McNealy v. Becnel et al

Filing 341

ORDER AND REASONS granting 277 Motion for Summary Judgment; granting 280 Motion for Summary Judgment, all claims against the Local Union and USW International are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that the Local Union's and USW International's requests for attorney's fees is DENIED. Signed by Judge Susie Morgan on 5/26/2017. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEWTON MCNEALY,
Plaintiff

CIVIL ACTION

VERSUS

NO. 14-2181

DARRYL J. BECNEL, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
Before the Court are Motions for Summary Judgment filed by Defendants United
Steelworkers Union, Local 750 (“Local Union”) 1 and United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International
Union AFL-CIO (“USW International”) 2. Plaintiff Newton McNealy opposes the Local
Union’s and USW International’s motions for summary judgment. 3 For the following
reasons, the Local Union and USW International’s motions for summary judgment are
GRANTED.
PROCEDURAL BACKGROUND
McNealy originally filed this civil action on September 22, 2014, and has been
granted leave of court on multiple occasions to amend his complaint. 4 On December 18,
2015, the Local Union 5 and USW International 6 filed motions to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, which were amended on August 10,
2016. 7 On October 17, 2016, the Court issued its Order regarding the then pending
R. Doc. 277.
R. Doc. 280.
3 R. Doc. 311.
4 McNealy’s complaints include Record Document 1 (Complaint), Record Document 37 (Amended and
Supplemental Complaint), Record Document 60 (Second-Amended Complaint), Record Document 114
(Third-Amended Complaint), and Record Document 260 (Fourth-Amended Complaint).
5 R. Doc. 118.
6 R. Doc. 117.
7 R. Docs. 215, 216.
1

2

1

dispositive motions filed by the Defendants in this case. 8 In its Order, the Court dismissed
Plaintiff’s Section 1985(2) claim and converted the Local Union’s and USW
International’s 12(b)(6) motions to dismiss with respect to Plaintiff’s Section 1985(3),
1986, and 301 of the Labor Management Relations Act (“LMRA”) into motions for
summary judgment. 9 The Court deferred ruling on whether to exercise supplemental
subject matter jurisdiction over McNealy’s state law claims until after the Court ruled on
the Defendants’ motions for summary judgment. 10 On November 9, 2016, the Local
Union and USW International filed motions to reconsider regarding the Court’s October
17, 2016 Order arguing that the state law claims against them for breach of contract and
negligence are preempted by Section 301 of the LMRA. 11 On November 17, 2016, the Court
granted the Local Union’s and USW International’s motions for reconsideration and
amended its October 17, 2016 Order to dismiss Plaintiff’s state law breach of contract and
tort claims against both defendants. 12 On February 7, 2017, pursuant to the Court’s
Order, 13 the Local Union and USW International filed their respective motions for
summary judgment dismissing the Plaintiff’s Fourth Amended Complaint. 14
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 15 “An issue is material if its resolution could affect the outcome of the action.” 16
R. Doc. 237.
See id. The Court also found that Plaintiff’s claims under 29 U.S.C. § 141, et seq., of the LMRA are in reality,
claims under Section 301 of the LMRA for breach of the duty of fair representation. Id. at 13-14.
10 Id. at 38.
11 R. Docs. 257, 258.
12 R. Doc. 265.
13 R. Doc. 267.
14 R. Docs. 277, 280.
15 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
16 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
8
9

2

When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 17 All reasonable inferences are drawn in favor of the nonmoving party.18
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 19
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 20 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 21
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim. 22 When proceeding under the first option, if the
17 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
18 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
19 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
20 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
21 Celotex, 477 U.S. at 322–24.
22 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential

3

nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
to summary judgment as a matter of law. 23 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.” 24 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant. 25 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).” 26 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.” 27

element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
23 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
24 Celotex, 477 U.S. at 332–33.
25 Id.
26 Celotex, 477 U.S. at 332–33, 333 n.3.
27 Id.; see also First National Bank of Arizona, 391 U.S at 289.
4

