MUHAMMAD v. COMMUNITY COACH, INC. et al

Filing 41

OPINION. Signed by Chief Judge Jose L. Linares on 12/5/17. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KALEEM MUHAMMAD,
Plaintiff,

Civil Action No.: 16-8344 (JLL)
OPINION

V.

SMART/UNITED
TRANSPORTATION
UNION LOCAL 759, et at.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of Defendants Erika A. Diehi-Gibbons,
International Association of Sheet Metal, Air, Rail and Transportation Workers SmartTransportation Division (“International”), John Previsich, Smart/United Transportation Union
Local 759 (“Local 759”), and Calvin Studivant’s (collectively referred to as “Union Defendants”)
Motion to Dismiss Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 36). Plaintiff has submitted Opposition to said Motion (ECF No.
39), to which Union Defendants have replied. (ECF No. 40). The Court decides this matter
without oral argument pursuant to Federal Rule of Civil Procedure 7$. For the reasons set forth
below, the Court grants the Motion to Dismiss.

I.

BACKGROUND’

A. The Parties

Plaintiff, who is a New Jersey resident, brings this action against his union, Defendant

Local 759, as well as Defendant International.
Complaint, ECF No. 33 (“SAC”)

¶J 8-9).

(See general/v Plaintiffs Second Amended

Defendant John Previsich is the President of Defendant

International, and Defendant Studivant is the Vice President of the Bus Department of Defendant
Local 759. (SAC

¶J 10-1 1).

Finally, Defendant Diehl-Gibbons is the Associate General Counsel

of Defendant International. (SAC

¶

12).

B. Pertinent Facts

Plaintiff was employed by Community Coach, Inc. (“Community”) for 18 years and has
25 years of bus driver experience. (SAC ¶ 13). On July 18, 2015, Plaintiff was driving abus from

North Carolina to New Jersey. (SAC

¶

14). While driving through Maryland, he was pulled over

for failing to stop at a weigh station. (Id.). Plaintiff was cited for that violation as well as driving
while fatigued. (Id.). The summons for driving while fatigued was dismissed, and the weigh
station violation resulted in a fine. (Id.). Plaintiff presented the summonses to his employer, as
was required by “Part I Attachment, Section 11, Article 1 of the Collective Bargaining Agreement”
(“CBA”). (SAC

¶

15).

On August 13, 2015, Plaintiff appeared for a disciplinary hearing where Defendant
Studivant, as well as Stanley Fairconnetue, who is a hearing officer and assistant manager with
Community, attended. (SAC

¶

16). The purpose of the hearing was to determine the. ultimate

discipline Plaintiff should receive for his traffic violations, with termination of employment
possible. (Id.). Stanley Fairconnetue determined that the appropriate discipline for Plaintiff was

This background is derived from Plaintiffs Second Amended Complaint. which the Court must accept as true at
this stage of the proceedings. See Aiston v. Countiywide fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).

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to complete one hour of computer based training. (SAC

¶ 1$).

Union Defendants objected to the

discipline claiming that Community did not comply with Article 24 of the CBA. (SAC
or about August 18, 2015, Community’s

manager

¶

19). On

Newel Scoon and Defendant Studivant engaged

in a conversation regarding whether Plaintiff would be required to perform the training. (SAC

¶

20). Union Defendants took the position that Community failed to meet the time limits for such a
hearing under the CBA. (Id.). According to Plaintiff, Union Defendants never consulted with him
regarding the discipline decision. (SAC

¶ 61).

Thereafter, Plaintiff was terminated by way of a “Hearing Decision letter” on August 20,
2015, which was five business days after the completion of the hearing, despite the fact that the
CBA required said letter to be issued within two business days after the completion of the hearing.
(SAC

¶J

21-23).

The “hearing was held prior to the determination of the District Court of

Maryland for Cecil County
he received.” (SAC

¶

...

as to the guilt or innocence of Plaintiff regarding the two citations

25). This fact, Plaintiff avers, was “in violation of the CBA” because

Plaintiffs employer did not have all the necessary information to ascertain whether termination
was appropriate. (SAC

¶ 26-27).

Plaintiff appealed the termination, through Union Defendants, on August 21, 2015. (SAC

¶ 28).
(SAC

On September 3, 2015, Community’s General Counsel Jazrnine Estacio heard the appeal.

¶ 29).

