Taylor v. Greyhound Bus Lines Inc. et al

Filing 29

Opinion and Order - Defendants' Motion to Dismiss 20 is GRANTED. If Plaintiff believes that he can remedy the deficiencies identified in this Opinion and Order, he may file an amended complaint within 30 days. Failure to do so, or to seek an extension of time for good cause, will result in this case being dismissed. Signed on 9/13/2013 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PHILLIP JORDAN TAYLOR,

Case No. 3:13-cv-00694 SI

Plaintiff,
OPINION AND ORDER
v.
GREYHOUND BUS LINES INC., KIM
KOLIN, in her personal capacity,
Defendants.
Phillip Jordan Taylor, PO Box 851, Lynwood, WA 98046, pro se.
Don H. Stait, Littler Mendelson, P.C., 121 SW Morrison, Suite 900, Portland, OR 97204;
Rachelle Wills, Pro Hac Vice and Breanne M. Sheetz, Pro Hac Vice, Littler Mendelson, P.C.,
600 University Street, Suite 600, Seattle, WA 98101. Attorneys for Defendants.
Michael H. Simon, District Judge.
Phillip Jordan Taylor (“Plaintiff”) was employed by Greyhound Bus Lines Inc. for 13
years as a driver until his employment was terminated on May 31, 2012, allegedly because of a
complaint letter from a female employee of a truck stop. According to that letter, Mr. Taylor had
sexually harassed the employee by making sexual comments to her. Before his termination, the
terms and conditions of Mr. Taylor’s employment were governed by a collective bargaining
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agreement (“CBA”). Kim Kolin, also named as a defendant in this suit, was Mr. Taylor’s
supervisor at Greyhound.
Mr. Taylor filed his Complaint in this action on April 24, 2013. Greyhound and
Ms. Kolin (collectively “Defendants”) move to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure, arguing that all of Mr. Taylor’s claims are completely preempted by Section
301(a) of the Labor Management Relations Action (“Section 301”), 29 U.S.C. § 185, and that
Mr. Taylor has failed to state a claim. For the reasons that follow, the Court GRANTS
Defendants’ Motion to Dismiss (Dkt. 20).
BACKGROUND
Because Mr. Taylor is proceeding pro se, the Court construes his filings liberally. Hebbe
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). In his Complaint, Mr. Taylor makes nine allegations:
(1) Ms. Kolin harassed Mr. Taylor by making false allegations about his work performance,
thereby causing a hostile work environment; (2) Ms. Kolin failed properly to investigate a
complaint against Mr. Taylor and failed to provide him with a fair and proper hearing as required
by the CBA; (3) Ms. Kolin wrongfully and unjustly terminated Mr. Taylor without good cause
and in retaliation for Mr. Taylor’s previous complaints about disparate treatment and other
negative acts that Greyhound took toward African American drivers; (4) Ms. Kolin placed false
information about Mr. Taylor in his employment file; (5) Ms. Kolin’s actions were deliberate and
vindictive and caused Mr. Taylor to suffer loss of income and mental anguish; (6) Greyhound
failed properly to investigate the complaint filed against Mr. Taylor and wrongfully terminated
him in violation of the CBA; (7) Greyhound failed to investigate or respond to allegations of
harassment and disparate treatment of the African American drivers; (8) Ms. Kolin and
Greyhound violated Mr. Taylor’s constitutional rights by denying him a fair and impartial

