Walker v. Houston Federation of Teachers

Filing 19

OPINION AND ORDER granting 3 Motion to Dismiss for Failure to State a Claim.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Pro Se Plaintiff,
§
§
VS.
§
§
HOUSTON FEDERATION OF TEACHERS/§
AFT LOCAL 2415,
§
§
Defendant.
§

April 01, 2016
David J. Bradley, Clerk

DOREATHA WALKER,

Civ. A. H-15-1176

OPINION AND ORDER
Pending before the Court in the above referenced cause,
removed from state court under 28 U.S.C. §§ 1441(a) and 1331 and
alleging breach of fiduciary duties, breach of the collective
bargaining agreement (“CBA”)1 between Defendant union Houston
Federation of Teachers (“HFT”) and pro se Plaintiff Doreatha
Walker’s

(“Plaintiff’s”

or

“Walker’s”)

former

employer,

The

Camelot Schools of Texas, LLC (“Camelot”),2 and violation of “the
Labor Law,” is HFT’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6)(instrument #3).
Walker

did

not

contest

the

removal,

based

on

the

National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 158(b) and

1

Copies of the CBA are attached to the Notice of
Removal, #1-1, as Exhibit A to the motion to dismiss, #3-1, and as
Exhibit C to Walker’s Response, #7.
2

The Beechnut Academy is a private company that
operates as an alternative school and contracts with Houston
Independent School District. #1, Notice of Removal at p. 2 n.1.
Plaintiff taught at the Beechnut Academy, which is run by Camelot.
HFT was the exclusive bargaining agent under the CBA for Beechnut
Academy teachers, who are members of the bargaining unit.
#3 at
pp.1-2.
-1-

159(a),3 which the Fifth Circuit has ruled governs the duties owed
by a labor organization to its members and preempts any claim
against a labor organization for a violation of a state fiduciary
duty.

Vaca v. Sipes, 386 U.S. 171, 177 (1967)(The implied duty of

fair representation [under the NLRA] requires the union “fairly to
represent

all

bargaining

of

those

agreement

employees,

with

[the

both

employer]

in
.

the
.

.

collective
and

in

its

enforcement of the resulting collective bargaining agreement,” and
“to serve the interests of all [bargaining unit] members without
hostility or discrimination toward any.”); Richardson v. United
Steelworkers of America, 864 F.2d 1162, 1165, 1166 (5th Cir.
1989)(interpreting Vaca as holding that the federal duty of fair
representation preempts state substantive law; “The Union’s right
to act as plaintiffs’ bargaining agent is conferred by the NLRA,
and we hold that the duties corresponding to this right conferred
by federal labor law are likewise defined solely by federal labor
law.

As a result of this complete preemption of state law, we

further hold that the district court had removal jurisdiction over
these actions.”), cert. denied, 495 U.S. 946 (1990).
Factual Allegations
After Walker, a member of HFT, was fired by Camelot on
December 3, 2014, HFT represented her in a grievance contesting
her

termination.

The

grievance

3

was

unsuccessful

and

her

Sections 8(b) and 9(a) of the NLRA, as amended, 29
U.S.C. § 158(b) and 159(a), authorize a union that represents the
majority of the employees in a bargaining unit to acts as the
exclusive agent of all the employees in collective bargaining,
regardless of whether they are union members.
-2-

termination was upheld. The CBA did not allow Walker to arbitrate
or further appeal that decision because she was a probationary
employee.

CBA,

Ex.

A,

Article

VI(C)(“An

employee

who

has

completed probation may appeal a discharge, return to probation,
or suspension without pay through the arbitration procedures
contained in Article VII of the contract. A probationary employee
may [only] appeal discharge or suspension without pay through Step
2 of the grievance procedure.”).
Subsequently in January 2015 Camelot notified Walker by
letter that it had discovered evidence that she had failed to
disclose in her application for employment by Camelot that she had
been fired by two prior employers and that if Camelot had known
this information, it would have had two more reasons to support
her termination.

Ex. B.

Walker sought help from the union, but

after not hearing from HFT, on January 30, 2015 she filed a
grievance (Ex. C), contesting this notification of after-acquired
evidence. When she did not receive a response from the union, she
filed a lawsuit against Camelot, which is still pending in another
court.

