Opinion
Civil Action 23-473
04-19-2024
WILLIAM WALKER, Plaintiff, v. USW 13, USW 13-1, THOMAS CONWAY, DAVID MCCALL, DAVID JURY, BRUCE FICKMAN, SHASHA SHAPIRO, RUBEN GARZA, LARRY BURCHFIELD, FRED REDMOND, and AMANDA GREEN HAWKINS, Defendants.
Nora Barry Fischer District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS, ECF NO. 25
Kezia O. L. Taylor United States Magistrate Judge
For the reasons set forth herein, it is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 25) be GRANTED.
I. PROCEDURAL AND FACTUAL HISTORY
Plaintiff William Walker (“Plaintiff”) is a resident of Texas, who initiated this pro se action - against Defendant Unions and the individual representatives/officers named - by filing a complaint in the United States District Court for the Eastern District of Texas. ECF No. 1. Plaintiff's Complaint was subsequently transferred to the Western District of Pennsylvania under 28 U.S.C. § 1391(b) because the Defendants reside herein. ECF No. 3. Plaintiff's Motion for Leave to Proceed IFP was granted on May 16, 2023. ECF No. 9. And his Amended Complaint - n response to this Court's sua sponte dismissal without prejudice, for failure to state a claim pursuant to the screening provisions of the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) - was filed July 19, 2023. ECF Nos. 13, 15 and 19. Said Amended Complaint included additional individual defendants, and all such Defendants are representatives or officers of United Steel Workers International Union Local 13-1 (the “Union”). ECF No. 19.
During portions of 2019 through 2023, pro se Plaintiff was an inmate of various Texas correctional facilities, from which he had been released at the time of his January 2024 filing. See ECF No. 33 at 15 (change of address provided).
As Defendants explicate, Plaintiff alleges no facts that would support a plausible individual liability claim against an individual Defendant. See generally ECF No. 26 at vi, 23-24 (citing and discussing cases).
The gravamen of Plaintiff's Amended Complaint is, in essence, as follows:
Plaintiff was discriminated against and ultimately wrongfully terminated by his employer, Marathon Petroleum Corporation (“Marathon”), in 2015-16. At that time, Plaintiff was working as an operator at a Marathon oil refinery in Texas and was represented by the Union. Plaintiff was charged with an alleged serious safety violation, which caused substantial loss; he was also relatedly charged with falsifying required procedural documentation. Plaintiff alleges that: He was falsely accused. A supervisor at Marathon made the error and, although other employees were also implicated in procedures and events surrounding the refinery incident, he was framed for responsibility and terminated because of his race. The Union wrongfully failed to properly prosecute his grievance through arbitration, inadequately represented him in that arbitration, and failed to appeal the arbitrator's April 2019 determination in Marathon's favor. The Union purposefully breached its fiduciary duties of fair representation because it had conspired with Marathon in the underlying discriminatory termination. And Plaintiff suffered - as consequences of his wrongful termination and the Union's said breaches - a succession of personal hardships, including unlawful arrests and related unlawful imprisonments in Texas, first in 2019 and 2020 (as to which he later “won the jury trial”) and again in 2022. In response to his discriminatory treatment, Plaintiff brought timely charges of both unfair labor representation before the National Labor Relations Board (the “NLRB”) and discrimination before the Equal Employment Opportunity Commission (the “EEOC”). See generally, ECF No. 19; see also ECF No. 33 (Plaintiff's Memorandum in Opposition to Motion to Dismiss).
Plaintiff's filings appear to reflect a misapprehension that the Union also owed him “assistance” from the hardships of the false criminal charges filed against him and home foreclosure that he and his family suffered. See e.g., ECF No. 33 at 12; ECF No. 19 at 23.
More particularly, Plaintiff attests that he filed both NLRB and EEOC charges in 2016 and obtained an EEOC Right to Sue letter for his Charge #460-2016-01481. He further attests that the “prerequisites for filing an employment discrimination action through the EEOC [have] been met” and “[t]hose documents are enclosed in this brief.” ECF No. 33 at 5-6, 8 and 13. The September 27, 2017 EEOC Right to Sue letter reflects, however, that Plaintiff's Charge - of discrimination and demotion because of race, age (49), histories of prior surgical disability and workplace grievances, and retaliation - was brought solely against “Respondent” Marathon. See ECF No. 33-1. In his Amended Complaint, Plaintiff also asserts that he “hired [an attorney] to make sure that [his] EEOC right to sue letter was filed in the courts requesting a jury trial” but despite cash payment to the attorney, that was never done. ECF No. 19 at 22-23. As it appears that no litigation against Marathon was filed within the 90-days prescribed by the (only) Right to Sue letter mentioned or attached, the Court concludes that this Amended Complaint assertion also refers to EEOC Charge #460-2016-01481. Compare ECF No. 26 at 26-27 (appearing to misunderstand Plaintiff's confusingly expressed factual assertions).
