Thompson v. General Linen Supply Company

Filing 14

ORDER (1) Granting in Part and Denying in Part Defendant General Linen Supply Co.'s 9 Motion to Dismiss the Amended Complaint and (2) Granting Plaintiff Leave to Amend to Assert Breach of Contract Claim. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALTER THOMPSON,
Plaintiff,

Case No. 17-cv-13739
Hon. Matthew F. Leitman

v.
GENERAL LINEN SUPPLY CO., et al.,
Defendants.
_________________________________/
ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT
GENERAL LINEN SUPPLY CO.’S MOTION TO DISMISS THE
AMENDED COMPLAINT (ECF #9) AND (2) GRANTING PLAINTIFF
LEAVE TO AMEND TO ASSERT BREACH OF CONTRACT CLAIM
In Plaintiff Walter Thompson’s Amended Complaint in this action, he asserts
ten claims against his former employer, Defendant General Linen Supply Co., and
his former union, Unite-Here Local No. 129 (the “Union”). (See Am. Compl., ECF
#6.) Thompson alleges, among other things, that General Linen underpaid him,
terminated his employment without allowing him to participate in a contractuallymandated grievance process, discriminated against him on the basis of his disability,
race, and age, and retaliated against him. (See id.) He also contends that the Union
breached its duty to fairly represent him. (See id.) On April 30, 2018, General Linen
moved to dismiss a number of Thompson’s claims in the Amended Complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See Mot. to Dismiss, ECF

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#9.) For the reasons explained below, the Court GRANTS IN PART and DENIES
IN PART General Linen’s motion to dismiss.1
I
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint
when a plaintiff fails to state a claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a plaintiff
pleads factual content that permits a court to reasonably infer that the defendant is
liable for the alleged misconduct. See id. (citing Twombly, 550 U.S. at 556). When
assessing the sufficiency of a plaintiff’s claim, a district court must accept all of a
complaint’s factual allegations as true. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d
509, 512 (6th Cir. 2001). “Mere conclusions,” however, “are not entitled to the
assumption of truth.

While legal conclusions can provide the complaint’s

framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664.
A plaintiff must therefore provide “more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action” to survive a motion to

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The Court has determined that it may properly resolve the motion to dismiss
without a hearing. See L.R. 7.1(f).
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dismiss. Twombly, 550 U.S. at 556. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.
II
A
In Counts III and IV of the Amended Complaint, Thompson brings claims
under Section 301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. §
185. The claims are based upon General Linen’s alleged breaches of a collective
bargaining agreement between General Linen and the Union (the “CBA”). The
Court concludes that these claims are time-barred.
A claim under Section 301 of the LMRA “is governed by the six-month statute
of limitations borrowed from section 10(b) of the National Labor Relations Act.”
McCreedy v. Local Union No. 971, UAW, 809 F.2d 1232, 1236 (6th Cir. 1987). The
limitations period begins to run “when the claimant discovers, or in the exercise of
reasonable diligence should have discovered, the acts constituting the alleged
violation.” Id. (internal quotations omitted).
In Count III, Thompson asserts, in relevant part, that General Linen breached
the CBA when it discharged him after his first reprimand without making the
required grievance process available to him. The six-month limitations period on
this claim began to run when Thompson knew or should have known that General
Linen terminated him without permitting him to participate in the grievance process

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mandated by the CBA. General Linen terminated Thompson’s employment on
October 13, 2016.

Under the CBA, Thompson’s grievance process had to

commence within 30 working days2 of that event (i.e., November 12, 2016) and end
within 75 working days of that event (i.e., December 27, 2016).3 (See CBA at Art.
14, ECF #9-2 at Pg. ID 324.) Thus, the limitations period for Thompson’s claim in
Count III began, at the latest, when the grievance process should have ended on
December 27, 2016. By that time, it had to have been clear to Thompson that the
grievance process had not been made available to him. But Thompson did not file
this action until November 16, 2017 – nearly a full year later. Because Thompson
waited more than six months to file his Section 301 wrongful-termination in Count
III, it is time-barred.
In Count IV of the Amended Complaint, Thompson asserts that General Linen
breached the CBA when it failed to pay him (1) the $15.75 hourly rate for
maintenance workers and (2) two weeks of vacation pay at his termination. The six-

2

The CBA defines the “regular work week” as “Monday through Sunday.” (CBA at
Art. 3, ECF #9-2 at Pg. ID 305.)
3

Step 1 of the grievance process is that a meeting must be completed within 30 days
of the event upon which the grievance is based. (See CBA at Art. 14, ECF #9-2 at
Pg. ID 324.) Step 2 of the grievance process requires that the grievance be reduced
to writing within 10 days of the Step 1 meeting, and the employer must respond
within 5 days of receiving the grievance. (See id.) Step 3 provides that the
unresolved grievance may be submitted to arbitration within 30 days. (See id.) The
75-day calculation is sum of the times provided under each of the three steps.
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month limitations period applicable to this claim began to run when Thompson knew
or should have known that he was being underpaid and that he had not received his
vacation pay.