“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 28
LAW AND ANALYSIS
McNealy asserts causes of action against USW International and the Local Union
under (1) Section 301 of the Labor Management Relations Act, for breach of the duty of
fair representation; 29 (2) 42 U.S.C. § 1985(3); and (3) 42 U.S.C. § 1986. 30
McNealy alleges USW International and the Local Union breached their duty of
fair representation implied under Section 301 of the Labor Management Relations Act. 31
Section 301 of the Labor Management Relations Act, codified at 29 U.S.C. § 185, has been
recognized by the Supreme Court of the United States as a “potent source of federal labor
law.” 32 Section 301 provides an individual employee with a federal cause of action against
his or her employer for breach of a collective bargaining agreement. 33 An employee’s
cause of action against a union for breach of the duty of fair representation is implied
under Section 301. 34 “Because of the intricate relationship between the duty of fair
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
29 McNealy also alleges claims against the Unions pursuant to 29 U.S.C. § 141 et seq. See R. Doc. 260 at 13.
As the Court explained in its October 17, 2016 Order and Reasons, “McNealy’s claims against USW
International and Local Union under 29 U.S.C. § 141 are, in reality, claims under Section 301 of the Labor
Management Relations Act for breach of the duty of fair representation.” R. Doc. 237 at 13-14.
30 R. Doc. 260. See also R. Docs. 237, 245 at 2, 265.
31 See, e.g., Electrical Workers v. Foust, 442 U.S. 42, 46 n.8 (1979) (“The duty of fair representation is . . .
implicit in the National Labor Relations Act.”). The Labor Management Relations Act amended the National
Labor Relations Act. See generally Smith v. Int’l Org. of Masters, Mates and Pilots, 296 F.3d 380 (5th Cir.
2002).
32 United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 368 (1990).
33 Bache v. Am. Tel. & Tel., 840 F.2d 283, 287 (5th Cir. 1988) (citations omitted).
34 Id. (citing Vaca v. Sipes, 386 U.S. 171 (1967)).
28

5

representation and the enforcement of a collectively bargained contract, the two causes
of action have become ‘inextricably interdependent’ and known as a ‘hybrid § 301/fair
representation suit.’” 35
McNealy also alleges USW International and the Local Union violated Sections
1985(3) and 1986 of Title 42 of the United States Code by conspiring to deprive him of his
right to redress his job-related grievances; by failing to protect him from harm,
harassment, and a hostile work environment; and by discriminating against him on
account of his race. 36
I. Claims against USW International
a. Section 301 of the Labor Management Relations Act
In his Fourth Amended Complaint, Plaintiff alleges USW International committed
an unfair labor practice when it restrained or coerced McNealy in the exercise of his rights
under the Labor Management and Relations Act.

37

According to Plaintiff, USW

International, “with actual knowledge of the discriminatory act and crimes against
McNealy refused to take any action on behalf of McNealy. Instead, the Union assisted the
employers in an investigation against McNealy.” 38
Plaintiff’s Section 301 claims arise out of a collective bargaining agreement executed
by Motiva Enterprises LLC (“Motiva”), the Local Union, and USW International. USW
International argues it is undisputed that Plaintiff had no interaction with USW

Id. at 287–88 (quoting DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164–65 (1983)). “The
interdependency arises from the nature of the collective bargaining agreement. If the arbitration and
grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the
employee may not sue his employer under § 301 until he has exhausted the procedure. Further, he is bound
by the procedure’s result unless he proves the union breached its duty of fair representation.” Daigle v. Gulf
State Util. Co., 794 F.2d 974, 977 (5th Cir. 1986) (citations omitted).
36 R. Doc. 260 at ¶ 72.
37 Id. at ¶ 108.
38 Id.
35

