Warner v. Lear Corporation et al

Filing 34

MEMORANDUM OPINION AND ORDER granting 8 Motion to Dismiss filed by International Union United Automobile Aerospace and Agricultural Implement Workers of America UAW Local 129, and granting plaintiff leave to replead. (Ordered by Judge Sidney A Fitzwater on 1/28/2016) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEVIN L. WARNER,
Plaintiff,
VS.
LEAR CORPORATION, et al.,
Defendants.

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§ Civil Action No. 3:15-CV-1878-D
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MEMORANDUM OPINION
AND ORDER
In this labor dispute arising from disciplinary actions taken against, and the
termination of, plaintiff Kevin L. Warner (“Warner”), and the mediation of one of his
grievances, the court must decide whether Warner has stated a claim against two of the
defendants (a labor union and its local) on which relief can be granted. For the reasons that
follow, the court grants defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(6), and
also grants Warner leave to amend.
I
This is an action by Warner against defendants Lear Corporation (“Lear”),
International Union, United Automobile Aerospace and Agricultural Implement Workers of
America (“UAW”), Local Union 129 (“Local 129”), Federal Mediation and Conciliation
Service (“FMCS”), and John Doe Mediator, seeking relief under the Labor Management
Relations Act of 1947 (“LMRA”), 29 U.S.C. § § 141-97, and Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.1 UAW is a labor organization that
represents employees in various industries. Local 129, an affiliate of UAW, and Lear, a
manufacturer and distributer of automotive seating and electrical systems, are parties to a
collective bargaining agreement (“CBA”), which includes grievance and arbitration
procedures. Warner is a former employee of Lear, and a member of UAW and Local 129.
Warner began working for Lear in 2000 as a Plant Wide Absentee Replacement
Operator. Lear has disciplined him numerous times, and he has filed many grievances
against Lear under the negotiated grievance procedures. UAW and Local 129 have resolved
several past grievances on Warner’s behalf, including a suspension grievance that was settled
in mediation in August 2014. Lear maintains that, following this settlement, Warner has
repeatedly engaged in further acts of misconduct. Another mediation was scheduled for
April 22, 2015 before a FMCS mediator regarding one of Warner’s pending grievances. On
February 20, 2015 Lear discharged Warner on the ground that he had repeatedly failed to
return in a timely manner from his work breaks. UAW and Local 129 filed and processed
the discharge grievance on Warner’s behalf, formally invoked arbitration, and are currently
preparing to arbitrate the discharge grievance.

1

In deciding this Rule 12(b)(6) motion, the court construes the complaint in the light
most favorable to Warner, accepts all well-pleaded factual allegations, and draws all
reasonable inferences in his favor. See, e.g., Lovick v. Ritemoney Ltd., 378 F.3d 433, 437
(5th Cir. 2004). “The court’s review [of a Rule 12(b)(6) motion] is limited to the complaint,
any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
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The facts surrounding the April 22, 2015 mediation appear to form the basis of
Warner’s complaint and are not disputed.2 Before the scheduled mediation, J.B. Brown
(“Brown”), a UAW representative, informed Warner and his attorney, Bruce McLeod
(“McLeod”), that the CBA is a contract among Lear, Local 129, and UAW, and that, because
UAW acts as the exclusive representative of union employees during grievance procedures,
Brown would represent Warner during the mediation. Warner and McLeod appeared for
mediation, however, and McLeod demanded that he be allowed to represent Warner in the
mediation. The FMCS mediator informed Warner and McLeod that UAW was Warner’s
exclusive representative under the CBA and that Warner was not entitled to have his own
lawyer present for mediation. The FMCS mediator requested that McLeod leave the
mediation. When McLeod refused to do so and became disruptive, the FMCS mediator
canceled the mediation. After Warner and the FMCS mediator departed, Brown conferred
with Lear’s representative and successfully negotiated a settlement of the disciplinary
grievance whereby Lear agreed to rescind the disciplinary action that formed the basis of the
grievance.

