Mohr v. Association of Flight Attendants

Filing 15

ORDER The motion to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted (Doc. 10 ) is granted. The Clerk shall terminate this action. Signed by Judge David G Campbell on 6/20/2012.(KMG)

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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tracy Rose Mohr, No. CV12-0392 PHX DGC Plaintiff, 10 ORDER 11 v. 12 Association of Flight Attendants, Local Council 66, 13 Defendant. 14 15 I. Summary. 16 Pro se Plaintiff Tracy Rose Mohr, a flight attendant employed by US Airways and 17 represented by the Association of Flight Attendants (“AFA”), filed a complaint against 18 AFA seeking damages for malpractice, breach of a duty of fair representation, 19 unemployment, underemployment, and extreme emotional distress. Doc. 1. Although 20 filed as separate claims, Plaintiff’s claims are all subsumed in the federal statutory duty 21 of fair representation. Plaintiff contends that Defendant failed to follow normal and 22 customary practices in handling discharge grievances, and, without reason, agreed with a 23 representative of US Airways not to pursue her grievance through arbitration, thus 24 depriving plaintiff of her only opportunity to obtain a third-party hearing and a timely 25 reinstatement to her job with full back pay. Id. Because actions claiming breach of the 26 duty of fair representation are subject to a six-month statute of limitations, Plaintiff’s suit 27 is time-barred. 28     1 II. Legal Standard. 2 Defendant argues that Plaintiff’s complaint contains a claim not recognized under 3 Arizona law for professional malpractice and that her only recognized legal claim is 4 barred by the six-month statute of limitations found in 29 U.S.C. § 160(b). Defendant 5 moves to dismiss the case because Plaintiff’s only recognized legal claim is time-barred 6 and thus fails to state a claim upon which relief can be granted. Doc. 11. 7 When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll 8 allegations of material fact are taken as true and construed in the light most favorable to 9 the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). A statute 10 of limitations defense “may be raised by a motion to dismiss…[i]f the running of the 11 statute is apparent on the face of the complaint.” Jablon v. Dean Witter & Co., 614 F.2d 12 677, 682 (9th Cir. 1980) (citing Graham v. Taubman, 610 F.2d 821 (9th Cir. 1979)). But 13 the “complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can 14 prove no set of facts that would establish the timeliness of the claim.” Hernandez v. City 15 of El Monte, 138 F.3d 393, 402 (9th Cir. 1998) (quoting Supermail Cargo, Inc. V. United 16 States, 68 F.3d 1204, 1206 (9th Cir. 1995)); see Cervantes v. City of San Diego, 5 F.3d 17 1273, 1275 (9th Cir. 1993). 18 III. Discussion. 19 A. Plaintiff’s Claims Are Subsumed by the Duty of Fair Representation. 20 The Supreme Court has described the duty of a union acting as the exclusive 21 bargaining agent of all employees as the “duty of fair representation.” Vaca v. Sipes, 386 22 U.S. 171, 177 (1967) (duty of fair representation was developed in a series of cases 23 interpreting 29 U.S.C. § 185). “Under this doctrine, the exclusive agent’s statutory 24 authority to represent all members of a designated unit includes a statutory obligation to 25 serve the interests of all members without hostility or discrimination toward any, to 26 exercise its discretion with complete good faith and honesty, and to avoid arbitrary 27 conduct.” Id. at 177. As the exclusive bargaining agent of Plaintiff, Defendant was 28 subject to the duty of fair representation in handling her discharge grievance. ‐ 2 ‐      1 The Ninth Circuit, along with other circuit courts, holds that state law breach of 2 contract and tort claims are subsumed in the duty of fair representation if they arise out of 3 conduct that forms the basis for a breach of fair representation claim. Scott v. Machinists 4 Auto. Trades Dist. Lodge No. 190, 827 F.2d 589, 594 (9th Cir. 1987) (state law breach of 5 contract, breach of good faith and fair dealing, emotional distress, and negligence claims 6 all subsumed in the federal law duty of fair representation); see also Thomsen v. 7 Sacramento Metro. Fire Dist., 2009 U.S. Dist. LEXIS 97242 **14-24 (Oct. 20, 2009 8 E.D. Cal.); Cash v. Chevron Corp., 1999 U.S. Dist. LEXIS 20709 *5 (Oct. 4 1999 N.D. 9 Cal.) (plaintiff’s substantive state law claims were preempted by federal law because 10 federal law defined the defendant union’s duties to plaintiff as his exclusive bargaining 11 agent); Bergeron v. Henderson, 52 F. Supp. 2d 149, 153 (D. ME. 1999) (“A state-law 12 claim is preempted whenever a plaintiff’s claim invokes rights derived from a union’s 13 duty of fair representation”). Each of Plaintiff’s claims arises out of the conduct that 14 forms the basis for her claimed breach of fair representation claim. Therefore, each claim 15 is subsumed by that federal statutory duty.1 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Even if the Arizona state professional malpractice statutes apply to labor unions in some way outside of the duty of fair representation as Plaintiff appears to suggest, Plaintiff’s malpractice claim is still preempted by federal law, 29 U.S.C. § 185, because the malpractice claim would require the interpretation of a collective bargaining agreement (“CBA”). Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957); O’Sullivan v. Longview Fibre Co., 993 F.Supp. 743, 748 (1997 E.D. Cal.). The Supreme Court has held that applying federal law to cases involving the interpretation of CBAs serves a compelling goal of ensuring uniform interpretation of labor contract terms. Local 174, Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 103 (1962). The Supreme Court later extended the preemption of federal labor law to suits based on torts, rather than exclusively on breach of CBAs, if the tort suits are “inextricably intertwined with consideration of the terms of [a] labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). Plaintiff’s malpractice claim is “inextricably intertwined with consideration of the terms of [a] labor contract.” Id. at 213. She alleges that Defendant’s “malpractice” deprived her of the benefits in her CBA. Doc. 1-1, ¶¶ 9-17. ‐ 3 ‐      1 B. Statute of Limitations. 