6

International. 39 In support, USW International points to Plaintiff’s testimony at his
deposition that he (1) did not contact USW International, or (2) request that USW
International file a grievance on his behalf, at any time after he received Motiva’s February
6, 2014 letter notifying him that his two-year extended disability leave was set to expire on
April 30, 2016 and that his employment relationship would be terminated if he was not
medically cleared to return to work by that date. 40 As a result, USW International argues
the only possible basis for its alleged liability is that it is vicariously liable for the acts of
the Local Union.
Section 301(b) of the Labor Management and Relations Act states that “[a]ny labor
organization which represents employees in an industry affecting commerce . . . shall be
bound by the acts of its agents.” 41 Section 301(e) explains that “[f]or the purposes of this
section, in determining whether any person is acting as an ‘agent’ for another person so as
to make such other person responsible for his acts, the question of whether the specific
acts performed were actually authorized or subsequently ratified shall not be
controlling.” 42
“The general rule is that acts of a local union and its agents may not be imputed to
an international union and mere affiliation does not establish vicarious parent body
liability.” 43 “That the international union signed a collective bargaining agreement will not

39 Plaintiff, in his Fourth Amended Complaint, also states, “Defendant, Local Union 750 is the agent for
USW.” R. Doc. 260 at ¶ 4.
40 R. Doc. 280-1 at 4 (citing R. Doc. 277-5 at 325). The Court notes, however, that counsel for the Local
Union and USW International did not include the cited page in the excerpts of the Plaintiff’s deposition
provided to the Court. The Court however, requested and thoroughly reviewed a complete copy of the
deposition which has been attached to this Order as Exhibits 1 and 2. The excerpt of the deposition
referenced in USW International’s motion can be found in Exhibit 2 at 50.
41 29 U.S.C. § 185(b).
42 29 U.S.C. § 185(e).
43 Gerhardt v. Air Transp. Local 557, 2011 WL 666500, at *8 (S.D. Tex. Feb. 14, 2011) (citing Carbon Fuel
Co., 444 U.S. 212; Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980)).

7

alone make it vicariously liable for the acts of a local union; there must be evidence that
the international union represented the local employees in the grievance procedure to
impose liability on the international union.” 44
“Congress ‘adopted a common-law agency test’ to govern the liability of an
international for the acts of its affiliated locals.” 45 As a result, courts addressing the issue
of whether an international union is liable for the actions of one of its local affiliates have
held that an international union is vicariously liable only if “the local engages in illegal
conduct in furtherance of its role as an agent of the international.” 46 “However, if the local
exercises considerable autonomy in conducting its affairs, it cannot be regarded as an
agent of the international, and the international accordingly cannot be held liable under
an agency theory for the local’s actions.” 47 The Ninth Circuit has explained, “[W]hat should
matter is not so much the International’s theoretical control over the local as the nature
and extent of actual control.” 48 To analyze the actual relationship between the local and
international, courts have considered the following “determinative factors”: the local’s (1)
election of its own officers; (2) ability to hire and fire its own employees; (3) maintenance
of its own treasure; and (4) independent conduct of its daily business. 49
USW International concedes it is a signatory to the collective bargaining agreement
with the Local Union and Motiva, 50 but points to the absence of evidence in the record to

44 Id. (citing Hammons v. Adams, 783 F.2d 597, 604-05 (5th Cir. 1986); Pipes v. United Parcel Service,
Inc., 2009 WL 1684689, at *5 (W.D. La. June 16, 2009)).
45 R. Doc. 280-1 at 6 (citing Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 217 (1979)).
46 See, e.g. Laughon v. Int’l All. Of Theatrical Stage Employees, Moving Picture Technicians, Artists &
Allied Crafts of the United States & Canada, 248 F.3d 931, 935 (9th Cir. 2001) (citing Carbon Fuel Co., 444
U.S. at 217).
47 Id. (citing Shimman v. Frank, 625 F.2d 80, 97-98 (6th Cir. 1980)).
48 Id. (citing Shimman, 625 F.2d at 98 n.36; Berger v. Iron Workers Reinforced Rodmen Local 201, 843
F.2d 1395, 1430-31 (D.C.Cir. 1988)).
49 Id. (citing Childs v. Local 18, Int’l Bhd. Of Elec. Workers, 719 F.2d 1379, 1382 n.2 (9th Cir. 1983)).
50 R. Doc. 280-1 at 7 (citing R. Doc. 277-2).

