GALLUCCIO et al v. PRIDE INDUSTRIES, INC. et al
Filing
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OPINION filed. Signed by Judge Noel L. Hillman on 1/20/2016. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIO GALLUCCIO, MICHAEL
CARRO, ERIC CHARLES, KINGSLEY
CHIAGORO, MARK DINGLE, DANNY
GUZMAN, THOMAS MORRISEY,
ANTONIO SOTO, MICHAEL STONE,
and ASHOK SURTI,
HONORABLE NOEL L. HILLMAN
CIVIL ACTION NO. 15-3423
OPINION
Plaintiffs,
v.
PRIDE INDUSTRIES, INC., and
INTERNATIONAL UNION OF
OPERATING ENGINEERS AFL-CIO,
LOCAL 68, 68A, 68B,
Defendants.
APPEARANCES:
RESNICK LAW GROUP
By: Gerald Jay Resnick, Esq.
5 Becker Farm Road, 4th Floor
Roseland, New Jersey 07068
Counsel for Plaintiffs
LITTLER MENDELSON, P.C.
By: Jedd Mendelson, Esq.
One Newark Center, 8th Floor
Newark, New Jersey 07102
Counsel for Defendant Pride Industries, Inc.
O’BRIEN, BELLAND & BUSHINSKY, LLC
By: Steven J. Bushinsky, Esq.
Mark E. Belland, Esq.
1526 Berlin Road
Cherry Hill, New Jersey 08003
Counsel for Defendant Local 68
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HILLMAN, United States District Judge:
This is an employment suit.
Plaintiffs are all current or
former employees of Defendant Pride Industries, and current or
former members of the Defendant Union, Local 68.
They assert that
Pride and the Union discriminated against them on the basis of
their disabilities, and retaliated against them when they
complained about the discrimination.
The original complaint asserted three counts for violation of
the New Jersey Law Against Discrimination (“LAD”)(disparate
treatment, disparate impact, and retaliation), and one count for
breach of the union’s duty of fair representation pursuant to
Section 301 of the Labor Management Relations Act (“LMRA”).
Both Defendants moved to dismiss all four counts, arguing
that the LAD claims were either preempted by the LMRA or precluded
by the federal enclave doctrine, and that the fair representation
count was time-barred.
In response, Plaintiffs seek to amend
their complaint to replace their LAD claims with Americans with
Disability Act (“ADA”) claims, and to add additional allegations
in support of the fair representation claim.
Defendants counter
that amendment is futile, arguing that all four amended counts are
time-barred.
For the reasons stated herein, the Court will grant in part,
and deny without prejudice in part, Plaintiffs’ Cross-Motion to
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Amend the Complaint.
Defendants’ Motions to Dismiss the original
complaint will be denied as moot.
I.
The proposed Amended Complaint alleges the following facts.
The collective bargaining agreement (“CBA”) between Defendant
Pride and Defendant Local 68 distinguishes between earlier-hired
“incumbent” employees, and more recently hired “non-incumbent”
employees.
Pursuant to the CBA, incumbent employees earn more
money, while simultaneously paying less for benefits, than their
non-incumbent counterparts. (See Proposed Amended Complaint, ¶¶
21-24)
The CBA’s “effective dates” are “June 2, 2014 through May
31, 2017,” (Cover Page of the CBA, Plaintiffs’ Ex. A to CrossMotion to Amend), although, significantly, the CBA was not
executed until October 13, 2014.
The 2014 CBA continued the
incumbent/non-incumbent distinction from the previous 2011 CBA.
(Proposed Amended Complaint, ¶ 20)
Plaintiffs are all non-incumbents who “have worked for Pride
in a building maintenance capacity at Fort Dix [Army Base] since
on or after July 1, 2010.” (Proposed Amended Complaint, ¶ 15)
Also, they all are disabled. (Id.)
Indeed, Plaintiffs were
specifically “hired pursuant to pursuant to an AbilityOne contract
requiring Pride to employ a certain number of disabled workers at
Fort Dix.” (Id.)
