MUHAMMAD v. COMMUNITY COACH, INC. et al

Filing 53

OPINION. Signed by Chief Judge Jose L. Linares on 3/28/18. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KALEEM MUHAMMAD,

Civil Action No.: 16-8344 (JLL)

Plaintiff,

OPINION

V.

SMART/UNITED
TRANSPORTATION
U1ION LOCAL 759, et a!.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of Defendants International Association of
Sheet

Metal,

Air,

Rail

and

Transportation

Workers

Smart-Transportation

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
Plaintiffs Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
No. 45).

Plaintiff has submitted Opposition to said Motion (ECF No. 48), to which Union

Defendants have replied. (ECF No. 52). The Court decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78. 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 (“TAC”)

¶ 8-9).

(See genera/tv

Plaintiffs Third 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. (TAC

¶J 10-1 1).

B. Pertinent Facts

Plaintiff was employed by now-dismissed Defendant Community Coach,
(“Community”) for 18 years and has 25 years of bus driver experience. (TAC
2015, Plaintiff was driving a bus from North Carolina to New Jersey. (TAC

¶

Inc.

12). On July 18,

¶ 13).

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”). (TAC

¶

14).

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

¶

15). 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
to complete one hour of computer based training. (TAC

¶

17). Union Defendants objected to the

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

2

discipline claiming that Community did not comply with Article 24 of the CBA. (TAC

¶ 18).

On

or about August 18, 2015, Community’s manager Newel Scoon and Defendant Studivant engaged
in a conversation regarding whether Plaintiff would be required to perform the training. (TAC

¶

19). 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. (TAC

¶ 60).

Thereafter, Plaintiff was tenriinated 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.
(TAC

¶J

20-22).

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

Maryland for Cecil County
he received.” (TAC

¶

...

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

24). 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. (TAC

¶ 25-26).

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

¶ 27).
(TAC

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

¶ 28).

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. (TAC

¶J 29-31).

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. (TAC

¶ 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. (TAC

3

¶ 34).

In exchange, Plaintiff had to agree

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

¶

35). The agreement was never signed because Union Defendants and Plaintiff felt that the

agreement was a violation of Plaintiffs due process rights. (TAC

¶ 36).

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

¶ 38).

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

¶ 39).

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 counsel, represented
Plaintiff. (TAC

¶ 40).

Plaintiff generally claims Defendant Studivant, lacked the requisite skills

to properly repi-esent him, but, once again, does not provide any additional allegations to support
this contention. (TAC ¶41). On January 11, 2016, Plaintiff received the arbitration opinion which
found that he was dischai-ged for just cause and denied his grievance. (Id.).
Thereafter, Defendant Studivant advised Plaintiff that Union Defendants, by way of their
Cleveland, Ohio office, had already filed an appeal of the arbitration award with the New Jersey
Superior Court, Appellate Division. (TAC

¶ 42).

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. (TAC ¶ 43-44). Defendant
Studivant then told Plaintiff he would have to handle the appeal
same. (TAC

pro

se if he wanted to pursue

¶J 46).

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

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basis to set the arbitration award aside. (TAC

¶

45)2

On March 27, 2016, Plaintiff wrote to

Defendant Previsich regarding Union Defendants’ assistance in appealing the award. (TAC

¶ 47).

Thereafter, Union Defendants gave Plaintiff $250.00 to cover the cost of the appeal, and instructed
him, once again, to proceed pro se. (TAC

¶ 4$).

an appeal, but it was rejected as untimely. (TAC

On March 30, 2016, Plaintiff attempted to file

¶ 49).

Thereafter, Defendant Previsich advised

Plaintiff that Union Defendants would no longer provide assistance. (TAC

¶ 50).

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 Member3 (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

¶J

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 II-VI and Count VIII with

The Court notes that Plaintiff refers to “Defendant Erika A. Diehi-Gibbons” in this paragraph, despite the fact that
Ms. Diehi-Gibbons’ name has been removed from the caption box and preamble. Ms. Diehl-Gibbons was a named
defendant in Plaintiffs previous complaints, but Plaintiff has chosen to omit her in this version of the complaint.
Accordingly, consistent with Rule 8 of the federal Rules of Civil Procedure, and the general pleading requirements,
Ms. Diehi-Gibbons is not a viable defendant in this action.
The Court construed this claim to be one for the Breach of the Duty of fair Representation. (ECF No. 17).

2

5

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
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 18, 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 (“SAC”).
(ECF Nos. 3 1-32). Plaintiff filed his SAC on August 25, 2017. (ECF No. 33). Therein, Plaintiff

6

once again asserted two causes of action: Union Bad faith Toward Member (Count I); and fraud
and Misrepresentation (Count II). (Id.

¶J 53-93).

On September 22, 2017, Defendants filed a Motion to Dismiss Plaintiffs SAC. (ECF No.
36). The matter was fully briefed on November 13, 2017. (ECf Nos. 39-40). On December 5,
2017, this Court entered an Opinion and Order granting Defendants’ Motion to Dismiss. (ECF
Nos. 41-42). In dismissing the Complaint, this Court dismissed Count I without prejudice, but did
dismiss Count H with prejudice, finding that further amendment would be futile. (ECF No. 41).
The Court granted Plaintiff an additional opportunity to amend his Complaint. Accordingly, on
December 19, 2017, Plaintiff filed his TAC. (ECF No. 43). Therein, Plaintiff asserts three claims
for breach of the duty of fair representation. Count I is against Defendant Union itself, Count II is
against Defendant Studivant, and Count III is against Defendant Previsch. (Id.