Thompson alleges that he learned of the underpayment in “early

2016.” (Am. Compl. at ¶¶ 24-28, ECF #6 at Pg. ID 208.) And he claims he learned
of the alleged failure to pay vacation time at or around the time he was terminated
in October 2016. (See id. at ¶63, Pg. ID 211.) But he did not bring this action until
November of 2017. Thus, Thompson’s Section 301 underpayment claims in Count
IV are time-barred.
Thompson counters that the statute of limitations should be tolled on his
Section 301 claims for two reasons. Neither are persuasive. First, Thompson argues
that the statute of limitations should be tolled during the time that the Equal
Employment Opportunity Commission (the “EEOC”) was investigating claims of
retaliation and disability discrimination that he filed with that agency against
General Linen. Thompson offers no authority for this proposition. The Court is not
persuaded that the EEOC’s investigation into retaliation and disability
discrimination charges should toll the limitations period applicable to Thompson’s
separate claims that General Linen breached the CBA.
Second, Thompson argues that the statute of limitations should not have run
because (1) the Defendants did not give him a copy of the CBA, (2) he evidently did
not obtain a copy of the CBA until General Linen filed it as an exhibit to its motion

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to dismiss his original Complaint, and (3) without the CBA, he “was unable to
discover facts related to the breach” of the CBA. (Resp. to Mot. to Dismiss, ECF
#10 at Pg. ID 473-74.) But Thompson set forth the key facts underlying his Section
301 claims in his original Complaint which was filed long before he claims to have
first seen the CBA. (See, e.g., Compl. at ¶¶ 22-25, 38, 47, ECF #1 at Pg. ID 3, 5, 6.)
Thus, Thompson’s own conduct in this action belies his claim that he could not have
known, and did not know, the relevant facts without a copy of the CBA.
Accordingly, the Court declines to equitably toll the statute of limitations on the
ground that Thompson was unable to earlier discover the facts underlying his Section
301 claims until he obtained the CBA.
For all of the reasons explained above, Thompson’s Section 301 claims in
Counts III and IV are time-barred, and the Court will dismiss them.
B
In Counts V and VI of the Amended Complaint, Thompson asserts that
General Linen retaliated against him in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”) and the Elliot-Larsen Civil Rights Act (the “ELCRA”).
Thompson has not plausibly alleged either claim, and he has not exhausted his Title
VII retaliation claim. The Court will therefore dismiss these claims.

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First, Thompson has not plausibly alleged that he engaged in any protected
activity, as required for a retaliation claim under both Title VII and the ELCRA.4
See Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (explaining that
an essential element of a retaliation claim under Title VII is that the plaintiff engaged
in protected activity). Thompson argues that he engaged in protected activity by
“oppos[ing] activity protected by Title VII.” (Resp. to Mot. to Dismiss, ECF #10 at
Pg. ID 477.) But the factual allegations in his Amended Complaint do not support
that argument. Thompson alleges that he opposed purported violations of the CBA
and supposed safety violations at his workplace. (See Am. Compl. at ¶111, ECF #6
at Pg. ID 216.) Neither of those matters are protected by Title VII. See Risch v.
Royal Oak Police Dep't, 581 F.3d 383, 390 (6th Cir. 2009) (“Title VII makes it ‘an
unlawful employment practice for an employer ... to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national
origin.’” (quoting 42 U.S.C. § 2000e-2(a)(1))). Because Thompson has not alleged
that he engaged in protected activity by opposing violations of Title VII, the Court
will dismiss his retaliation claims under Title VII and the ELCRA.