8

establish the Local Union acted as USW International’s agent. As USW International
points out, Plaintiff, at his deposition, testified that “he had never contacted the
International Union in Pittsburgh,”51 and “admitted that he did not speak to anyone at the
international . . . [and] that he has no information that International even knew what was
happening to [him] in the workplace.” 52
Plaintiff responds that he complained about the hostile work environment,
harassment and racial discrimination to Armond Thomatis, former Local Union
President. 53 Plaintiff also points out that Wilton Ledet, who is now identified as McNealy’s
Union Representative, was not present, and therefore refused to represent him, when
Plaintiff met with Brandon Dufrene and David Naquin to complain about the hostile work
environment. 54 Plaintiff references interactions with representatives of the Local Union
and not representatives of USW International.
Plaintiff has not put forward any evidence showing that USW International
controlled the Local Union’s elections, controlled the Local Union’s ability to hire and fire
its own employees, maintained the Local Union’s treasury, or otherwise controlled or
directed any other part of the Local Union’s daily business. The undisputed facts
demonstrate that the Local Union did not act as an agent for USW International. As a
result, USW International is not vicariously liable for the acts of the Local Union. 55
USW International’s motion for summary judgment dismissing Plaintiff’s claims
against it under the Labor Management Relations Act is granted.

Id. at 4.
Id. (citing R. Doc. 277-5 at 325-26). The excerpt of the deposition referenced can be found in Exhibit 2 at
51-52.
53 R. Doc. 311-3 at ¶ 32-33 (citing R. Doc. 311-4).
54 Id. at ¶ 48.
55 Alternatively, because the Local Union itself is not liable to the Plaintiff under Section 301, the
International Union can have no vicarious liability for its acts. See infra p. 11-16.
51

52

9

b. 42 U.S.C. § 1985(3) and § 1986
In his Fourth Amended Complaint, Plaintiff asserts a claim against USW
International, under Title 42, United States Code, Sections 1985(3) and 1986, based on
USW International’s vicarious liability for the acts of the Local Union. 56 Because the Local
Union has no liability to the Plaintiff under Sections 1985(3) and 1986, 57 USW
International can have no vicarious liability for its acts. USW International’s motion for
summary judgment is granted with respect to Plaintiff’s claims against it under Title 42,
United States Code, Sections 1985(3) and 1986.
II. Claims against the Local Union
a. Section 301 of the Labor Management Relations Act
In his Fourth Amended Complaint, McNealy alleges the Local Union breached its
duty and violated Section 301 of the Labor Management Relations Act when it failed to
enforce and protect his rights and interests provided by the collective bargaining
agreement. 58 McNealy’s complaint is that the Local Union failed to file grievances
protesting work assignments made to him by his employer, failed to protect him from
harassment by his co-workers, and failed to represent him when he was medically
separated from Motiva. 59 The Local Union argues summary judgment should be granted
with respect to Plaintiff’s Section 301 claim because the undisputed facts show that (1) all
of the claims made by McNealy, save one, his claim that the Union failed to represent him
when he was medically separated the company in April 2014, are time-barred by the

See R. Doc. 260 at ¶ 74.
See infra p. 16-18.
58 R. Doc. 260 at 15.
59 See, id.
56
57

