Rogers v. Amalgumated Transit Union et al
Filing
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OPINION AND ORDER: Court GRANTS 37 Motion to Dismiss and this case is DISMISSED WITH PREJUDICE. Signed by Judge William C Lee on 10/11/2017. (Copy mailed to pro se party) (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DOROTHEA FAY ROGERS,
Plaintiff,
v.
AMALGAMATED TRANSIT UNION
LOCAL 682, et al.,
Defendants.
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Case No. 1:16-CV-284
OPINION AND ORDER
This matter is before the Court on the motion to dismiss filed by Defendants
Amalgamated Transit Union, Ernest Johnson, Steve Sustek, Sheila Roberson, Christopher
Phillip, and Robert Almarode on July 20, 2017 (ECF 37).1 Plaintiff Dorothea Rogers filed a
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Amalgamated Transit is the union that represents individuals employed by the Fort
Wayne Public Transportation Corporation, d/b/a Citilink, the city public bus system. Defendants’
Memorandum in Support of Motion to Dismiss (ECF 38), pp. 2-3. Ernest Johnson is the union
president, Steve Sustek is the union secretary, Sheila Roberson is the union treasurer, Robert
Almarode is the union vice president, and Christopher Phillip is apparently a union official
although Rogers does not include his title. Amended Complaint, p. 2. As to the Fort Wayne
Public Transportation Corporation, while that entity is named as a defendant in the Amended
Complaint (it was not named in the original Complaint), defense counsel states that “[t]he
undersigned does not represent this entity, and it is unclear to the Union or the individual
defendants whether FWPTC has ever been properly served with process in this matter.”
Defendants’ Memorandum, p. 1. Indeed, the record does not reflect that Rogers submitted a
summons for FWPTC, and the entity has not appeared by counsel, filed an answer, or otherwise
responded to this lawsuit. The Court also notes that on November 15, 2016, Rogers,
Amalgamated, and the individual defendants (but not FWPTC) filed their Report of the Parties’
Planning Meeting pursuant to Fed.R.Civ.P. 26(f)). (ECF 30). The Report represents that it was
entered into between “Plaintiff Dorothea Rogers . . . [and] ATU Local 682 and the individual
defendants . . .” and makes no mention of FWPTC. Id., p. 1. Finally, the Report states that the
parties agreed that “[t]he last day any party may seek permission to join additional parties and to
amend the pleadings is May 15, 2017.” Id., p. 2. That deadline obviously has passed and the
record does not indicate that Rogers has done anything to bring FWPTC into this lawsuit. The
municipal entity simply appears as a named defendant in the Amended Complaint. In any event,
the Amended Complaint does not and cannot state a viable claim against FWPTC for the reasons
response in opposition to the motion on August 3, 2017 (ECF 40). The Defendants chose not to
file a reply brief and so the motion is ripe for resolution. For the reasons discussed below, the
motion to dismiss is GRANTED and this case is DISMISSED WITH PREJUDICE.
FACTUAL AND PROCEDURAL BACKGROUND
Dorothea Rogers, proceeding pro se, filed her original complaint on July 21, 2016 (ECF
1). The Defendants filed a motion to dismiss the complaint on October 27, 2016 (ECF 23) but the
Court denied the motion as moot after Rogers filed an Amended Complaint on November 3,
2016 (ECF 26). See Opinion and Order, July 5, 2017 (ECF 36). The Defendants then filed this
second motion to dismiss, which challenges the now controlling Amended Complaint. The
Defendants bring their motion pursuant to Federal Rule 12(b)(6), arguing that Rogers’ Amended
Complaint fails to state any claim upon which relief can be granted. They are correct, although
for the reasons discussed below, the Court also concludes that this case must be dismissed for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
In her Amended Complaint, which specifically states that it is brought pursuant to 29
U.S.C. §§ 185 and 301 of the National Labor Relations Act, Rogers makes the following
assertions and allegations:
1) As to Defendant Amalgamated Transit Union, Rogers contends that “Amalgamated . . . failed
to represent [me] in unjustified termination from employer.” Amended Complaint, p. 3, ¶ 1.
2) As to the individual Defendants, Rogers contends that they are liable to her because they did
not permit her “to file a grievance over loss of health insurance,” “did not defend[] the current
discussed in this order.