Plaintiff claims that the citations were minor infractions, and the citation for driving

while fatigued was based on his own statement to the police officers and not any observations by
the police. (SAC ¶j 30-32). On September 13, 2015, Community provided Newel Scoon and
Defendant Studivant with a draft letter of reinstatement, which converted Plaintiffs termination
to a suspension and final warning. (SAC

¶ 34).

It further noted that Plaintiff would receive back

pay if the pending motor vehicle charges against him were dismissed, and also required him to

complete the aforementioned computer training. (SAC

¶ 35).

In exchange, Plaintiff had to agree

that if he violated any company policies for one year he would be immediately terminated. (SAC

¶ 36).

Union Defendants and Plaintiff felt that the agreement was a violation of Plaintiffs due

process rights and, accordingly, never signed it. (SAC

¶ 37).

Plaintiff, through Union Defendants, requested that this issue be arbitrated. (SAC

¶ 39).

Prior to arbitration, Plaintiff requested that Union Defendants provide him with an attorney
experienced in union grievances. (SAC

¶ 40).

Defendant Studivant told Plaintiff “that he ‘didn’t

think it was a big deal’ and he ‘would handle it himself” (Id.).

The matter proceeded to

arbitration on November 17, 2015, where Defendant Studivant, rather than cotinsel, represented
Plaintiff (SAC

¶ 41).

Plaintiff generally claims Defendant Studivant failed to properly represent

him, but does not provide any additional allegations to support this contention. (SAC

¶ 42).

On

January 11,2016, Plaintiff received the arbitration opinion which found that he was discharged for
just cause and denied his grievance. (Id.).
Thereafter, Defendant Studivant advised Plaintiff that Union Defendants had already filed
an appeal of the arbitration award with the New Jersey Superior Court, Appellate Division. (SAC

J 43).

When Plaintiff requested a copy of the appeal, Defendant Studivant advised Plaintiff that

the Cleveland office of the Union Defendants was supposed to file it but never did, and that
Defendant Studivant was aware that the appeal had not been filed when he told Plaintiff that the
appeal was going to be filed. (SAC

¶J 45-46)

Defendant Studivant then told Plaintiff he would

have to handle the appeal pro se if he wanted to pursue same. (SAC

¶ 47).

Union Defendants provided Plaintiff with a letter dated March 3, 2016 in response to
Defendant Studivant’s request to Union Defendants to review Plaintiffs case to see if there was a
basis to set the arbitration award aside. (SAC

¶ 46).

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Plaintiff then wrote to Defendant Previsich

regarding Union Defendants’ assistance in appealing the award. (SAC

¶ 47).

Thereafter. Union

Defendants gave Plaintiff $250.00 to cover the cost of the appeal. (SAC ¶J 48-49). On March 30,
2016, Plaintiff attempted to file an appeal, but it was rejected as untimely. (SAC ¶ 50). Thereafter,
Defendant Previsich advised Plaintiff that Union Defendants would no longer provide assistance.
(SACJ5t).

C. Procedural History
On August 2, 2016, Plaintiff instituted this action in the Superior Court of New Jersey,
Law Division, Union County. (ECF No. 1). Plaintiffs original complaint was against Union
Defendants, Community, Estacio, Fairconnetue, Scoon, and Stagecoach Group, P.L.C.

(Id.).

Additionally, Plaintiffs original Complaint contained eight causes of action: Union Bad Faith
Toward Member2 (Count I); Employer’s Bad Faith Against Employee (Count II); Employer
Breach of Employee Manual (Count III); Wrongful Termination in Violation of Company Policy
(Count IV); Wrongful Discharge in Violation of Public Policy Doctrine (Count V); Employer
Retaliation Against Employee (Count VI); Fraud and Misrepresentation (Count VII): and
Intentional Infliction of Emotional Distress (Count VIII). (Plaintiffs Complaint, ECF No. 1

¶

47-100).
On November 4, 2016, Defendants removed the matter to this Court. (ECF No. 1-1).
Thereafter, both sets of Defendants submitted Motions to Dismiss (ECF Nos. 5, 10), and this Court
granted both (ECF No. 17). Specifically, this Court dismissed Counts Il-VI and Count VIII with
prejudice with respect to all Defendants as time barred. (Id. at 13). This Court also dismissed
Counts I and VII, which were only against Union Defendants, without prejudice for failure to state
a claim upon which relief can be granted. (Id.). As for Count I, Plaintiff failed to properly plead

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The Court construed this claim to be one for the Breach of the Duty of Fair Representation. (ECf No. 17).