Walker

alleges

in

this

suit

that

HFT

breached

its

fiduciary duties to her when it failed to tell her before March
20, 2015, by a telephone call from its attorney, that she needed
to attend a hearing that Camelot scheduled on March 23, 2015,
regarding her second grievance, and therefore HFT violated “the
Labor law.” Walker did not attend the grievance hearing, choosing
instead to pursue her lawsuit against Camelot.

Walker filed the

instant suit against union HFT in the 215th Judicial District Court

-3-

of Harris County, Texas, and served the union on April 13, 2015,
and it was removed on May 4, 2015.
Standard of Review
When a district court reviews a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the
complaint in favor of the plaintiff and take all well-pleaded
facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009).

The plaintiff’s legal conclusions are not

entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S.
662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.
Appx. 280, 283 (5th Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s

obligation

‘entitle[ment]

to

to

relief’

provide

the

requires

more

‘grounds’
than

of

his

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”

Bell Atlantic Corp. v. Twombly,

127 S. Ct. 1955, 1964-65 (2007)(citations omitted).

“Factual

allegations must be enough to raise a right to relief above the
speculative level.”

Id. at 1965, citing 5 C. Wright & A. Miller,

Federal Practice and Procedure

§ 1216, pp. 235-236 (3d ed.

2004)(“[T]he pleading must contain something more . . . than . .
.

a statement of facts that merely creates a suspicion [of] a
-4-

legally cognizable right of action”). “Twombly jettisoned the
minimum notice pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”], and instead required that a complaint
allege enough facts to state a claim that is plausible on its
face.”

St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.

2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007)(“To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim to relief
that is plausible on its face.’”), citing Twombly, 127 S. Ct. at
1974). “‘A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”

Montoya v.

FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The

plausibility standard is not akin to a “probability requirement,”
but asks for more than a “possibility that a defendant has acted
unlawfully.”

Twombly, 550 U.S. at 556.

Dismissal is appropriate

when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’” Montoya,
614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
-5-

context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.

Iqbal, 129 S. Ct. at

The plaintiff must plead specific facts, not merely

conclusory allegations, to avoid dismissal.

Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a
required element necessary to obtain relief . . . .“

Rios v. City

of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied,
549 U.S. 825 (2006).
Dismissal under Rule 12(b)(6) is proper not only where
the plaintiff fails to plead sufficient facts to support a
cognizable legal theory, but also where the plaintiff fails to
allege a cognizable legal theory.

Kjellvander v. Citicorp, 156

F.R.D. 138, 140 (S.D. Tex. 1994), citing Garrett v. Commonwealth
Mortgage Corp., 938 F.2d 591, 594 (5th Cir. 1991); ASARCO LLC v.
Americas Min. Corp., 832 B.R. 49, 57 (S.D. Tex. 2007).

“A

complaint lacks an ‘arguable basis in law’ if it is based on ‘an
indisputedly meritless legal theory’ or a violation of a legal
interest that does not exist.”

Ross v. State of Texas, Civ. A.

No. H-10-2008, 2011 WL 5978029, at *8 (S.D. Tex. Nov. 29, 2011).
When a plaintiff’s complaint fails to state a claim, the
court should generally give the plaintiff at least one chance to
amend the complaint under Rule 15(a) before dismissing the action
with prejudice.

Great Plains Trust Co v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts
-6-

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.”); United States ex rel. Adrian v. Regents of the Univ.
of Cal., 363 F.3d 398, 403 (5th Cir. 2004)(“Leave to amend should
be freely given, and outright refusal to grant leave to amend
without

a

justification

.

.

.

is

considered

an

abuse

of

discretion. [citations omitted]”). The court should deny leave to
amend if it determines that “the proposed change clearly is
frivolous

or

advances

a

claim

insufficient on its face . . . .”

or

defense

that

is

legally

6 Charles A. Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Proc. § 1487 (2d ed.
1990).
As noted, on a Rule 12(b)(6) review, although generally
the court may not look beyond the pleadings, the Court may examine
the complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers
and which are central to the plaintiff’s claim(s), as well as
matters of public record.

Lone Star Fund V (U.S.), L.P. v.

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing
Collins, 224 F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338, 1341,
1343 n.6 (5th Cir. 1994).

See also United States ex rel. Willard

v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.
2003)(“the court may consider . . . matters of which judicial
notice may be taken”).

Taking judicial notice of public records

directly relevant to the issue in dispute is proper on a Rule
-7-

12(b)(6) review and does not transform the motion into one for
summary judgment.

