Herron v. Gold Standard Baking, Inc.

Filing 68

MEMORANDUM Opinion and Order: For the reasons stated in the attached Memorandum Opinion and Order, the Court grants in part and denies in part GSB's Rule 12(b)(1) motion to dismiss 61 , and grants Herron's request for remand. Herron's post-September 23, 2018 claims are dismissed with prejudice, and the pre-September 23, 2018 claims are remanded to state court. GSB's Rule 12(b)(6) motion to dismiss is stricken without prejudice as moot. Signed by the Honorable Thomas M. Durkin on 5/9/2024. Mailed notice. (ecw, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRENDA HERRON,
Plaintiff,

No. 20 C 7469

v.

Judge Thomas M. Durkin

GOLD STANDARD BAKING, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Brenda Herron alleges that her former employer, Gold Standard Baking, Inc.
(“GSB”), violated the Illinois Biometric Information Privacy Act, 740 ILCS 14/15
(“BIPA”). GSB moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). R. 61. For the following reasons, that motion is granted in part, denied in
part, and stricken in part as moot.
Background
Herron worked at GSB in its packaging department, first as a temporary
worker employed by a staffing agency from October 4, 2017 to September 23, 2018,
and then as a directly-hired employee through December 19, 2019. R. 59 ¶¶ 18–25.
While there, GSB required Herron to scan her fingerprint at least eight times per
day, five days per week, to clock in and out of work, breaks, and lunch. Id. ¶¶ 27, 37–
39. Before making Herron use the scanner for the first time and for much of her time
at the company, GSB did not tell her that it was collecting or storing her biometric
data, why it was collecting, storing, and using that data, or how long it planned to do
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so. Id. ¶¶ 33–36. On September 24, 2018, GSB had Herron sign a written consent to
collect, store, and use her biometric data. Id. ¶¶ 40–41; R. 17 at 2, 4; R. 17-6. Herron
claims that each scan before she signed the consent form was a violation of BIPA. R.
59 at ¶ 43.
Relevant here, on February 22, 2019, Herron applied to the Chicago and
Midwest Regional Joint Board Affiliated with Workers United/SEIU (“Union”). Id. ¶
24; see also R. 17-7 (copy of application). While there is no documentation that the
Union admitted Herron, GSB’s Director of Human Resources and Development
attests that she was a member. R. 62-1 ¶ 11. GSB and the Union are parties to a
collective bargaining agreement (“CBA”), effective April 1, 2018. Id. ¶ 7; see also R.
65-1 (copy of CBA). Among other things, the CBA provides:
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The Union is the “sole and exclusive collective bargaining agent for all
regular full and part-time production, sanitation, maintenance and dock
workers employed by the Company at its Chicago, Illinois, facility[.]” (Art.
I, § 1)

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“[C]ertain rights, powers and responsibilities belong vested” in GSB, which
includes “all matters concerning or related to the management of the
business and administration thereof . . . .” (Art. V) (“Management Rights
Clause”)

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GSB will “have a time clock and keep accurate time and pay records of the
employees in the performance of their work.” (Art. XV, § 6)

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Any disputes arising between GSB and the Union that are covered by the
agreement must be resolved through a four-step grievance and arbitration
procedure. (Art. VI, § 1); and

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“Temporary employees” are “excluded from the collective bargaining unit
and are not subject to the [CBA]. . . . Temporary employees shall become
permanent employees with full rights and benefits including eligibility for
Union membership” after 90 days. (Art. I, § 3).

