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)

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 ‐