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hearing; and (9) Greyhounds actions caused mental anguish, loss of consortium, loss of lifestyle,
loss of income, and defamation of character.
Interpreting the Complaint liberally, the legal claims underlying these allegations, while
not explicitly stated, could fairly be interpreted to be: (1) breach of contract of the CBA; (2)
common law harassment; (3) defamation; (4) discrimination (under Title VII and the Oregon
Anti-discrimination Statute); (5) common law retaliation; (6) intentional infliction of emotional
distress; and (7) violation of the constitutional right to due process.
On June 4, 2012, before filing the Complaint in this case, Mr. Taylor filed a grievance
under the CBA regarding his termination from Greyhound. The CBA provides for binding
arbitration, which is administered by the American Arbitration Association and conducted
according to its labor arbitration rules and standards. Mr. Taylor’s grievance is scheduled for
arbitration on September 24, 2013. Additionally, in his Response to the Defendants’ Motion to
Dismiss, Mr. Taylor concedes that several of his causes of action are governed by the CBA and
thus subjects of the pending Arbitration.
STANDARDS
A. Liberal Pro Se Pleading Standard
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe, 627 F.3d at 342. “A pro se litigant must be given leave
to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
623 (9th Cir. 1988) (citation and quotation omitted). Under Federal Rule of Civil Procedure
8(a)(2), however, every complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual
allegations,’” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S.
at 555).
B. Motion to Dismiss, Failure to State a Claim
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Iqbal, 556 U.S. at 678-79.
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Baca, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Twombly,
550 U.S. at 556).
DISCUSSION
Section 301 of the National Labor Management Relations Act governs disputes between
employers and employees who are parties to a collective bargaining agreement. 29 U.S.C. § 185.
Therefore, when an employee sues an employer over matters related to the collective bargaining
agreement, the cause of action is often preempted by Section 301. In particular, the resolution of
state-law claims that are substantially dependent on an analysis of the terms of a collective
bargaining agreement “must either be treated as a [Section] 301 claim, or dismissed as preempted by federal labor-contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)
(citation omitted). Although Section 301 does not preempt all state all claims, it should be
applied to state laws that address questions relating to what the parties to a labor contract agreed,
what the legal consequences will be for breach of that agreement, and tort suits that allege
breaches of duties assumed in the collective bargaining agreement. Associated Builders &
Contractors, Inc. v. Local 302 Int’l Bhd. of Elec. Workers, 109 F.3d 1353, 1357 (9th Cir. 1997)
opinion amended and superseded on other grounds, 95-16202, 1997 WL 236296 (9th Cir.
May 12, 1997). This means that where Section 301 applies, overlapping claims under state law
cannot be heard by a federal court.
Mr. Taylor’s allegations regarding breach of contract, harassment, defamation,
retaliation, and intentional infliction of emotional distress could all have been plead as state law
causes of action. Each of these state claims, however, is preempted by Section 301, as each
requires substantial interpretation of the CBA. 1 See United Steelworkers of Am. v. Rawson,
1

