Jones v. Local 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-Cio
Filing
67
OPINION AND ORDER by Judge Claire R Kelly ; dismissing/terminating case (terminates case) ; granting 61 Motion to Dismiss (Re: 61 MOTION to Dismiss and Brief in Support of Motion to Dismiss Under FRCP 12(b)(6) ) (crp, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
RODNEY JONES,
JOHN MCINTOSH
MARCUS BALL,
KELLY JORDAN,
ANTHONY TAYLOR
on behalf of themselves and all others
similarly situated,
4:20-cv-00585-CRK-CDL
Plaintiffs,
v.
LOCAL 798 OF THE UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO,
Defendant.
OPINION AND ORDER
Before the Court is a motion to dismiss for failure to state a claim pursuant to
Federal Rule Civil Procedure 12(b)(6) by Defendant Local 798 of the United
Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO (“Local 798,” “the Union,” or “Defendant”).
See [Def.] Mot. & Br. Supp’n Of Mot. To Dismiss Under [Fed. R. Civ. P. 12(b)(6)] at 1,
Sept. 19, 2023, ECF No. 61 (“Def. Mot.”).
Local 798 seeks to dismiss racial-
discrimination claims brought against it by Plaintiffs Rodney Jones, John McIntosh,
Marcus Ball, Kelly Jordan, and Anthony Taylor (collectively, “Plaintiffs”) under 42
U.S.C. § 1981, and 42 U.S.C. § 2000e (“Title VII”) in their Third Amended Class
4:20-cv-00585-CRK-CDL
Action Complaint (“TAC”), Aug. 8, 2023, ECF No. 57. For the following reasons, Local
798’s motion is granted.
BACKGROUND
The Court presumes familiarity with the facts of this case from this Court’s
two previous opinions dismissing the complaint in this action without prejudice. See
Jones v. Local 798 of the United Ass’n of Journeymen & Apprentices of the Plumbing
& Pipefitting Indus. of the United States & Can., No. 4:20-cv-00585-CRK-CDL, 2022
WL 17417980, at *1 (N.D. Okla. Dec. 5, 2022) (“Jones I”); Jones v. Local 798 of the
United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of
the United States & Can., No. 4:20-cv-00585-CRK-CDL, 2023 WL 3666090, at *1
(N.D. Okla. May 25, 2023) (“Jones II”). 1 In Jones I, the Court dismissed Plaintiff
Jones’ two claims under 42 U.S.C. § 1981 and his claim under Title VII for failure to
enforce the National Pipeline Agreement (“CBA”) without prejudice. Jones I, 2022
WL 17417980 at *11–12. The Court dismissed Mr. Jones’ claim for discrimination in
advancement under Title VII without leave to amend, as this claim was not properly
exhausted before the Equal Opportunity Employment Commission (“EEOC”). See
Jones I, 2022 WL 17417980, at *11–12.
Again, in Jones II, this Court held that Plaintiff Jones failed to state a claim
for failure to enforce the CBA under Section 1981 because his allegations lacked
factual support. Jones II, 2023 WL 3666090, at *3–7. Even where he alleged facts,
In the complaint and the second amended complaint, Plaintiff Jones was the only
named Plaintiff in the action. In the TAC, the allegations concern Mr. Jones and
other named Plaintiffs against Local 798.
1
2
4:20-cv-00585-CRK-CDL
Mr. Jones did not allege: that he pursued a grievance upon which the Union failed to
act; that the Union controlled any of the individuals about whom Mr. Jones had
alleged facts; or any other facts that would demonstrate the Union’s intent to
discriminate.
Id. at *3–5.
Likewise, the Court dismissed Mr. Jones’ failure to
advance claim because he did not plead any facts that, if proven, could plausibly lead
to the inference that the Union intentionally prevented Jones’ from advancing. Id. at
5–6. Although Mr. Jones claimed the Union was responsible for his failure to obtain
sufficient work hours and letters of recommendation to advance, he pled no facts to
support those allegations. Id. at 5. The Court also dismissed without prejudice Mr.
Jones’s claim that Local 798 failed to enforce the terms of the CBA because Mr. Jones
is Black. Id. at 6. The Court dismissed the disparate treatment claim under Title
VII for failure to plead intent and noted that Mr. Jones had failed to pursue the
disparate impact claim in his second amended complaint. Id.
The TAC includes newly named Plaintiffs: John McIntosh, Marcus Ball, Kelly
Jordan, and Anthony Taylor. TAC at ¶¶ 2–5. The TAC asserts that the named
Plaintiffs act on behalf of themselves and all others similarly situated. Id. at 1; id. at
¶¶ 202–223. Plaintiffs McIntosh, Ball, Jordan and Taylor, along with Mr. Jones, are
the members of the class action suit which arises “out of Plaintiffs’ status as Union
Members with [Defendant], and the race discrimination they experienced at the
hands of Defendant.” Pls. Resp. [Def. Mot.] at 2, Nov. 11, 2023, ECF No. 65 (“Pls.
Resp.”). The TAC re-alleges two claims under Section 1981, as well as his failure to
enforce claim under Title VII. See TAC at ¶¶ 224–76. Additionally, Plaintiffs assert
3
4:20-cv-00585-CRK-CDL
two new claims for race discrimination under Section 1981: Count 4, “Unequal Terms
and Conditions of Employment”; and Count 5, “Hostile Work Environment.” See Id.
at ¶¶ 266–276.
ALLEGATIONS IN THIRD AMENDED COMPLAINT
Throughout the TAC, as was the case in the First and Second Amended
Complaint, Plaintiffs make two types of allegations: (i) conclusory allegations lacking
factual content; and (ii) allegations with factual content. Only those allegations
containing some factual content are assumed to be true for the purposes of this
motion.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Frey v. Town of Jackson, 41 F.4th 1223, 1232–33
(10th Cir. 2022). General allegations without factual content are insufficient to
survive a motion to dismiss. See Khalik v. United Air Lines, 671 F.3d 1188, 1193
(10th Cir. 2012). Although the Tenth Circuit does not require pleadings to contain
any specific facts in particular, “there are certain details the Plaintiff[s] should know
and could properly plead to satisfy the plausibility requirement.” Id. at 1194. The
Court must “disregard conclusory statements and look only to whether the
remaining, factual allegations plausibly suggest the defendant is liable.” Id. at 1190.
Here, the TAC makes many assertions which do not contain factual content
and therefore, whether or not they are true, the Court cannot presume them to be
true for the purposes of this motion. See Khalik, 671 F.3d at 1190 (citing Iqbal, 556
U.S. at 678). For example, the TAC alleges that “the Union Stewards, Business
Agents, Organizers, Foreman, Supervisors and Management knowingly and
4
4:20-cv-00585-CRK-CDL
intentionally violated Title VII and Section 1981.” TAC at ¶ 48. Likewise, Unnamed
Class Member 3 (“UCM 3”) alleges that Black union members “were afraid to report
the discrimination or lodge complaints, for fear of retaliation.” Id. at ¶ 206:h. As
another example, the TAC alleges the Union: “refus[ed] to protect Black members
from race discrimination,” id. at ¶ 48:e; refused to “report or remedy illegal and
discriminatory conduct against Black members in the same manner as it does for
White members,” id. at ¶ 48:g; and refused “to pursue grievances on behalf of Black
members in the same manner as White members.” Id. at ¶ 48:h; see also, e.g., id. at
¶¶ 54, 142, 162, 179, 201, 205:a, 205:j, 205:m, 206:I, 245, 269. 2 Statements such as
these or that “White Helpers, Welders, Foremen, Supervisors, Journeymen, and
others routinely used racial slurs and derogatory language when speaking to or about
Black people,” id. at ¶ 205:j, do not provide specific factual content and cannot be
presumed true for the purposes of this motion. See Iqbal, 556 U.S. at 664; Twombly,
550 U.S. at 555; Khalik, 671 F.3d at 1193.
Plaintiffs also alleged that the Union: had a “facially neutral promotion policy, that
adversely affects Black members,” TAC at ¶ 48:b; denied “Black members the benefits
of equal terms and conditions of employment,” id. at ¶ 48:c; refused “to enforce the
anti-discrimination provisions of the [CBA]” or “pursue grievances for black members
in the same manner as white members,” id. at ¶¶ 48:f, 48:h; refused to allow the same
training opportunities for Black members as White members, id. at ¶¶ 48:i–j; refused
“to allow Black members the opportunity to bid on or compete for the competitive or
preferred jobs,” id. at ¶ 48:l; interfered with Black members “acquiring leadership
positions within the Union,” id. at ¶48:n; and “expos[ed] Black Members to a direct
threat of harm and physical violence by White Members based upon their race and
membership in a protected class.” Id. at ¶ 48:o.
2
5
4:20-cv-00585-CRK-CDL
ALLEGATIONS OF FACT
Allegations Concerning the Union in General
Defendant Local 798 “is a member organization of the United Association of
Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO.” TAC at ¶ 6. Local 798 represents employees with
employers, through a CBA. Id. at ¶ 50. The CBA contains a non-discrimination
provision that states: “Employer and Union agree that neither of them shall take any
action or refuse to take any action which shall discriminate against any individual
with respect to his compensation, conditions, or privileges of employment because of
the individual’s race, age, color, religion, sex, national origin or disability.” Id. at ¶
51.
Union members can report the violations to “the employer’s on-site
representative—the
Foreman—and
Local
798’s
on-site
representative—the
Steward.” Id. at ¶ 53.