2 29 U.S.C. § 185, which governs the duty of fair representation, does not expressly 3 contain a statute of limitations. When a federal statute is silent with regard to a time 4 constraint for bringing claims, the Supreme Court has “generally concluded that Congress 5 intended that the courts apply the most closely analogous statute of limitations under state 6 law.” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983). The Supreme Court 7 has also explained when it is appropriate to ignore that general rule and apply analogous 8 federal statutes of limitations. In DelCostello, the Supreme Court made the distinction 9 between “straightforward” cases, subject to the most closely analogous state statutes of 10 limitations, and “hybrid” cases, subject to the most closely analogous federal statutes of 11 limitations. Id. at 162-5. The Supreme Court said that a straightforward case only 12 involves a claim for breach of a labor contract, while a hybrid case involves a claim for 13 breach of contract by the former employer and a claim for breach of the duty of fair 14 representation by the union. Id. at 162-5. 15 Although a suit against both the former employer and the union is a sufficient 16 condition to be a hybrid case subject to the six-month statute of limitations for unfair 17 labor practices under 29 U.S.C. § 160(b), Plaintiff is incorrect in arguing that it is also a 18 necessary condition. “It is the federal or state nature of the issues to be decided, and not 19 simply the identity of the parties, that controls the distinction between hybrid and 20 straightforward cases.” Conley v. Int’l Bhd. of Elec. Workers, Local 639, 810 F.2d 913, 21 915 (9th Cir. 1987). A suit will not lose its status as a hybrid case even if a plaintiff files 22 a complaint only against the union, and not the employer, because the plaintiff will still 23 be required to prove all the elements of a hybrid case, -- a discharge contrary to the CBA 24 and a breach of duty by the union. DelCostello, 462 U.S. at 165. While a plaintiff is free 25 to bring a suit against both the employer and the union, or a suit against only one of those 26 parties, a plaintiff may not strategically alter the classification of the suit by bringing 27 separate claims in hopes of being classified as a single-party, straightforward case. Id. at 28 165. The Ninth Circuit has consistently held that duty of fair representation claims are ‐ 4 ‐      1 hybrid claims subject to the six-month statute of limitations found in 29 U.S.C. § 160(b). 2 See, e.g., Kalombo v. Hughes Mkt., Inc., 886 F.2d 258, 259 (9th Cir. 1989) (plaintiff's 3 claim for breach of the duty of fair representation against local union was subject to six- 4 month statute of limitations); Gardner v. Int'l Tel. Employees Local No. 9, 850 F.2d 518, 5 522 (9th Cir. 1989) (plaintiff’s claim that union violated LMRDA by failing to give him a 6 copy of CBA subject to six-month statute of limitations); Conley, 810 F.2d at 915 (“The 7 case at hand poses the question of a union’s duty to its members, and because of the close 8 relation this bears to the federal policy of fair representation generally, it follows that the 9 federal limitations statute applies.”); Moore v. Local Union 569 of Int’l Bhd. of Elec. 10 Workers, 989 F.2d 1534, 1541 (9th Cir. 1993) (claim that a union failed to investigate 11 charges properly was subject to a six-month statute of limitations); Walls v. Int’l 12 Longshoremen’s and Warehousemen’s Union, Local 23, 10 Fed.Appx. 485, 488 (“The 13 district court did not err by applying the six-month statute of limitations set forth in 14 section 10(b) of the National Labor Relations Act…to plaintiffs' duty of fair 15 representation claim and hybrid § 301/duty of fair representation claim”). 16 As previously discussed, all of Plaintiff’s claims are subsumed by the federal 17 statutory duty of fair representation. Supreme Court and Ninth Circuit precedent dictate 18 that Plaintiff’s claims should be subject to the six-month statute of limitations associated 19 with unfair labor practices.2 20 December 17, 2009, Plaintiff knew of the alleged breach of the duty of fair representation 21 and that her damages were reasonably certain. Doc. 11,13. Therefore, the statute of 22 limitations period began running on that date and expired prior to the filing of Plaintiff’s 29 U.S.C. § 160(b). It is undisputed that on 23 2 24 25 26 27 28 Even if Plaintiff’s malpractice claim discussed in footnote 1 were separate from the duty of fair representation claim, it would also be subject to the six-month statute of limitations. As a claim preempted by 29 U.S.C. § 185, it would be subject to the hybrid/straightforward analysis of DelCostello. In order to prove causation and damages for the malpractice claim, Plaintiff would have to prove a breach of the CBA by the employer in discharging Plaintiff and a subsequent failure to properly follow through with the discharge grievance by Defendant. These are the same elements that must be proven in a hybrid duty of fair representation claim, making the malpractice and duty of fair representation claims analogous, if not synonymous, 29 U.S.C. § 185 claims subject to a six-month statute of limitations. ‐ 5 ‐      1 claim on December 15, 2011. Plaintiff’s claim is time-barred. 2 IT IS ORDERED: 3 1. 4 The motion to dismiss Plaintiff’s complaint for failure to state a claim upon which relief can be granted (Doc. 10) is granted. 5 2. The Clerk shall terminate this action. 6 Dated this 20th day of June, 2012. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‐ 6 ‐ 

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