Funk v. Stryker Corp., 631 F.3d 777, 780 (5th

Cir. 2011). “A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”

Fed. R. Evid. 201(b).

Although courts must liberally construe the allegations
of a pro se plaintiff under a less stringent standard than formal
pleadings drafted by attorneys, and must consider all of the pro
se plaintiff’s complaint, including all affidavits, if after
considering all of her attachments and documents subsequently
filed she has still failed to state a claim, the Court may dismiss
the complaint.

Clark v. Huntleigh Corp., 119 Fed. Appx. 666, 667

(5th Cir. Jan. 12, 2005); Hughes v. Rowe, 449 U.S. 5, 9 (1980).
Relevant Substantive Law
Section

301

of

the

Labor

Management

Relations

Act

(“LMRA”), 29 U.S.C. § 185(a), authorizes a plaintiff-employee to
sue in federal district court for “violation of contracts between
an employer and a labor organization representing employees in an
industry affecting commerce.”

When the resolution of a state-law

claim depends substantially on the meaning and interpretation of
the CBA, the court treats it as a claim under section 301 of the
LMRA or dismisses it as preempted by state law.

Pecha v. Padilla,

192 F.3d 126, No. 98-20369, 1999 WL 683867, at *2 (5th Cir. Aug.
9, 1999), citing Branson v. Greyhound Lines, Inc., 120 F.3d 747,
753 (5th Cir. 1997), cert. denied, 523 U.S. 1047 (1998).
-8-

Section

301 does not preempt state-law claims that are only tangentially
related to the CBA.

Id.

The duty of fair representation, on the other hand,
arises from a separate, independent statutory duty based on the
union’s status as the exclusive bargaining agent under Sections 8
In re Carter, 618 F.2d 1003, 1104 (5th Cir.

and 9 of the NLRA.
1980).

A suit against a union for breach of the duty of fair

representation is to be implied under the scheme of the NLRA
because the union is empowered to be the exclusive bargaining
agent of all employees in a bargaining unit even if they are not
members of the unit.

Ford Motor Co. v. Huffman, 345 U.S. 330

(1953); Daigle v. Gulf State Util. Co., 794 F.2d 974, 977 (5th Cir.
1986); Vaca, 386 U.S. at 177 (When a union acts as the collective
bargaining agent of its members, it is obliged to secure the
interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith
and honesty and to avoid arbitrary conduct.”); Bass v. Int’l Bhd.
of Boilermakers, 630 F.2d 1058, 1062 (5th Cir. 1980).
plaintiff

brings

a

claim

for

breach

of

the

duty

When a
of

fair

representation without a corresponding breach of the CBA, federal
jurisdiction is not grounded in section 301 of the LMRA and the
claim is not preempted by that statute.

Id. at 1104.

In what is known as a “hybrid,” the action is comprised
of the two separate causes of action:

one for breach of the

collective bargaining agreement (“CBA”) by the employer and the
other, for breach of the duty of fair representation by the
plaintiff’s union.

Daigle v. Gulf State Utilities Co., Local
-9-

Union Number 2286, 794 F.2d 974, 977 (5th Cir. 1986); Landry v. Air
Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 410-11 (5th Cir.
1990). The action against the employer and the action against the
union are “inextricably interdependent.”
Bhd.

of

Teamsters,

interdependency

arises

bargaining agreement:

462

U.S.

from

the

151,

DelCostello v. Int’l
104-05

nature

of

(1983).
the

“The

collective

if the CBA provides that the grievance

procedure is an employee’s exclusive remedy, the employee must
demonstrate

that

his

union

breached

its

duty

of

fair

representation in order to maintain a section 301 claim against
his employer.

Daigle v. Gulf State Util. Co., 704 F.2d 974, 977

(5th Cir. 1986).
Generally

if

the

CBA

“provides

a

final,

binding

procedure to resolve disputes relating to the CBA, the plaintiff
is bound by the terms of the CBA and must exhaust the exclusive
remedies it provides before he can sue his employer under § 301.
Id.; Vaca v. Sipes, 386 U.S. 171, 184, 186 (1967).4

He is also

bound by the grievance procedure’s final decision unless he proves
that the union breached its duty of fair representation to him.
Id. A failure to exhaust may be excused if “the union has sole
power under the contract to invoke the higher stages of the
grievance procedure, and if . . . the employee-plaintiff has been
prevented from exhausting his contractual remedies by the union’s

4

In contrast, should the CBA not provide that the
grievance procedure is the exclusive and final remedy for breach
of contract claims, the employee may sue his employer in federal
court under § 301. Daigle, 704 F.2d at , citing Vaca, 386 U.S.
at
-10-

wrongful refusal to process the grievance.”
185.