The TAC alleges that all elected officers, business agents, organizers, and
leadership for Local 798 are and have always been White or White-passing men. Id.
at ¶¶ 46, 59. Local 798’s union members are generally classified into two positions—
“Helper” or “Journeyman.” Id. at ¶ 61. The position that is the most highly regarded
and compensated is that of Journeyman. Id. at ¶ 62. The position of Helper is less
highly regarded and compensated at a lower rate than that of Journeyman. Id. at ¶
63. Defendant Local 798’s Handbook advises its members that they can become
Journeyman by either becoming a Welder or a Spacer. Id. at ¶¶ 64–66. To become a
6
4:20-cv-00585-CRK-CDL
Journeyman Welder, a union member must, among other things, complete the
following:
a.
Accrue 5,000 hours of Covered Employment;
b.
Complete 3 years of experience in Covered Employment;
c.
Obtain 5 letters of recommendation from Welder or
Journeyman Members of the union with whom they have
worked directly;
d.
Submit an application and be accepted into the Local 798
Training Center Downhill Welding School;
e.
Complete the Local 798 Training Center Downhill Welding
School, certification tests, and pay applicable fees.
Id. at ¶ 65. To become a Journeyman Spacer, a union member must, among other
things, complete the following:
a.
Submit a request to advance or change classification from
Helper to Journeyman;
b.
Obtain 5 letters of recommendation from Journeyman
Welders or Journeyman Spacers who have witnessed the
union member working as a Journeyman Spacer;
c.
Complete 3,000 Helper hours in the last 10 years;
d.
Complete 500 Journeyman hours in a “pipe gang” during
the last 2 years that are recorded at Local 798’s Office; and
e.
Receive approval to change classifications from Local 798’s
Business Manager and Financial Secretary-Treasurer.
Id. at ¶ 66.
7
4:20-cv-00585-CRK-CDL
Allegations Involving Rodney Jones
Mr. Jones recounts specific instances of racial bigotry to which he has been
exposed as a Union member. In 2017 at a job in Detroit, Mr. Jones complained to the
Steward when “a co-worker made racist comments to Mr. Jones about Black people
being lazy and taking handouts.” TAC at ¶ 79. The Steward said he would address
it, but did nothing. Id. In 2018 he told Union Representative W.P. of the presence of
a noose at a jobsite to W.P. 3 Id. at ¶ 80. No meaningful action was taken. Id.
In 2019, Mr. Jones was a Helper to Journeyman Welder C.N. at a jobsite in
Indiana. Id. at ¶ 81. “[C.N.] would taunt Mr. Jones with racial slurs,” and “tell Mr.
Jones that the Union used to not allow Black individuals within its ranks,” id. at ¶
115; C.N told Mr. Jones “the Union makes it tough” on Black people, and that he did
not want to work Jones, which “Plaintiff has reason to believe this was based upon
[Jones’] race.” Id. at ¶ 82. Mr. Jones specifically complained about Welder C.N and
asked not to work with him. Id. at ¶ 114.
Journeyman Spacer C.S. habitually made Black and racist jokes in Mr. Jones’
presence of which the Steward was aware but did nothing to remedy. Id. at ¶¶ 85,
117. At the same jobsite Mr. Jones told the Steward that another Welder Helper,
A.G., used the N-word while around Mr. Jones. Id. at ¶ 83. The Steward did not do
anything in response. Id. “Mr. Jones is unaware of any Steward on any job he has
worked taking action to enforce the CBA’s non-discrimination provisions, including
Throughout the TAC, various individuals are named. Given the current procedural
posture of this matter, the Court references these individuals by their initials.
3
8
4:20-cv-00585-CRK-CDL
filing a grievance against, or otherwise imposing consequences on, a White employee
for racist conduct.” Id. at ¶ 87.
When Mr. Jones was attempting to advance within the Union, “he contacted
or attempted to contact every Foreman he ever worked with in the Union for a letter
to support his promotion,” without success. Id. at ¶ 120. By March 2017, Mr. Jones
“had completed 3 years and 5,000 hours of covered employment—thereby meeting
two of the requirements to become a Journeyman Welder.” Id. at ¶ 89. On March 26,
2017, he sent an email to the Union “requesting an application to attend the Local
798 Training Center Downhill Welding School.”
Id. at ¶ 90.
He received the
application and form letters of recommendation and a letter telling him that he
needed 5 letters from “a Welder or Welder Foreman” even though “the Union’s
handbook requirements [] permit letters of recommendation from Welders or
Journeyman (Spacer).” Id. at ¶¶ 90–91. Mr. Jones requested letters from more than
10 individuals but did not receive any letters. Id. at ¶ 94.
“Mr. Jones called Local 798’s Welding School and was discouraged from
continuing to advance,” being told that the training was costly and took years to
complete.
Id. at ¶ 95. 4
Mr. Jones sought guidance from Local 798’s Financial
Secretary-Treasurer [W.P.] on how to advance Id. at ¶ 97. W.P. suggested that Mr.
Jones pursue the requirements necessary to become a Journeyman Spacer. Id. at ¶
The TAC alleges that “the Welding School frequently assists and admits White
union members who seek advancement within the union,” TAC at ¶ 95, but provides
no factual content to support this allegation.
4
9
4:20-cv-00585-CRK-CDL
98. Mr. Jones attempted to fulfill the required hours, but his requests were routinely
denied. Id. at ¶ 100. 5
Mr. Jones alleges he expressed his frustration to the Union. Id. at ¶ 102. In
July 2018, Mr. Jones emailed Local 798’s business agent C.Y. and explicitly expressed
his concerns. Id. at ¶ 103. C.Y. responded but did not help in a meaningful way. Id. 6
In 2017 Mr. Jones approached a Steward about becoming a pipe inspector. Id.
at ¶ 126. Mr. Jones took time off from work to obtain the necessary training. Id. at
¶ 127. Even though Mr. Jones was required to take time off to complete the training,
the Union neither paid for Mr. Jones’ training nor paid Mr. Jones during his
attendance. Id. “When Mr. Jones returned from training, the same Steward who told
him that he would be promoted to Inspector told him that he would not be eligible to
be an Inspector.” Id. at ¶ 128. Further, “[w]hen Mr. Jones asked to be paid for the
time he was at training and reimbursed for the cost of the training the Steward told
him no.” Id. at ¶ 129. Two White Union Members who started at the same time as
Mr. Jones in 2006, J.W. and J.C., were both promoted past Mr. Jones despite his
similar efforts. Id. at ¶ 118.
The TAC further alleges that “White Helpers seeking advancement were routinely
assisted and given the required hours.” TAC at ¶ 100. He and other Black members
“were regularly given less than desirable positions and duties such as janitorial
duties, picking up metal shavings, and pre-heating welds.” Id. at ¶ 101. The TAC
provides no factual content for either of these allegations.
6 Without providing any factual content, Mr. Jones claims he witnessed White
workers with less knowledge and experience advance to the role of Journeyman
without having to meet the same requirements he was told to fulfill. TAC at ¶ 106.
5
10
4:20-cv-00585-CRK-CDL
On October 22, 2019, Mr. Jones executed a charge with the EEOC, alleging
“[Defendant] discriminated against him on the basis of his race in violation of Title
VII.” Id. at ¶ 135. On August 17, 2020, the EEOC mailed a Notice of Right to Sue
letter. Id. at ¶ 136. Suit was properly commenced on November 16, 2020. Id. at 137–
38.
Allegations involving John McIntosh
The TAC alleges that Plaintiff John McIntosh has been a member of the Union
since November of 2008. TAC at ¶ 2. Mr. McIntosh experienced various instances of
racial bigotry.
Id. at ¶¶ 139:a–140:g. 7
In 2018, while working for Michels
Corporations, Mr. McIntosh saw a T-shirt taped to a pipe with the words “’African
Vibrations’ in a font that looked like the letters were made of bones,” id. at ¶ 139:a,
with “exaggerated black stick figures depicting Africans wearing African jewelry with
The face of the complaint reveals that some of the allegations made by Mr. McIntosh
are beyond the statute of limitations. TAC at ¶¶ 140:a–d, f–g. For example, On July
19, 2014, at a jobsite in Coldwater, Michigan, a White member intentionally threw a
rock at McIntosh which hit him in the head. Id. at ¶ 140:b. No assistance or medical
treatment was offered. Id. The incident was reported to Union Pipeman S.P who
neither investigated nor took action against the White Member. Id. Mr. McIntosh
“requested that action be taken against the White Member” but [S.P.] refused to do
so. Id. Foreman B.F. and Pipeman S.P. told Mr. McIntosh “the injury must have
happened from him getting into a fight the previous night.” Id. Mr. McIntosh alleges
that he filed a complaint for the incident, but the Union took no action. Id. Mr.
McIntosh alleges he is now partially blind in one eye due to that incident. Id.
In November 2014, at a job site in Montrose, Pennsylvania, a White member
used the word N-word while speaking with other White members. Id. at ¶ 140:c. Mr.
McIntosh reported the conduct to the Steward. Id. The next day, Mr. McIntosh
alleges he was told to “[s]hut [t]he [f]uck [u]p and never talk about it again,” and that
“if he didn’t like it he could quit.” Id. Shortly after the incident, Mr. McIntosh was
told by White Welder Foreman J.D. and White Steward, D.S. to “[l]eave because you
quit.” Id. When Mr. McIntosh refused to leave, the Assistant Spreadman called the
police and threatened to have him arrested. Id.
7
11
4:20-cv-00585-CRK-CDL
African drums.” Id. He reported the offensive conduct to a pipeman, who told the
foreman, who ripped it off the pipe and said, “there I took care of it.” Id. Mr. McIntosh
asked that action be taken about the offensive shirt, but no action was taken. Id.
When he threatened to report the foreman, the foreman threatened to fire him for not
wearing protective gear. Id. at ¶ 139:b. Mr. McIntosh reported the conduct to
Business Agent C.Y., who took no action to protect Mr. McIntosh. Id. at ¶139:b.