5

plausible factual allegations that Union Defendants’ conduct was arbitrary, discriminatory, or in
bad faith as required to constitute a claim for breach of the duty of fair representation. (Id. at 11).
Finally, as for Count VII, Plaintiff failed to meet the heightened pleading standard that Federal
Rule of Civil Procedure 9(b) requires for claims sounding in fraud. (Id. at 12).
Plaintiff then filed an Amended Complaint alleging, again, Counts I and VII and added a
third count for negligence. (ECF No. 19 ¶ 47-85). On April 28, 2017, the parties had an in person
conference before the Honorable Joseph A. Dickson, U.S.M.J., to discuss the Amended Complaint.
(ECF No. 22).

There, “Coach Defendants argued that Plaintiffs claims for negligence are

substantially deficient as the claims are barred by the exclusivity provision of the Workers
Compensation Act[.]” (ECF No. 23 at 3). Judge Dickson permitted Plaintiff to file another
Amended Complaint (Id.), which Plaintiff filed on May 22, 2017. (ECF No. 24). There, Plaintiff
alleged two causes of action: Union Bad Faith Toward Member (Count I); and Fraud and
Misrepresentation (Count II). (Id.

¶J 47-76).

On June 19, 2017, Union Defendant filed a Motion to Dismiss Plaintiffs Amended
Complaint. (ECF No. 26). The matter was fully briefed on July 1$, 2017. (ECF Nos. 29-30). On
July 27, 2017, this Court granted Union Defendants’ Motion to Dismiss and dismissed Plaintiffs
Amended Complaint without prejudice, with leave to file a Second Amended Complaint. (ECF
Nos. 3 1-32). Plaintiff filed his SAC on August 25, 2017. (ECF No. 33). Therein, Plaintiff once
again asserts two causes of action: Union Bad Faith Toward Member (Count I); and Fraud and
Misrepresentation (Count II). (Id.

¶J 53-93).

The Court again construes this claim to be for the Breach of the Duty of fair Representation.

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II.

LEGAL STANDARD

To withstand a motion to dismiss for failure to state a claim, “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 At!. Corp.

i’.

Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twomblv, 550 U.S. at 556). “The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
To determine the sufficiency of a complaint under Twomblv and Iqbal in the Third Circuit,
the court must take three steps: first, the court must take note of the elements a plaintiff must plead
to state a claim; second, the court should identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (citations omitted). “In deciding a Rule 12(b)(6) motion, a court must consider only
the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon these documents.” Mayer v.
Betichick, 605 F.3d 223, 230 (3d Cir. 2010).
III.

ANALYSIS

A. Breach of the Duty of Fair Representation

A union’s breach of the duty of fair representation is a hybrid two-part claim: an employer’s
breach of the CBA and a union’s breach of its duty of fair representation. See DetCostello v.

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Flowers, 462 U.S. 151, 164 (1983).

Therefore, when alleging breach of the duty of fair

representation against a union, a plaintiff must plead “that the employer’s action violated the terms
of the [CBA] and that the union breached its duty of fair representation.” Chauffeurs, Teamsters
and Helpers, Local No. 39]

1’.

Ter’, 494 U.S. 558, 564 (1990). A plaintiff may choose to sue the

union or the employer, “but the case he must prove is the same whether he sues one, the other, or
both.” DelCostello, 462 U.S. at 165.
“Because a union is authorized to act as the exclusive bargaining agent for its members, it
has a duty to provide fair representation in the negotiation, administration, and enforcement of the
[CBA].” Findley v. Jones Motor Freight, 639 F.2d 953, 957 (3d Cir. 1981). A union does not
breach this duty simply by refusing to arbitrate a claim, even if that claim was meritorious. Id. at
958 (citing Vâcav. Sipes, 386 U.S. 171, 192-93 (1967)). Likewise, “proof that the union mayhave
acted negligently or exercised poor judgment is not enough to support a claim of unfair
representation.” Bazarte v. United Transp. Union, 429 f.2d $68, 872 (3d Cir. 1970). Rather,
“[p]roof of arbitrary or bad faith union conduct in deciding not to proceed with the grievance is
necessary to establish” such a breach. Findley, 639 F.2d at 957 (citing Vaca, 386 U.S. at 194-95).
To survive a motion to dismiss “a [duty of fair representation] claim must allege arbitrary,
discriminatory or bad faith conduct, and those conclusions must be supported by plausible
allegations of fact.” Vega v. Teamsters Local Union No. ]02, 2014 WL 3894272,
7, 2014) (citing Masy v. N.J Trctnsit. Rail.

