SCOTT v. CONTINENTAL AIRLINES INC. et al
OPINION. Signed by Judge Stanley R. Chesler on 1/29/2014. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 13-3008 (CCC)
CONTINENTAL AIRLINES, INC.,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AND GALLAGHER
BASSETT SERVICES, INC.,
CECCHI, District Judge.
This matter comes before the Court on Defendant Continental Airlines, Inc.’s motion to
dismiss Plaintiff Cynthia Scott’s Complaint. The Court decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78.1 Based on the reasons that follow, Defendant
Continental’s motion to dismiss is granted without prejudice. Plaintiff is granted thirty (30) days
in which to file an Amended Complaint that cures the pleading deficiencies discussed below.
This dispute stems from Plaintiff Cynthia Scott’s (“Plaintiff’) allegations that Continental
Airlines, Inc. (“Continental”) owes her compensation from when she was injured on the job and
went on leave for treatment. (Compi. 2.)
The Court considers any new arguments not presented by the parties to be waived, See Brenner
v. Local 514, United Bhd. of Caenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) (‘It is well
established that failure to raise an issue in the district court constitutes a waiver of the argument”).
The following are the facts alleged in the Complaint.
Plaintiff began working for
Continental in 1987. (Compi. 1-2.) Plaintiff was a member of the International Association of
Machinists and Aerospace Workers (the “Union”) during her employment with Continental.
(Compi. 1-2.) The terms of Plaintiff’s employment with Continental were covered by a Collective
Bargaining Agreement (the “CBA”) between Continental and the Union, (Compi. 2.)
Plaintiff alleges that on or about June 2002, she was injured while working on a flight.
(Compi. 2.) Plaintiff became temporarily disabled and was absent from work from December
2003 to May 29, 2004. (Compl. 3.) Plaintiffs injury treatment was not approved by Continental’s
agent for compensation, Gallagher Bassett Services Incorporated (“Gallagher”), for workers
compensation benefits until April 28, 2004.
Plaintiff claims that she is owed
$9,389.25 from when she was on leave. (Compl. 3.)
In 2004, Plaintiff filed a grievance with the Union based on a violation of the CBA.
(Compl. 4-5.) The grievance was then processed by the Union.
On or about
September 7, 2010, Plaintiff received a letter stating that the Union and the Local were appealing
her grievance to the System Board of Adjustment. (Compl. 4.) On July 26, 2012, Plaintiffreceived
a letter from the Association of Flight Attendants advising her that the Grievance Committee
decided to withdraw her grievance because the company offered a settlement to Plaintiff that was
not accepted. (Compl. 5, Ex. C.)
On April 25, 2013, Plaintiff filed a three-count Complaint against Continental, the Union,
and Gallagher in the Superior Court of New Jersey. (Compl. 1.) Plaintiff’s First Count is a
summary of Plaintiffs allegations. (Compl. 2-5.) The Second Count alleges that Continental and
Gallagher breached the CBA in violation of the Railway Labor Act (the “RLA”) by failing to pay
The Third Count alleges that the Union breached its duty of fair
representation by handling Plaintiff’s grievance “in bad faith, in an arbitrary and discriminating
manner.” (Compi, 6.)
Continental removed the case to this Court. Continental now moves to dismiss Plaintiff’s
Complaint, asserting that it was not filed within the governing six-month statute of limitations.
(Def.’s Mot. 4.) Plaintiff filed a Brief in Opposition to Continental’s Motion. (Pl.’s Opp’n Mot,)
Continental then filed a Reply Brief in support of its Motion. (Def.’s Reply Br.)
For a complaint to survive dismissal pursuant to Rule 12(b)(6), it “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, 570 (2007)).
In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable inferences in favor of the non- moving
party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). However, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
The burden of proof for showing that no claim has been stated is on the moving party.
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926
F,2d 1406, 1409 (3d Cir. 1991)). During a court’s threshold review, “[t]he issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the
ckefellerCtr,Pros,Inc., 311 F.3d 198, 215 (3d Cir, 2002).