Rather, C.Y. “agreed that the shirt ‘could be offensive,’ but because no one admitted
responsibility, he refused to do anything further about the conduct.” Id. C.Y. then
told Mr. McIntosh that he would be fired if he did not return to work. Id. Mr.
McIntosh reported the offensive conduct to a Michels Corporation Human Resources
Department, who told him that he “shouldn’t be offended by the shirt” and to return
to work. Id. at ¶ 139:c.
In January 2017, at a job site in Cusetta, Alabama, a White co-worker
intentionally attempted to hit McIntosh with a car. Id. at 140:e. The White member
yelled profanity at Mr. McIntosh and intentionally drove over his propane bottle. Id.
Welder Foreman B.C. removed Mr. McIntosh from the job while the White member
suffered no consequences. Id. Mr. McIntosh alleges he reported the incident to Local
798’s Steward, “who said both Mr. McIntosh and the White member would be written
up.” Id. McIntosh was fired the next day; the White member was “only written up.”
Id.
12
4:20-cv-00585-CRK-CDL
Allegations Involving Marcus Ball
Plaintiff Marcus Ball has been a member of Local 798 from 2004 to 2022,
leaving due to lack of advancement and continuous racial discrimination within Local
798. TAC at ¶¶ 143–144. Mr. Ball alleges that although he was a helper for his
entire membership with Local 798, he was allowed to work as a Journeyman when
working with other local unions. Id. at ¶ 145–46. “During his membership with Local
798, he would work with other Local Unions that were not 798 and he was allowed to
work as a Journeyman in Building Trades but not on Pipeline work with Local 798.”
Id. He alleges he never had the opportunity to work a full 2080 hours per year and
was often the only Black Helper on a job site. Id. at ¶¶ 148, 150.
Allegations Involving Kelly Jordan
The TAC alleges that Plaintiff Kelly Jordan is a Black male residing in
Irontown, Pennsylvania. TAC at ¶ 163. Mr. Jordan has been a member of the Local
798 since 2007. Id. Mr. Jordan alleges that he is an active Member of Local 798,
but that despite 16 years of Union Membership and despite his efforts, he has been
denied journeyman training while other individuals received such training. Id. at
¶¶ 164–166. 8 Jordan and his sister both worked a Local 798 job in which the
supervisor would say racist things at a daily “safety meeting including.” Id. at ¶
169. Statements at such meetings included: “We aren’t gonna let these fucking
Mr. Jordan alleges facts with respect to one incident that the complaint reveals is
outside of the statute of limitations: “In his first year of membership with the Union,
Jordan was threatened with a gun” by White Welder N.B., who was dismissed from
the job site but not from the Union. TAC at ¶ 167.
8
13
4:20-cv-00585-CRK-CDL
people, darkheads take our fucking jobs.” Id. Mr. Jordan alleges that he was
assaulted by a White Worker on the same day that the previous statement was said,
and that he contacted a business agent. Id. The Business Agent responded that
Mr. Kelly could “file charge if [he] want[ed],” but that “his tone of voice and
mannerisms [indicated] that nothing would happen and he was at risk if he did.”
Id. Mr. Jordan alleges that his sister was “so scared that she left the Union,” and
that Mr. Jordan was also “afraid for his life and his job so he did not report the
incident.” 9 Id. at ¶ 169–70.
Allegations involving Anthony Taylor
Plaintiff Anthony Taylor is a Black man residing in Nashville Tennessee. TAC
at ¶ 180. He was a Helper during his entire membership. Id. at ¶ 182. He never had
“the opportunity to work a full 2080 hours per year.” Id. at ¶ 184. He was often the
only Black Helper on a job site. Id. at ¶ 186. “Out of fear for his safety and his ability
to provide for his family,” Mr. Taylor claims he “did not report the things that
happened to him or the things he saw happen to others.” Id. at ¶¶ 193–94. Mr. Taylor
worked his last job for Local 798 in 2021. Id. at ¶ 196. “For a year prior to leaving
the Union, Taylor was unemployed for a year while White Helpers with the same or
less experience were hired over him for jobs that he was qualified to hold.” Id. at ¶
Other allegations involving Mr. Jordan are conclusory or without factual content.
For example, Mr. Jordan alleges that it was “common knowledge” that in response to
any report or pursuit of a grievance, “Management would actively avoid pursuing the
claims and that you would be retaliated against.” TAC at ¶ 176. “The times that
Jordan tried to report the discrimination he was directly and indirectly told nothing
would happen and that he was at risk if he pursued it.” Id. at ¶ 177.
9
14
4:20-cv-00585-CRK-CDL
198. Taylor alleges that “[e]arly in his career with the Union Taylor and a White
Helper were both late to the job site. The White Helper kept his job and Taylor was
terminated.” Id. at ¶ 189.
Allegations of Unnamed Class Members 10
Unnamed Class Member 1
A Black Helper filed a grievance that a White Welder “repeatedly threatened
to assault and kill him on the job due to his race.” TAC at ¶ 202. The White Member
also threatened the Black Helper’s job, used pejorative race-based names, and made
other racial slurs while on the job site.
Id. at ¶ 203.
The Black Helper was
terminated, and the white Welder kept his job. Id. at ¶ 204.
Unnamed Class Member 2
A Union member since 2017, Unnamed Class Member 2 (“UCM 2”) reported a
specific incident of isolation occurred when the Foreman assigned all Black members
to work with the preheating pipe, a job that allowed little opportunity for workers to
interact with Pipeline employees and obtain contract jobs. Id. at ¶ 205:f. Although
Black Helpers working on the preheating jobs specifically requested opportunities to
work with welders and Pipeline employees, they were denied the opportunity to do
so. Id. at ¶ 205:f–h. However, White Helpers with similar or less experience than
All unnamed class members experienced various instances of discriminatory
behavior, including racist and derogatory jokes, comments about Black speech and
culture, racist names and comparisons, and public writings of the N-word in work
environments. TAC ¶ 207:a–g.
10
15
4:20-cv-00585-CRK-CDL
Black Helpers were allowed to work with the welders without having to ask. Id. at ¶
205:i. 11
UCM 2 alleges that White workers made joking comments using the N-word
and that Black members were afraid to speak about what was happening due to fear
of retaliation, including termination and that White workers used the N-word around
him. Id. at ¶ 205:l–o. On another occasion, UCM 2 and another Black worker were
forced to lie in trash strewn about the work area while White Welders and their
Helpers laughed. Id. at ¶ 205:p. It is alleged that the described conduct occurred
regularly and in front of all levels of management. Id. at ¶ 205:q. The Foremen,
Supervisors, Stewards, Welders, and Journeymen were aware of this discrimination,
did not intervene, and ultimately encouraged the behavior. TAC ¶ 205:r.
UCM 2 also makes several allegations which do not contain factual support,
stating: there were numerous incidents of harassment, discrimination, and failure
of the Union to take action to protect him and others; he has been treated harshly,
unfairly, and differently than other members by White Union members from every
echelon of management; he has experienced discrimination so severe that he
questioned whether continuing to work for the Union would be detrimental to his
mental health due to the harassment he experienced at work every day; and that
Black members were intentionally prohibited from developing relationships needed
to advance. TAC at ¶ 205:a–c. He also alleges that White Helpers, Welders,
Foremen, Supervisors, Journeymen, and others routinely used racial slurs and
derogatory language when speaking about Black people, id. at ¶ 205:j, and that he
was aware that if he reported the racial slurs he would face retaliation by being fired
or denied future job opportunities, and that the Union Stewards were aware that this
behavior was happening. Id. at ¶ 205:k. He alleges generally that White Helpers
were paid full-scale, “while Black members on the same job, with the same
experience, and longer tenure with the Union were paid less.” Id. at ¶ 205:o.
11
16
4:20-cv-00585-CRK-CDL
Unnamed Class Member 3
Unnamed Class Member 3 (“UCM 3”), a Union member since 2006, makes a
number of allegations, one of which is clearly beyond that statute of limitations and
other which lacks factual content. 12 On one occasion, UCM 3 and another Black
woman worker were humiliated on a job for not buffing the pipe fast enough and
removed from the assignment. Id. at¶ 206:f.
JURISDICTION AND STANDARD OF REVIEW
The Court exercises jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §
1331, and reviews Defendant’s motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Pursuant to Rule 12(b)(6), the Court is
tasked with determining “whether the plaintiff’s amended complaint alone is legally
sufficient to state a claim for which relief may be granted.” Broker’s Choice of Am.,
Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014) (internal citations
For example, in 2015, while working on a job in Missouri, UCM 3 was pulled off a
line to allegedly train for another position but was told he was too short to complete
his present job while white women shorter than he were allowed to work on the line.
TAC at ¶ 206:a. UCM 3 was not given any work, told there was no work for him to
do, and he was released from the job along with another Black woman worker. Id. at
¶ 206:b–c. The Union Foreman objected to UCM 3 receiving unemployment benefits
after termination. Id. at ¶ 206:d.
Further, UCM 3 makes allegations without factual content that Black women
workers—and never White women workers—were assigned to physically demanding
jobs. Id. at ¶ 206:e. Black men and women were constantly subject to racist jokes
and ridicule in front of and by management without intervention. Id. at ¶ 206:g.
UCM 3 and others affected were afraid to report the discrimination or lodge
complaints for fear of retaliation. Id. at ¶ 206:h. Young Black men were subject to
the worst treatment under the most demanding conditions and still received less pay
than similarly qualified and tenured white workers doing less strenuous work. Id. at
¶ 206:i.
12
17
4:20-cv-00585-CRK-CDL
omitted). A complaint is legally sufficient if it contains factual allegations such that
it states a plausible claim for relief on its face. Twombly, 550 U.S. at 570. Although
a complaint need not contain detailed factual allegations, it nevertheless requires
“more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555 (internal citation omitted).
