenio Aff., at Ex. 3.) The only allegations related to El-Amin joining the Union involve interactions with his shop steward and there is no indication that the shop steward was aware of El-Amin's substance abuse problem or even that any of these interactions occurred after El-Amin had spoken with Cedenio. The plaintiff's allegations are insufficient to raise a genuine dispute that he was denied or not offered union membership "because of" his disability. 42 U.S.C. § 12112(a).
Finally, El-Amin alleges that the Union failed to fairly represent his interests. A union that has been recognized as an exclusive bargaining agent under the NLRA has "a duty to represent the interests of all of its employees `fairly, impartially, and in good faith.'" Jeffreys v. Communications Workers of Am., AFL-CIO, 354 F.3d 270, 274 (4th Cir. 2003) (quoting Steele v. Louisville Nashville R.R. Co. 323 U.S. 192, 204 (1944)). This duty of fair representation is breached if the union's conduct toward any of the employees that it represents is "arbitrary, discriminatory, or in bad faith." Id. (quotingVaca v. Sipes, 386 U.S. 171, 190 (1967)). El-Amin does not allege that Union officials were motivated by bad faith, and the court need not accept his "conclusory factual allegations devoid of any reference to actual events" that Union officials discriminated against him. Baltimore-Clark v. Kinko's, Inc. 270 F. Supp.2d 695, 698 (D. Md. 2003) (internal citation omitted). To establish a breach based on arbitrariness, a plaintiff must show that the union's conduct is "so far outside a wide range of reasonableness that it is wholly irrational or arbitrary." Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 78 (1991) (internal quotations and citation omitted); see also Jeffreys, 354 F.3d at 274. The court should intervene only if the union "is grossly deficient in its representation or recklessly disregards the employee's rights." Amburgey v. Consolidation Coal Co. 923 F.2d 27, 29 (4th Cir. 1991) (internal quotations omitted).
Even if the court were to accept this conclusory allegation, El-Amin has failed to proffer a factual basis for any claim that Union officials were subjectively motivated by discriminatory animus or prejudice in their treatment of him, which would be necessary to establish a breach of the duty of fair representation. See Jeffreys, 354 F.3d at 275-76.
The scope of the duty of fair representation is co-extensive with the scope of the CBA between the employer and the union. See McNamara-Blad v. Ass'n of Prof 1 Flight Attendants, 275 F.3d 1165, 1169-70 (9th Cir. 2002); Barrett v. Ebasco Constructors, Inc. 868 F.2d 170, 171 (5th Cir. 1989); Freeman v. Local Union No. 135. Chauffeurs. Teamsters. Warehousemen and Helpers, 746 F.2d 1316, 1320-21 (6th Cir. 1984). The union's duty does not extend to employees who are not members of the bargaining unit, or to issues that are outside of the applicable CBA. See McNamara-Blad, 275 F.3d at 1169-70; Barrett, 868 F.2d at 171;Freeman, 746 F.2d at 1320-21. El-Amin alleges that the Union refused to represent him in a dispute over the independent disability insurance policy that he attempted to purchase. This allegation cannot state a claim for breach of the duty of fair representation, because it involves issues outside of the scope of the CBA. El-Amin was not entitled to any of the insurance benefits outlined in the CBA, because he had not completed six months of continuous service with Bakery Express. (Def.'s Mem. at Ex. A, Cedenio Aff., at Ex. 1, CBA, at ¶ 15.) The insurance that El-Amin attempted to obtain was independent of the CBA, and the Union thus had no duty to represent him on this issue.
El-Amin faults the Union for refusing to contact the insurance company. (Am. Compl. at ¶ 9.) Cedenio states that he contacted Bakery Express's Human Resources Manager, Mary Divver, about this issue, and she told Cedenio she would provide El-Amin with the contact information for the insurance company. (Def.'s Mem. at Ex. A, Cedenio Aff., at ¶ 11.)
Although El-Amin does not clearly make this allegation, the Union also argues that it did not breach its duty of fair representation in its handling of El-Amin's grievance for wrongful discharge. Cedenio filed a written grievance with Bakery Express alleging wrongful discharge, but then declined to pursue arbitration, based on the Union's assessment that the grievance did not comply with the time limits under the CBA. A union does not breach its duty of fair representation by declining to pursue a grievance where that decision is an informed judgment based on a review of the CBA and the evidence.See Jeffreys, 354 F.3d at 275; Thompson v. Aluminum Co. of Am., 276 F.3d 651, 657-58 (4th Cir. 2002). "The Union officials here did not ignore a meritorious grievance, they made a decision not to press a grievance they believed had no chance of success." Thompson 276 F.3d at 658. Moreover, if an employee does not make a timely request for a union to file a grievance, then there can be no breach of the duty of fair representation. See Mullins v. Int'l Union of Operating Eng'rs Local No. 77, 214 F. Supp.2d 655, 664-65 (E.D. Va. 2002); Wright v. Safeway, Inc., 804 F. Supp. 752, 755 (D. Md. 1992). The facts alleged by El-Amin are not sufficient to establish a breach of the duty of fair representation.
Because El-Amin has failed to establish any genuine issues of material fact on his claims against the Union, the Union's motion for summary judgment will be granted.
III.
Construing El-Amin's pro se filings liberally, see De'Lonta, 330 F.3d at 633, he alleges that Bakery Express (1) improperly denied him fringe benefits; (2) interfered with his receipt of unemployment benefits by incorrectly reporting that El-Amin had voluntarily quit; and (3) breached the CBA by transferring him to a lower-paying position and incorrectly calculating his probationary period. El-Amin has filed a motion for summary judgment against Bakery Express.
Under Fed.R.Civ.P. 56(f), a party may oppose a motion for summary judgment by filing an affidavit setting forth reasons that it cannot respond to the motion "by affidavit facts essential to justify the party's opposition." The court then "may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had."Id. Bakery Express has filed a motion under Rule 56(f) requesting a delay in ruling on El-Amin's motion, so that Bakery Express can obtain discovery. In support of this request, Bakery Express submits an affidavit setting forth in detail the additional information it needs to oppose the plaintiff's motion on the merits. This affidavit fully satisfies Rule 56(f), by establishing that Bakery Express is opposing the plaintiff's motion in good faith, and that discovery is necessary to allow the court to assess Bakery Express's opposition to the motion on the merits. See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002). The court will grant Bakery Express's motion under Rule 56(f), in order to allow Bakery Express to proceed with discovery.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. plaintiff's motion to amend and to invoke pendent jurisdiction (docket no. 20) is DENIED;
2. defendant Teamsters Local Union No. 570's motion for summary judgment (docket no. 14) is GRANTED;
3. defendant Bakery Express-Ms. Desserts's motion to delay ruling on the plaintiff's motion for summary judgment to permit discovery (docket no. 26) is GRANTED;
4. plaintiff's motion for appointment of counsel (docket nos. 17 and 19) is DENIED; and
5. copies of this Order and the accompanying Memorandum shall be sent to counsel of record and to the plaintiff.