Plaintiff argues that Continental’s failure to pay her was a breach of the CBA and violates
the RLA. (Compl. 5.) Continental seeks to dismiss the claim against them, arguing that it is time
barred. (Def’s Mot, 4.) In response, Plaintiff has attempted to set forth additional claims, (Pl.’s
Opp’n Mot. 2-4.) To the extent that Plaintiff is asserting any additional contract claims or claims
against Gallagher, they do not affect Defendant Continental’s motion to dismiss on statute of
The Third Circuit has held that “under the Railway Labor Act, 45 U.S.C.
et seq., a
plaintiff can assert a ‘hybrid’ claim against both his union for breaching its duty of fair
representation and his employer for breaching its duties under the collective-bargaining
agreement.” Russo v. Am. Airlines, Inc., 340 F. App’x 816, 818 (3d Cir. 2009); West v. Conrail,
481 U.S. 35, 37, (1987). To make a hybrid claim, a plaintiffmust allege both, (1) that the employer
breached the collective bargaining agreement, and also as a necessary condition precedent, (2) that
the union breached its duty of fair representation. Albright v. Virtue, 273 F.3d 564, 567 (3d Cir.
2001); Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir. 1993). These claims are considered essential
and “inextricably interdependent.” Ahmad v. United Parcel Serv., 281 F. App’x 102, 104 (3d Cir.
2008); DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983).
The Supreme Court, in DelCostello, held that hybrid claims are governed by a six-month
statute of limitations. DelCostello, 462 U.S. at 160-70 (1983); see also Haggerty v. USAir, Inc.,
952 F.2d 781, 784 (3d Cir. 1992); Childs v. Pennsylvania Fed’n Bhd. of Maint. Way Employees,
831 F.2d 429, 433 (3d Cir, 1987); gp y. Bell Atl.-NJ.,jnç, 988 F. Supp. 841, 845 (D.N.J.
Plaintiff’s Brief in Opposition to Defendant Continental’s Motion to Dismiss contains
allegations against Gallagher regarding a refusal to correct attendance records, These allegations
are presented for the first time in this brief but are not contained in the Complaint. Plaintiff may
not amend the Complaint through responsive briefing.
Nguyen v. Ouick Chek Store, 2013
*2 (D.N.J. Dec. 16, 2013); Pension Benefit Guar. Corp. v. White
U.S. Dist. LEXIS 176067,
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir, 1993); Com. of Pa. cx rd. Zimmerman v. PepsiCo,
Inc., 836 F.2d 173, 181 (3d Cir. 1988).
1997). The Court “borrowed” the six-month statute of limitations from
10(b) of the National
Labor Relations Act. Gavalik v. Continental Can Co., 812 F.2d 834, 846 (3d Cir. 1987). The
Court reasoned, “when a rule from elsewhere in federal law clearly provides a closer analogy than
available state statutes, and when the federal policies at stake and the practicalities of litigation
make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not
hesitated to turn away from state law.” DelCostello, 462 U.S. at 171-72 (1983).
The six-month statute of limitations begins to run “when the claimant discovers, or in the
exercise of reasonable diligence should have discovered, the acts constituting the alleged
violation.” Vadino v. A. Valey Engrs, 903 F.2d 253, 260 (3d Cir. 1990) (citing Hersh v. Allen
Prods. Co., 789 F.2d 230, 232 (3d Cir.l986)). “[W]here an employee sues a union for breach of
its duty of fair representation, the limitations period commences when ‘the plaintiff receives notice
that the union will proceed no further with the grievance.” Vadino, 903 F.2d at 260; Pagano, 988
F. Supp. at 845-46. In a suit against the employer, the statute of limitations “is tolled until it was
or should have been clear to the employee that the union would not pursue the grievance.” Vadino,
903 F.2d at 261; Albright, 273 F.3d at 576.
Here it is undisputed that Plaintiff received a letter on July 26, 2012 informing her that the
Union decided to withdraw her grievance. (Compl. 5,)3 It is black letter law that a hybrid cause
of action accrues when a Plaintiff learns that the Union is not pursing their grievance. Vadino,
903 F.2d at 260. Here, Plaintiff failed to file this action until April 23, 2013, at least eight months
Although Plaintiff alleges she was informed as of July 26, 2010 that her Union would not
pursue her grievance, the letter attached as Exhibit C to the Complaint which informed plaintiff
of the Union’s intention not to pursue the grievance is actually dated July 26, 2010. Under either
date. Plaintiff’s claim is time barred.
afier she became aware that the Union withdrew her grievance, This is beyond the applicable sixmonth statute of limitations. Thus, the hybrid claim against Continental is barred by the statute of
For the reasons set forth above, Plaintiffs claims are dismissed without prejudice pursuant
to the applicable statute of limitations and Defendant Continental’s motion to dismiss is granted.
To the extent the deficiencies in Plaintiff’s claims can be cured by way of amendment, Plaintiff is
granted thirty (30) days to reinstate this matter and file an Amended Complaint for purposes of
amending such claims.
An appropriate Order accompanies this Opinion.
CLAIRE C. CECCHI, U.S.D.J.
DATED: January29, 2014
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