Vaca, 386 U.S. at

“‘[T]he indispensable predicate for a § 301 action in this

situation is a fair representation claim against the union.’”
Id., quoting Daigle v. Gulf State Utils. Co., 794 F.2d 974, 977
(5th Cir. 2004).

If the union did not breach its duty, the court

does not have to consider whether the employer breached the CBA.
Id.

“The employee may, if he chooses, sue one defendant and not

the other, but the case he must prove is the same whether he sues
one, the other, or both.”

DelCostello, 464 U.S. at 166.

In the instant action Walker sues only the union, HFT,
but as noted, has sued Camelot in another suit.
To prevail on a claim for breach of the duty of fair
representation, the plaintiff employee must demonstrate that the
union’s conduct “‘was arbitrary, discriminatory, or in bad faith,
so that it undermined the fairness or integrity of the grievance
process.’” Id., quoting Landry v. The Cooper/T. Smith Stevedoring
Co., 880 F.2d 846, 852 (5th Cir. 1989). “‘Under this test, a union
may not arbitrarily ignore a meritorious grievance or process it
in [a] perfunctory fashion.’”
fair

representation

investigate

a

imposes

grievance

in

Id., citing id.
an
good

obligation
faith’”

“‘[T]he duty of
for

and

a

union

“‘prosecute

to
a

grievance with reasonable diligence unless it decided in good
faith that the grievance lacked merit or for some other reason
should not be pursued.’”

Id., citing id.

A union’s acts can be

characterized as arbitrary, discriminatory or in bad faith 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
-11-

range of reasonableness as to be irrational.’”

Id. at 501-02,

quoting Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 67
(1991).

A union does not breach its duty of fair representation

by mere negligence or a mistake of judgment; the key issue is
“whether a union’s conduct was arbitrary, discriminatory, or in
bad faith, so that it undermined the fairness or integrity of the
grievance process.”

Landry v. The Cooper/T. Smith Stevedoring

Co., 880 F.2d 846, 852 (5th Cir. 1989), cited for that proposition
in Jaubert v. Ohmstede, Ltd., 574 Fed. Appx. 498, 501 (5th Cir.
July 3, 2014). The substantive review of the union’s conduct must
be “highly deferential,” giving it “‘certain latitude in resolving
how the investigation and processing of a grievance is to be
conducted” and providing “‘room to make discretionary decisions
and choices, even if those judgments are ultimately wrong.’”
Jaubert, 574 Fed. Appx. at 502, quoting Hart v. Nat’l Homes Corp.,
668 F.2d 791, 794 (5th Cir. 1982), and Marquez v. Screen Actors
Guild, Inc., 525 U.S. 33, 45-46 (1998).
State-law

claims

for

unfair

labor

practices

are

preempted by the NLRA, which grants exclusive jurisdiction over
these claims to the National Labor Relations Board.

Vaca, 380

U.S. at 178-79; Richardson v. United Steelworkers of America, 864
F.2d 1162, 1165-66 (5th Cir. 1989)(“The Union’s right to act as
plaintiffs’ bargaining agent is conferred by the NLRA and we hold
that the duties corresponding to this right conferred by federal
labor law are likewise defined solely by federal labor law. As a
result of this complete preemption of state law, we further hold

-12-

that the district court had removal jurisdiction over these
actions.”).
Where no federal statute of limitations is expressly
applicable to a suit, Congress usually intended the courts to
apply the most closely analogous statue of limitations under state
law unless it frustrates or interferes with the implementation of
national

policies.

DelCostello,

462

U.S.

at

158-61.

Nevertheless, “when a rule from elsewhere in federal law clearly
provides a closer analogy than available state statutes, and when
the federal policies at stake and the practicalities of litigation
make

a

rule

a

significantly

more

appropriate

vehicle

for

interstitial lawmaking, we have not hesitated to turn away from
state law.”

Id. at 172.