A claim is facially plausible when the plaintiff pleads factual content allowing
the Court to draw reasonable inferences that the defendant is liable for the alleged
misconduct. Iqbal, 556 U.S. at 678. The Court must accept all well-pleaded factual
allegations of the complaint as true.
Twombly, 550 U.S. at 555–56.
However,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. When deciding a
motion to dismiss, the Court considers the complaint in its entirety, as well as
“documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007) (internal citation omitted).
“To avoid dismissal, ‘a complaint must contain enough allegations of fact,
taken as true, to state a claim to relief that is plausible on its face.’” Hampton v.
Bakery, Confectionery & Tobacco Workers & Grain Millers Int’l Union of Am., Loc.
218, AFL-CIO, No. 21-3218, 2022 WL 4361782, at *2 (10th Cir. Sept. 21, 2022) (citing
Khalik, 671 F.3d at 1191). The Court will “disregard conclusory statements and look
only to whether the remaining, factual allegations plausibly suggest the defendant is
liable.” Id. (internal quotations and citations omitted).
18
4:20-cv-00585-CRK-CDL
DISCUSSION
Pursuant to Section 1981, “all persons” are guaranteed the right to “make and
enforce contracts.” 42 U.S.C. § 1981(a). Plaintiffs allege that the Union has violated
both Section 1981 and Title VII, invoking what they call a pattern of discriminatory
conduct amounting to a continuing violation, attributed to the Union against the five
named plaintiffs and unnamed class members over a period of twenty years. TAC at
¶¶ 1–5. Plaintiffs allege race discrimination against the Union in counts one and
three for failure to enforce the CBA under Section 1981 and 42 U.S.C. § 2000e,
respectively. Id. at ¶¶ 224–35, 254–64. The remaining three counts, all of which are
brought under Section 1981, allege: (ii) failure to promote, (iv) unequal terms and
conditions of employment, and (v) hostile work environment. Id. at ¶¶ 236–53, 266–
76. Defendant argues that many of the allegations in the TAC are beyond the statute
of limitations. Def. Mot. at 10. Defendant also argues that the allegations are not
against the Union itself, but against individual members of the Union and various
employers, which cannot be attributed to Defendant. Id. at 11–12. Further, the
Union claims many of the allegations lack factual content and are insufficient to
demonstrate the Union’s intent to discriminate. Id. at 1, 10, 15.
I.
The Statute of Limitations
As a preliminary matter, the parties dispute which allegations can be
considered by the Court in considering this motion to dismiss. Defendant asserts that
any allegations prior to November 17, 2016, should not be considered by the Court.
Def. Mot. at 15. Plaintiffs counter that the statute of limitations is an affirmative
19
4:20-cv-00585-CRK-CDL
defense that should not be considered at this stage in the litigation, and that in any
event the continuing violation doctrine allows Plaintiffs to rely upon allegations
beyond the statute of limitation. Pls. Resp. at 10–11.
The statute of limitations is an affirmative defense that is ordinarily raised
and addressed in pleadings, rather than on motion. Sierra Club v. Okla. Gas & Elec.
Co., 816 F.3d 666, 671 (10th Cir. 2016). Nonetheless, when it appears from the face
of the complaint that an allegation is beyond the statute of limitations, a party may
raise the matter on motion. Id. The statute of limitations under Section 1981 runs
four years from when the cause of action accrued. Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 374, 382–83 (2004) (holding federal statute 28 U.S.C. § 1658
created four-year “catch-all” statute of limitations). 13 Here, the face of the complaint
reveals that a number of the allegations are clearly beyond the statute of limitations,
and those allegations should normally not be considered when determining whether
Plaintiffs have stated a claim. However, where the date of the allegation is not
disclosed on the face of the complaint, the Court will assume that those allegations
occurred within the statute of limitations for the purposes of this motion. See SFFTIR, LLC v. Stephenson, 250 F. Supp. 3d 856, 997 (N.D. Okla. 2017) (noting that
unless a complaint pleads specific dates, the Court will not resolve the statute of
limitations issue on a motion to dismiss).
A Title VII plaintiff must file her lawsuit within 90 days of receiving her right-tosue notice from the EEOC, 42 U.S.C. § 2000e-5(f)(1), after having brought charges
with the EEOC within either 180 or 300 days depending upon the circumstances. See
42 U.S.C. § 2000e–5(e)(1).
13
20
4:20-cv-00585-CRK-CDL
In Title VII suits, the continuing violation doctrine may allow a plaintiff to rely
on discriminatory acts occurring before the limitation period, where the plaintiff
identifies an ongoing discriminatory practice rather than only discrete acts of
discrimination such as termination, failure to promote, denial of transfer, or a refusal
to hire. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–115 (2002). The
continuing violation doctrine applies only to Title VII claims—not Section 1981
claims. Thomas v. Denny’s, Inc., 111 F.3d 1506, 1514 (10th Cir. 1997) (holding that
“because the continuing violation theory is a creature of the need to file
administrative charges, and because a section 1981 claim does not require filing such
charges before a judicial action may be brought, the continuing violation theory is
simply not applicable”).
Even when the doctrine is applied in the Title VII context, a plaintiff must still
plead a link between the pre- and post-limitation conduct for the doctrine to apply.
The Tenth Circuit has explained that a Title VII hostile work environment claim may
be composed of “a series of separate acts that constitute one ‘unlawful employment
practice.’” Hansen v. SkyWest Airlines, 844 F.3d 914, 923 (10th Cir. 2016) (discussing
Morgan, 536 U.S. at 115, 117). To determine whether acts should be considered as
part of actionable hostile work environment practice, the Court must consider
whether the pre- and post-limitations period acts were “related by type, frequency,
and perpetrator.” See Duncan v. Manager, Dep’t of Safety, City & Cty. Of Denver,
397 F.3d 1300, 1309 (10th Cir. 2005); see also Tademy v. Union Pac. Corp., 614 F.3d
21
4:20-cv-00585-CRK-CDL
1132, 1144 (10th Cir. 2008) (emphasizing that inquiry must be made into whether
the acts occurred when the claimant “was working in the same place.”)
Here, the complaint reveals that many of the allegations are beyond the statute
of limitations and that Plaintiffs’ invocation of the continuing violation doctrine is
misplaced. Plaintiffs fail to allege facts which might lead to the plausible inference
that the incidents, which from the face of the complaint are clearly beyond the
limitations period, have any relationship to post-limitations allegations. 14
For
example, the TAC alleges in 2010, at a job site in Miles City, Montana, a Black
member was verbally accosted by a White member and then harassed by a foreman.
TAC at ¶140:a. This Black member filed a grievance, but no action was taken. Id.
In 2014, at a job site in Coldwater, Michigan, Plaintiff McIntosh was struck in the
eye by a rock thrown by a White member and asked that action be taken, but the
A plaintiff may counter a motion to dismiss with an assertion that a different
statute of limitations or an equitable tolling doctrine applies to bring the suit within
the statute. Am. Mech. Sols., L.L.C. v. Northland Process Piping, Inc., 184 F. Supp.
3d 1030, 1049 (D.N.M. 2016). The applicability of tolling often implicates matters
outside the pleadings, and thus some courts have indicated that a Rule 12(b)(6)
motion will rarely be granted if equitable tolling is involved because review is limited
to the complaint. Sender v. Dillow, No. 13-2170-RDR, 2013 WL 12253548, at *2 (D.
Kan. Aug. 30, 2013) (citing Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003–04
(9th Cir. 2006)). The Tenth Circuit has not clarified whether tolling must be pled
with supporting facts in the complaint or may be merely argued in response to the
motion. Am. Mech. Sols., L.L.C., 184 F. Supp. 3d at 1049; cf. Kincheloe v. Farmer,
214 F.2d 604, 605 (7th Cir. 1954) (holding that a plaintiff must “extricate himself”
from a pleading that, on its face, indicates the statute of limitations bars the action
by pointing to facts which might show the applicability of an exception in the
complaint or an amendment). In any event, where the face of the complaint reveals
that the action is beyond the statute of limitations, and there are no allegations in
the complaint or response to the motion that would implicate tolling, the complaint
may be disposed of on a motion to dismiss. See Jones v. Bock, 549 U.S. 199, 215
(2007).
14
22
4:20-cv-00585-CRK-CDL
Union took no action. Id. at ¶140:b. Although in both instances the TAC alleges
discriminatory conduct by another union member, and some complaint made by the
individual involved, no allegations connect these separate events to each other or any
other allegation in the post-limitations period other than Mr. McIntosh’s involvement
in the 2014 incident.
No allegations connect these incidents to Mr. Jones’ Title VII claim. Mr. Jones
bases his claims upon events from jobs taking place in Detroit in 2010–2011 and 2017,
and Indiana in 2019. Id. at ¶¶ 79, 81, 122. No allegations identify facts from which
one could plausibly infer a pattern or policy of the Union not to intervene.
The
doctrine cannot apply where there is no allegation supporting a relationship between
the events. See Hansen, 844 F.3d at 923 (stating that offending acts must be “part of
the same actionable hostile work environment practice” (internal citations and
quotations omitted)).
II.
Claims Under Section 42 U.S.C. § 1981
Plaintiffs claim the Union intentionally failed to enforce the anti-
discrimination provision of the CBA, imposing advancement requirements to thwart
Plaintiffs’ promotion, maintaining unequal working conditions, and creating a hostile
working environment. TAC at ¶ 48:f. Defendant argues Plaintiffs fail to allege facts
sufficient to satisfy the intent requirement of Section 1981. Def. Mot. at 10–11. For
the reasons that follow, Plaintiffs fail to allege sufficient factual content to plausibly
demonstrate that the Union engaged in intentionally discriminatory behavior.
23
4:20-cv-00585-CRK-CDL
A.
