Rogers v. Jewel Osco Food Stores
Filing
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OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 9/30/2014. Mailed notice(rj, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
QUINTINA ROGERS,
Plaintiff,
v.
JEWEL FOOD STORES, INC.,
Defendant.
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No. 13 C 6761
Judge Sara L. Ellis
OPINION AND ORDER
Plaintiff Quintina Rogers, a former employee of Jewel Food Stores, Inc. (“Jewel”) and a
former member of the United Food and Commercial Workers International Union Local 881 (the
“Union”), was terminated from her job at Jewel for allegedly discounting a bottle of vodka. She
originally filed a pro se complaint against Jewel. With the assistance of counsel, Rogers filed an
amended complaint alleging that Jewel breached the terms of its collective bargaining agreement
with the Union (a hybrid Section 301/fair representation claim under the Labor Management
Relations Act, 29 U.S.C. § 185 et seq.) and violated the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. Before the Court is Jewel’s motion to dismiss the hybrid
Section 301/fair representation claim [38]. The motion to dismiss is granted. While the Court
finds that the claim relates back to Rogers’ initial complaint, which was filed within six months
of the Union’s final decision on Rogers’ grievance, the Court additionally finds that Rogers has
failed to sufficiently allege that the Union breached its duty to fairly represent her; thus, Rogers
cannot proceed on her breach of contract claim against Jewel.
BACKGROUND 1
Rogers began working at Jewel as a service clerk on October 27, 2007, regularly working
more than 16 hours per week overseeing self-checkout lines and acting as a cashier. A dedicated
employee who took pride in her work, Rogers received good performance reviews and
maintained an excellent disciplinary record, earning commendations from customers and Jewel
management staff. Prior to November 14, 2012, Rogers had never been accused of any form of
theft, misappropriation, or inadvertent mishandling of cash, nor had she ever been cited by Jewel
management for improper discounting or voiding of transactions.
On November 14, 2012, Senior Security and Loss Prevention Manager Marty
Oppenhauser accused Rogers of stealing coins and cash from her register, as well as improperly
discounting and voiding a transaction involving a bottle of vodka. All of the alleged incidents
were unsubstantiated by reasonable or reliable evidence, as Jewel staff, including Oppenhauser,
knew at the time of the November 14, 2012 meeting. Shortly after that meeting concluded,
Oppenhauser and Assistant Store Manager Donna Rogers (no relation to Plaintiff) conferred and
advised Rogers that she was suspended effective immediately.
Rogers immediately contacted the Union and, on November 15, 2012, filed a Grievance
Investigation Report. On November 21, 2012, a meeting about the alleged incidents took place
with Oppenhauser’s superior, Mary Junger, Jewel’s District Manager for Loss Prevention.
Rogers’ Union representative, Marcella Robinson, and her supervisor, Cozetta Alcorn, were also
present. At this meeting, Rogers expressed her desire to see the video of the incidents in
question but was told the video was the property of Jewel’s Loss Prevention Program.
1
The facts in the background section are taken from Rogers’ Amended Complaint and the exhibits
attached thereto and are presumed true for the purpose of resolving Jewel’s motion to dismiss. See
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v.
Exelon Corp., 495 F.3d 779, 782 (7th Cir. 2007).
2
On December 1, 2012, Alcorn advised Rogers that she was terminated for improperly
discounting a bottle of vodka. Rogers, concerned about the injustice of her termination,
attempted to contact Robinson, her Union representative, throughout the month of December
2012 to check on the status of her grievance. Robinson finally responded at the end of the month
and advised Rogers not to worry.
On January 23, 2013, the Union notified Rogers by letter that it had decided not to pursue
her grievance to arbitration, citing the facts uncovered in its investigation of Rogers’ conduct and
unfavorable precedent in arbitration of similar cases with Jewel. Rogers formally appealed the
Union’s decision on February 1, 2013. The Union confirmed receipt of Rogers’ letter and
request for appeal in a second letter on February 6, 2013, informing Rogers that a final decision
would be made by the Executive Board at its next meeting on April 9, 2013. In a subsequent
letter dated April 10, 2013, the Union notified Rogers that her appeal had been denied, that the
Executive Board had determined that her grievance lacked merit, and that the Union considered
the matter closed. Rogers continued to request a copy of her grievance file and other materials
related to her termination, including the video, but the Union informed her that the documents
were Union property in a May 8, 2013 letter.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
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claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS
I.