Op..

*

2 (D.N.J. Aug.

Inc., 709 F.2d 322, 328 (3d Cir. 1986)).

Preliminarily, the Court rejects Union Defendants’ argument that Plaintiffs duty of fair
representation is time barred. (ECF 36-1 (“Def. Mov. Br.”) at 9-10). While Union Defendants are
correct that the statute of limitations for hybrid duty of fair representation/breach of contract claim
is six months, the Third Circuit has made it clear that the claim accrues when a plaintiff learns that

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further union action or involvement would be futile. See Childs v. Penn. Fed’n 3/id. of Maint.
Way Employees, $31 f.2d 429, 435-36 (3d Cir. 1987). There, the Court found that it would be
unreasonable for a plaintiff to be required to file his or her duty of fair representation claim when
the union “profeiied rays of hope” that the arbitration decision could be altered. Childs, 831 F.2d
at 436. The same can be said for Plaintiff herein. While it is true that the arbitration decision was
rendered in January of 2016, Union Defendants continued to give Plaintiff hope that an appeal
could be taken and the award could be modified or set aside. (SAC

¶fJ 42-46).

It was not

until

March 3, 2016, that Plaintiff was notified that Union Defendants would take no further action.
(SAC

¶

46). Accordingly, consistent with Childs, sttpra, Plaintiffs duty of fair representation

claim accrued on March 3, 3016. Plaintiff filed his initial complaint in the Superior Court of New
Jersey on August 2, 2016, well within the six-month period.

Hence, Plaintiffs duty of

representation claim was brought in a timely fashion.
The Court also rejects Union Defendants’ resjttdicata argument. (Def. Mov. Br. at ii13). Union Defendants correctly cite to the 1-es jttdicata standard which bars claims that were
previously litigated when three elements are met: “(1) a final judgment on the merits; (2) a prior
suit involving the same parties or their privies; and (3) a subsequent suit based on the same cause
of action.” (Def. Mov. Br. at 12) (quoting Napier v. Thirty or More UnidentUled fed. Agents, 855
F.2d 1080, 1086 (3d Cir. 1988)) (emphasis added). However, there is a fatal flaw that Union
Defendants have overlooked in asserting this defense. Indeed, a final judgment was rendered when
the adverse arbitration award was issued in con nection with Plain tff’s purportedly improper
termination of employment. This case, however, is not about the termination nor does it involve
the same parties. Rather, this case was brought by Plaintiff against Union Defendants, for allegedly
breaching their duty of fair representation during that prior litigation. Hence, the matter stibjudice

9

does not consist of the same catise of action nor does it involve the same parties. Accordingly, the
Court rejects Union Defendants’ resjztdicata argument.
Next, Union Defendants argue that Plaintiffs case must be dismissed because all claims
against his former employer have been dismissed. (Def. Mov. Br. at 13). The Court disagrees.
As explained above, to succeed on a breach of the duty of fair representation claim, a plaintiff must
prove that his or her union breached the duty, and that his or her employer violated the relevant
collective bargaining agreement. See chauffeurs, 494 U.S. at 564. Moreover, as explained, a
plaintiff can choose to sue the employer, the union or both. See DelCostetlo, 462 U.S. at 165.
Thus, following this logic, it is apparent that Plaintiffs employer need not participate in the action
for his claim to succeed. Plaintiff merely needs to show that his former employer violated the
CBA, not that it is liable for damages to him.