4

The same analysis for Title VII claims apply for ELCRA retaliation claims. See
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012).
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Second, Thompson has failed to exhaust his Title VII retaliation claim with
the EEOC. An employee alleging a Title VII claim must exhaust his administrative
remedies with the EEOC. See Randolph v. Ohio Dept. of Youth Services, 453 F.3d
724, 731 (6th Cir. 2006). This requirement is not intended to be “overly rigid,” but
the claim must be “reasonably expected to grow out of the charge of discrimination”
filed with the EEOC. Id.

In Thompson’s sole EEOC charge filed after his

termination, he checked the boxes for “Retaliation” and “Disability,” but he did not
claim retaliation based upon Title VII protected activity. (See EEOC Charge, ECF
#9-5.) Instead, in the narrative portion of the EEOC charge, Thompson described
only how he was paid less than other maintenance workers and that he was
terminated following a chemical spill. (See id. at Pg. ID 347.) He concluded the
narrative portion by insisting that he “was denied equal wages and discharged due
to [his] disability, and in retaliation for complaining of unequal wages, in violation
of the Americans with Disabilities Act of 1990, as amended.” (Id.; emphasis added.)
Nothing in Thompson’s charge suggested that he was complaining about retaliation
for Title VII protected activity. Nor would a Title VII retaliation claim be reasonably
expected to grow out of a charge focused on his unequal wages and termination due
to his disability. Thompson has therefore failed to exhaust this claim.
The Sixth Circuit recently concluded that a Title VII retaliation claim was not
exhausted under similar circumstances. In Russ v. Memphis Light Gas & Water

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Division, the plaintiff’s EEOC charge only had “checked [ ] boxes indicating
discrimination based on ‘Retaliation’ and ‘Disability,’ but left all other boxes blank.”
720 F. App’x 229, 232-33 (6th Cir. 2017). In addition, the narrative portion of the
charge only mentioned disability discrimination. See id. at 233. The Sixth Circuit
held that the Title VII retaliation claim was not exhausted because it “was neither
reasonably related to the factual allegations in the charge, nor could it have grown
out of them.” Id. at 237. Here, like the plaintiff in Russ, Thompson checked only
the “Retaliation” and “Disability” boxes and described only disability discrimination
in his EEOC charge. Thus, Thompson’s Title VII retaliation claim fails for lack of
exhaustion.
C
In Count VII of the Amended Complaint, Thompson asserts that General
Linen discriminated against him on the basis of his race in violation of the ELCRA.
Thompson has not plausibly alleged this claim. The Amended Complaint lacks any
factual allegations of race discrimination. Instead, Thompson relies solely on legal
conclusions and “threadbare” recitals of the elements of a race discrimination claim.
Twombly, 550 U.S. at 556. Thompson’s claim is therefore not plausibly alleged, and
it is properly dismissed.

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D
In Count VIII of the Amended Complaint, Thompson asserts that General
Linen discriminated against him on the basis of his age in violation of the ELCRA.
Thompson has stated a plausible age discrimination claim. Thompson alleges that
he was terminated for spilling chemicals, but younger maintenance workers did not
face any discipline when they spilled chemicals. (See Am. Compl. at ¶¶ 50-54, ECF
#6 at Pg. ID 210.) Those allegations are sufficient to state a plausible claim. And
the Court is not persuaded by General Linen’s argument that Thompson’s statements
in his EEOC charge bar him from proceeding with this state-law claim.
Accordingly, the Court denies General Linen’s motion to dismiss Thompson’s
age discrimination claim.
E
In Count IX of the Amended Complaint, Thompson asserts a claim for unjust
enrichment. Thompson insists that General Linen was unjustly enriched when it
underpaid him. General Linen argues that the claim fails because Thompson alleges
that his employment was governed by an express contract – i.e., the CBA. (Mot. to
Dismiss, ECF #9 at Pg. ID 296.) The Court declines to dismiss the unjust enrichment
claim at this time.
General Linen may ultimately be correct: if Thompson’s employment was
governed by the CBA, Thompson may be precluded from pursuing an unjust

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enrichment claim. But at this point, the Court will construe Thompson’s unjust
enrichment claim as one permissibly presented in the alternative – on the theory that
his employment was not covered by the CBA.