10

applicable statute of limitations; and (2) with respect to Plaintiff’s only claim falling within
the limitations period, the Local Union did not fail to represent Plaintiff because Plaintiff
failed to exhaust his contractual remedies under the collective bargaining agreement. 60
1. Plaintiff’s 2011 Claims Have Prescribed
As the Fifth Circuit explained in Jackson v. Metropolitan Transit Authority, “In
DelCostello, the Supreme Court held that the six-month[] statute of limitations in § 10(b)
of the National Labor Relations Act, 29 U.S.C. § 160(b), applies to ‘hybrid’ claims.” 61 “The
limitations period . . . begins to run when the claimant [] discover[s], in the exercise of
reasonable diligence, [or] should discover, the acts that form the basis of [his] duty of fair
representation claim.” 62
Prescription is an affirmative defense and defendants bear the burden of proving
prescription on a motion for summary judgment by demonstrating the absence of a
genuine issue of material fact. 63 A defendant may demonstrate the absence of a genuine
issue of material fact by showing that it is facially apparent from the plaintiff’s complaint
that the claim at issue has prescribed. 64 The Local Union, in its Motion for Summary
Judgment, argues it is facially apparent from the Fourth Amended Complaint that
“McNealy’s claims concerning the alleged 2011 incidents are time-barred.” 65
Plaintiff alleges that in October and/or November of 2011 the Local Union breached
its duty when it did not file a grievance on his behalf or provide any other assistance in
Id.
Jackson v. Metro. Transit Auth., 53 F.3d 1280, at *3 (5th Cir. 1995) (citing DelCostello v. International
Bhd. Of Teamsters, 462 U.S. 151, 169-72 (1983)).
62 Id. (some alterations in original) (quoting Wood v. Houston Belt & Terminal Rwy., 958 F.2d 95, 97 (5th
Cir. 1992)).
63 See Bourdais v. City of New Orleans, 2002 1963320, at *3 (E.D. La. Aug. 22, 2002) (citing Castano v.
American Tobacco Company, 961 F. Supp. 953, 957 (E.D. La. 1997); Ducre v. Mine Safety Appliances, 963
F.2d 757 (5th Cir. 1992)).
64 See Chaverri v. Dole Food Co., Inc., 546 F. App’x 409, at 411 (5th Cir. 2013).
65 R. Doc. 277-1 at 18.
60
61

11

response to his being (1) hit on the head with a crane control box, (2) unwillingly confined
within a company truck, and (3) assaulted with a radio antenna. 66 McNealy first filed suit
on September 22, 2014. 67 March 22, 2014 was six months before this date. The allegations
against the Local Union based on the alleged October and November 2011 incidents relate
to events that occurred well before March 22 2014, and, clearly fall outside of the sixmonth limitations period. 68
On February 29, 2012, Plaintiff returned to work after he exhausted his FMLA
leave. 69 Upon his return, McNealy met with Mary Snyder, Steve France and Tim Casey. 70
Also in attendance was Union Representative Wilson Ledet. 71 According to Plaintiff, Ledet
told him that this was not the time to bring up his complaints regarding discrimination
and the hostile work environment. 72 Following the meeting, Plaintiff was placed on nonoccupational disability leave. 73 At this time, Plaintiff was, or should have been, aware that
no grievance had been filed on his behalf and that no other assistance was going to be
provided. In his deposition, Plaintiff testified it was at this point he first spoke to an
attorney about filing a lawsuit. 74 At the latest, McNealy discovered, or should have
discovered, the basis of his duty of fair representation claim on February 29, 2012. 75 This
too occurred well before March 22, 2014.

R. Doc. 277-1 at 7. See also, R. Doc. 260 at 3-4.
R. Doc. 1.
68 R. Doc. 260 at 3-4.
69 R. Doc. 311-2 at 19 ¶ 49 (citing to R. Doc. 277-5 at 31).
70 Id.
71 Id. (citing R. Doc. 311-21 at 2).
72 Id. at 20 (citing R. Doc. 311-18 at 2)).
73 R. Doc. 260 at 5.
74 See Ex. 1 at 217 (“It was after that incident on February 29th, when I knew I hadn’t a leg to stand on . . .
[a]nd I called practically every attorney I could find in the phone book.”)
75 R. Doc. 260 at 5.
66
67

12

Because of the six month statute of limitations period, McNealy’s claims based on
the 2011 and 2012 incidents survive only if he can show that he is entitled to equitable
tolling. “Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently and (b) that some
extraordinary circumstances stood in his way.” 76 McNealy contends that he suffered and
continues to suffer from mental anguish resulting in post-traumatic stress disorder. In
addition to alleging permanent mental disability in his complaint, Plaintiff attaches a copy
of the final order from his workers’ compensation case on which the Office of Workers’
Compensation judge handwrote a note stating, “It is further ordered that Mr. McNealy is
deemed permanently and totally disabled.” 77 “To equitably toll a claim on the basis of
psychological impairment, . . . a party must show that the problems were so severe that
they ‘rendered him unable to pursue his legal rights during the relevant time period.’” 78
The Local Union argues there is no evidence in the record to establish that Plaintiff’s
mental problems were so severe they rendered him unable to pursue his legal rights.
McNealy, in his deposition, testified that he owns his own house and lives alone, drives
himself, does his own banking, picks up his own prescriptions, pays his own bills, and he
has never had to transfer Power of Attorney to anyone for operation of his business
affairs. 79 McNealy offers no summary judgment evidence to create an issue of disputed fact
with respect to whether some extraordinary circumstance stood in his way. It is clear that
McNealy not only has the ability to pursue his legal rights but in fact has done so. As a