While no documents were provided with Plaintiff's Amended Complaint, other documents attached as Exhibits to Plaintiff's Brief in Opposition include:
(a) the Union's May 22, 2019 correspondence explaining the arbitrator's holding denying Plaintiff's termination grievance and its decision not to appeal (ECF No. 33-2);
(b) the NLRB's courtesy response to Plaintiff's untimely appeal, confirming its holding that Marathon did not base its decision on illegitimate factors and dismissing his charge against the Union (ECF No. 33-2);
(c) Arbitrator Lumbley's April 2019 provision of his Arbitration Award and Plaintiff's communications to the arbitrator, Union and NLRB thereafter (ECF No. 33-3);
(d) Plaintiff's April 15, 2019 NLRB charge #16-CB-239578, against the Union for its assertedly bad faith refusal to arbitrate three (3) grievances filed by Plaintiff and denied by Marathon (for failure to provide training, demotion/de-qualification from position, and incorrect wage rate) (ECF No. 33-4); and
(e) the Union's explanation of its reasons for declining to arbitrate those grievances and its agreement to arbitrate a fourth grievance (that regarding Plaintiff's termination) (ECF No. 33-4).
Defendants' Motion to Dismiss asserts that: Plaintiff's claim for breach of a duty of fair representation is time barred and fails to allege conduct or circumstances that would state a plausible cause of action; Plaintiff states no claim against an Individual Defendant; Plaintiff's claim for violation of Title VII is barred by his failure to exhaust administrative remedies as required; and Plaintiff fails to state a claim under § 1983 against Defendants as they are not state actors.
Responsive briefing has been completed and the issues raised in the pending motion are ripe for disposition. ECF Nos. 33 and 34.
II. STANDARD OF REVIEW
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As further explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013); Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). Additionally, a civil rights claim “must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
Finally, a court may consider additional materials - such as documents attached to or submitted with the complaint or indisputably authentic documents relied on or incorporated by reference by the plaintiff and attached, e.g., to a defendant's motion to dismiss - when adjudicating a motion to dismiss under Rule 12(b)(6). See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993); Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003).
In Spruill, the plaintiff made an affirmative representation in his complaint that he filed grievances with respect to the incidents alleged in the complaint, but did not provide them. The defendants identified the grievances and attached them as exhibits in support of their motion to dismiss. In stating that it was “proper . . . to consider the documents without the necessity to convert the motion” to one for summary judgment, the District Court relied on Pension Benefit, 998 F.2d at 1196 (3d Cir.1993) (holding “that a court may consider an indisputably authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims.
III. ANALYSIS
A. Plaintiff Fails to State a Claim for Breach of Duty of Fair Representation
As the Union notes, Plaintiff's allegations set forth a somewhat confusing catalogue of complaints against Marathon, the Union, the employment dispute arbitrator, and Texas law enforcement and prison officers or administrators. See generally, ECF Nos. 19 and 26. Under the leniency given to pro se litigants, the Amended Complaint may be liberally read to intend a claim of breach of duty of fair representation under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, against the Union. Both Defendants and Plaintiff frame their pleadings on the Motion to Dismiss in this context, and the Court concurs. ECF Nos. 26, 33 and 34. In addition, these allegations cannot be read to fairly infer any other plausibly timely and sustainable claim.
Cf. ECF No. 33 at 13 (concluding with blanket allegations that “Defendants and Marathon . . . conspired to defame, slander, demote, discriminate against and then wrongfully terminate” Plaintiff).
More specifically, Plaintiff's complaints and facts reiterated in support thereof are repeatedly directed to the Union's wrongfully causing his subsequent unlawful arrest and incarceration by breaching its duty of fair representation in Plaintiff's challenges to Marathon's alleged wrongful, race-based termination. See e.g., ECF No. 33 at 1. Such a claim is subject to the same six-month limitations period which applies to unfair labor practice charges. DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). based on the document”).
As a threshold matter, since Plaintiff brought this action in 2023, it is clearly time barred under the applicable six-month statute of limitations. None of the events alleged in the pleadings pertaining to the Union occurred within the six months preceding the date on which he filed his complaint. DelCostello, 462 U.S. at 169; see also DiGrazia v. Local 338, 189 F.3d 460 (2d Cir.1999) (Table, text in Westlaw at 1999 WL 642879) (dismissing § 301 LMRA claim as untimely); Schaefer v. Erie Cnty. Dep't of Soc. Servs., 82 F.Supp.2d 114, 117 (W.D.N.Y. 2000).