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collective bargaining agreement concerning medical leave time,” did “not follow[] the direction
of the union attorney on action plan to reinstate petitioner to employment,” “did not
communicat[e] with petitioner,” did “not keep[] themselves abreast to status of grievance and the
communications of union attorney,” and because they “acted with malice.” Id., ¶¶ 2-3.
3) As to FWPTC, Rogers contends that this public entity is liable to her for “dismissing
petitioner while on medical leave and before contractual time of leave expired[,]” not providing
her with medical insurance while she was on leave, “per collective bargaining agreement[,]”
changing her job title so “as to interfere with short term disability requirement[,]” and not
reinstating her to her job, all of which she claims violated the collective bargaining contract
between FWPTC and Amalgamated. Id., p. 4, ¶ 4.2
It doesn’t take much in the way of inference to understand that Rogers is suing the
Defendants on the basis that they failed to represent her in her challenge to her termination, that
they did so out of malice, and that their actions (or failure to act) violated the collective
bargaining agreement. The Defendants argue that Rogers’ allegations, even when taken as true
for purposes of the present motion, lack a legal foundation. The Defendants state in their motion
that “[b]ecause Plaintiff’s former employer was a governmental entity, the Union owes Plaintiff
no duty of fair representation under federal law, and therefore Plaintiff has failed to state a claim
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Rogers did not attach a copy of the FWPTC/Amalgamated Transit collective bargaining
agreement to her original or Amended Complaint. However, as the Defendants point out, the
Court may consider the agreement (a copy of which the Defendants filed with their motion to
dismiss–see ECF 38-1, pp. 3-60) since it is specifically mentioned in Rogers’ Amended
Complaint and is central to her claims. Defendants’ Memorandum, p. 3 (citing Herndon v.
Housing Auth. of South Bend, 2016 WL 8201134, at * 2, n. 2 (N.D. Ind. May 20, 2016)
(document specifically mentioned in complaint that is central to plaintiff’s claims is “properly
considered part of the pleadings pursuant to Fed.R.Civ.P. 10©” and may be introduced by
defendant on a motion to dismiss)).
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against the Union or its officers.” Motion to Dismiss, p. 1. The Defendants contend that:
Plaintiff’s amended complaint is styled as a claim for breach of the duty of fair
representation and makes allegations consistent with such a claim. But . . . the
complaint and the collective-bargaining agreement which it incorporates by
reference make plain that Plaintiff cannot state such a claim against the Union or
the individual defendants. Because the amended complaint does not state any
other basis for liability under federal law, the Court should grant Defendants’ Rule
12(b)(6) motion and dismiss Plaintiff’s complaint in its entirety as to [all
Defendants].
Defendants’ Memorandum, p. 5. In other words, the Defendants argue that Rogers’ Amended
Complaint does not (and more importantly cannot) state a legally viable claim against them
under the NLRA, rendering it facially insufficient and therefore subject to dismissal. The reason,
according to the Defendants, is because Rogers’ former employer, FWPTC, is a public employer
and as such is “excluded from the definition of ‘employer’ in, and thus from the coverage of, the
NLRA. 29 U.S.C. § 152(2); NLRB v. Yeshiva University, 444 U.S. 672, 704 n.17 (1980) (‘the
NLRA is not applicable to any public employer’). Thus the Union . . . owes its members no duty
of fair representation enforceable by this Court. Plaintiff therefore fails to state a claim against
the Union for breach of the duty of fair representation.” Id., p. 4.3
The individual defendants argue that “regardless of whether the Union owed Plaintiff a
duty of fair representation arising under federal law, there is no cause of action against
individuals for breach of such a duty. Evangelista v. Inland Boatmen’s Union of Pac., 777 F.2d
1390, 1400 (9th Cir. 1985) (holding that the language of § 301(b) of the National Labor
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The Defendants correctly point out that “the Court may take judicial notice of the fact
that FWPTC is municipal corporation. Ind. Code Ann. § 36-9-4-12; Brockmeyer v. Fort Wayne
Pub. Transp. Corp., 614 N.E.2d 605, 606 (Ind.Ct.App. 1993) (noting FWPTC is a governmental
entity).” Defendants’ Memorandum, p. 3. The Court does so, although Rogers does not challenge
this fact.
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Relations Act and the Supreme Court’s holding in Atkinson v. Sinclair Refining Co., 370 U.S.