The Supreme Court has held that the six-

month limitations period of section 10(b) of the NLRA, 29 U.S.C.
§ 160(b), applies to a duty of fair representation case because
the claim is for an unfair labor practice, which requires a
balance

between

relationships

national

interests

in

stable

bargaining

and the employee’s interest in setting aside the

“final and binding” determination of a grievance process through
a method established by the CBA because there is no close analogy
in ordinary state law.

Id. at 169.

HFT’s Motion to Dismiss (#3)
As noted, the duties that a labor union owes to its
members are governed by the NLRA and any claim that the labor
organization breached a state law fiduciary duty is preempted by
that statute.

-13-

HFT argues that despite Walker’s characterization of her
claim against HFT as a state law cause of action, Walker’s breachof-fiduciary-duties claim under state law against the union is
preempted by the NLRA under the Supreme Court’s ruling in Vaca and
the Fifth Circuit’s holding in Richardson. See also Bass v. Int’l
Bhd. of Boilermakers, 630 F.2d 1058, 1062 (5th Cir. 1980).

The

duty allegedly breached by HFT arises from its role as Walker’s
collective bargaining representative, and thus her first cause of
action is properly designated as a duty-of-fair-representation
claim, not as a breach of fiduciary duty.

Richardson, 864 F.2d at

1167. Moreover, properly pleaded as a duty-of-fair-representation
claim, it supersedes her vaguely pleaded third claim (“violation
of Labor law), as explained below.
Walker’s second claim, “breach of the CBA,” against HFT
is not legally cognizable.

It is black letter law that when a

plaintiff alleges that an adverse action was taken against her by
her employer and that her union failed to represent her in
challenging it, the only breach-of-contract claim she has is
against the employer, and the only claim she has against the union
is

a

duty-of-fair-representation.

See

DelCostello

v.

Int’l

Brotherhood of Teamsters, 462 U.S. 151 (1983); Hines v. Anchor
Motor Freight Co., 424 U.S. 554 (1976); Vaca, 386 U.S. 171; and
Farr v. H.K. Porter Co., 727 F.2d 502, 505-06 (5th Cir. 1984).
Walker’s third claim against the union for violation of
“the Labor Law,” must be a claim for a breach of its duty of fair
representation, implied by the NLRA.
cognizable

claim

she

can

assert
-14-

It is the only legally

against

the

union,

and

it

supersedes or moots her first and second claims.

Nevertheless,

HFT argues that the claim fails as a matter of law because it is
not supported by Walker’s factual allegations.
HFT asserts four reasons why the fourth claim, properly
for HFT’s breach of its duty of fair representation, must be
dismissed: (1) it only alleges negligence by HFT; (2) all the
actions of which she complains happened after she was fired and
after she lost a grievance challenging her firing; (3) Walker does
not allege that Camelot, her employer, violated the CBA in its
post-termination actions toward her; and (4) Walker concedes that
she was able to file the grievance on her own, without the union’s
help.
Regarding the first reason, HFT points out that Walker’s
complaint that HFT failed to notify her of the hearing date until
March 20, 2015, just a few days before it was scheduled, does not
allege that the delay was intentional, discriminatory or in bad
faith.

Thus at most it is an allegation that HFT was negligent.

See Landry, 880 F.2d at 852 (A union does not breach its duty of
fair representation by mere negligence or a mistake of judgment;
the key issue is “whether a union’s conduct was arbitrary,
discriminatory, or in bad faith, so that it undermined the
fairness or integrity of the grievance process.”). Thus the facts
in Walker’s Petition are insufficient to impose liability on HFT.
Second,

regarding

Camelot’s

notification

that

it

discovered after-acquired evidence that would have added support
to its termination of her if known at the time, HFT makes two
points.

First, the CBA provides that Camelot can only discipline
-15-

“employees.”
“discipline”

Ex. A, Article VI. The “notification” was not
that

could

be

challenged

through

the

grievance

procedure because Walker was then no longer an employee because
her grievance of her termination had failed.
states

that

“discipline”

refers

to

Moreover, the CBA

actions

like

warnings,

directives, reprimands, suspensions, returns to probation, and
discharges (Ex. A, Article VI), but nowhere is notification of the
reasons for disciplinary action previously taken, and already
upheld, as is the case here, included under the term.
fair

representation

only

requires

unions

to

The duty of

investigate

prosecute grievances under their CBAs in good faith.

and

The CBA at

issue does not require HFT to provide for any grievance under the
facts alleged by Walker.