Pace v. Giguglielmo, 544 U.S. 408, 418 (2005).
R. Doc. 311-6 at 1.
78 R. Doc. 277-1 at 21-22 (quoting Boos v. Runyon, 201 F.3d 178, 175 (2d Cir. 2000).
79 R. Doc. 277-5, at 21-22, 20, 32-33, 37.
76
77

13

result the Court finds McNealy’s psychological impairments do not entitle him to equitable
tolling.80
The Local Union’s motion for summary judgment dismissing Plaintiff’s Section 301
claims for incidents occurring in 2011 and 2012 is granted.
2. Plaintiff Failed to Exhaust His Contractual Remedies Regarding His 2014
Medical Separation From the Company
Plaintiff’s sole remaining claim under Section 301 of the LMRA pertains to the Local
Union’s failure to file a grievance on his behalf regarding the termination of his
employment relationship with Motiva in 2014. 81 McNealy argues the Local Union
breached its duty of fair representation when it failed “to adhere and enforce and protect
his rights and interest under the collective bargaining agreement” when Motiva terminated
his employment relationship in 2014. 82
It is uncontested that on February 6, 2014, McNealy received a letter from Motiva
notifying him that his two-year extended disability leave was set to expire on April 30,
2014. 83 It is also uncontested this letter informed McNealy that he would be terminated if
he was not medically cleared to return to work by April 30, 2014. 84 It is also uncontested
that “[w]hen McNealy received the separation notice, McNealy never contacted anyone
The Local Union mentions that “McNealy appears to make an attempt at a futility argument in an effort
to toll the deadlines.” R. Doc. 277-1 at 22. As already explained above, McNealy fails to address the Local
Union’s arguments regarding the statute of limitations. In Rabalais v. Dresser, the Fifth Circuit recognized
an exception to the typical requirement that a Plaintiff exhaust the remedies set forth in a collective
bargaining agreement when “exhaustion of contractual remedies would be futile because the aggrieved
employee would have to submit his claim to a group ‘which is in large part chosen by the (employer and
union) against whom (his) real complaint is made.” 566 F.2d 518, 519 (5th Cir. 1978) (quoting Glover v. St.
Louis-S.F. Ry. Co., 393 U.S. 324, 330 (1969)). The futility exception, however, is not a grounds for tolling
of a prescriptive period but instead is an exception to the requirement that a plaintiff must exhaust his
contractual remedies prior to initiating a suit.
81 The Local Union “alleged failure to file a grievance regarding McNealy’s medical separation is the only
claim against the Local Union made by McNealy which relates to the Local Union’s representation of him
which falls within the limitations period.” R. Doc. 277-1 at 27.
82 R. Doc. 260 at ¶ 114.
83 R. Doc. 277-17 at ¶ 60; R. Doc. 311-2 at ¶ 59; R. Doc. 277-15.
84 R. Doc. 277-17 at ¶ 60; R. Doc. 311-2 at ¶ 59; R. Doc. 277-15.
80

14

from the Local Union. McNealy never contacted Poche, Thomatis, or Ledet about his
separation.” 85 The Local Union offers the sworn declarations of Marty Poche, Armond
Thomatis, and Wilson Ledet, in which each declarant states that he first learned of
McNealy’s medical separation from the company when he received a copy of McNealy’s
lawsuit against the Local Union. 86
Plaintiff argues only that the Local Union had knowledge of his termination on or
around December 19, 2013. According to Plaintiff, “The Union had full knowledge of
McNealy’s condition when he was fired through Hippa [sic] Release Forms.” 87
It is uncontested McNealy never contacted anyone from the Local Union when he
received the separation notice on February 6, 2014. 88 As a result, it is clear McNealy did
not request that the Local Union file a grievance regarding his medical separation. The
Fifth Circuit has held that “[i]f the arbitration and grievance procedure is the exclusive
and final remedy for breach of the collective bargaining agreement, the employee may not
sue his employer under § 301 until he has exhausted the procedure.” 89 The section of the
collective bargaining agreement between McNealy’s employer, Motiva, and the Local
Union provides a grievance and arbitration procedure that is the exclusive and final
remedy for “[a]ll complaints arising out of the application or interpretation of’” the
agreement. 90 The Local Union argues “McNealy fails to state how the inaction taken by