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Herron initially filed her case in the Circuit Court of Cook County on November
30, 2020. GSB removed the action to this Court, invoking federal question jurisdiction
based on the assertion that Herron’s BIPA claim is completely preempted by § 301 of
the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”). GSB argues that
because the claim is preempted, and therefore must be dismissed under Rule 12(b)(1).
Herron disagrees and seeks to have this case remanded back to state court. GSB
alternatively seeks dismissal under Rule 12(b)(6) for laches, failure to state a claim
for damages, and impermissible double recovery.
Legal Standard
“A motion to dismiss under Rule 12(b)(1) tests the jurisdictional sufficiency of
the complaint, accepting as true all well-pleaded factual allegations and drawing
reasonable inferences in favor of the plaintiffs.” Bultasa Buddhist Temple of Chi. v.
Nielsen, 878 F.3d 570, 573 (7th Cir. 2017). However, “[w]here, as here, plaintiff’s
complaint is facially sufficient but external facts call the court’s jurisdiction into
question, we may properly look beyond the jurisdictional allegations of the complaint
and view whatever evidence has been submitted on the issue to determine whether
in fact subject matter jurisdiction exists.” Taylor v. McCament, 875 F.3d 849, 853 (7th
Cir. 2017) (citations omitted); see also Apex Digital, Inc. v. Sears, Roebuck & Co., 572
F.3d 440, 443–44 (7th Cir. 2009).
Discussion
GSB contends that Herron’s BIPA claim is preempted by § 301 of the LMRA
because the terms of her employment were governed by the Union’s CBA. Section 301
preempts state law claims “founded directly on rights created by collective-bargaining
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agreements, and also claims substantially dependent on analysis of a collectivebargaining agreement.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987)
(citations omitted).
As a general matter, both the Seventh Circuit and the Illinois Supreme Court
have held that federal law preempts BIPA claims brought by certain unionrepresented employees against their employers. See Miller v. Southwest Airlines Co.,
926 F.3d 898, 904 (7th Cir. 2019) (BIPA claims were preempted by the Railway Labor
Act); Fernandez v. Kerry, Inc., 14 F.4th 644, 646 (7th Cir. 2021) (applying Miller to
hold BIPA claims were preempted by Section 301 of the LMRA); Walton v. Roosevelt
University, 2023 IL 128338, ¶ 31 (following Miller and Fernandez in holding that
BIPA claims brought by unionized employees were preempted by the LMRA). The
Seventh Circuit has explained that BIPA claims are preempted when their resolution
depends on an interpretation of a CBA. See Fernandez, 14 F.4th at 645–46. BIPA
allows an employee’s “legally authorized representative” to consent to the collection
and use of biometric information. Id. at 645 (citing 740 ILCS 14/15(b)). Accordingly,
“if an employer asserts that a union has consented,” whether expressly or through a
management-rights clause, “then any dispute about the accuracy of that contention
is one about the meaning of a [CBA] and must be resolved between the union and the
employer.” Id. at 645–46.
Here, GSB invokes not only the broad Management Rights Clause, but also the
CBA’s reference to the use of timeclocks to keep accurate time and pay records for
Union employees and the multi-step grievance and arbitration procedure. GSB

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argues that Herron’s claim requires an analysis of whether the operation of the
timeclock falls within its vested rights under the Management Rights Clause.
Yet, the CBA did not apply to Herron before she became a GSB employee, even
if she worked there through another employer. To begin, the CBA did not go into
effect until April 1, 2018, after Herron had been working at GSB—and scanning her
fingerprint—for nearly six months. Evaluating potential violations from scans during
that six-month period would not require any interpretation of the CBA because it did
not yet exist. Further, Herron was not covered by the CBA until GSB hired her as an
employee on September 23, 2018. That is because the bargaining unit covered by the
CBA only includes certain full and part-time “employees.” Art. I, § 1. Up until that
date, Herron was employed by a staffing agency, not GSB.
GSB argues that the Court must determine whether Herron was a “temporary
employee” under the CBA, which requires interpreting the CBA. But even if she was
a “temporary employee,” the CBA provides that “temporary employees” are excluded
from the bargaining unit and are not subject to the CBA until, after 90 days, they
“become permanent employees with full rights and benefits.” The problem is that
Herron did not become a permanent employee after 90 days. She remained employed
by the staffing agency. That is not an interpretation of the CBA, it is a fact. If she
was indeed a “temporary employee,” she held that status and remained excluded from
the bargaining unit until September 23, 2018. Whether Herron was a “temporary
employee” or not an “employee” at all, the CBA did not apply to her, and none of the