Therefore HFT could not have breached

its duty of fair representation.
The second point about the notification is that because
she had already been terminated, Walker could not have been
reinstated as a result of a hearing that she complains she
received late notification of and that she chose not to attend.
The most she could have achieved at the hearing would have been a
ruling that the after-acquired evidence did not provide just cause
for her termination.

Because her discharge had already been

upheld as independently supported by just cause, the desired
second hearing ruling would have not had any effect on her
employment status with Camelot.

Thus HFT’s delayed notification

would not have injured Plaintiff and her claim for violation of
the duty of fair representation fails as a matter of law.

-16-

To the third reason, i.e., that Walker does not allege
that

Camelot,

her

employer,

violated

the

CBA

in

its

post-

termination actions toward her, HFT adds that nor could she.

The

CBA governs the relationship among Camelot, Camelot’s employees,
and HFT.

Since Plaintiff was discharged, and the discharge had

been finally upheld before the notification of the after-acquired
evidence, the CBA did not apply to Camelot’s notification.

So

even if the notification did breach the CBA, the allegation is
meritless, because when the underlying contractual claim against
the former employer lacks merit, as HFT has just shown is the case
here, the plaintiff cannot complain that the union breached its
duty of fair representation in failing to process her grievance.
Finally, Walker admits that she filed her own grievance
and that it caused Camelot to move forward with the grievance
process and schedule a hearing.

HFT contends that it is black

letter law that a union’s duty of fair representation does not
cover claims that an individual is able to bring without the
union’s assistance.5
Walker’s Response (#7) and HFT’s Reply (#8)
Because

HFT’s

Reply

undermines

each

of

Walker’s

arguments the Court addresses them together.
The Court first reviews Walker’s procedural contentions.
Complaining that HFT removed this case to federal court on May 4,
2015 without filing an answer or responsive pleading, Walker filed

5

HTF cites Barrett v. Ebasco Constructors, Inc., 868
F.2d 170 (5th Cir. 1989), but the Court finds that this case does
not stand for this proposition.
-17-

a motion for default and entry on May 22, 2015.6

On that same

date she received paperwork that included a motion to dismiss, but
without notice of a hearing on the motion nor the exhibits that
were referenced in the motion.

She states that even though HFT

proffered a USPS tracking paper that stated the motion was placed
in the mail on May 11, 2015 at 10:03 p.m., after the court’s
closing time, she insists she was not served with the motion. She
was also not given time to confer with attorneys to oppose the
motion. She further objects that she has not had an opportunity to
conduct discovery.
HFT correctly states that Walker’s arguments are not
supported by the law.

Under Federal Rule of Civil Procedure

5(b)(2)(C), a party may serve documents by mail by sending them to
the party’s last known address through the U.S. Postal Service,
with service deemed complete upon the mailing.
steps

and

completed

service

on

Walker

on

It followed thee

May

11,

2015,

as

evidenced by the Certificate of Service to HFT’s motion and
Exhibit 2 to Walker’s response. Even though Walker complains that
she did not receive a copy of the motion, HFT’s counsel sent her
a courtesy copy.

When Walker complained she did not receive the

exhibits, HFT’s counsel sent her a copy of the exhibits even
though she already had copies of them. Her complaint that she had
to respond in a hurry, HFT points out that she filed her response
on May 26, 2015, even though it was not due until June 2, 2015

6

The motion for default was denied by the undersigned
judge because HFT had filed a timely motion to dismiss on May 11,
2015 and therefore defended against Plaintiff’s Petition (#13).
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under Local Rules.

Moreover she did not request an extension of

the deadline to file a response.

Although Federal Rule of Civil

Procedure 6(d) presumes a document is received within three days
after it is mailed, it also provides a method under Rule 6(b) to
extend the time period.

Walker did not make such a request and

is not entitled to any relief from the purported delivery delay.
Walker’s complaint that HFT did not send her notice of
hearing is meritless because the Court decides if it wants a
hearing on a motion and the clerk sends notice of one if so
ordered.

Local Rules 7.5 and 7.8.