85 R. Doc. 277-17 at ¶ 61; R. Doc. 311-2 at ¶ 60. Plaintiff states he admits this fact, however, he also cites to
evidence in the record which could be interpreted to mean that the Plaintiff actually denies this fact. See R.
Doc. 311-2 at ¶ 60 (“McNealy was denied representation in 2011”) (citing R. Doc. 311-21 at 302, 319)). The
evidence cited to, however, does not support a denial of this fact.
86 R. Docs. 277-7 at ¶ 34, 277-10 at ¶ 19, 277-11 at ¶ 25.
87 R. Doc. 311-2 at ¶ 63 (citing R. Doc. 311-20 at 1).
88 R. Doc. 277-17 at ¶ 61; R. Doc. 311-2 at ¶ 60.
89 Id. (alteration in original) (quoting Daigle v. Gulf State Utils. Co., Local Union Number 2286, 794 F.2d
974, 977 (5th Cir. 1986)).
90 R. Doc. 277-2 at 22 (“All complaints arising out of the application or interpretation of this Agreement
shall be handled as filed; it being agreed that unless a complaint is submitted within the time and in the

15

the Union constitutes a breach of duty of fair representation when it did not even know
McNealy was separated from [the] Company,” and, as a result, “[a]ny claim by McNealy
against the Local Union for alleged breach of the duty of fair representation relating to
the April 2014 medical separation is barred by McNealy’s failure to invoke the contractual
grievance procedure.” 91 Plaintiff does not address this argument in his opposition. The
Court finds that Plaintiff failed to exhaust his remedies under the governing collective
bargaining agreement.
The Fifth Circuit has recognized the following three exceptions to the exhaustion
requirement: (1) the union wrongfully refuses to process the employee’s grievance, thus
violating its duty of fair representation; (2) the employer’s conduct amounts to a
repudiation of the remedial procedures specified in the contract; and (3) exhaustion of
contractual remedies would be futile because the aggrieved employee would have to
submit his claim to a group which is in large part chosen by the employer and union against
whom his real complaint is made. 92 McNealy claims the futility exception applies in this
case. The Fifth Circuit has held, however, that the availability of a neutral arbitrator refutes
a futility argument as a matter of law.” 93 Section 10.02 of the Collective Bargaining
Agreement clearly provides an arbitration option in the circumstance that the union
member’s complaint is not resolved on an acceptable basis by other means. 94 The futility
exception to the exhaustion of contractual remedies requirement does not apply.

manner provided by the following procedure, it shall have no status as a valid complaint under any of the
provisions of this agreement.”).
91 R. Doc. 277-1 at 28.
92 See Rabalais, 566 F.2d at 519 (citations omitted).
93 R. Doc. 277-1 at 28 (citing Parham v. Carrier Corp., 9 F.3d 383 (5th Cir. 1993)).
94 R. Doc. 277-2 at 23.
16