Statute of Limitations
Jewel first argues that Rogers’ hybrid claim is barred by the statute of limitations because
it was filed over a year after Rogers learned that the Union would not pursue her grievance. The
statute of limitations is an affirmative defense that need not be anticipated in the complaint in
order to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
But that is not the case where “the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an
action is untimely under the governing statute of limitations.” Id.; see also Brooks v. Ross, 578
F.3d 574, 579 (7th Cir. 2009) (considering statute of limitations defense on motion to dismiss
where relevant dates were set forth in the complaint). Here, the Amended Complaint sets forth
the allegations necessary to address the statute of limitations issue and so the Court will consider
Jewel’s argument.
The applicable statute of limitations for hybrid Section 301/fair representation claims is
six months from the time the plaintiff discovers or in the exercise of reasonable diligence should
have discovered the alleged violation. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151,
169–72, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983); Christiansen v. APV Crepaco, Inc., 178 F.3d
910, 914 (7th Cir. 1999). This typically occurs “from the time a final decision on a plaintiff’s
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grievance has been made or from the time the plaintiff discovers, or in the exercise of reasonable
diligence should have discovered, that no further action would be taken on his grievance.”
Chapple v. Nat’l Starch & Chem. Co. & Oil, 178 F.3d 501, 505 (7th Cir. 1999) (quoting
Richards v. Local 134, Int’l Bhd. of Elec. Workers, 790 F.2d 633, 636 (7th Cir. 1986)). The
statute of limitations is tolled, however, during the pendency of “internal union procedures that
possibly may provide [the plaintiff] with a remedy,” even “where those remedies are ultimately
determined to have been futile.” Frandsen v. Bhd. of Ry., Airline & S.S. Clerks, Freight
Handlers, Express & Station Emps., 782 F.2d 674, 681 (7th Cir. 1986); Truhlar v. John Grace
Branch #825 of Nat’l Ass’n of Letter Carriers, 600 F. Supp. 2d 964, 972 (N.D. Ill. 2009)
(Frandsen tolling should be flexibly applied and not limited solely to formal procedures
contemplated in the collective bargaining agreement “if the employees understood that appeals
are routinely dealt with in a manner not explicitly discussed in the CBA”).
Jewel argues that Rogers’ claim accrued on January 23, 2013, when the Union informed
her that it would not be pursuing her grievance through the final steps of arbitration. But the
Amended Complaint reveals that this letter did not signal the Union’s final decision. Instead,
Rogers pursued a formal appeal of the Union’s decision, which the Union indicated would be
addressed at the next meeting of its Executive Board on April 9, 2013. On April 10, 2013, the
Union notified Rogers that the Executive Board determined her grievance lacked merit, denied
her appeal, and closed the matter. Only then did the statute of limitations on her hybrid claim
begin to run. See Frandsen, 782 F.2d at 681–84.
Jewel argues that even if the statute of limitations period was tolled while Rogers pursued
internal union remedies, her hybrid Section 301/fair representation claim is still untimely
because she asserted this claim for the first time on March 7, 2014 and not in her initial pro se
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complaint filed on September 20, 2013. Although her pro se complaint would be timely, as it
falls within the six-month period, Jewel argues that the hybrid claim does not relate back to that
date because it does not arise out of the same set of facts and circumstances as the ADEA claim
included in the pro se complaint.
Rogers’ hybrid claim relates back to the date of her pro se complaint if that claim “arose
out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). This means that an amended complaint relates back to
an earlier complaint if both are based on the same “common ‘core of operative facts.’” Mayle v.
Felix, 545 U.S. 644, 659, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005) (citations omitted). Rogers’
original complaint merits a generous interpretation because it was prepared without the
assistance of counsel. Lewis v. Sternes, 390 F.3d 1019, 1027 (7th Cir. 2004) (citing Haines v.
Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)); Bryant v. Gen. Packaging
Prods., Inc., 473 F. Supp. 2d 853, 857 (N.D. Ill. 2006) (giving initial pro se complaint liberal
interpretation for purposes of determining whether amended complaint related back to date of
original filing).
Although Rogers’ pro se complaint did not include a claim for a breach of the collective
bargaining agreement or the Union’s duty of fair representation, the general factual allegations
were sufficient to put Jewel on notice of the conduct underlying Rogers’ hybrid claim. Her pro
se complaint narrates her suspension and termination, including her interaction with the Union
and attempt to grieve the termination notice. Rogers includes allegations that she spoke to her
Union representative in December 2012 who assured her she had nothing to worry about but that
she was then denied the rights provided to her by her collective bargaining agreement when she
was not allowed to dispute the allegations in her termination notice. Rogers’ hybrid claim,
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although pleaded with more detail in the Amended Complaint, arises out of the same factual
situation alleged in her pro se complaint. Because Jewel’s attention was brought to the situation
by the initial complaint and her hybrid claim shares a common core of operative facts with the
ADEA claim pleaded in Rogers’ pro se complaint, the Court finds that the hybrid claim relates
back to the date of the original pleading and is thus timely. See Bryant, 473 F. Supp. 2d at 857–
58.
II.
Adequacy of Rogers’ Pleading
Jewel alternatively argues that Rogers’ hybrid Section 301/fair representation claim must
be dismissed because it does not sufficiently allege that the Union breached its duty of fair
representation. In order to bring this hybrid claim against Jewel, Rogers must not only allege
that Jewel breached the collective bargaining agreement but also that the Union breached its duty
of fair representation. 2 Yeftich v. Navistar, Inc., 722 F.3d 911, 913–14 (7th Cir. 2013).
Just as “fiduciaries owe their beneficiaries a duty of care as well as a duty of loyalty, a
union owes [its members] a duty to represent them adequately as well as honestly and in good
faith.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 75, 111 S. Ct. 1127, 113 L. Ed. 2d 51
(1991). Unions enjoy wide discretion in the performance of this duty, however, and the duty is
breached only when the Union’s conduct is “arbitrary, discriminatory, or in bad faith.” Vaca v.
Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Yeftich, 722 F.3d at 916. In
evaluating whether a breach has occurred, the Court must consider each prong separately. Neal
v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir. 2003).
2
The Union is not a necessary party to the action, however, and thus it is not problematic that Rogers
voluntarily dismissed her claims against the Union. See Albano v. Roadway Express, Inc., No. 04 C
5291, 2005 WL 1026578, at *3 (N.D. Ill. Mar. 24, 2005) (fact that plaintiff voluntarily dismissed duty of
fair representation claim against union did not require breach of contract claim to be dismissed as there
had been no determination with respect to union’s actions); Balsamo v. One Source, N. Reg’l Commuter
R.R. Corp., No. 04 C 6172, 2005 WL 396303, at *3–4 (N.D. Ill. Feb. 16, 2005).
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Rogers’ Amended Complaint focuses on whether the Union acted arbitrarily or in bad
faith. To determine whether a union has acted in bad faith, courts must conduct “a subjective
inquiry and require[] proof that the union acted (or failed to act) due to an improper motive.” Id.