Plaintiff relied on the CBA in his Complaint, and Defendants provided portions of the
CBA in the Memorandum in Support of Defendants’ Motion to Dismiss. Therefore, it is
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495 U.S. 362, 368 (1990) (holding that state-law causes of action for violation of a collective
bargaining agreement or breach of a labor contract is displaced by federal law under Section
301); Audette v. Int’l Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1113 (9th Cir.
1999) (holding that state retaliation and discrimination claims were preempted by Section 301);
Miller v. AT&T Network Sys., 850 F.2d 543, 545 (9th Cir. 1988) (holding that a state law claim
for intentional infliction of emotion distress was preempted by Section 301 because the CBA
would need to be interpreted to assess what conduct was “reasonable”); Scott v. Machinists Auto.
Trades Dist. Lodge No. 190 of N. Cal., 827 F.2d 589, 594 (9th Cir. 1987) (holding that a
defamation claim based on an employer’s accusation of poor performance and theft was
preempted by Section 301 because it could not be evaluated apart from the grievance process
provided in the labor contract); Kirkland v. Boeing Co., CV-10-1467-ST, 2011 WL 680149
at *1 (D. Or. Jan. 13, 2011) (holding that Oregon discrimination cause of action was preempted
by Section 301).
To bring a Section 301 claim for damages outside of the CBA remedies, an employee
must demonstrate that the union has breached its duty of fair representation. Wellman v. Writers
Guild of Am., W., Inc., 146 F.3d 666, 670-71 (9th Cir. 1998). There is a two-step analysis for
assessing whether a breach of the duty of fair representation has occurred:
First, [the court] decide[s] whether the alleged union misconduct
involved the union’s judgment, or whether it was procedural or
ministerial. Second, if the conduct was procedural or ministerial,
then the plaintiff may prevail if the union’s conduct was arbitrary,
appropriate for this Court to consider the CBA, despite the fact that it is outside of the four
corners of the Complaint. See Parrino v. FHP, Inc., 146 F.3d 699, 705 (9th Cir. 1998). Once we
do, there are two relevant provisions: First, “Article G-7 Discipline,” which provides in part,
“Employees will neither be disciplined nor will entries be made against their records without just
cause.” Second, “Article G-22 Non-Discrimination,” which provides in part, “There will be no
discrimination in hiring, promotion, or other aspects of employment because of race, creed,
color, religion, national origin, age, sex, or disability.” Dkt. 21 at 8-7.
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discriminatory, or in bad faith. However, if the conduct involved
the union’s judgment, then the plaintiff may prevail only if the
union’s conduct was discriminatory or in bad faith.
Id. at 670. In Mr. Taylor’s Response to Defendants’ Motion to Dismiss, he alleges that the
hearing officer who heard his original grievance was biased and unnecessarily and excessively
delayed. Even under the liberal standard granted to a pro se plaintiff’s filings, these allegations
do not demonstrate that there has been a breach of the duty of fair representation. In fact,
Mr. Taylor seems to indicate that he is satisfied with the union representation that he has
received throughout the grievance process. Therefore, Mr. Taylor cannot at this point bring a
claim for damages outside of the CBA remedies process.
In addition to his state law claims, Mr. Taylor alleges two potential federal causes of
action—discrimination and violation of his constitutional rights. Under Title VII of the Civil
Rights Act, a plaintiff must allege four things in order to state a claim for discrimination:
(1) membership in a protected class; (2) application for a job or adequate job performance; (3) an
adverse employment action was taken despite adequate job performance; and (4) that the
employee was treated differently than similarly situated employees who were not members of the
protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Before a plaintiff can file
a Title VII discrimination claim, however, he must first exhaust the administrative remedies
provided by the Equal Employment Opportunity Commission. 42 U.S.C. § 200e-5(f)(1). There is
a maximum of a 300 day time limit for this administrative remedy, and Mr. Taylor’s termination
occurred on May 12, 2012, over 300 days ago. 42 U.S.C. § 2000e-5(e)(1). Therefore, even if
Mr. Taylor’s Complaint had included an adequately plead discrimination claim under Title VII,
he would be precluded from doing so because the 300 day time limit has run out.

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Mr. Taylor has also alleged a violation of his constitutional right to due process. The
Constitution of the United States protects individuals from state action, not action by private
parties. In certain very limited circumstances, a private actor can be sued for a constitutional
violation if that private actor was acting as an agent or with the authority of the state, or “under
the color of state law.” See Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). A private
party acts under the color of state law when the state is essentially responsible for their actions,
or when the state and private party’s actions are substantially intertwined. See Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). Greyhound and Ms. Kolin are both private
actors, and there is no evidence that either of the Defendants acted in consort or with the
authority of the state.
Because Mr. Taylor has failed to state a claim that is not preempted by Section 301, all of
his claims are subject to dismissal. The Court’s ruling should not be interpreted as suggesting
that the discrimination, harassment, retaliation, and violation of the CBA that Mr. Taylor alleges
did not occur. That is for the arbiter to determine. Rather, the ruling only speaks to the fact that
this Court is not the correct forum to resolve Mr. Taylor’s complaints. Mr. Taylor has not
exhausted the contractual remedies available to him under the CBA. In fact, there is a binding
arbitration currently scheduled on this matter for September 24, 2013.
CONCLUSION
Defendants’ Motion to Dismiss (Dkt. 20) is GRANTED. If Plaintiff believes that he can
remedy the deficiencies identified in this Opinion and Order, he may file an amended complaint
within 30 days. Failure to do so, or to seek an extension of time for good cause, will result in this
case being dismissed.

IT IS SO ORDERED.
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DATED this 13th day of September, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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