Were it not subject to dismissal as time barred, as the Court finds it is, the Court would nonetheless find the claim subject to dismissal on grounds that Plaintiff has failed to state a plausible claim that the Union's retention of legal counsel, advocacy on his behalf, arbitration representation, briefing or decision not to appeal the arbitrator's adverse decision constituted a breach of its fiduciary duty of representation.
A union's duty of fair representation arises from its statutory right to exclusive representation - as a corresponding legal 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). The standard for breach of the duty of fair representation is restrictive: To state a plausible claim, a plaintiff must plead facts from which the Court can infer that the union's “conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith.'” Vaca, 386 U.S. at 190; Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). It is not enough that the union's representation does not meet Plaintiff's expectations or that the arbitration results fall short of his hopes. Rather, the courts afford a wide berth to the exercise of a union's discretionary judgment, both in whether or not to pursue a grievance claim, and in how that claim is then pursued.
An arbitration decision “adverse to the employee does not establish” a breach of duty “even if a court would have come to a different conclusion in passing on the merits of the grievance.” Vaca, 386 U.S. at 190.
To the extent Plaintiff alleges that the Union breached its duty of fair representation by agreeing to extensions for the arbitration procedures which were heard in Fall 2018 and decided approximately five months thereafter, he is mistaken. In accordance with the fairly broad discretion accorded a union's judgment in matters of representation, the courts have found that a member has stated a claim in such highly distinguishable circumstances as where, e.g. the union inexcusably and/or inexplicably failed to process a grievance and thus allowed a deadline to pass which precluded consideration of said grievance on its merits. Here, no analogous conduct or harm is alleged and a resolution on the merits was obtained. See e.g., Greer v. Pac. Gas & Elec. Co., 265 F.Supp.3d 1053, 1073 (E.D. Cal. 2017) (failure to move more quickly through the steps of the grievance process, once filed, was not a breach of the Union's duty of fair representation); cf. ECF No. 33 at 6-9.
Arbitrator Lumbley, appointed in accordance with the terms of the applicable collective bargaining agreement (the “CBA”), held hearings on Plaintiff's termination grievance in October and November, 2018 and issued his 22-page Opinion the following April. The arbitrator, having considered the witnesses' and documentary evidence, concluded that the grievance had been timely filed and processed through to the employer's denial. He further concluded that Marathon did not abuse its discretion in terminating Plaintiff for (a) failing to close and lock the quench valve on a Coker Unit drum - a step essential to its cooling process, (b) causing the release of gas oil to a separator pond, which required cleaning processes over the next two shifts, and (c) falsifying a checklist by reporting he had properly closed the valve. ECF No. 26-1 at 5-7, 21. The Arbitrator's lengthy Opinion canvases the Union's representation at the hearing and the arguments in its post-hearing briefing, and he found that the termination was a penalty within Marathon's discretion given the infraction and potential for harm which it caused. Id. at 13-17 (citing relevant provisions of the CBA). In its correspondence the following month, the Union advised Plaintiff of its decision not to appeal the arbitrator's decision, despite disagreement, and properly explained the highly deferential standard applicable to such decisions. ECF No. 26-3 at 3-4; ECF No. 33-2 (same). His blanket allegations of conspiracy and bad faith notwithstanding, nothing in Plaintiff's Amended Complaint or other pleadings, or in the documents attached or relied upon, provides support sufficient to state a plausible claim that the Union breached its duty of fair representation.
See also id at 11-12 (noting that Plaintiff conceded he did not lock the valve because no lock was present, and thus failed to follow the company protocols and falsified the checklist).
In so holding, the arbitrator also rejected the Union's assertion that Marathon violated the NLRA because its investigation and termination of Plaintiff were improperly influenced by his prior history of filing grievances and unfair labor practice charges. Id. at 19.
B. Plaintiff Fails to State a Claim of Discrimination Under Title VII
Plaintiff brings a claim of racial discrimination in violation of Title VII and in support thereof alleges that of the three (3) Union members initially disciplined for incidents surrounding the “crash” of a Coker at the facility, the discipline was subsequently removed only from the record of the sole white employee, who was then promoted. And only Plaintiff, one of the two African American employees initially disciplined, was ultimately terminated. ECF No. 33 at 2-3.
Plaintiff includes a blanket allegation (i.e., one without any specific factual support) that the Union “conspired to remove the discipline” from the white employee's record. Id. at 2.
Title VII of the Civil Rights Act of 1964 protects employees from discrimination in employment on the basis of their race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2000e-17. A Title VII complainant must first file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court. 42 U.S.C. § 2000e-5(f)(1). The purpose of this requirement is “to notify the charged party of the alleged violation and also [to] bring[ ] the party before the EEOC, making possible effectuation of [Title VII]'s primary goal of securing voluntary compliance with its mandates.” Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir.1981), cert. Denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982).