Therefore, the Court disagrees with Union

Defendants’ argument.
Finally, the Court finds that Plaintiff has failed to plead a prima facie cause of action for
breach of the duty of fair representation against Union Defendants. Plaintiffs SAC once again
sounds in negligence. Plaintiff alleges that Union Defendants “breached the relevant duty of care
by [their] arbitrary, discriminatory, and bad faith conduct.” (SAC ¶ 72). Specifically, that conduct
includes having Defendant Studivant represent him at the hearing, failing to provide Plaintiff with
an attorney, and having a person who was not previously involved in the disciplinary situation
handle the hearing. (SAC

¶J

61-63, 67-74). However, these allegations are exactly the type of

allegations the Court found insufficient before. (ECF No. 17 at 10-1 1). Indeed, Plaintiffs SAC
has reverted to claims that sound in negligence which are insufficient to support a claim for breach
of the duty of fair representation. Therefore, Plaintiff’s SAC, in its current form, cannot proceed.
As such, Plaintiff fails to state a claim upon which relief can be granted. Therefore, the Court

10

grants Union Defendants’ Motion to Dismiss Plaintiffs Count I without prejudice. Plaintiff shall
have a final opportunity to amend his deficient pleading.
B. fraud and Misrepresentation

Claims sounding in fraud must be pled under the heightened standards of Federal Rule of
Civil Procedure 9(b). Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 626 (3d Cir. 1984). The Third
Circuit has set forth the following requirements for pleading fraud:
In order to satisfy Rule 9(b), plaintiffs must plead with particularity “the
‘circumstances’ of the alleged fraud in order to place the defendants on notice of
the precise misconduct with which they are charged, and to safeguard defendants
against spurious charges of immoral and fraudulent behavior.” Seville Indtts. Mach.
Corp. v. Sottthmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). Plaintiffs may
satisfy this requirement by pleading the “date, place or time” of the fraud, or
through “alternative means of injecting precision and some measure of
substantiation into their allegations of fraud.” Id.
Lttm v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004). With this in mind, the Court turns to
New Jersey law. In order to plead a fraud based claim in New Jersey, a plaintiff must allege: “(1)
a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the

defendant of its falsity; (3) an intention that the other person rely on it; (4) a reasonable reliance
thereon by the other person; and (5) resulting damages.” Gennari v. Weichert Co. Realtors, 148
N.J. 582, 610 (N.J. Sup. Ct. 1997).
The Court finds that Plaintiff has, once again, failed to meet the heightened pleading
standard for fraud based claims.

For a third time, Plaintiff asserts that Union Defendants

committed fraud in two ways: 1) convincing Plaintiff that they were providing appropriate legal
services; and 2) informing Plaintiff that they filed an arbitration appeal. (SAC

¶ 79-81,

85-87).

Specifically, Plaintiff alleges that Union Defendants knew that Defendant Studivant could
not properly handle the arbitration proceeding, but told Plaintiff otherwise. (SAC

¶ 79).

Plaintiff

backs this assertion with an allegation that Union Defendants often employ attorneys for arbitration

11

proceedings and therefore knew that Defendant Studivant could not handle such matters. (SAC

¶

80). Plaintiff ftirther asserts that this misrepresentation was material because Defendant Studivant
“failed to present critical facts” at the arbitration proceeding. (SAC

¶

81). However, nowhere

within the SAC does Plaintiff actually explain what the misrepresentations are. Plaintiff does not
explain how Defendant Studivant was ill equipped to handle the arbitration. Simply losing a
proceeding does not necessary mean that a person was incapable of doing so. Also, Plaintiff does
not explain what “critical facts” were allegedly omitted by Defendant Studivant during the hearing.
Plaintiffs SAC suffers from the same infirmities his prior Complaints suffered from. Indeed,
Plaintiff uses the proper legal terminology in a technical sense, but fails to actually provide a
sufficient and substantive factual basis for his assertions.
In addition, Plaintiff again claims that Defendant Studivant misrepresented to Plaintiff that
Union Defendants had filed an appeal. (SAC

¶

85). Plaintiff, once again, alleges that Union

Defendants, including Defendant Studivant. knew that they had not filed an appeal. (SAC

¶ 87).

However, Plaintiffs SAC contains conflicting statements, because in that very same paragraph
Plaintiff claims Defendant Studivant wrote to the Union Defendants “to request a review and
determine if there was any basis to set aside the award.” (Id.). Thus, the SAC itself indicates that
Defendant Studivant was uninformed as to the status of the appeal. Hence, Plaintiffs claim for
fraud and misrepresentation is inadequate and is hereby dismissed.

Given that Plaintiff has

unsuccessfully attempted to plead this claim three times, it is obvious to the Court that further
amendment will be futile and the dismissal of the claim is with prejudice.

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CONCLUSION

for the aforementioned reasons, Union Defendants’ Motion to Dismiss is granted. An
appropriate Order accompanies this Opinion.

1
DATED: DecernberO17
J

L.L ARES
ief Judge, United States District Court

‘3