238 (1962) that individual union members are immune from liability under . . . Section 301(b)
‘also provide a shield for individual union members in suits for breach of the duty of fair
representation’). See also Bey v. Williams, 590 F.Supp. 1150, 1154-55 (W.D. Pa. 1984), aff’d
without opinion, 782 F.2d 1026 (3d Cir. 1986). Plaintiff fails to state a claim against the
individual defendants, regardless of FWPTC’s status as a public employer.” Id., pp. 4-5.
Rogers’ response in opposition to the motion to dismiss consists of a verbatim copy of
her Amended Complaint, to which she adds at the end: “plaintiff . . . request[s] the court not
dismiss this claim.” Plaintiff’s Response (ECF 40). Rogers does not address the Defendants’
arguments directly (or even indirectly). That doesn’t matter though, since the issue before the
Court is not whether Rogers’ Amended Complaint is factually sufficient to state a plausible
claim, but whether it has any legal foundation in the first place. The Court agrees with the
Defendants that it does not.
STANDARD OF REVIEW
The Defendants bring their motion pursuant to Federal Rule 12(b)(6), which allows a
defendant to move to dismiss a complaint that fails to “state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the
court accepts as true all factual allegations in the complaint and draws all inferences in favor of
the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the
complaint must allege facts that are “enough to raise a right to relief above the speculative level.”
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Twombly, 550 U.S. 544, 555 (2007). The complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009)
(internal citation and quotation marks omitted). To be facially plausible, the complaint must
allow “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 556).
The Court is also mindful that in ruling on the motion to dismiss, Rogers’ pro se
pleadings must be liberally interpreted. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also
Hart v. Amazon.com, Inc., 191 F.Supp.3d 809, 816 (N.D. Ill. 2016), aff’d, 845 F.3d 802 (7th Cir.
2017) (“Because Plaintiff is proceeding pro se, the Court construes his complaint ‘liberally’ and
holds it to a ‘less stringent standard than formal pleadings drafted by lawyers.’”) (quoting Perez
v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)). Notwithstanding a plaintiff’s pro se status, the
Court must dismiss the complaint if, after drawing all reasonable inferences in favor of the
plaintiff, it fails to state a legally sufficient claim.4
The Defendants do not rely on subsection (b)(1) of Rule 12, or even mention it anywhere
in their motion or memorandum, but the Court concludes that this subsection also mandates
dismissal of this case. “Subject-matter jurisdiction is the first question in every case, and if the
court concludes that it lacks jurisdiction it must proceed no further.” Ill. v. City of Chi., 137 F.3d
474, 478 (7th Cir. 1998); see also, Gann v. Richardson, 43 F.Supp.3d 896, 900 (S.D. Ind. 2014)
(“The Federal Rules . . . command that courts dismiss any suit over which they lack subject
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Because Rogers is proceeding pro se, the Court sent her a Notice and Order on July 21,
2017, pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) and Timms v. Frank, 953 F.2d
281, 285 (7th Cir.1992), cert. denied, 504 U.S. 957, 112 S.Ct. 2307 (1992), informing her that
the motion to dismiss had been filed, explaining the basis for and purpose of the motion, and
instructing her to file a response (which of course she did). Notice and Order (ECF 39).
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matter jurisdiction–whether acting on the motion of a party or sua sponte.”) (citing Fed.R.Civ.P.
12(b)(1)). As with a motion under Rule 12(b)(6), when assessing whether dismissal under Rule
12(b)(1) is appropriate, the court “must accept the complaint’s well-pleaded factual allegations as
true and draw reasonable inferences from those allegations in the plaintiff’s favor.” Id. (citing
Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002); Transit Express, Inc. v. Ettinger,
246 F.3d 1018, 1023 (7th Cir. 2001)). The standard for evaluating a facial challenge to subject
matter jurisdiction is “the same standard used to evaluate facial challenges to claims under Rule
12(b)(6).” Herndon v. Hous. Auth. of S. Bend, 2016 WL 8201134, at *2 (N.D. Ind. May 20,
2016), aff’d in part, rev’d in part and remanded sub nom. Herndon v. Hous. Auth. of S. Bend,
Indiana, 670 F. App’x 417 (7th Cir. 2016) (citing Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir.