Her objection that she was not

given time to confer with attorneys is irrelevant because Rule
12(b) motions are exempt from the conference requirement under
Local Rule 7.1(d). Her complaint that HFT filed the motion on the
last day allowed fails because that filing is still timely since
it was filed within the time period. Walker’s objections that she
did not have an opportunity for discovery and that the motion did
not include any affidavits ignore the fact that motions to dismiss
are decided on the basis of the pleadings and any documents
referenced in the complaint and central to the claims.
As for the substantive argument made by Walker that
HFT’s

delay

in

notifying

her

of

the

after-acquired-evidence

grievance hearing breached its duty of fair representation, Walker
admits that she was fully and fairly represented in the grievance
of her termination, that she was able to file her own grievance of
the late notification of the after-acquired evidence, and that her
grievance was processed by Camelot.

Contrary to her claim that

she was not represented with regard to this grievance, Exhibit 3
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to her response shows that HFT hired a lawyer for her to represent
her interest in both grievances. Exhibit 3 also demonstrates that
she refused to attend the second hearing and that she also refused
Camelot’s offer to reschedule the hearing to a later date to give
her more time to prepare.
Walker’s conclusory allegation that she has a burgeoning
“belief” that HFT’s purported delay in notifying her about the
hearing

was

intentional

and

in

conspiracy

with

Camelot

is

insufficient to show it was not due to negligence, and “mere
conclusory allegations or legal conclusions masquerading as a
factual conclusions” cannot adequately support her argument and
will not prevent dismissal.

Beavers v. Metr. Life Ins. Co., 566

F.3d 436, 439 (5th Cir. 2007).

Walker had not pleaded even one

fact supporting here claim that the delay was intentional and part
of a conspiracy with Camelot.
Nor do her factual allegations support the existence of
a

duty

of

fair

representation

imposed

on

HFT

because

notification was not grievable under the terms of the CBA.

the
Even

if HFT had such a duty with regard to the second grievance, Walker
has not alleged that she suffered any harm, so her claim would
still fail as a matter of law.

Furthermore Plaintiff concedes

that even if she had attended the hearing and prevailed, she would
not have been put back to work because she already lost a
grievance challenging her termination.

Plaintiff’s Response at 8

and Exhibit 3.
Walker

now

argues

that

the

after-acquired-evidence

notification violated the CBA because it contained “fabrications”
-20-

and because the related 48-hour meeting notice did not state the
purpose of the meeting.

Notice requirements under the CBA relate

only to disciplinary conferences and thus did not apply to
Camelot’s meeting notice. Regardless, Plaintiff’s Exhibit 7 shows
that Camelot stated in the notice that the purpose of the meeting
was to “discuss information that [Plaintiff] provided on [her]
application for employment and [her] employment status.”
More significant, and as an additional and independent
ground for dismiss of Walker’s suit, Walker has never alleged in
her complaint or in her response to the motion to dismiss that
Camelot’s termination of her employment violated the CBA. Without
such

a

claim,

there

representation claim.

can

be

no

breach-of-duty-of-fair

Conn v. GATX Terminals Corp., 18 F.3d 417,

420 (7th Cir. 1994)(“Because the claims for breach of contract and
duty of fair representation are intertwined, [u]nless the union
violated its duty of fair representation, Conn cannot litigate his
claim of breach of contract, because the union’s responsibilities
as the exclusive representative of the members of the bargaining
unit include the responsibility for the decision whether to
prosecute a grievance on the employee’s behalf.”); see also White
v. Gen. Motors Corp., 1 F.3d 593, 595 (7th Cir. 1992)(“When an
employee’s underlying contractual claim lacks merit as a matter of
law, the employee cannot complain that the union breached its duty
of

fair

representation

in

failing

grievance.”).

-21-

to

process

his

or

her

Walker’s Reply (#11)
Reiterating her earlier arguments in her response to the
motion to dismiss, Walker insists she has adequately pleaded her
claims. Her response makes clear that she does not understand the
well established,

applicable law correctly cited and applied by

HFT here, including the law of preemption, with the regard to the
NLRA.

Moreover, the Court finds

under the facts of this case and

that law, amendment of her pleadings would be futile.
Court’s Decision
Accordingly, because the Court agrees with HFT that
Walker has not and cannot state a cognizable claim, the Court
ORDERS that HFT’s motion to dismiss pursuant to Rule
12(b)(6) for failure to state a cognizable legal claim is GRANTED.
Final judgment shall issue by separate document.
SIGNED at Houston, Texas, this

31st

day of

March ,

2016.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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