2

Because the complaint lacks these crucial background facts, these facts are taken
from UAW’s and Local 129’s brief in support of their motion to dismiss. Warner does not
challenge these facts in his briefing; rather, he asserts that these facts prove his alleged
violations.
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After receiving a right to sue letter from the Equal Employment Opportunity
Commission (“EEOC”),3 Warner filed this lawsuit, asserting claims for breach of the CBA
and breach of the duty of fair representation under the LMRA,4 and retaliation, hostile work
environment, and wrongful termination under Title VII.
UAW and Local 129 move to dismiss all of Warner’s claims against them under Rule
12(b)(6). Warner opposes the motion.

3

The parties dispute the scope of Warner’s EEOC charge. UAW and Local 129
maintain that Warner’s EEOC charge, and thus the EEOC’s investigation, only addressed
Lear, not UAW and Local 129. Warner contends, however, that his EEOC charge covered
UAW and Local 129. Because a copy of Warner’s official Form 5 charge is not before the
court, the court will assume arguendo that the scope of Warner’s EEOC charge covers the
Title VII claims against UAW and Local 129. But the court cautions that this lawsuit “is
limited in scope to the EEOC investigation that could reasonably be expected to grow out of
the charge of discrimination.” Hayes v. MBNA Tech., Inc., 2004 WL 1283965, at *3 (N.D.
Tex. June 9, 2004) (Fitzwater, J.) (citing Young v. City of Houston, 906 F.2d 177, 179 (5th
Cir. 1990)).
4

Warner’s first cause of action is entitled “Breach of Contract.” Warner alleges,
however, that defendants’
failure . . . to comply with [his] insistence to return to
“Mediation” by terms and condition[s] by way of 301 of the
[LMRA] constitutes a material breach of the terms and
conditions of the UAW obligation thus, breaching its duty of
representation by failing to give adequate representation to a
union member in the grievance “Mediation procedure[.]”
Compl. ¶ 12. And Warner’s surreply states that he is suing defendants for “Hybrid 301
Breach of Duty of Fair Representation.” P. Surreply ¶ 3. The court therefore construes count
one as a hybrid § 301 claim for breach of the CBA and breach of the duty of fair
representation.
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II
Under Rule 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.’” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive
UAW’s and Local 129’s motion, Warner’s complaint must allege enough facts “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant[s] [are] liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level[.]”).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (alteration omitted) (quoting Rule
8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although “the pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’” it demands more
than “‘labels and conclusions.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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And “‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting
Twombly, 550 U.S. at 555).
III
The court turns first to Warner’s hybrid § 301 claim under the LMRA for breach of
the CBA and breach of the duty of fair representation.
A
“A § 301 breach of contract and fair representation suit comprises two distinct causes
of action, one against the employer, and the other against the union.” Williams v. Simmons
Co., 185 F.Supp.2d 665, 675 (N.D. Tex. 2001) (Solis, J.) (citing Daigle v. Gulf State Utils.
Co., 794 F.2d 974, 977 (5th Cir. 1986)). Section 301 of the LMRA “provides an employee
with a federal cause of action against his employer for breach of their collective bargaining
agreement.” Id. (citing 29 U.S.C.A. § 185(a) (West 1998)). “The suit against the union for
breach of the duty of fair representation is implied under the scheme of the National Labor
Relations Act.” Id. (citing Daigle, 794 F.2d at 977 (citing DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 165 (1983))). “The two causes of action are ‘inextricably
interdependent,’ and have come to be known as a ‘hybrid’ § 301/duty of fair representation
suit.” Id. (citing Daigle, 794 F.2d at 977); see also Landry v. The Cooper/T. Smith
Stevedoring Co., Inc., 880 F.2d 846, 850-51 (5th Cir. 1989).