Plaintiffs assert that the CBA’s incumbent/non-
incumbent distinction is simply pretext for disability
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discrimination, or alternatively, disparately impacts disabled
employees. (See Proposed Amended Complaint, ¶ 20, Count One, Count
Two)
Allegedly, “Defendants have so discriminated against
Plaintiffs on a continuing basis from approximately June 2011 to
the present.” (Proposed Amended Complaint, ¶ 17)
Plaintiffs
complained about this disparity “after the 2011 CBA was ratified,”
(Proposed Amended Complaint, ¶ 25), and again in October, 2014,
during the negotiation of the 2014 CBA. (Id., ¶ 26)
Plaintiffs allege that after they filed the instant suit,
they “suffered retaliation in the form of: a demeaning and rather
unusual work assignment (shredding company documents all day), a
sudden (and seemingly strategic and intimidating change in the
chain of command, HR’s refusal to provide routine documents,
sudden policy changes/interpretations, and nitpicking/threatened
discipline on matters that were never before a problem (and are
not a problem for others).” (Proposed Amended Complaint, ¶ 46)
Additionally, Plaintiff Eric Charles was allegedly fired on
June 11, 2015 in retaliation for filing this lawsuit. (Proposed
Amended Complaint, ¶¶ 7, 46)
II.
Amendments to pleadings “should [be] freely give[n] . . .
when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Amendments
under Rule 15 should be liberally granted in order to ensure that
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claims will be decided on their merits rather than on
technicalities. See Dole v. Arco Chemical Co., 921 F.2d 484, 487
(3d Cir. 1990); Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir.
1989).
Thus, in the absence of undue delay, bad faith, dilatory
motive, unfair prejudice, or futility of amendment, amendments
should be granted. Grayson v. Mayview State Hosp., 293 F.3d 103,
108 (3d Cir. 2002)(citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
Amending the complaint is futile if the amendment will
not cure the deficiency in the original complaint or if the
amended complaint cannot withstand a renewed motion to dismiss.
Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292
(3d Cir. 1988).
III.
Defendants argue amendment is futile because all four counts
are time-barred. 1
The Court considers the ADA counts before
turning to the fair representation count.
A.
As to the ADA claims, Plaintiffs’ claims are timely if
charges were filed with the EEOC within 180 days of the
discriminatory or retaliatory conduct. Compare Mikula v. Allegheny
County of Pennsylvania, 583 F.3d 181, 186 (3d Cir. 2009)
Pride had argued that the ADA claims should be dismissed because
the EEOC had not yet issued right-to-sue letters. Plaintiffs have
now received right-to-sue letters, which moots this argument.
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1
(“[plaintiff’s] Title VII pay discrimination claim is timely as to
paychecks she received . . . 300 days before she filed her EEOC
charge.”) with Morris V. Eberle & BCI, LLC, No. 13-6113, 2014 WL
4352872 at *4-5) (D.N.J. Sept. 3, 2014)(Hillman, D.J.)(holding
that, because Fort Dix is a federal enclave, the 180-day
limitation period-- as opposed to the extended 300-day period-applies to plaintiff’s ADA claim for disability discrimination
allegedly suffered while working at Fort Dix).
While the Proposed Amended Complaint clearly indicates that
charges were filed with the EEOC -- Plaintiffs allege they
received right-to-sue letters on August 20, 2015 (Proposed Amended
Complaint ¶ 30) -- the Proposed Amended Complaint is silent as to
when the charges were filed, as well as what claims were included
in the charges.
To state the obvious, when the charges were filed is critical
to the timeliness/futility of amendment analysis. See Fed. R. Civ.
P. 9(f) (“An allegation of time . . . is material when testing the
sufficiency of the pleading.”). 2
Furthermore, such information is
See also 5A The Late Charles Alan Wright, et. al., Federal
Practice and Procedure, § 1308 (3d ed.)(“Since Rule 9(f) makes
allegations of time material . . . the defense of the statute [of
limitations] may be raised on a motion to dismiss under Rule
12(b)(6) when it is apparent from the face of the complaint that
the time limit for bringing the claim for relief has passed.
Thus, although Rule 9(f) apparently was designed simply to require
a higher level of reliable information in the pleadings, the
federal courts have employed the rule as a screening device for
time-barred claims, which seemingly is consistent with the general
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2
well within Plaintiffs’ knowledge; therefore it is entirely
reasonable to expect Plaintiffs to plead such facts at this stage
of the case.
Additionally, the Court must note that Plaintiffs’ papers
make no distinction between Plaintiffs who are current employees
and those who are former employees.
matters.
