Dillard v. International Brotherhood of Electrial Workers (MAG+)

Filing 6

RECOMMENDATION of the Magistrate Judge that plaintiff's complaint be dismissed and judgment entered in favor of defendant. Ordered that plaintiff is directed to file any objections to the Recommendation on or before 4/15/09. Objections to R&R due by 4/15/2009. Signed by Honorable Wallace Capel, Jr on 4/2/09. (sl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION N U T IN A PEOPLES DILLARD, ) ) P l a in tif f , ) ) v. ) ) IN T E R N A T IO N A L BROTHERHOOD ) O F ELECTRICAL WORKERS, ) ) D e f e n d a n t. ) C I V I L ACTION NO: 2:08cv1006-MEF RECOMMENDATION OF THE MAGISTRATE JUDGE B e f o re the Court is Plaintiff's complaint, as amended pursuant to the Court's Order o f January 7, 2009. (Docs. #1, 5). Plaintiff's original complaint is a form complaint for e m p lo ym e n t discrimination claims premised on Title VII of the Civil Rights Act of 1964. In it, Plaintiff alleged that her former labor union "fail[ed] to represent me for years of m e m b e r s h ip ." Plaintiff set forth the nature of her complaint as follows: R e f u s e to fight form me. Even when I was discharge [sic] for no reason. I c a m e to work as I was told. And the doctor corrected the misstake [sic] his s ta f f made and also put in the correction. If you need or have any question c o n ta c t him. Before I was terminated. C o m p lain t (Doc. #1) at 2. Plaintiff alleged no particular form of discrimination against her, o th e r than to remark "[j]ust wouldn't be me." Given the paucity of factual allegations and s u b s ta n tiv e law in the complaint, as well as the apparent misuse of a Title VII form complaint to allege claims unrelated to employment discrimination, the Court ordered Plaintiff to 1 am en d her complaint to more fully and clearly set forth her claims for relief. (Doc. #4). P la in tif f 's amended complaint does little to alleviate the Court's concerns with her o rig in a l complaint. With the amended complaint, Plaintiff filed a lengthy and rambling n a rra tiv e of events during her employment with her former employer which, presumably, she f e els should have caused her former union to more vigorously represent her interests. As for a lle g a tio n s against the union itself, Plaintiff only adds "for years of [illegible] the company m is t re a t me and I'll paying my due for you'll to protect me. I ask the court for $ 6 ,0 0 0 ,0 0 0 .0 0 ." Amended Complaint (Doc. #5) at 2. Along with the narrative statement, P la in tif f also included with her amended complaint a letter, dated August 8, 2007, in which h e r former union explains to her that, "[a]fter careful consideration by the System Committee o f the facts and circumstances in this grievance, it is the decision of the System Committee n o t to arbitrate your case." T o the extent Plaintiff intended to file an employment discrimination claim premised o n Title VII of the Civil Rights Act of 1964, her complaint is due to be dismissed because s h e has failed to state a claim. Plaintiff was not employed by Defendant and she has not a ll e g e d that she was a victim of unlawful discrimination due to her membership in a p r o te c te d class of citizens. H o w e v e r, the undersigned does not recommend dismissal on that basis because, a f f o r d i n g Plaintiff's pro se pleadings appropriate lenience and "liberal construction," see B o x e r X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), the complaint should not be 2 c o n stru e d as alleging unlawful employment discrimination. Rather, Plaintiff's complaint a p p e a r s to allege that the union breached its duty of fair representation under the National L a b o r Relations Act, 29 U.S.C. 151 et seq. Even construing Plaintiff's complaint as such, f o r the reasons given below, it is still due to be dismissed. P lain tiff has failed to state a claim that her union breached its duty of fair re p re se n ta tio n . "In evaluating whether a complaint states a claim upon which relief can be g ra n te d , [the Court] must accept the well-pleaded allegations of the complaint as true and d ra w all reasonable inferences therefrom in favor of the complaining party." Ambrosia Coal & Const. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007). Plaintiff must allege " e n o u g h facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, , 127 S.Ct. 1955, 1974 (2007). In other words, "[f]actual a lle g a tio n s must be enough to raise a right to relief above the speculative level . . . ." Id. at 1965. "A breach of the statutory duty of fair representation occurs only when a union's c o n d u c t toward a member of the collective bargaining unit is arbitrary, discriminatory, or in b a d faith." Vaca v. Sipes, 386 U.S. 171, 190 (1967). Plaintiff's complaint is devoid of any f a ctu a l allegations suggesting that the union's conduct in this matter - presumably its decision n o t to arbitrate on her behalf - was "arbitrary, discriminatory, or in bad faith." A labor union is "not under an absolute duty to pursue a grievance through arbitration," even if the g rie v a n c e is itself meritorious. Stanley v. General Foods Corp., 508 F.2d 274, 275 (5th Cir. 3 1 9 7 5 ). Rather, the union is only required to act in a manner that is not "arbitrary, d is c rim in a to ry, or in bad faith." The only factual allegation lodged against the union, simply th a t it "refused to fight for" and "failed to represent" Plaintiff, is conclusory and amounts to n o th in g more than bare speculation. Plaintiff has alleged no facts supporting a conclusion th a t the union acted arbitrarily, discriminatory, or in bad faith. Accordingly, Plaintiff has f a ile d to state a claim that the union breached its duty of fair representation and her complaint is due to be dismissed.1 B e c a u se Plaintiff's complaint fails to state a claim that Defendant breached its duty o f fair representation, it is the RECOMMENDATION of the undersigned Magistrate Judge th a t her complaint be dismissed and judgment entered in favor of Defendant. It is further O R D E R E D that Plaintiff is DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before April 15, 2009. Any objections filed must specifically Plaintiff's complaint may also be dismissed on the grounds that it appears time-barred. "When a union member sues a union for breaching its duty of fair representation, the six-month statute of limitations established in 10(b) of the National Labor Relations Act ("NLRA") applies." Steward v. International Longshoreman's Association, Local No. 1408, 2009 WL 36831 at *2 (11th Cir. Jan. 8, 2009). Section ten states "that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge . . . ." 29 U.S.C. 160(b). The sixmonth limitations period begins to run "`when plaintiffs either were or should have been aware of the injury itself.'" Steward, 2009 WL 36831 at *2 (quoting Benson v. Gen. Motors Corp., 716 F.2d 862, 864 (11th Cir. 1983)). As reflected on the letter Plaintiff provided with her Amended Complaint, Plaintiff was made aware of the union's decision not to pursue arbitration on her behalf in August of 2007. Thus, her Complaint, filed in December of 2008, appears untimely pursuant to the six-month limitations period set forth in 29 U.S.C. 160(b). 4 1 id e n tif y the findings in the Magistrate Judge's Recommendation to which Plaintiff objects. F riv o lo u s, conclusive or general objections will not be considered by the District Court. P la in tif f is advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1981. DONE this 2nd day of April, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 5

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