Failure to Enforce Terms of the CBA Under 42 U.S.C. § 1981
(Count I)
Section 1981(a) guarantees the right “to make and enforce contracts” and “the
full and equal benefit of all laws and proceedings . . . as is enjoyed by white citizens.”
42 U.S.C. § 1981(a). Pursuant to 42 U.S.C. § 1981, an employer may not discriminate
against an employee on the basis of race. To establish a prima face case under Section
1981, the plaintiff must demonstrate (1) that the plaintiff is a member of a protected
class; (2) that the defendant had the intent to discriminate on the basis of race; and
(3) that the discrimination interfered with a protected activity as defined in Section
1981. Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101 (10th Cir. 2001);
Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020);
Cruz v. Farmers Ins. Exch., 42 F.4th 1205, 1210 (10th Cir. 2022).
For a Section 1981 claim against a Union, a plaintiff must plead facts that
would plausibly demonstrate the Union was more than passively acquiescent in the
discrimination of others. See York v. American Tel. & Tel. Co., 95 F.3d 948, 956–57
(10th Cir. 1996) (“[Under Title VII], mere inaction does not constitute acquiescence”).
Although a plaintiff must plead sufficient facts to make the claim plausible,
Twombly, 550 U.S. at 570, a plaintiff is not required to specifically allege all the
elements of a prima facie case of discrimination. See Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 515 (2002); Khalik, 671 F.3d at 1192. Nevertheless, “the elements of
each alleged cause of action help to determine whether [the] [p]laintiff has set forth
a plausible claim.” Khalik, 671 F.3d at 1192. “[G]eneral assertions of discrimination
and retaliation, without any details whatsoever of events . . . are insufficient to
24
4:20-cv-00585-CRK-CDL
survive a motion to dismiss. While ‘specific facts are not necessary,’ some facts are.”
Id. at 1193 (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). Thus, the plaintiff
must plead facts that the Union instigated or actively supported the discriminatory
acts. See Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987), superseded by
statute on other grounds, 28 U.S.C. § 1658, as recognized in R.R. Donnelley & Sons
Co., 541 U.S. 369; York, 95 F.3d at 956–57; see also Carter v. Chrysler Corp., 173
F.3d 693, 703–04 (8th Cir. 1999).
Although a plaintiff states a claim against a union when it alleges facts that
indicate a union made a categorical decision to ignore grievances because of race,
Goodman,482 U.S. at 666–69, union liability must be “predicated on the union’s
conduct, not merely on discrimination by the employer.” See Anspach v. Tomkins
Indus., Inc., 817 F. Supp. 1499, 1517 n.6 (D. Kan. 1993), aff’d sub nom. Anspach v.
Sheet Metal Worker’s Int’l Ass’n, 51 F.3d 285 (10th Cir. 1995); see also Faragalla v.
Douglas Cnty. Sch. Dist., No. 07-cv-02584-REB-BNB, 2009 WL 2902737, at *9–10 (D.
Colo. 2009) (explaining that a union did not discriminate against an employee when
it refused to arbitrate her claim due the insufficiency of the claim). Thus, although
a “union cannot acquiesce in a company’s prohibited employment discrimination and
expect to evade liability for such discrimination,” York, 95 F.3d at 956 (citing Romero
v. Union Pac. R.R., 615 F.2d 1303, 1311 (10th Cir. 1980)), “mere inaction does not
constitute acquiescence.” Id. at 957 (citing Goodman, 482 U.S. at 669). Accordingly,
to survive a motion to dismiss the plaintiff must allege facts from which a jury could
25
4:20-cv-00585-CRK-CDL
infer that there were actions or decisions by the union to intentionally deprive the
plaintiff of his or her rights. 15 See id.
A consensus of federal and state authorities hold that a union may only be held
liable for failing to pursue a grievance complaint for discriminatory reasons. See
EEOC v. Pipefitters Ass’n Local Union 597, 334 F.3d 656, 660 (7th Cir. 2003)
(rejecting argument that union has affirmative duty to investigate and rectify
discrimination); Thorn v. Amalgamated Transit Union, 305 F.3d 826, 832–33 (8th
Cir. 2002) (holding that because employee did not ask the union to file a grievance,
the union had no duty to remedy sexual harassment); Anjelino v. New York Times
Co., 200 F.3d 73, 95–96 (3d Cir. 1999) (holding union was not liable because it did not
instigate or actively support the discrimination and the employer was responsible for
assigning work and ensuring a discrimination-free workplace); Chrysler Corp., 173
F.3d at 703–04 (stating a labor organization is liable for an employer’s discrimination
in the workplace if it causes or attempts to cause the employer to discriminate under
§ 2000e–2(c)(3) or if the union “purposefully acts or refuses to act in a manner which
prevents or obstructs a reasonable accommodation by the employer”(internal
citations omitted)); cf. York, 95 F.3d at 956 (adopting acquiescence theory but noting
“mere inaction does not constitute acquiescence” and requiring “(1) knowledge that
prohibited discrimination may have occurred and (2) a decision not to assert the
Although the facts alleged in support of such intentional conduct may be of direct
or circumstantial evidence of intent, see Cruz, 42 F.4th at 1210; Perry v. Woodward,
199 F.3d 1126, 1134 (10th Cir. 1999), the allegations cannot be conclusory. Hampton,
2022 WL 4361782, at *2 (citing Khalik, 671 F.3d at 1191).
15
26
4:20-cv-00585-CRK-CDL
discrimination claim”); Douglass v. United Auto Workers, Loc. 31, 368 F. Supp. 2d
1234, 1247 (D. Kan. 2005), aff'd sub nom. Douglass v. United Auto Workers Loc.
Union 31, 188 F. App’x 656 (10th Cir. 2006) (holding that the plaintiff failed in her
burden to provide specific facts showing that a genuine issue for trial existed when
she never attempted to file any grievance with regard to her job placements); Badlam
v. Reynolds Metals Co., 46 F. Supp. 2d 187, 201 (N.D.N.Y. 1999) (finding that the
union was under no obligation to take further action because the plaintiff did not
pursue a grievance regarding her sex discrimination accusations); Ellison v.
Plumbers & Steam Fitters Union Loc. 375, 118 P.3d 1070, 1076 (Alaska 2005) (ruling
that female union member who never requested to file a grievance failed to show the
union discriminated against her through its inaction in the face of knowledge of
discrimination by her employer and some union stewards). Contra Howard v. Int’l
Molders & Allied Workers Union, 779 F.2d 1546, 1548, 1553 (11th Cir. 1986) (holding
union liable for failing to use “all reasonable effort” to end employer’s use of racially
discriminatory test for promotion, although no members had asked union to pursue
grievances).
Thus, even though an employer may be liable for the failure to remediate
discrimination, courts have not imposed an affirmative duty on unions to investigate
and remediate discrimination. See EEOC v. Pipefitters Ass’n Local Union 597, 334
F.3d at 656. In EEOC v. Pipefitters Ass’n Local Union 597, the Seventh Circuit
explained why courts hold unions and employers to different standards:
27
4:20-cv-00585-CRK-CDL
An affirmative duty of the union to investigate and rectify
discrimination by the employer derives no support from the statutory
language, as we have seen, and fills no gap in the remedial scheme that
the statute creates. Imposing such a duty would make for factually
messy cases because the union’s power is so much more limited than the
employer’s when it comes to making changes in personnel or work rules.
Id. at 660–61. The Seventh Circuit identified two types of cases “in which selective
inaction by a union might be thought a form of discrimination.” Id. at 661. First,
where “the union is vigilant to detect and correct mistreatment of white workers but
has a policy of ignoring the interests of black ones.” Id. This situation would arise,
for example, where a union would refuse to grieve a complaint for a Black member
that it would grieve for a White member. Id. (first citing McDonald v. Santa Fe Trail
Transportation Co., 427 U.S. 273, 284–85, (1976); then citing York, 95 F.3d at 956;
and then citing Steele v. Louisville & Nashville R.R., 323 U.S. 192, 202–04, (1944)).
Alternatively, a union that adopted as policy “not to grieve complaints of
discrimination by [B]lack members of the bargaining unit because the company is
hostile to such complaints and the union fears that this hostility will make it harder
for the union to succeed in its dealings with the company.” Id. (citing Goodman, 482
U.S. at 668–69).
Accepting the factual content in the complaint as true, Plaintiffs fail to allege
sufficient facts that would plausibly support a claim that the Union intentionally
failed to enforce the terms of the CBA.
It is undisputed that Plaintiffs plead
membership in a protected class. See Def. Mot. Dismiss [Re Jones II] at 9, Dec. 05,
2022, ECF No. 40. However, to allege the requisite intent to survive a motion to
dismiss, Plaintiffs must allege (1) facts that establish the Union’s knowledge that
28
4:20-cv-00585-CRK-CDL
prohibited discrimination may have occurred and (2) a decision not to assert the
discrimination claim. York, 95 F.3d at 956–57 (holding that without evidence of the
defendant’s knowledge of the alleged discrimination, mere failure by the defendant
to file a discrimination claim on the plaintiff’s behalf is insufficient to establish a Title
VII claim).
Although Plaintiffs plead facts relating to certain individual’s discriminatory
intent, they have failed to plead facts from which a jury could conclude that the Union
intended to discriminate against Plaintiffs either specifically or through a pattern
and practice of conduct. The claims fail to demonstrate that the Union either: did not
pursue grievances that it would have or did pursue for White members; or that it had
a policy of not pursuing grievances for Black members. Mr. Jones alleges that racist
comments have been directed towards him by his co-workers but fails to allege that
he pursued a grievance with the Union for any of these incidents. TAC at ¶ 79. Mr.
Jones alleges the steward told him he “‘would take care of it’ but nothing was done.”