2015)). The district court 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.” Id. (citing Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188,
191 (7th Cir. 1993); Estate of Eiteljorg ex rel. Eiteljorg v. Eiteljorg, 813 F.Supp.2d 1069, 1074
(S.D.Ind. 2011)). In this case, as explained below, the claims Rogers is attempting to assert lack
any legal foundation that would invoke this Court’s subject matter jurisdiction and must be
dismissed under Rule 12 for that reason.
DISCUSSION
The National Labor Relations Act expressly states that “[t]he term ‘employer’ . . . shall
not include . . . any State or political subdivision thereof, . . . or any labor organization (other
than when acting as an employer), or anyone acting in the capacity of officer or agent of such
labor organization.” 29 U.S.C. § 152 (italics added). This provision bars Rogers’ claims in this
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case since the FWPTC, her former employer, is a public corporation. This issue has been
addressed in factually similar cases, including Brown v. Local 241 Amalgamated Transit Union.
In that case, Quinshela Brown was fired from her job as a bus driver for the Chicago Transit
Authority. While she was employed she was represented by Amalgamated Transit Union Local
241. Brown sued the Union and various of its officers alleging, among other claims, that she was
not adequately represented following her termination. The district court dismissed the suit for
lack of jurisdiction. The Seventh Circuit affirmed, noting that Brown’s employer, the CTA, was a
public employer under Illinois law and therefore “the District Court had no jurisdiction over a
claim that a public employer violated the duty of fair representation.” Brown v. Local 241
Amalgamated Transit Union, 175 F.3d 1019, 1999 WL 239364, * 1 (7th Cir. 1999) (citing 29
U.S.C. §§ 152(2) and 185). The result was the same in Bailey v. Johnson, where the plaintiff
sued her former employer, a county sheriff, and the union with which the sheriff’s department
had a collective bargaining agreement, asserting various claims arising out of the termination of
her employment. Her claim against the union was for breach of the duty of fair representation and
was founded on § 301, as is Rogers’ claim against Amalgamated. The union argued that the
claims against it should be dismissed for lack of subject matter jurisdiction and the district court
agreed, explaining as follows:
In Count VI of her complaint, Bailey contends that the Will County Sheriff’s
Office breached this provision of the collective bargaining agreement by
discharging the plaintiff instead of restoring her to her former position. She also
alleges that the Union breached its duty of fair representation by refusing to
represent her and to process her grievance. The purported statutory and
jurisdictional foundation for this claim is § 301(a) of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185.
...
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The Will County Sheriff’s Office is not an employer within the meaning of the
LMRA. “Public employees of the political subdivision of a state are not governed
by the federal labor laws.” N.A.A.C.P., Detroit Branch v. DPOA, 821 F.2d 328,
330 (6th Cir. 1987). An LMRA suit by a public employee against her public
employer should be dismissed for lack of subject matter jurisdiction. Jackson v.
Temple Univ. of Com. Sys. of Higher Ed., 721 F.2d 931, 933 (3rd Cir. 1983).
Bailey v. Johnson, 1990 WL 77508, at * 1-2 (N.D. Ill. May 30, 1990). In Burke v. New Mexico,
the plaintiff sued her former employer, the General Services Department of the state, alleging
that it violated its collective bargaining contract with its union by taking unfounded disciplinary
action against her. The district court dismissed the claim and the Tenth Circuit affirmed, holding
that the plaintiff’s “claim fails because she proposed suing GSD, which does not qualify as an
employer under the LMRA. Specifically, the LMRA excludes from the definition of ‘employer’
‘any State or political subdivision thereof.’ 29 U.S.C. § 152(2). . . . GSD is . . . a political
subdivision of the State of New Mexico. Denial of leave to amend to pursue an LMRA claim was
therefore appropriate.” Burke v. New Mexico, 2017 WL 2473310, at *6 (10th Cir. June 8, 2017).
See also, Richards v. Ohio Civil Serv. Employees Ass’n., 205 F. App’x 347, 354 (6th Cir. 2006)
(district court properly dismissed claims for lack of subject matter jurisdiction, because plaintiffs
“were employees of the State of Ohio, and the LMRA expressly excludes public employers–and
by association, public employees–from its coverage.”); Bourdon v. Canterbury, 813 F.Supp.2d
104, 108, n. 4 (D.D.C. 2011), aff’d, 2012 WL 1155806 (D.C. Cir. Mar. 2, 2012) (“plaintiffs’
attempts to invoke the LMRA . . . fail because that Act applies only to private sector labor
relationships[.]”) (citing Pacific Mar. Ass’n v. Local 63, Int’l Longshoremen’s &
Warehousemen’s Union, 198 F.3d 1078, 1081 (9th Cir. 1999) (holding that the LMRA does not
apply to public sector unions); Richards v. Ohio Civil Serv. Employees Assoc., 205 Fed.Appx.