Allegations of “fraud, deceitful action or dishonest conduct” are evidence of bad faith, see
Humphrey v. Moore, 375 U.S. 335, 348, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964), but a plaintiff
must supply more detail than just “[b]are assertions of the state of mind,” Yeftich, 722 F.3d at
916. Arbitrariness, on the other hand, is an objective inquiry, Neal, 349 F.3d at 369, with a
union’s actions considered arbitrary “only if . . . the union’s behavior is so far outside a wide
range of reasonableness as to be irrational,” Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744,
749 (7th Cir. 1999) (internal quotation marks omitted) (citation omitted). The inquiry is “very
deferential,” as “Congress did not intend courts to interfere with the decisions of the employee’s
chosen bargaining representative.” Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d
1293, 1302 (7th Cir. 1992). A union may not “arbitrarily ignore a meritorious grievance or
process it in perfunctory fashion.” Vaca, 386 U.S. at 191. But an employee cannot compel
arbitration and must instead accept the union’s exercise of its “discretion to act in consideration
of such factors as the wise allocation of its own resources, its relationship with other employees,
and its relationship with the employer.” Neal, 349 F.3d at 369. Only an “egregious disregard for
union members’ rights” qualifies as a breach of the union’s duty. Garcia v. Zenith Elecs. Corp.,
58 F.3d 1171, 1176 (7th Cir. 1995) (quoting Castelli v. Douglas Aircraft Co., 752 F.2d 1480,
1483 (9th Cir. 1985)).
In a similar situation, the Seventh Circuit recently considered whether a complaint was
properly dismissed for failure to allege breach of the duty of fair representation. Yeftich, 722
F.3d 911. In Yeftich, the plaintiffs also argued that the Union had acted arbitrarily and in bad
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faith by treating their grievances in a perfunctory fashion or not at all. Id. at 916. The complaint
alleged that the union knew the employer acted in violation of the collective bargaining
agreement, that the union intentionally misled plaintiffs with respect to the status of their
grievances and instead “invidiously diverted, stalled, and otherwise terminated and abandoned
the grievances,” that the union represented that large numbers of grievances were awaiting action
by high union officials when they were instead already processed and closed, and that the union
refused to provide plaintiffs with copies of the collective bargaining agreement. Id. The Seventh
Circuit found that plaintiffs did not support their bad faith claim by anything but “conclusory
labels” and so did not “suggest a motive for the union’s alleged failure to deal with the
grievances.” Id. As for whether the union’s actions were arbitrary, the Seventh Circuit also
found the complaint to be missing factual detail regarding, for example, how long they waited
for a response after filing a grievance or how they knew that the wait time was abnormal or
arbitrary. Id. at 917.
Guided by Yeftich, the Court finds that Rogers has failed to sufficiently allege either bad
faith or arbitrariness by the Union. Although she has alleged that the Union “[i]mproperly,
arbitrarily, and irrationally preclude[ed] [her] from asserting her rights” under the collective
bargaining agreement, and concealed or failed to inform her that it was not investigating her
grievance, Am. Compl. ¶ 63, these allegations are conclusory and not supported by the required
factual specificity, Yeftich, 722 F.3d at 916–17. Rogers has included no allegations from which
the Court could infer a bad faith motive for the Union’s decision not to further pursue Rogers’
grievance and not provide her with her files. Id. at 916. Moreover, Rogers admits in her
Amended Complaint that the Union’s letter informing her that it decided not to pursue her
grievance was based on the facts it uncovered in its investigation and its arbitration history in
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similar cases with Jewel. This does not suggest arbitrariness; instead, it supports the conclusion
that the Union was exercising its discretion not to pursue every grievance filed in light of facts
such as the “allocation of its own resources” and “its relationship with the employer.” Neal, 349
F.3d at 369. Because Rogers’ Amended Complaint fails to allege facts from which the Court
could infer that the Union acted in “egregious disregard” of her rights, but rather only suggests
that Rogers was not satisfied with the outcome of the grievance process, she has failed to allege a
breach of the duty of fair representation. See Yeftich, 722 F.3d at 916 (the decision to “declin[e]
to pursue a grievance as far as a union member might like isn’t by itself a violation of the duty of
fair representation”); Lewis v. Dominick’s Finer Foods, LLC, No. 13 C 530, 2013 WL 4401376,
at *4–5 (Aug. 14, 2013) (plaintiff’s allegations that union did not investigate as thoroughly as it
should have were not sufficient to survive a motion to dismiss). Thus, Rogers’ hybrid Section
301/fair representation claim is dismissed.
CONCLUSION
For the foregoing reasons, Jewel’s motion to dismiss [38] is granted. Counts I and III of
the Amended Complaint are dismissed without prejudice.
Dated: September 30, 2014
______________________
SARA L. ELLIS
United States District Judge
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