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B
UAW and Local 129 contend, inter alia, that Warner has failed to state a plausible
§ 301 hybrid claim because he does not allege any facts to support the claim that UAW or
Local 129 breached the duty of fair representation.
1
The duty of fair representation imposes an obligation on a union to “investigate a
grievance in good faith” and “prosecute a grievance ‘with reasonable diligence unless it
decides in good faith that the grievance lacked merit or for some other reason should not be
pursued.’” Landry, 880 F.2d at 852 (quoting Hammons v. Adams, 783 F.2d 597, 602 (5th
Cir. 1986)) (citing Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 347 (5th Cir. 1980)).
But “[a]n employee has no absolute right to have his grievance taken to arbitration or to any
other level of the grievance process.” Id. (citing Vaca v. Sipes, 386 U.S. 171, 191 (1967);
Turner v. Air Transp. Dispatchers Ass’n, 468 F.2d 297, 300 (5th Cir. 1972)). “Instead, a
breach of the duty of fair representation occurs ‘only when the union’s conduct toward a
member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.’” Id.
(quoting Vaca, 386 U.S. at 190). “[A] union’s actions are arbitrary only if, in light of the
factual and legal landscape at the time of the union’s actions, the union’s behavior is so far
outside a ‘wide range of reasonableness’ as to be irrational.” Air Line Pilots Ass’n, Int’l v.
O’Neill, 499 U.S. 65, 67 (1991) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338
(1953)). “This ‘wide range of reasonableness’ gives the union room to make discretionary
decisions and choices, even if those judgments are ultimately wrong.” Marquez v. Screen
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Actors Guild, Inc., 525 U.S. 33, 45-46 (1998). “A union does not breach its duty of fair
representation, however, through simple negligence or a mistake in judgment.” Landry, 880
F.2d at 852 (citing Vaca, 386 U.S. at 192-93).
2
Warner alleges that Lear, UAW, and Local 129 denied his request that the parties
mediate or arbitrate his grievances, and that UAW failed to prepare him for mediation.
Warner also contends that, despite his request to be represented by private counsel,
defendants excluded Warner and McLeod from the April 22, 2015 mediation, even though
the mediation was to be conducted as though it were a trial with witnesses and evidence.
And Warner avers that this exclusion was “knowingly and intentional” and amounted to
conduct that was “arbitrar[y], discriminatory, retaliatory with bad faith.” P. Resp. 10.
Warner has not alleged facts sufficient to state a plausible claim on which relief can
be granted. Other than conclusory allegations, Warner does not allege facts that permit the
court to draw the reasonable inference that UAW and Local 129’s conduct was “arbitrary,
discriminatory, or in bad faith.” See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”)
(citation omitted). The mere facts that UAW and Local 129 failed to comply with Warner’s
request that the parties arbitrate or mediate his grievances, and that they refused to allow
Warner and McLeod to attend the mediation, do not permit the court to reasonably draw such
an inference. This is so because “[a]n employee has no absolute right to have his grievance
taken to arbitration or to any other level of the grievance process.” Landry, 880 F.2d at 852
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(citing Vaca, 386 U.S. at 191). Additionally, a union “is not required to inform or allow the
employee to participate in settlements.” Sawyer v. Am. Postal Workers Union, AFL–CIO,
2011 WL 6029925, at *4 (N.D. Tex. Nov. 30, 2011) (Lindsay, J.) (citing Vaca, 386 U.S. at
191). It follows that an employee likewise has no absolute right to be prepared for mediation
by private counsel, or to be represented by private counsel in settlements. Further, Warner
has not cited, and the court has not located, any cases that hold that a mediation with
witnesses and evidence requires deviation from the normal treatment of grievance
procedures.
Accordingly, Warner’s § 301 hybrid claim against UAW and Local 129 is dismissed.
C
Alternatively, Warner has failed to state a plausible § 301 hybrid claim because he
does not allege any facts that enable the court to draw the reasonable inference that Lear
breached the CBA. Warner alleges that “the concern for ongoing violations of the [CBA]
have yet to be considered or resolved,” that UAW and Lear failed to “comply with the terms
of the [CBA] pursuant to employee/Union member grievances,” and that defendants’ failure
“to comply with [Warner’s] insistence to return to ‘Mediation’ . . . constitutes a material
breach of the terms and conditions of the UAW obligation[.]” Compl. ¶¶ 10-12. But, other
than these conclusory assertions, Warner does not allege how Lear breached the CBA or
what provision of the CBA was breached. See Iqbal, 556 U.S. at 678 (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice.”) (citation omitted). Accordingly, Warner’s § 301 hybrid claim against UAW and
Local 129 is subject to dismissal on this ground as well.
IV
The court next addresses Warner’s Title VII claims.

