Malone v. Securitas Security Services et al

Filing 35

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 9/3/2015. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Jamell O. Malone,
Plaintiff,

Case No. 13 C 8747

v.

Judge John Robert Blakey

Securitas Security Services, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Jamell Malone brought this action pro se against his former
employer, Securitas Security Services USA, Inc. (“Securitas”) and the Local 1 Union
SEIU (“Union”). Plaintiff filed a form Complaint on May 1, 2014 [11] alleging
violations of the Americans with Disabilities Act (“ADA”) and Family and Medical
Leave Act (“FMLA”). Plaintiff is also stating a claim against the Union for “lack of
representation.”

As the purported basis for these three claims, Plaintiff has

provided one paragraph of factual allegations. The Defendants separately moved to
dismiss all of Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) [17],
[23]. Those motions to dismiss are granted without prejudice as explained below.
I.

Background 1
Plaintiff Jamell Malone alleges that he worked for Securitas at their Chicago

location until he was fired on September 5, 2012. [11] at 1-2.

Plaintiff further

The Background section is based upon the well-pleaded factual allegations of the
complaint and the related documents properly before this Court. The facts are accepted as
true solely for the purpose of this motion.
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alleges that on September 5, 2012, he was told by Securitas that he could not return
to work, despite being told by his doctor on August 27, 2012 that it was okay to
return. Id. at 5. Securitas further told him that he could not return to work because
of a pending court date, and that he would need to be reinstated after charges were
cleared. Id. at 5.
Thereafter, Plaintiff alleges that his subsequent termination was: (1) the
result of discrimination based on his disability in violation of the ADA; (2) a
violation of the FMLA; and (3) a result of lack of representation by Local 1 Union
SEIU. Id. at 2, 4, 5. Plaintiff contacted the Equal Employment Opportunities
Commission (“EEOC”) and asserted his complaints on June 6, 2013. On November
5, 2013, Plaintiff received a Notice of Right to Sue from the EEOC. Id. at 5. Plaintiff
seeks a monetary award for the alleged violations. Id. at 5.
II.

Legal Standard
Under Fed. R. Civ. P. 12(b)(6), the Court must construe the Complaint in the

light most favorable to Plaintiff, accept as true all well-pleaded facts and draw
reasonable inferences in his favor. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th
Cir. 2013); Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999).
Statements of law, however, need not be accepted as true.

Id.

To survive

Defendant’s motion under Rule 12(b)(6), the Complaint must “state a claim to relief
that is plausible on its face.”

Yeftich, 722 F.3d at 915.

“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.” Id.

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Rule 12(b)(6) limits this Court’s consideration to “allegations set forth in the
complaint itself, documents that are attached to the complaint, documents that are
central to the complaint and are referred to in it, and information that is properly
subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
III.

Claims Against Securitas
Ostensibly, Plaintiff’s Complaint alleges claims against Securitas under the

ADA and FMLA.

Neither cause of action can survive the motion to dismiss,

however, because Plaintiff has failed to allege sufficient facts at this point in the
proceedings to support a plausible claim for relief.
A.

Americans with Disabilities Act

To establish a prima facie claim for employment discrimination based on
disability under the ADA, a plaintiff has to allege that: (1) he is disabled within the
definition provided by the ADA; (2) he is qualified to perform the essential functions
of his job with or without accommodations; and (3) he suffered an adverse
employment action because of his disability. Dvorak v. Mostarid Platt Ass’n, Inc.,
289 F.3d 479, 483 (7th Cir. 2002). The ADA defines disability as “a physical or
mental impairment that substantially limits one or more major life activities.”
Dvorak, 289 F.3d at 484.
Here, Plaintiff’s Complaint does not include allegations that he was disabled
as defined by the ADA, or that he suffered an adverse action because of that
disability. While Plaintiff has attempted to plead additional facts in his response
brief, such pleading is improper.

Plaintiff may not attempt to cure deficiencies

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inherent in a complaint by asserting new facts for the first time in opposition to a
motion to dismiss. Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989); Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“complaint
may not be amended by the briefs in opposition to a motion to dismiss”). As such,
Plaintiff’s Complaint fails to sufficiently allege facts in support of his ADA claim.
B.

