Stewart v. International Alliance of Theatrical Stage Employees Union AFL-CIO et al

Filing 63

MEMORANDUM Opinion and Order. The Court grants IATSE's motion to dismiss 48 the claims asserted against it in the amended complaint. Plaintiff has until October 1, 2015, his final opportunity, to amend his complaint to state viable claims against IATSE. If he fails to do so, the Court will dismiss those claims with prejudice. [For further details see order.] Signed by the Honorable Jorge L. Alonso on 9/10/2015. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENNY L. STEWART,
Plaintiff,
v.
INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES
UNION AFL-CIO, THEATRICAL
STAGE EMPLOYEES LOCAL 2,
DANIEL KELLY KERINS, CRAIG
CARLSON, THOMAS CLEARY,
THOMAS HERMANN, THOMAS
KINSELLA, RICHARD CONRAD,
JEFFERY SCHNOEBELEN, and
WILLIAM RILEY, JR.,
Defendants.

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No. 14 C 7472
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding pro se, sues defendants for their alleged violations of Title VII, the Age
Discrimination in Employment Act, the Labor Management Relations Act (“LMRA”), and the Labor
Management Relations and Disclosure Act (“LMRDA”). Defendant International Alliance of
Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United
States, Its Territories and Canada, AFL-CIO, CLC (“IATSE”)1 asks the Court to dismiss the claims
asserted against it in the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Plaintiff sues this defendant as International Alliance of Theatrical Stage Employees
Union, AFL-CIO.

Facts
Plaintiff alleges that he is a member of defendant Theatrical Stage Employees Union Local
2 (“Local 2”), which is an affiliate of IATSE. (Am. Compl. ¶¶ 2-4.) The individual defendants are
officers or Executive Board members of Local 2. (Id. ¶¶ 5-12.)
In June 2009, plaintiff “began inquiring into reasons for [disparate] work assignments,
training, earnings and denied medical benefits . . . , and seniority status.” (Id. ¶ 13.) Plaintiff
criticized Local 2’s practice of providing full membership to white employees in three years but
requiring African-American employees to wait more than ten years to attain that status. (Id. ¶ 14.)
Plaintiff also filed charges of discrimination and retaliation with the Illinois Department of Human
Rights and an unfair labor practice charge with the National Labor Relations Board. (Id. ¶ 15.) As
a result of his complaints, plaintiff alleges, Local 2 retaliated against him by giving him fewer and
less desirable job assignments, subjecting him to unfounded discipline, expelling him from the
union, and denying him benefits to which he is entitled. (Id. ¶¶ 16-25.)
Plaintiff alleges that he sent a letter to IATSE’s President, Matthew Loeb, in August 2012
complaining that Local 2, through defendants Carlson and Cleary, had discriminated and retaliated
against him. (Id.¶¶ 26-30.) Loeb did not respond to the letter or investigate plaintiff’s complaints.
(Id.)

Discussion
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’s favor. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009). “[A] complaint attacked by a Rule 12(b)(6) motion to

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dismiss does not need detailed factual allegations” but must contain “enough facts to state a claim
for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570).
Viewed liberally, as pro se pleadings must be, the amended complaint alleges that IATSE
breached its duty of fair representation under the LMRA and violated plaintiff’s rights to proper
discipline, equality, and free speech guaranteed by the LMRDA. (See Am. Compl. ¶¶ 4, 26-30.)
Plaintiff does not, however, allege that IATSE is his bargaining representative, as is required to state
an LMRDA fair representation claim. See Grant v. Burlington Indus., 627 F. Supp. 311, 313 (N.D.
Ill. 1985) (stating that an entity is not “subject to the duty of fair representation” if it is “neither the
bargaining representative for an employee nor a party to the collective bargaining agreement under
which the employee receives her or his rights”). He also does not allege that IATSE itself violated
his LMRDA rights to equal treatment, free speech, and proper discipline. (See generally Am.
Compl.); see also 29 U.S.C. § 411(a)(1), (a)(2), (a)(5). But he contends that IATSE can be held
liable for Local 2’s alleged statutory violations because IATSE “encourag[ed], support[ed] and
ratif[ied] . . . . Local No. 2[’s] continued malfeasance,” i.e., Local 2 is IATSE’s agent. (Am. Compl.
¶ 26; see id. ¶¶ 27-30); see also Carbon Fuel Co. v. United Mine Workers of Am., 444 U.S. 212, 216
(1979) (holding that an international union can be held liable for the acts of a local only if the local
was its agent). Plaintiff contends that an agency relationship can be inferred from the fact that: (1)
Carlson and Cleary are officers of both unions; and (2) IATSE President Loeb failed to investigate
plaintiff’s complaints about Local 2.

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The Court disagrees. Plaintiff’s complaints about Carlson and Cleary exclusively relate to
actions they took in their capacity as officers of Local 2, not officers of IATSE. (See Am. Compl.
¶¶ 6-7, 13-14, 16, 26, 31, 36.) The mere fact that they were officers of IATSE when they took the
contested actions is insufficient to attribute their conduct to IATSE. See Laughon v. Int’l Alliance
of Theatrical Stage Emp., Moving Picture Technicians, Artists & Allied Crafts of the U.S. & Can.,
248 F.3d 931, 937 (9th Cir. 2001) (“Courts analyzing the actions of an individual who serves
simultaneously as a local and an international official . . . . do not impute the conduct, or knowledge
of the conduct, to the international solely by virtue of the individual’s double role.”). The same is
true of President Loeb’s failure to investigate plaintiff’s complaints about Local 2. “An international
union has no independent duty to intervene in the affairs of its local chapters, even where the
international has knowledge of the local’s unlawful acts.” Phelan v. Local 305 of United Ass’n of
Journeymen, & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Can., 973 F.2d 1050, 1061
(2d Cir. 1992). Because plaintiff has not alleged facts that plausibly suggest Local 2’s alleged
conduct can be imputed to IATSE, his claims against IATSE are dismissed.2

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IATSE also argues that plaintiff’s claim should be dismissed for failure to exhaust
administrative remedies. However, exhaustion is an affirmative defense, Mosely v. Board of
Education of the City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006), and thus not appropriately
addressed in a Rule 12(b)(6) motion. See Xechem v. Bristol Meyers Squibb Co., 372 F.3d 899,
901 (7th Cir. 2004) (“Orders under Rule 12(b)(6) are not appropriate responses to the invocation
of defenses, for plaintiffs need not anticipate and attempt to plead around all potential
defenses.”).
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Conclusion
For the reasons set forth above, the Court grants IATSE’s motion to dismiss [48] the claims
asserted against it in the amended complaint. Plaintiff has until October 1, 2015, his final
opportunity, to amend his complaint to state viable claims against IATSE. If he fails to do so, the
Court will dismiss those claims with prejudice.
SO ORDERED.

ENTERED: September 10, 2015

__________________________________
HON. JORGE L. ALONSO
United States District Judge

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