A plaintiff fails to state a claim under Title VII where he fails to show that he exhausted his administrative remedies prior to filing in federal court. And this exhaustion requirement entails that he both (a) file a timely charge of discrimination with the EEOC and (b) receive and act upon the EEOC's notice of right to sue (the “Right to Sue letter”). See e.g., Walker v. Hennigan, No. 3:23-CV-559, 2023 WL 4405288 at *1 (N.D. Ohio, Jul. 7, 2023). As a threshold matter, this claim is therefore subject to dismissal for failure to exhaust administrative remedies.
As discussed in Section II above, Plaintiff filed an EEOC Charge naming only his employer, Marathon, as the Respondent. Because these administrative charges are often filed by the claimants themselves, the courts recognize an exception to the exhaustion rule which permits a Title VII action to proceed against an unnamed party where there is “a clear identity of interest” between the unnamed defendant and the party named in the administrative charge. Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977) (identifying four factors to be considered); Vital v. Interfaith Medical Center, 168 F.3d 615 (2d Cir. 1999). The exception is simply inapplicable where, as here, the Union could readily have been named in the EEOC Charge against the employer, Plaintiff has not alleged any subsequently discovered material facts, the interests of the Union and Marathon were sufficiently dissimilar that the Union's participation would have been necessary, and Plaintiff has not alleged that the Union otherwise had notice of its alleged violation and Plaintiff's claim of liability. See e.g., Schaefer v. Erie Cnty. Dep't of Soc. Servs., 82 F.Supp.2d 114 (W.D.N.Y. 2000) (holding that “identity of interest” exception to exhaustion requirement was not applicable to permit Title VII and ADA action to proceed against union which was not named in EEOC charge against employer); DiGrazia v. Local 338, 189 F.3d 460 (2d Cir. 1999) (dismissing Title VII claim for failure to name union in EEOC charge).
As also noted in Section II, Plaintiff apparently failed to file a State or Federal Court action against Marathon within the prescribed 90-days of the Right to Sue letter. See supra at 3, n. 4.
Factors to be considered in determining whether the “identity of interest” exception to Title VII exhaustion applies are: 1) whether the role of an unnamed party could through reasonable effort by the complainant be ascertained at the time of filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar to those of the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of an unnamed party; and 4) whether the unnamed party has in some way represented to complainant that its relationship with complainant is to be through the named party. Id.
A fair reading of the assertions made in Plaintiff's Memorandum in Opposition to the pending motion is that Plaintiff unfortunately conflates filing an EEOC Charge asserting that Marathon discriminated or retaliated against him in violation of Title VII with filing an EEOC Charge against the Union as well. The assertions may also reflect his further confusion of (a) identifying in correspondence employment disputes which would be reviewable or actionable under the regulatory authority of the EEOC with (b) compliance with the statutory requirement that he file a formal charge with that agency. See generally ECF No. 33. But regardless of his misunderstandings of statutory requirements or his difficulties regarding legal counsel, the salient fact is that neither Plaintiff's pleadings nor the documents provided or relied on in his Amended Complaint plausibly suggest that he filed an EEOC Charge of discrimination against the Union or obtained a Right to Sue letter as to any such claim. His Title VII claim is therefore barred.
The Court notes that Plaintiff's claims against Marathon for discriminatory termination in violation of Title VII were dismissed by our sister Court for the Northern District Ohio in July of last year. Walker v. Hennigan, No. 3:23-CV-559, 2023 WL 4405288 at *1 (N.D. Ohio, Jul. 7, 2023).
C. Plaintiff Fails to State a Claim under Section 1983
Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. In pertinent part, § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must show a deprivation of a “right secured by the Constitution and the laws of the United States ... by a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). In response to Defendants' briefing on its Motion to Dismiss, ECF No 26, Plaintiff correctly does not dispute that no Defendant was acting under color of state law at any time relevant to this litigation. ECF No. 33 (Brief in Opposition asserting only maintainability of breach of fiduciary duty and Title VII claims). As Defendants are not state actors, the claim should be dismissed.
IV. CONCLUSION
The Court notes, in concluding its analysis, that despite his attribution of subsequent personal hardships - including arrest, confinement and related loss of his home to foreclosure -the Amended Complaint both (a) fails to state a claim as to any cause of action identified or suggested therein and (b) is devoid of any factual suggestion of a plausible claim of liability on the part of the Defendants for those or any other events. The Court is not unsympathetic to the apparent difficulties which Plaintiff has faced in his life, including the possibility - argued by the Union on Plaintiff's behalf in arbitration - that his termination by Marathon, after 18 years of employment at the refinery, was unwarranted. But having carefully considered the law applicable to his claims, the Court finds no basis sufficient to continue this action against the Defendants.
For the reasons specifically set forth above, it is thus respectfully recommended that Defendants' pending motion, ECF No. 25, be GRANTED.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.