Family and Medical Leave Act

Plaintiff’s claim under the FMLA (either for interference or retaliation)
similarly cannot survive as pled. To assert a claim for FMLA interference, Plaintiff
must plead facts that demonstrate:

(1) he was an eligible employee under the

FMLA; (2) Securitas was covered by the FMLA; (3) he was entitled to leave under
the FMLA; and (4) he was denied FMLA benefits to which he was entitled. Goelzer
v. Sheboygan County, 604 F.3d. 987, 993 (7th Cir. 2010). Here, Plaintiff has failed
to plead that: (1) he was an eligible employee, (2) Securitas is an employer covered
by the Act, (3) he was entitled to leave, and (4) whether or not he was allowed
FMLA leave. Goelzer, 604 F.3d 987, 993 (7th Cir. 2010).
To state a claim for FMLA retaliation, the Plaintiff must plead the following:
(1) that he engaged in a statutorily protected activity; (2) that his employer took a
materially adverse action against him; and (3) that there is a causal connection
between the protected activity and the adverse action. Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 670 (7th Cir. 2011). Plaintiff has pled that he was terminated,
however, he has not pled: (1) that he engaged in any statutorily protected activity;
or (2) a causal connection between his discharge and any alleged statutorily

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protected activity. Thus his claim under the FMLA is deficient and cannot survive
Defendant’s motion to dismiss.
IV.

Local 1 Union SEIU
While it is unclear from the Complaint, it appears that Plaintiff may be

alleging claims against the Union under the ADA, FMLA, and breach of duty of fair
representation. Nevertheless, Plaintiff has failed to allege any facts showing that a
claim for such relief is plausible on its face.
A.

ADA and FMLA

To the extent the Plaintiff is alleging claims against the Union under the
FMLA and ADA, those claims are insufficient. As to the purported violation of the
ADA, the Seventh circuit has held that while unions must refrain from
discriminating within the scope of activities that are particular to them, no burden
is imposed on unions to prevent employer discrimination. EEOC v. Pipefitters Ass’n
Local Union, 334 F.3d 656, 661 (7th Cir. 2003). Here, Plaintiff does not allege that
the Union discriminated against him under the ADA in any way. Thus, any claim
against the Union would have to be in relation to discrimination by Securitas.
Under Seventh Circuit precedent, that is not a viable cause of action.
As to the violation of the FMLA, the Plaintiff’s claim fails because the FMLA
only imposes liability on the employer. 29 U.S.C.A. §§ 2611-17. Here, the employer
was Securitas, not the Union. FMLA regulations do not extend to unions unless the
union was the plaintiff’s employer. Watkins v. Chicago Transit Auth., No. 11 C 292,

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2012 WL 580751, at *1 (N.D. Ill. Feb. 22, 2012); Scamihorn v. General Truck
Drivers, 282 F.3d 1078, 1081 n. 2 (9th Cir. 2002). That is not the case here.
B.

Duty of Fair Representation

To the extent Plaintiff is alleging a claim for breach of the duty of fair
representation against the Union, his claim fails because it is untimely and Plaintiff
has not alleged any facts in support. Any claims brought for breach of the duty of
representation must be filed within six months of the union having taken, or failed
to take, any action. DelCostello v. Int’l Bd. Of Teamsters, 462 U.S. 151, 171-72
(1983); Daniels v. Am. Postal Workers Union, Chicago Local, 40 F. App'x 236, 238
(7th Cir. 2002). The Supreme Court has held that the 6-month limitations period in
the National Labor Relations Act Section 10(b) governs claims for breach of the duty
of fair representation against both the employer and the union. DelCostello, 462
U.S. 151, 172. Here, Plaintiff was terminated on September 5, 2012. Plaintiff did
not file this lawsuit until December 9, 2013, which was approximately fourteen
months after his termination.

This is outside the statute of limitations, and

Plaintiff has not alleged any other action by the Union that would fall within the
statute of limitations. Additionally, Plaintiff has failed to plead any facts showing
how the Union failed to provide fair representation.

V.

Conclusion

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In light of the foregoing, the Defendants’ motions to dismiss [17], [23] are
granted without prejudice.

Plaintiff is granted to leave to file an amended

complaint on or before September 15, 2015. Failure to amend the complaint by that
time may result in dismissal for want of prosecution.
IT IS SO ORDERED
Dated: September 3, 2015

___________________________________
Judge John Robert Blakey
United States District Court

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