Warner’s hostile work

environment and wrongful termination claims are asserted against his former employer, Lear,
not UAW and Local 129.5 Although the complaint also appears to allege a retaliation claim
against only Lear, Warner’s surreply asserts this cause of action against UAW and Local 129
as well. Thus the court will address Warner’s retaliation claim.
Even assuming arguendo that Warner has exhausted his administrative remedies
against the UAW and Local 129, and that he can bring this claim against a union that does
not employ him, Warner has not sufficiently pleaded a plausible claim for retaliation against
UAW or Local 129. This is so because Warner has not made a prima facie showing of
retaliation on the part of UAW or Local 129.
Warner asserts a retaliation claim under § 2000e-3(a) of Title VII. Because he relies
on circumstantial evidence to support his retaliation claim, Warner must proceed under the
familiar McDonnell Douglas burden shifting framework. See, e.g., Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (“A retaliation claim that is premised on
a pretextual rationale for dismissal is analyzed under the McDonnell Douglas framework.”);
see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “To establish a prima

5

Warner does not address these claims in his briefing on UAW’s and Local 129’s
motion, which corroborates that he does not assert these claims against UAW and Local 129.
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facie case of retaliation, the plaintiff must establish that: (1) he participated in an activity
protected by Title VII; (2) his employer took an adverse employment action against him; and
(3) a causal connection exists between the protected activity and the adverse employment
action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (per curiam)
(citing Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)). As to
the third element, “a plaintiff making a retaliation claim under § 2000e–3(a) must establish
that his or her protected activity was a but-for cause of the alleged adverse action by the
employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534
(2013).
Warner alleges that he engaged in protected activity (filed the employment
discrimination charge with the EEOC) and that he suffered an adverse employment action
(repeated suspension and ultimate termination). He also maintains that “his termination is
directly attributable to the UAW and Lear[.]” P. Surreply ¶ 23. But Warner only alleges an
adverse employment action taken by Lear, not by UAW or Local 129. And other than
conclusory allegations, Warner does not allege any facts that, accepted as true, show that
UAW or Local 129 was involved in any decision to suspend or discharge him. He also
alleges only conclusory allegations, not any specific facts, showing the casual link between
the protected activity and the adverse employment action. Warner therefore has not satisfied
the second and third elements of a prima facie case for retaliation under Title VII.
Accordingly, Warner’s retaliation claim against UAW and Local 129 is dismissed.

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V
Finally, Warner requests that the court deny UAW’s and Local 129’s motion as to his
civil conspiracy claim. But the complaint does not assert a cause of action for civil
conspiracy. And even if it did, the complaint fails to state a claim for civil conspiracy on
which relief can be granted. Under Texas law, a civil conspiracy claim requires the
following elements: “(1) two or more persons; (2) an object to be accomplished; (3) a
meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts;
and (5) damages as a proximate result.” Wackman v. Rubsamen, 602 F.3d 391, 408 (5th Cir.
2010) (citing Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005)). Other than conclusory
allegations, Warner has failed to allege any facts supporting any of these elements. See
Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”) (citation omitted).
Accordingly, Warner’s civil conspiracy claim against UAW and Local 129 is
dismissed.
VI
Although the court is granting the motion to dismiss, it will permit Warner to replead.
“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs
advise the court that they are unwilling or unable to amend in a manner that will avoid
dismissal.” In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex.
2005) (Fitzwater, J.) (citation omitted). Because Warner has not stated that he cannot, or is
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unwilling to, cure the defects that the court has identified, the court grants him 28 days from
the date this memorandum opinion and order is filed to file an amended complaint.
*

*

*

For the reasons explained, UAW’s and Local 129’s motion to dismiss under Rule
12(b)(6) is granted, and Warner is granted leave to replead.
SO ORDERED.
January 28, 2016.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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