Id. Mr. Jones alleges he told a union representative about a noose at a jobsite, but
that no investigation ensued. Id. at ¶ 80. Mr. Jones alleges he complained about
another union member, C.N., who would taunt him with racial slurs and tell him that
“the Union makes it tough” for Black people. Id. at ¶ 81. He alleges he told the
steward about another union member, A.G., who used the N-word while around Mr.
Jones, but that no action was taken. Id. at ¶ 83. Mr. Jones does not allege he filed a
grievance for any of these incidents.
29
4:20-cv-00585-CRK-CDL
Likewise, Mr. McIntosh alleges discriminatory treatment by other union
members but does not allege that he filed a grievance for any of the incidents. In
2018, Mr. McIntosh was exposed to an offensive shirt worn by another union member
about which he complained to a foreman at the site and asked action be taken—but
no action was taken. Id. at ¶139:a. When he threatened to report the foreman, the
foreman threatened to fire him for not wearing protective gear. Id. at ¶ 139:b. Mr.
McIntosh reported this incident to Business Agent C.Y., who took no action to protect
McIntosh. Id. at ¶ 139:b. Mr. McIntosh also reported the offensive conduct to Human
Resources at Michels Corporation, who told him “he ‘shouldn’t be offended by the
shirt’ and to go back to work.” Id. at ¶139:c. Mr. McIntosh alleges “[n]o one with the
Union or the Union Partner took any corrective action to protect McIntosh from the
offensive environment.” Id. at ¶139:d. In January 2017, at a job site, a White coworker intentionally attempted to hit Mr. McIntosh with a car and yelled profanity
at him. Id. at ¶ 140:e. The Foreman removed Mr. McIntosh from the job “and did
nothing to the White member.” Id. Mr. McIntosh reported the incident to the
steward, who “said both [Mr. McIntosh] and the White member would be written up,”
and although the White member was indeed written up, Mr. McIntosh was fired. Id.
Mr. McIntosh does not claim to have pursued a grievance for any of these alleged
incidents.
Mr. Jordan does not allege that he filed any grievance but does allege that it
was “common knowledge” that management “would actively avoid pursuing
grievances.” Id. at ¶ 176. Mr. Jordan alleges that other workers said racist things
30
4:20-cv-00585-CRK-CDL
and that he was assaulted by another member, but he does not allege he pursued a
grievance for any of these alleged incidents.
One Unnamed Class Member alleges that a White welder threatened to kill
him, and others used pejorative race-based names and made other slurs towards him.
Id. at ¶¶ 202, 203.
Other unnamed class members report being harassed and
discriminated against. Id. at ¶ 205. The Unnamed Class members do not allege that
they filed a grievance with respect to these incidents.
In only one instance does the TAC allege that a member filed a grievance. The
TAC alleges that on information and belief a Black Helper recently filed a grievance
“that a White Member repeatedly threated to assault and kill him on the job due to
his race.” Id. at ¶ 202. The TAC provides no further information about the grievance
or whether it was pursued by the Union or not, although it does say that the Black
Helper was terminated from the job. Id. at ¶ 204.
Although Plaintiffs allege abhorrent and vile conduct on behalf of other union
members and allege that union officials were made aware of this conduct in certain
instances, Plaintiffs do not allege facts that would lead to the inference that the Union
intended to discriminate against them by not pursuing grievances or having a policy
of not pursuing grievances. Of the twelve instances where Plaintiffs allege that the
Union (a steward, or business agent) was aware of the discriminatory conduct, five of
those instances are identified in the complaint as occurring beyond the time
31
4:20-cv-00585-CRK-CDL
permitted by the statute of limitations. 16
Of the other seven instances, in none do
Plaintiffs allege that a grievance was file. None of the Plaintiffs allege that they filed
a grievance for any of the incidents or that they were stopped from filing a grievance,
let alone that there was a categorical decision to not pursue any grievances by the
Union because of race. See Goodman, 482 U.S. at 657. In the one additional instance
where the TAC alleges that an unnamed Black member filed a grievance when he
was threatened, the TAC fails to give any factual information from which a jury could
infer that the Union intended to discriminate. There are no allegations concerning
whether the Union failed to take any action or why no action was pursued.
In 2010, A Black member was verbally accosted by a White member then harassed
by a foreman. The Black member filed a grievance, but the Union took no action.
TAC at ¶ 140a. In 2014, Mr. McIntosh was struck in the eye by a rock thrown by a
White union member. McIntosh alleges “[a] complaint was filed over this conduct
and the Union did nothing.” Id. at ¶ 140b. It is unclear if the complaint was filed
with the Union or the company or if the complaint was a grievance. In 2014, Mr.
McIntosh complained about White members using the N-word and was told that “if
he didn’t like it, he could quit.” Id. at ¶ 140:c. He reported the incident to a White
union business agent who told Mr. McIntosh “that there was nothing he could do
about what happened.” Id. Mr. McIntosh requested the union business agent and
business manager to file a grievance and was told “No. I’m not going to file a grievance
for you.” Id. at ¶ 140:c–d. In 2007, Mr. McIntosh alleges he was fired on the
pretextual basis that he failed to wear his safety gear. Id. at ¶ 140:g. “McIntosh
denied [he was fired for failing to wear safety gear] and reported the termination to
the Union Steward. The Union Steward refused to take any action with Michels,
refused to file a grievance, and instead moved McIntosh to another location.” Id. at
¶ 140:g. In 2007 Mr. Jordan was threatened with a gun by a White Welder. The
welder was fired from the specific job site but not the Union, and the Steward took no
other action. Id. at ¶¶ 167, 168.
16
32
4:20-cv-00585-CRK-CDL
At several points, the TAC alleges that the Union refused to file a grievance,
but it does so without supplying any factual content. 17 TAC at ¶¶ 111, 155, 159, 176,
195. The TAC alleges at many points that Plaintiffs believed that “pursuing a
grievance would be futile.” Id. at ¶ 205:m, see also id. at ¶ 176. As in prior
complaints, Mr. Jones alleges that unions in general and Local 798 specifically have
a history of discrimination against Black members. Id. at ¶¶ 14, 21, 25, 44–45, 68,
239, 247. At several points Plaintiffs allege that it was “well known” or “common
knowledge” that the Union would not pursue grievances for Black members. Id. at
¶¶ 155, 159, 176, 195, 230. 18 However, such conclusory allegations are insufficient
Mr. Jones alleges generally that he complained to “Stewards, Business Agents,
Foremen, Supervisors and other Management within the Union and at the job site
about the discriminatory conduct he was subjected to and observed.” TAC at ¶ 108.
Although he does not allege that he filed a grievance, he alleges that “[t]he Union
Stewards refused to investigate his complaints and refused to pursue grievances on
his behalf.” Id. at ¶ 109.
18 Plaintiffs attempt to refute Defendant’s position that the Union lacked intent and
therefore the claim should be dismissed by pointing to Malone v. Pipefitters’ Ass’n
Loc. 597, No. 97-C-3718, 1998 WL 433765 (N.D. Ill. July 29, 1998). That case is a
pre-Twombly and pre-Iqbal district court case from the Northern District of Illinois
where the court denied the union’s motion to dismiss, finding that the complaint
would be dismissed only if it “appears beyond doubt that he can prove no set of facts
in support of his claim which would entitle him to relief.” Malone, 1998 WL 433765,
at *1. The Supreme Court has since made clear that “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Likewise, Plaintiff's citation to Burkes v. Holder, 953
F. Supp. 2d 167, 179 (D.D.C. 2013) is inapposite. Burkes describes a situation in
which an employee of the FBI displayed a stuffed monkey hanging from a noose in a
public work area within the FBI office. Burkes, 953 F. Supp. 2d at 170. The district
court, ruling on the motion to dismiss, held that the plaintiff had pled “sufficient
factual matter” to proceed to discovery on his race-based hostile work environment.
Id. at 179. In Burkes, the egregious racist action by an employee was sufficient to
establish his intent. Id. Although the overtly racist image was sufficient to establish
intent of the employee, it does not follow that any instance of overtly racist expression
by another union member is sufficient to establish discriminatory intent of the Union.
17
33
4:20-cv-00585-CRK-CDL
to survive a motion to dismiss. See Williams v. Lousiana ex rel. Dep’t of Pub. Safety
& Corrs., No. 22-30385, 2023 WL 2366980, at *1−2 (5th Cir. 2023) (holding that the
plaintiff’s claim that there is “common knowledge” without additional statistics or
specific allegations to support a discrimination claim does not constitute a sufficient
pleading of discrimination based on race). 19
Plaintiffs argue they have raised a plausible claim because all that is needed
is the allegation that the “Union maintained a policy of refusing to address or
arbitrate their racial discrimination claims.” Pls. Resp. at 21 (citing Dillard v. SEIU
Loc. 32BJ, No. 15-CIV-4132-CM, 2015 WL 6913944, at *8 (S.D.N.Y. Nov. 6, 2015)).
Plaintiffs continue they “allege exactly that,” and then highlight conclusory
allegations contained in the TAC. See id. at 21 (citing TAC at ¶ 48:h) (alleging policy
of refusing to pursue grievances on behalf of Black members in the same manner as
White members); id. at ¶ 87 (claiming the Union failed to impose consequences,
including through grievances, on racist White members). 20
The Court cannot
presume the truth of conclusory allegations. See Khalik, 671 F.3d at 1191. Plaintiffs
fail to allege facts which could plausibly support a claim that the Union intended to
Plaintiffs argue that intent can be inferred from the “100 [percent] statistical
disparity between the number of the jobs held by White and Black Union members.”