Such alternative pleading is

permissible. The Court will entertain General Linen’s attacks on Thompson’s unjust
enrichment claim at the summary judgment stage of these proceedings.
F
Finally, in Count X of the Amended Complaint, Thompson asserts that
General Linen negligently trained and supervised its employees. More specifically,
he claims that General Linen owed him “a duty to properly train and supervise [its]
employees so that the workplace is free from unnecessary hazard.” (Am. Compl. at
¶165, ECF #6 at Pg. ID 222.) And he alleges that General Linen breached that duty
by not training maintenance workers properly. (See id. at ¶165, Pg. ID 222.)
Thompson claims he was injured in two accidents as a result of the allegedlydeficient training and supervision. (See id. at ¶¶ 18, 32-35, Pg. ID 208-09.)
General Linen argues that this claim fails because an employer owes a duty
only to the general public to reasonably supervise and train its employees. General
Linen has cited two cases in support of this argument.5 Thompson offers no response

5

See Mueller v. Brannigan Bros. Restaurants & Taverns, LLC, __ N.W.2d __, 2018
WL 1611479, at *3 (Mich. Ct. App. Apr. 3, 2018) (“[T]he gravamen of negligent
hiring or retention is that the employer bears some responsibility for bringing an
employee into contact with a member of the public despite knowledge that doing so
was likely to end poorly.” (emphasis added)); Zsigo v. Hurley Med. Ctr., 716 N.W.2d
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to the case law cited by General Linen. Instead, he merely repeats his allegations
that General Linen failed to maintain a safe workplace. The case law cited by
General Linen appears to control and to support dismissal of Thompson’s negligence
claim on the basis that Thompson may not bring a claim for negligent
supervision/training of employees against his employer.6 Accordingly, the Court
will dismiss that claim.
III
In his response to General Linen’s motion to dismiss, Thompson asks the
Court to allow him to file a Second Amended Complaint to assert a breach of

220, 232 n.6 (Mich. 2006) (Kelly, J. dissenting on other grounds) (“Negligent
supervising, like negligent hiring and retention, requires knowledge on the part of
the employer that special circumstances exist that could establish a duty to protect
third persons.” (citing Millross v. Blum Hollow Golf Club, 413 N.W.2d 17 (Mich.
1987)) (emphasis added)); see also Prime Rate Premium Fin. Corp. v. Larson, 226
F. Supp. 3d 858, 870 (E.D. Mich. 2016) (applying Michigan law) (“In a negligent
supervision claim, the first two elements are based on the duty of care imposed on
an employer in the hiring and supervision of employees, such that an employer may
be liable if he knew or should have known that an employee had criminal tendencies
... and placed that employee in a position to meet members of the public.” (internal
quotation marks omitted) (emphasis added)); Tyus v. Booth, 235 N.W.2d 69, 71
(Mich. Ct. App. 1975) (“The duty [of an employer] is to use reasonable care to assure
that the employee known to have violent propensities is not unreasonably exposed
to the public.” (emphasis added)).
6

Although neither party mentioned the issue, the Court questions whether
Thompson’s negligence claim against his employer – in which he seeks to recover
damages for personal injuries suffered in workplace accidents – is barred by the
exclusive remedy provision of Michigan’s Workers’ Compensation Disability Act.
See Mich. Comp. Laws § 418.131(1).
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contract claim against General Linen. (See Resp. to Mot. to Dismiss, ECF #10 at Pg.
ID 476.) Thompson further states that “[he] would be agreeable to dismissal of [the
Union]” if allowed to amend the Amended Complaint. (Id.) The Court concludes
that allowing Thompson to amend in order to assert a breach of contract claim is
appropriate. The Court thus will allow Thompson to file a Second Amended
Complaint to include a breach of contract claim. In Thompson’s Second Amended
Complaint, he may add a breach of contract claim and reassert both those claims
deemed viable above and claims that General Linen did not move to dismiss.
IV
For all of these reasons, IT IS HEREBY ORDERED that General Linen’s
motion to dismiss (ECF #9) is GRANTED IN PART and DENIED IN PART as
follows:
 General Linen’s motion to dismiss is GRANTED as to Thompson’s
claims against it in Counts III, IV, V, VI, VII and X of the Amended
Complaint; and
 General Linen’s Motion to Dismiss is DENIED as to Thompson’s
claims in Counts VIII and IX of the Amended Complaint.
IT IS FURTHER ORDERED that, by not later than August 23, 2018,
Thompson may file a Second Amended Complaint that (1) includes a breach of
contract claim and (2) reasserts claims from the Amended Complaint that (a) the

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Court did not dismiss above or (b) General Linen did not seek to dismiss. By not
later than September 13, 2018, General Linen shall answer or otherwise respond to
the Second Amended Complaint.
IT IS SO ORDERED.

Dated: August 9, 2018

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 9, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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