The distinction, however,
Even if one might plausibly conclude that current
employees received a paycheck within the 180-day period (no matter
when that period specifically began and ended), the same cannot be
said for former employees, Plaintiffs Michael Carro, Eric Charles,
and Michael Stone.
Absent allegations as to the last date each
former employee was paid, and a corresponding date upon which
their EEOC charge was filed, the Court cannot determine whether
the former employees’ claims are timely.
Thus, as to the ADA claims, the Motion to Amend will be
denied without prejudice.
Plaintiffs may attempt to cure the
pleading deficiencies by filing another Motion to Amend within 20
days.
B.
It is undisputed that the fair representation claim has a
six-month limitation period, DelCostello v. Int'l Bhd. of
Teamsters, 462 U.S. 151 (1983), and that “[t]he limitations period
philosophy set forth in Rule 1 of achieving a just, speedy, and
inexpensive adjudication of civil disputes.”).
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. . . begins to run when the plaintiff knows or reasonably should
know of the acts contributing to the union’s wrongdoing in failing
to adequately represent the member’s interests.” Podobnik v.
United States Postal Serv., 409 F.3d 584, 593 (3d Cir. 2005); see
also Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir.
1986).
The original complaint was filed on April 8, 2015; therefore,
if Plaintiffs knew or should have known of their claims prior to
October 8, 2014, their claims are time-barred and amendment would
be futile.
Herein lies the rub: Plaintiffs contend that the
earliest possible date they could have known of their claim is
October 13, 2014 (five days after October 8th), when the CBA was
executed.
On the other hand, Defendants argue that Plaintiffs
knew of their claim on October 3, 2014 (five days before October
8th), when the Union voted to ratify the CBA.
The Court declines to make such a close call on an
undeveloped record when the legal inquiry turns on what each
Plaintiff knew and when. See Pagano v. Bell Atlantic-New Jersey,
988 F. Supp. 841, 846 (D.N.J. 1997) (granting plaintiff’s motion
to amend his complaint to include a fair representation claim,
explaining that “[a] court must employ a case-by-case analysis to
determine when the statute of limitations begins to run.”). 3
See also Lucas v. Mountain States Tel. & Tel., 909 F.2d 419,
420-21 (10th Cir. 1990) (“the limitation period begins to run when
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3
On this issue, the parties’ briefs raise more questions than
they answer.
First, it is not clear that each Plaintiff was
present at the ratification vote.
Second, Plaintiffs assert that
they did not actually receive a copy of the 2014 CBA until “some
time after” the CBA was executed.
Third, overlaying these alleged
facts is another complicating factor: at least some of the
Plaintiffs are alleged to have a “mental impairment that
substantially limits one or more major life activities.”
(Proposed Amended Complaint, ¶ 16)
As the above discussion should make clear, determining when
Plaintiffs knew or should have known of their fair representation
claims, in this case, is better addressed at summary judgment,
rather than within the context of a futility analysis of a Motion
to Amend.
Defendants have not adequately demonstrated that
amendment would be futile.
Accordingly, Plaintiffs’ Motion to
Amend will be granted as to the fair representation claim.
an employee knows or in the exercise of reasonable diligence
should have known or discovered the acts constituting the union’s
alleged violations. Application of this general rule turns on the
context in which the claim arose.”) (emphasis added; internal
citations omitted); Scerba v. Allied Pilots Ass’n, No. 13 CIV.
3694 LAK AJP, 2013 WL 6481583, at *8 (S.D.N.Y. Dec. 10, 2013)
(“The fact that some cases have held that the ratification date
was the latest possible date on which those plaintiffs could have
learned of the breach does not transform the knowledge standard
into a bright-line rule; . . . a claim accrues when the plaintiff
knows or reasonably should know of the breach, and this may occur
before, after, or simultaneously with ratification, depending on
the particular facts of each case.”) (emphasis added).
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IV.
For the reasons set forth above, Plaintiffs’ Cross-Motion to
Amend the Complaint will be denied without prejudice with leave to
amend within 20 days as to the ADA counts (Counts 1 through 3 of
the Proposed Amended Complaint).
The Motion to Amend will be
granted as to the fair representation count (Count 4 of the
Proposed Amended Complaint).
Defendants’ Motions to Dismiss the
original complaint will be denied as moot.
An appropriate Order accompanies this Opinion.
Dated:
January 20, 2016
At Camden, New Jersey
__s/ Noel L. Hillman______
Noel L. Hillman, U.S.D.J.
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