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alleged violations during her time as a temporary worker require an interpretation
of the CBA.
Herron concedes that the CBA applied to her as of September 23, 2018, the day
she became a GSB employee, and agrees that scans on or after that date are
preempted. A preempted state law claim “must either be treated as a § 301 claim, or
dismissed as pre-empted by federal labor-contract law.” Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 220 (1985). Herron asks the Court to dismiss those claims arising
on or after September 23, 2018, while remanding those claims arising before that
date. GSB, for its part, asks the Court to dismiss the entire complaint with prejudice.
In GSB’s view, because the complaint alleges a single BIPA count covering the entire
period from when Herron began working at the company through when she signed
the consent form, litigating that “claim” substantially depends on the interpretation
of the CBA, and it is thus completely preempted.
But it does not matter how many counts Herron’s complaint includes. Indeed,
Herron did not even need to organize her complaints into counts at all. Bartholet v.
Reishauer A.G. (Zurich), 953 F.2d 1073, 1077–78 (7th Cir. 1992). What matters are
her claims. Herron asserts a BIPA violation for each and every scan before she signed
the consent form. Each of those violations constitutes a separate claim. Cothron v.
White Castle Sys., Inc., 2023 IL 128004, ¶ 1 (a separate claim accrues under BIPA for
each scan of a person’s biometric information). The foregoing analysis shows that
some of those claims are preempted, and others are not. See Peatry v. Bimbo Bakeries
USA, Inc., No. 19 C 2942, 2020 WL 919202, at *6 (N.D. Ill. Feb. 26, 2020) (dismissing

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claims after CBA applied to plaintiff without prejudice and allowing claims before
that date to proceed).
GSB cites Williams v. Jackson Park SLF, LLC, No. 19-CV-8198, 2020 WL
5702294, at *4 (N.D. Ill. Sept. 24, 2020), where the court dismissed a BIPA complaint
as preempted by § 301 even though the plaintiff was not subject to the CBA for the
first month of his employment. But that case does not support dismissal of Herron’s
entire complaint with prejudice for several reasons. For one, the plaintiff in Williams
had been subject to the CBA for the majority of the time period at issue and sought
to represent a class of employees. Id. Here, the overwhelming majority of the
violations Herron alleges occurred before the CBA applied to her, 1 and she brings her
claims on an individual basis. What’s more, Williams preceded Cothron’s clarification
of BIPA claim accrual, which undermines the proposition that Herron brought one,
indivisible claim. Finally, and perhaps most critically, the Williams court allowed the
plaintiff to amend. Id. at *5 (citing Peatry, 2020 WL 919202).
As such, if the Court were to dismiss the entire complaint on preemption
grounds, it would be without prejudice. Herron states that she would amend to
exclude scans from the time she was an employee. That complaint, for the reasons
stated, would be subject to remand for lack of subject matter jurisdiction. Requiring
the parties to engage in such make-work only serves to waste their resources, and

Herron’s complaint alleges BIPA violations for fingerprint scans that occurred
before she signed the consent form on September 24, 2018. The CBA applied to
Herron as of September 23, 2018. The approximately eight fingerprint scans from
that day are a drop in the bucket of the thousands of violations she alleges.
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those of the Court. Accordingly, the Court dismisses Herron’s post-September 23,
2018 claims with prejudice and remands Herron’s pre-September 23, 2018 claims. In
light of the foregoing, the Court declines to consider the other grounds for dismissal
raised by GSB.
Conclusion
For these reasons, the Court grants in part and denies in part GSB’s Rule
12(b)(1) motion to dismiss, and grants Herron’s request for remand. Herron’s postSeptember 23, 2018 claims are dismissed with prejudice, and the pre-September 23,
2018 claims are remanded to state court. GSB’s Rule 12(b)(6) motion to dismiss is
stricken without prejudice as moot.

ENTERED:

______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: May 9, 2024

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