The Local Union’s motion for summary judgment dismissing Plaintiff’s Section 301
claims related to the termination of his employment relationship in 2014 is granted.
b. 42 U.S.C. § 1985(3) and § 1986
In his Fourth Amended Complaint, Plaintiff alleges the Local Union:
Conspired by force, intimidation, and threats to deprive McNealy of his
right to redress his job-related grievances, to be protected from harm and
valance [sic] in the work place, to be protected from harassment in the work
place, to protect McNealy from the hostile work environment, to
discriminate against McNealy based on his race, and to terminate McNealy
from his employment. 95
McNealy further alleges “The Union and employers conspired to cover up the crimes and
discrimination perpetrated against” him. 96
In order to state a claim for a conspiracy under § 1985(3), a plaintiff must allege: (1)
a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or
indirectly, a person or class of persons of the equal protection of the laws; and (3) an act
in furtherance of the conspiracy; (4) which causes injury to a person property, or a
deprivation of any right or privilege of a citizen of the United States; and (5) that the
conspiracy was motivated by some class-based animus. 97 Race is a class for the purpose of
§ 1985(3). 98
In this case, the alleged unlawful objective of the conspiracy was to discriminate
against Plaintiff on the basis of his race. The Local Union points out that there is no
evidence in the record to show that its alleged actions were motived by race. 99 In response

R. Doc. 260 at ¶ 72.
Id. at ¶ 73.
97 Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994) (citations omitted); Mayfiled v. Desoto Par.
Police Jury, 2017 WL 519684, at *2 (W.D. La. Feb. 6, 2017). See also, St. Martin v. Jones, 2008 WL
4412267, at 7 (E.D. La. Sept. 17, 2008).
98 See Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 271 (5th Cir. 2001).
99 R. Doc. 277-1 at 30 n.26.
95

96

17

to the Local Union’s motion for summary judgment, Plaintiff fails to identify any evidence
creating a genuine issue of fact with respect to whether the Local Union’s actions were
motivated by race. The Local Union’s motion for summary judgment dismissing Plaintiff’s
Section 1985(3) claim is granted.
Plaintiff has also alleged a claim under 42 U.S.C. § 1986. Because Plaintiff has
failed to allege a proper Section 1985 claim, his Section 1986 must be dismissed as well.100
Accordingly, the Local Union’s motion for summary judgment dismissing Plaintiff’s
Section 1986 claim is granted.
III. Plaintiff’s Allegations of Discovery Violations
In his Opposition to the Union Defendants’ Motions for Summary Judgment,
Plaintiff argues he cannot “fully present his opposition without the discoverable
information relative to the contracts and concealed discovery.” 101 McNealy argues that the
Local Union and USW International failed to properly answer, refused to produce
discoverable information, and gave incomplete or evasive responses to interrogatories. 102
Both defendants deny these allegations and argue that they timely produced answers to
Plaintiff’s discovery requests and that, after Plaintiff’s counsel informed their counsel she
considered the responses to the discovery requests to be insufficient, the parties had a
“10.1 conference and agreed to clarify and supplement some of its answers.” 103 Both
defendants represent that their counsel provided supplemental discovery to McNealy on
January 6, 2017. 104 Further, the Defendants argue, “McNealy could have filed a motion to

See Newberry v. East Texas State Univ., 161 F.3d 276, 281 n.3 (5th Cir. 1998) (“If the § 1985 claim fails,
so must the § 1986 claim.” See also, Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000)
(“And because a valid § 1985 claim is a prerequisite to a § 1986 claim, that claim is also invalid.”).
101 R. Doc. 311-1 at 13.
102 Id.
103 R. Doc. 334 at 10-11.
104 Id. at 11
100

18

compel if he still considered the Local Union and USW International’s discovery answers
insufficient. McNealy had ample time to rectify any perceived issue with the . . . discovery
responses. McNealy cannot now use discovery as an excuse for an incomplete opposition
and/or insufficient evidence.” 105 The Court agrees. Plaintiff’s complaints about alleged
discovery violations should not be addressed in an opposition to a motion for summary
judgment. If true, the complaints should have been raised in a timely Federal Rule of Civil
Procedure 37 motion to compel. The Plaintiff did not request additional time for discovery
under Federal Rule of Civil Procedure 56(d).
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that the Local Union’s 106 and USW International’s 107 motions
for summary judgment are GRANTED and all claims against the Local Union and USW
International are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Local Union’s
International’s 109 requests for attorney’s fees is DENIED.
New Orleans, Louisiana, this 26th day of May, 2017.
_____________ _______ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Id.
R. Doc. 277.
107 R. Doc. 280.
108 R. Doc. 277-1 at 32.
109 R. Doc. 280-1 at 8.
105

106

19

108

and USW