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347, 354 (6th Cir. 2006) (“the LMRA expressly excludes public employers–and by association,
public employees–from its coverage.”)). As yet another court explained, “[t]he [Act] provides
federal courts with jurisdiction over suits for violations of contracts between ‘an employer’ and a
labor organization. 29 U.S.C. § 185(a). Thus, union members may generally bring suit in federal
court against a union for breaching the duty of fair representation. However, states and political
subdivisions thereof are specifically exempt from the definition of ‘employer.’” Gant v.
Peterson, 2013 WL 5770639, at *3 (E.D. Mich. Oct. 24, 2013) (citing 29 U.S.C. § 152(2) and
Richards, 205 F.App’x at 355). The court in Gant also noted that “‘[i]t is well settled that section
301 provides the basis for an action for breach of the duty of fair representation only against a
union as an entity, and not against individuals who happen to hold positions in that union.’” Id. at
* 4 (quoting Carter v. Smith Food King, 765 F.2d 916, 920-21 (9th Cir. 1985) and citing Burrell
v. Henderson, 483 F.Supp.2d 595, 600 (S.D.Ohio 2007) (“It is well-settled case law that officers
of labor unions cannot be held liable under § 301 of the [Act] in their individual capacity. Rather,
‘section 301 only provides for actions against a union and not against individuals working on
behalf of the union.’”)).
Rogers’ Amended Complaint suffers the same fate as the ones just discussed and for the
same reasons. Since Rogers cannot assert a § 301 against any of the Defendants in this case
(including the FWPTC, even if it were a party to this suit), this Court lacks subject matter
jurisdiction and this case must be dismissed. The result is the same under the Rule 12(b)(6)
standard. Ordinarily, a court’s dismissal of a complaint for failure to state a claim is without
prejudice, which allows a plaintiff (especially a pro se plaintiff) an opportunity to amend her
complaint to correct deficiencies. However, a Rule 12(b)(6) dismissal can be with prejudice if
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circumstances warrant it. Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003) (“District judges
have ample authority to dismiss frivolous or transparently defective suits spontaneously, and thus
save everyone time and legal expense. This is so even when the plaintiff has paid all fees for
filing and service[.]”) (citing Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999)); see also,
Anderson v. Deutsche Bank National Trust Co., 2014 WL 6806891, at *2 (N.D. Ill. Dec. 2,
2014). In this instance, whether pursuant to Rule 12(b)(1) or 12(b)(6), dismissal with prejudice is
warranted since Rogers’ Amended Complaint fails to state a legally viable claim over which this
Court can exercise jurisdiction, and also because it was her second bite at the apple and further
amendment would be futile. “A district court does not abuse its discretion in denying leave to
amend if the proposed repleading would be futile.” Naperville Smart Meter Awareness v. City of
Naperville, 114 F.Supp.3d 606, 610 (N.D. Ill. 2015) (citing Garcia v. City of Chi., 24 F.3d 966,
970 (7th Cir. 1994); Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir.2012) (“District courts
have broad discretion to deny leave to amend . . . where the amendment would be futile.”)). The
Court may also deny leave to amend for repeated failure to cure deficiencies by amendments
previously allowed–such as failing to state a cognizable claim for relief. See Adams v. City of
Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014) (denying motion to amend due to futility where
the amended complaint was still “pleaded in wholly conclusory terms” and failed the
“plausibility threshold.”). In this case Rogers amended her complaint once, to name FWPTC as a
defendant, but the Amended Complaint did nothing to cure the jurisdictional defect that
mandates dismissal. Since Rogers’ claims are barred as a matter of law for the reasons discussed
in this order, any further amendment would be futile.
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CONCLUSION
For the reasons discussed above, the motion to dismiss (ECF 37) filed by Defendants
Amalgamated Transit Union, Ernest Johnson, Steve Sustek, Sheila Roberson, Christopher
Phillip, and Robert Almarode is GRANTED and this case is DISMISSED WITH
PREJUDICE.
Date: October 11 , 2017.
/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana
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