¶JJ 52-121).

Union

Defendants once again move to dismiss the action. (ECf No. 45).
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.”
Ashcrn/i v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Coip. v. Twomb/v, 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

Twombly, 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 detennine the sufficiency of a complaint under Twombk’ and Iqbat in the Third Circuit,

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

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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 Connellv v. Lane Constr. Coip., 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.
Beliclzick, 605 F.3d 223, 230 (3d Cir. 2010).
III.

ANALYSIS

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 Dc/Costello v.
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.” Chattffrurs, Teamsters

and Helpers, Local No. 39] v. Tern’, 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.” Dc/Costello. 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
[CBAj.” 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
95$ (citing Vaca v. Sipes, 386 U.S. 171, 192-93 (1967)). Likewise, “proof that the union may have

$

acted negligently or exercised poor judgment is not enough to support a claim of unfair
representation.” Bazarte v. United Transp. Union, 429 f.2d 868, 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. 102, 2014 WL 3894272,

*

2 (D.N.J. Aug.

7,2014) (citing Masy v. Ni Transit. Rail. Op., Inc., 709 F.2d 322, 328 (3d Cir. 1986)).
Preliminarily, the Court, once again, rejects Union Defendants’ argument that Plaintiffs
duty of fair representation is time barred. (ECF 45-1 (“Def. Mov. Br.”) at 14). As the Court
explicitly explained before, 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 further union action or involvement
would be futile. See Childs v. Penn. fed ‘ii B/id. of Maint. Way Employees, 831 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

“proferred rays of hope” that the

arbitration decision could be altered. Childs, $31 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. (TAC ¶ 41-45). It was not until March 27, 2016, that Plaintiff was notified
that Union Defendants would take no further action. (TAC

¶ 45).

Accordingly, consistent with

Childs, supra, Plaintiffs duty of fair representation claim accrued on either March 3, 2016 or
March 27, 2016. There is no dispute that Plaintiff filed his initial complaint in the Superior Court

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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. Moreover, any subsequent amendment was
sanctioned by this Court. Accordingly, the Court will not dismiss Plaintiffs TAC as untimely.
The Court also, once agctin, rejects Union Defendants’ resjttdicata argument. (Def. Mov.
Br. at 11-13). Indeed, Union Defendants correctly cite to the res judicata 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 ofaction.” (Def. Mov. Br. at 15) (quoting Napier v. Thirty or More Unidentified

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 connection with Plaintiff’s
puiportedlv 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, as this Court has repeatedly held, the matter stthjudice does not consist of the same cause
of action nor does it involve the same parties. Accordingly, the Court rejects Union Defendants’

resjudicata argument.
Next, Union Defendants attempt to argue that Plaintiffs case must be dismissed because
all claims against his former employer have been dismissed. (Def. Mov. Br. at 11). The Court

disagrees. As explained above, and in the court’s numerous Opinions in this case, 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

10

sue the employer, the

union

or both. See DelCostelto, 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.
However, the Court finds that Plaintiff has failed to plead aprimafacie

cause of action for

breach of the duty of fair representation against Union Defendants. Plaintiffs TAC once again
sounds in negligence.

Indeed, TAC is identical to SAC, with the only difference being that

Plaintiff has broken out his claims against Defendants Studivant and Previsich. (ECf No. 33; qf
ECF No. 43). Again, Plaintiff alleges that Union Defendants “breached their duty of care by
objecting to and opposing the one-hour computer based training discipline.”

(TAC

¶

60).

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. (TAC ¶ 61-63, 67-76). However, these allegations
are exactly the type of allegations the Court found insufficient before. (ECF No. 17 at 10-11; ECf
No. 41 at 10). Indeed, Plaintiffs TAC continues to sound in negligence which is insufficient to
support a claim for breach of the duty of fair representation. As a matter of fact, Plaintiff uses the
words “negligence” and “carelessness” throughout TAC. (See, e.g., TAC

¶J 65-67,

71, 73, 84,

100). Therefore. Plaintiffs TAC, in its current form, cannot proceed. As such. Plaintiff fails to
state a claim upon which relief can be granted. Therefore, the Court grants Union Defendants’
Motion to Dismiss Plaintiffs TAC.
At this juncture, the Court will dismiss the Complaint with prejudice, as it is clear Plaintiff
cannot cure the pleading deficiencies. Despite having four opportunities, and explicit instructions
from this Court, Plaintiff has failed to meet the pleading standards set forth in Iqbal and Towmbty.

11

Hence, the Coutt finds that any further amendment would be inappropriate and the action must
ultimately conclude. See Robinson v. family Dollar, Inc., 679 F. App’x 126 (2017).
CONCLUSION

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

DATED: March201 7
JOSE L.
Chief Judge, United States District Court

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