Pls. Resp. at 16. Plaintiffs cite United States v. Pennsylvania, 110 F. Supp. 3d 544,
553 (M.D. Pa. 2015) to argue that “[t]he statistical evidence needed to survived (sic)
a motion to dismiss need not even be detailed.” See id. Plaintiffs’ citation to this case
is inapposite, as it was a Title VII disparate impact claim, a claim that the Plaintiffs
here have abandoned. TAC at ¶ 208:h n.8.
20 Plaintiffs also rely on an allegation in the complaint involving an entirely different
case in another jurisdiction. Pls. Resp. at 21 (citing TAC at ¶ 34) (alleging Union
failed to represent Black employee in his grievance).
19
34
4:20-cv-00585-CRK-CDL
not enforce the CBA because of race. Therefore, Plaintiffs first claim for failing to
enforce the terms of the CBA under 42 U.S.C. § 1981 must be dismissed.
B.
Failure to Promote Under 42 U.S.C. § 1981 (Count II)
Plaintiffs allege that the Union intentionally prevented them from advancing
within the Union. TAC at ¶¶ 55, 60, 71, 94, 96, 102, 107, 151, 172. The Union argues
that it took no purposeful action to discriminate against Plaintiffs in their quest to
advance, and that Plaintiffs fail to allege facts of an such actions. Def. Mot. at 16–
17.
Typically, a failure to promote case requires a plaintiff to allege (1) he is a
member of a protected group; (2) he was qualified and applied for a promotion to an
available position; (3) he was rejected; and (4) similarly situated employees, not part
of the protected group received the promotion instead.
See Castille v. Teletech
Customer Care Mgmt. (Co.), 56 F. App’x 895, 897 (10th Cir. 2003) (requiring the
plaintiff to prove that she was intentionally discriminated against by her employer
based on her race); see also Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir.
1996) (explaining the factors for failure-to-promote claim). 21 To prevail under Section
1981 with respect to the facially neutral requirements imposed by a union, the
plaintiff must establish that the requirements were the product of a racially
discriminatory intent. Washington v. Davis, 426 U.S. 229, 240–41 (1976).
In failure to promote cases, both Title VII, and Section 1981 adopt the same
framework. Bryant v. Aiken Regional Medical Centers Inc., 333 F.3d 536, 543–44
(4th Cir. 2003), cert. denied 540 U.S. 1106 (2004).
21
35
4:20-cv-00585-CRK-CDL
Here, Plaintiffs allege no facts from which a jury could plausibly infer that the
Union intentionally imposed advancement requirements or otherwise interfered with
Plaintiffs’ advancement because of their race. Plaintiffs ask the Court to infer that
because Plaintiffs—specifically Mr. Jones, Mr. Ball and Mr. Taylor 22—did not receive
the required letters in support of their application from other union members or never
asked for letters because they did not think they would be supplied, that the Union
used the requirement as a pretext to prevent their advancement. See TAC at ¶¶ 65:c,
66:b, 68, 90, 92–94, 120, 239. Plaintiffs do not allege any facts that would support
this inference.
Mr. Jones alleges that, to satisfy the Union’s advancement requirements, he
requested letters from more than ten individuals. Id. at ¶ 94. The allegations
continue that “[t]o his knowledge, none of them bothered to complete the form for
him, despite his diligent follow up.” Id.
Mr. Jones alleges that “Welders and
Journeymen frequently complete letters of recommendation to assist in the
advancement within the union of White Helpers.”
Id.
Likewise, his claims of
discriminatory treatment in advancement are conclusory. He alleges the welding
school “frequently assists and admits White union members who seek advancement
within the union.” Id. at ¶ 95.
The TAC alleges, without factual content, that various members knew it would be
futile to try to advance, TAC at ¶¶ 149, 157, 185, 197, and states in conclusory
language that Local 798 imposes job advancement requirements to ensure Black
members will not advance while not holding White members to the same
requirements. Id. at ¶¶ 60, 69, 72, 74.
22
36
4:20-cv-00585-CRK-CDL
Plaintiffs Ball and Taylor allege similar treatment. Mr. Ball alleges that
although he was a helper for his entire membership with Local 798, he was allowed
to work as a Journeyman when working with other local unions. Id. at ¶ 145. Both
he and Mr. Taylor claim they never had the opportunity to work a full 2080 hours per
year, id. at ¶¶ 148, 150, 184, and that they were often the only Black Helpers on a job
site. Id. at ¶ 148, 186.
Moreover, “[f]or a year prior to leaving the Union [Taylor]
was unemployed while White Helpers with the same or less experience were hired
over him for jobs.” Id. at ¶ 198.
Plaintiffs allege sufficient facts from which a jury could conclude that they
tried to advance and that their efforts were unsuccessful, but then make only
conclusory allegations regarding the Union’s intent. Id. at ¶ 60 (asserting the Union
“has imposed job advancement requirements that it knows Black union members will
not be able to meet because it intentionally ensures Black members will not meet or
complete the requirements”).
Without more, such allegations are insufficient to
survive a motion to dismiss. See Twombly, 550 U.S. 544 (2007); Frey, 41 F.4th at
1233. Accordingly, Count II in the TAC must be dismissed.
C.
Unequal Terms and Conditions of Employment Under 42 U.S.C.
§ 1981 (Count IV)
Plaintiffs allege that they were treated less favorably than White members in
regard to the terms and condition of employment. Plaintiffs bring this claim pursuant
to Section 1981 which, as discussed, guarantees all people the right “to make and
enforce contracts” and “the full and equal benefit of all laws and proceedings . . . as is
enjoyed by white citizens.” 42 U.S.C. § 1981(a). Typically, an allegation of unequal
37
4:20-cv-00585-CRK-CDL
terms and conditions of employment arises under Title VII, which proscribe
employment practices that “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.” 42 U.S.C. § 2000e-2(a)(1).
In the Title VII context, “[t]he phrase ‘terms, conditions, or privileges of employment’
evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment
of men and women’ in employment, which includes requiring people to work in a
discriminatorily hostile or abusive environment.” Alamo v. Bliss, 864 F.3d 541, 549
(7th Cir. 2017) (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, (1993)).
Here, Plaintiffs have not exhausted remedies with respect to any claim of
unequal conditions and terms of employment under Title VII.
Plaintiffs fail to
explain exactly how or why they have plausibly set forth a claim for this count added
in the TAC. Plaintiffs do not respond to Defendant’s arguments raised in its motion
to dismiss, which argues that “Plaintiffs lack any factual support for the conclusory
allegation that Local 798 denies equal terms and conditions or treats the Plaintiffs
less favorably based on race.” Def. Mot. at 19. Defendant further argues that “[t]he
Union is not alleged to be responsible for the employer’s decision because this decision
is reserved to the employer.” Id. at 20. Defendant continues that “[j]ust like the
hostile work environment claim, this claim is misdirected and cannot be raised
against the Union as it complains of employer management actions.” Id.
The Court can only assume that Plaintiffs seek to argue that the Union
intentionally (i) assists employers in discriminatory decisions regarding the
38
4:20-cv-00585-CRK-CDL
assignment of hours, classification, discipline, hiring and termination of employees;
or (ii) creates or allows a hostile work environment that affects the conditions of
employment. Whatever Plaintiffs are trying to argue, they need to demonstrate
intent. If Plaintiffs brought this claim under Title VII, they may have been able to
allege disparate impact of unequal terms and conditions, Carpenter v. Boeing Co.,
456 F.3d 1183, 1186–87 (10th Cir. 2006), but Plaintiffs have not done so. Instead,
Plaintiffs assert this claim under Section 1981 which, as discussed, requires that
Plaintiffs allege intent to discriminate.
Plaintiffs must allege that the Union intended to treat Black members less
favorably than White workers in regard to the terms and condition of employment.
See York, 95 F.3d at 956–57. Although the TAC alleges racist and abhorrent conduct
on behalf of a number of union members, it lacks sufficient allegations of fact to
attribute this behavior to the Union. Although the TAC asserts that the Union
intended to treat Black members less favorably, it only does so with conclusory
allegations which are not presumed to be true for the purposes of this motion. See
TAC at ¶¶ 161, 162, 178, 179. Accordingly, Plaintiffs’ fourth claim must be dismissed.
D.
Hostile Work Environment Under 42 U.S.C. § 1981 (Count V)
Plaintiffs also claim the Union subjected the Plaintiffs to “severe and pervasive
hostile work environment harassment on the basis of their race, at every Local 798
job site.”
TAC at ¶ 272–76.
To successfully plead a prima facie hostile work
environment claim, a plaintiff must allege facts from which a jury could infer that he:
(1) is a member of a protected group; (2) was subject to unwelcome harassment; (3)
39
4:20-cv-00585-CRK-CDL
the harassment was based on race; and (4) due to the harassment’s severity or
pervasiveness, the harassment altered a term, condition, or privilege of his
employment and created an abusive working environment. 42 U.S.C. § 1981; Harsco
Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (citing Dick v. Phone
Directories Co., 397 F.3d 1256, 1262 (10th Cir. 2005));
Again, as in the case of Count I, Plaintiffs must plead intent, and specifically
that the Union intended to harass them because of their race. Gen. Bldg. Contractors
Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) (holding that “Section 1981 can
be violated only by intentional discrimination”); Durham v. Xerox Corp., 18 F.3d 836,
838–39 (10th Cir. 1994) (stating standards and burdens under Section 1981 are the
same as those under Title VII and require evidence of discriminatory intent). The
TAC alleges several disturbing instances which recount racist and vile behavior of
other union members. However, and accepting those allegations as true, they are
insufficient to allege an intent by the Union to create a hostile working environment.
The allegations accepted as true establish that individual union members exhibited
abhorrent racist conduct, and that at least some stewards and business agents were
aware of such conduct but took no action. TAC at ¶¶ 79–80, 139:a–d, 140:a–e, 140:g.
These allegations are insufficient to support a claim against the Union. Mere
inaction is not sufficient to demonstrate intent. York, 95 F.3d at 956–57. Although,
a categorical decision to not pursue the grievances of Black union members renders
a union liable for discrimination, Goodman, 482 U.S. at 668, here, the Court cannot
conclude that Plaintiffs have stated a claim when they do not even allege that they
40
4:20-cv-00585-CRK-CDL
filed grievances. See e.g., Thorn, 305 F.3d at 832–33 (holding that because employee
did not ask union to file a grievance, union had no duty to remedy sexual
harassment.); Patel v. Albano, No. 97-CIV-6780-RPP, 1998 WL 726475, at *3
(S.D.N.Y. Oct. 13, 1998) (ruling the complaint failed to state a claim because at no
point did it allege that the plaintiff file a formal grievance with the union); Douglass,
368 F. Supp. 2d at 1247 (holding that the plaintiff failed in her burden to provide
specific facts showing that a genuine issue for trial existed when she never attempted
to file any grievance with regard to her job placements); Badlam, 46 F. Supp. 2d at
201 (finding that the union was under no obligation to take further action because
the plaintiff did not pursue a grievance regarding her sex discrimination accusations);
Anjelino, 200 F.3d at 95–96 (holding union was not liable for discrimination because
it did not instigate or actively support the discrimination and the employer was
responsible for assigning work and ensuring a discrimination-free workplace);
Chrysler Corp., 173 F.3d at 703–04 (stating a labor organization is liable for an
employer’s discrimination in the workplace if it “causes or attempts to cause the
employer to discriminate,” or if the union “purposefully acts or refuses to act in a
manner which prevents or obstructs a reasonable accommodation by the employer”
(first citing 42 U.S.C. § 2000e-2(c)(3); and then quoting Hardison v. Trans World
Airlines, Inc., 527 F.2d 33, 42–43 (8th Cir.1975), rev’d on other grounds, 432 U.S. 63
(1977))). Therefore, Plaintiffs’ hostile work environment claim under 42 U.S.C. §
1981 must be dismissed.
41
4:20-cv-00585-CRK-CDL
III.
Failure to Enforce the CBA Under Title VII (Count III)
Plaintiffs allege that the Union failed to enforce their rights under Title VII.
TAC at ¶¶ 254–65.
As a threshold matter, Plaintiffs must first exhaust their
remedies under Title VII to seek redress before this Court. Aramburu v. Boeing Co.,
112 F.3d 1398, 1409 (10th Cir. 1997); Edwards v. Creoks Mental Health Servs., Inc.,
505 F. Supp. 2d 1080, 1092 (N.D. Okla. 2007) (citing Aramburu, 112 F.3d at 1409);
see also Alcivar v. Wynne, 268 F. App’x 749, 753 (10th Cir. 2008) (explaining that
exhaustion is a jurisdictional prerequisite in the Tenth Circuit for Title VII claims
and that “the district court must always dismiss if there has been a failure to exhaust”
(emphasis omitted)). The only Plaintiff to have done so here is Mr. Jones. 23 See TAC
at ¶ 13. However, Mr. Jones has not added any new factual content in the TAC to
support his Title VII claim of disparate treatment.
To establish a prima facie Title VII claim against a union for a disparate
treatment, a plaintiff must allege intent. See E.E.O.C. v. Abercrombie & Fitch Stores,
Inc., 575 U.S. 768, 773 (2015); Ricci v. DeStefano, 557 U.S. 557, 577 (2009). As
previously stated in Jones II, “Title VII recognizes two types of claims: disparate
To exhaust administrative remedies, a “claimant must first file an administrative
charge; only the claims contained in the charge or those that are like or reasonably
related to the allegations of the charge can be raised in a Title VII lawsuit.” Beyene
v. Hilton Hotels Corp., 815 F. Supp. 2d 235 (D.D.C. 2011), aff'd, 573 F. App’x 1 (D.C.
Cir. 2014) (internal citations and quotations omitted). Here, Mr. Jones exhausted
administrative remedies for his failure to enforce the CBA claim under Title VII.
Plaintiffs claim that Mr. Jones’ exhaustion extends to the class presumably because
Plaintiffs argue there is a pattern or practice and thus Plaintiffs “reserve their right
to amend their pleading to assert a disparate impact claim, once administrative
exhaustion is completed.” TAC at ¶ 208:h n.8.
23
42
4:20-cv-00585-CRK-CDL
treatment and disparate impact.” 2023 WL 3666090, at *6 (citing Carpenter, 456
F.3d at 1186–87). For a disparate treatment claim, the plaintiff must allege intent
to discriminate.
Abercrombie & Fitch Stores, Inc., 575 U.S. at 773.
Disparate
treatment under Title VII requires the same elements as disparate treatment under
42 U.S.C. § 1981. See Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir.
1991) (“in racial discrimination suits, the elements of a plaintiff's case are the
same . . . whether that case is brought under §§ 1981 or 1983 or Title VII”); Jones II,
2023 WL 3666090, at *6. To establish a prima facie case for racial discrimination
under Title VII, a plaintiff plead facts from which a jury could infer that: (1) he is a
member of a protected class; (2) he suffered an adverse employment action; and (3)
the challenged action took place under circumstances giving rise to an inference of
discrimination. Duran v. LaFarge N. Am., Inc., 855 F. Supp. 2d 1243, 1249 (D. Colo.
2012).
Here, again, Mr. Jones fails to allege sufficient facts from which a jury could
plausibly infer that the Union failed to enforce his rights because the Union was
motivated by discriminatory animus. Mr. Jones allegations identify discriminatory
acts by individuals other than Local 798 of which the Union was aware, but it does
not allege facts from which am inference could be drawn that the Union intended to
discriminate against Mr. Jones. Mr. Jones alleges no new facts that, if proven, would
plausibly make out a claim that the Union had the requisite intent for a disparate
43
4:20-cv-00585-CRK-CDL
impact claim.
24
Therefore, and consistent with the Court’s reasoning in Jones II,
Count III must be dismissed.
IV.
The Third Amended Complaint is Dismissed with Prejudice
This is the third motion to dismiss that the Court has considered in this matter.
The two preceding motions were granted without prejudice; thus, Plaintiff was
permitted to amend. Order, Dec. 5, 2022, ECF No. 40; Order, May 25, 2023, ECF No.
54. Defendant requests that the Court dismiss the TAC with prejudice because
further amendment would be futile. Def. Mot. at 13; see also Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is
appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting
leave to amend would be futile”). Despite having three chances, Plaintiffs fail to
allege facts sufficient with which to withstand a motion to dismiss. Where there has
been the “repeated failure to cure deficiencies by amendments previously allowed”
the Court may conclude that it would be futile to allow further amendment. See
Foman v. Davis, 371 U.S. 178, 182 (1962) (acknowledging that further amendment
may be denied where there is “repeated failure to cure deficiencies by amendments
previously allowed”); Mountain View Pharmacy v. Abbott Lab'ys, 630 F.2d 1383, 1389
As noted by Defendant, Plaintiffs cite Cole v. Appalachian Power Co., No. 1:940517, 1995 WL 370400 (S.D.W. Va. May 19, 1995) to claim “the Union knew what
was happening and did nothing to stop it.” Def. Mot. at 5; Pls. Resp. at 25. Defendant
argues that Plaintiff’s reliance on the case is misplaced. Defendant is correct, as the
court in that case found that the plaintiff’s complaint was subject to dismissal because
the plaintiff failed to exhibit facts that could lead to the inference that the defendant
union “directed, induced, authorized or ratified any acts” as required by Title VII.
Cole, 1995 WL 370400, at *3.
24
44
4:20-cv-00585-CRK-CDL
(10th Cir. 1980) (dismissing the plaintiffs’ claims with prejudice after they were given
“ample opportunity to present a legally sufficient pleading by means of the original
complaint”). Therefore, the TAC is dismissed with prejudice.
V.
The Class Action
In addition to his individual claims Plaintiffs purport to seek relief on behalf
of “all others similarly situated[.]” TAC ¶ ¶ 253, 263. However, class action claims
cannot survive when the named plaintiffs’ claims have been dismissed. Robey v.
Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1213 (10th Cir. 2006) (dismissing
class action claims because the plaintiff’s individual claims were dismissed); Parrish
v. Arvest Bank, 717 F. App’x 756, 760 (10th Cir. 2017) (reiterating the standard from
Robey); Sample v. Aldi Inc., 61 F.3d 544, 551–52 (7th Cir. 1995) (holding that because
the district court properly disposed of the plaintiff’s individual claims, he “cannot
represent a class”), disapproved on other grounds, Carson v. Bethlehem Steel Corp.,
82 F.3d 157, 159 (7th Cir. 1996). Given that Plaintiffs’ claims are dismissed, the
claims of the class are likewise dismissed.
CONCLUSION
Plaintiffs have failed to allege sufficient facts from which a jury could plausibly
infer that the Union intended to discriminate against them in order to sustain a cause
of action under either 42 U.S.C. § 1981 or 42 U.S.C. § 2000e. It is evident from the
repeated efforts that allowing Plaintiffs to amend their complaint again would be
futile.
In light of the foregoing, it is
45
4:20-cv-00585-CRK-CDL
ORDERED that Defendant’s motion to dismiss, see ECF No. 61, is granted;
and it is further
ORDERED that Plaintiffs’ claims under 42 U.S.C. § 1981 are dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) because further
amendment would be futile; and it is further
ORDERED that Plaintiffs’ Title VII claim is dismissed with prejudice
pursuant to Federal Rule of Civil Procedure 12(b)(6) because further amendment
would be futile.
/s/ Claire R. Kelly
Claire R. Kelly, Judge *
Dated:
March 26, 2024
New York, New York
Judge Claire R. Kelly, of the United States Court of International Trade, sitting by
designation.
*
46
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?