Diaz vs National Post Mail Handlers Union

Filing 11

ORDER GRANTING IN PART AND DENYING IN PART 4 Motion to Dismiss for Failure to State a Claim. This case is DISMISSED WITH PREJUDICE. Signed by Judge David A. Ezra. (se)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
MIDLAND DIVISION
DANIEL DIAZ,
Plaintiff,
vs.
NATIONAL POSTAL MAIL
HANDLERS UNION, 311,
Defendant.

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No. 7:15–CV–120–DAE

ORDER GRANTING DEFENDANT’S MOTON TO DISMISS
Before the Court is Defendant National Postal Mail Handlers Union,
Local 311’s (“Defendant” or “Local 311”) Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Dkt. # 4). Pursuant to Local Rule 7(h), the Court
finds this matter suitable for disposition without a hearing. For the reasons that
follow, the Court GRANTS Defendant’s Motion to Dismiss (Dkt. # 4).
BACKGROUND
Plaintiff Daniel Diaz (“Plaintiff”) is a former employee of the United
States Postal Service (“USPS”). (“Compl.,” Dkt. # 1 at 7.) On August 3, 2008,
Plaintiff was terminated from his employment at USPS for absenteeism. (Id.)
Plaintiff states that his absences were the result of a heart attack and medical
complications. (Id.) Plaintiff alleges that his termination was a pretext for
discrimination, and that his heart condition prevented him from performing his

regular duties without reasonable accommodation. (Id. at 7.) On the day Plaintiff
was terminated, he contacted Defendant, who filed a grievance on his behalf. (Id.)
Plaintiff’s grievance was denied on December 26, 2008. (Id.)
On April 17, 2015, Plaintiff filed suit against Defendant in the District
Court of Ector County, Texas. (Compl. at 6.) Plaintiff claims that Defendant
breached its duty to represent his employment interests, because it failed to
prosecute a grievance under the Americans with Disabilities Act (“ADA”), and
further failed to notify Plaintiff of its failure to pursue an ADA claim on Plaintiff’s
behalf. (Id.) Plaintiff alleges he did not discover the failure until “until the
calendar year 2014.” (Id. at 7.)
On August 6, 2015, Defendant removed the case to this Court.
(Compl. at 1.) On August 13, 2015, Defendant filed the instant motion to dismiss
and motion for sanctions. (Dkt. # 4.) Plaintiff filed a response on August 24,
2015. (Dkt. # 5.) Defendant filed a reply on August 27, 2015. (Dkt. # 6.)
LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint
that “fail[s] to state a claim upon which relief can be granted” is subject to
dismissal under Federal Rule of Civil Procedure 12(b)(6). Fed. R. Civ. P. 12(b)(6).
“To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.”
Culbertson v. Lykos, 790 F.3d 608, 629 (5th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). Plausibility requires “more than a sheer possibility that
a defendant has acted unlawfully.” United States v. Bollinger Shipyards, Inc., 775
F.3d 255, 260 (5th Cir. 2014). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Bosarge v. Mississippi Bureau
of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015). “A claim for relief is implausible
on its face when the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct.” Harold H. Huggins Realty, Inc. v. FNC, Inc.,
634 F.3d 787, 796 (5th Cir. 2011). “When considering a Rule 12(b)(6) motion to
dismiss for failure to state a claim, the district court must examine the complaint to
determine whether the allegations provide relief on any possible theory.”
Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001).
In reviewing a motion to dismiss, the court “accept[s] all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” Zastrow v.
Houston Auto Imps. Greenway Ltd., 789 F.3d 553, 559 (5th Cir. 2015) (quoting
Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012)). The complaint
“need not include detailed factual allegations, but the [f]actual allegations must be
enough to raise a right to relief above the speculative level.” Ackerson v. Bean

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Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009). While the court is required to
accept all factual allegations contained within the complaint as true, it is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal,
556 U.S. at 678.
DISCUSSION
Defendant argues that Plaintiff’s claim is preempted by the federal
duty of fair representation and time-barred by the applicable six-month statute of
limitations. (Dkt. # 4 ¶¶ 4–6, 8.) Further, Defendant seeks sanctions against both
Plaintiff and his counsel. (Id. ¶ 8.)
I.

Whether State Law Claims are Preempted by Federal Labor Law
At the outset, it is important to note that Plaintiff’s complaint does not

allege any specific cause of action, but appears to be a state-law tort claim for
breach of fiduciary duty. (See Compl.; Dkt. # 5 at 3.) However, Plaintiff’s cause
of action is cognizable only as a claim for a violation of the federal duty of fair
representation. See Bradley v. Phillips Petroleum Co., 527 F. Supp. 2d 661, 691–
92 (S.D. Tex. 2007) (“While the . . . Plaintiffs allege violations of Texas common
law tort duties, ‘[i]t is the conduct being regulated, not the formal description of
governing legal standards, that is the proper focus of concern.’” (quoting
Amalgamated Ass’n of St. Elec. Ry. & Motor Coach Emp. v. Lockridge, 403 U.S.
274, 292 (1971))). Notably, even Plaintiff’s response cites cases discussing the

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federal duty of fair representation: Steele v. Louisville & Nashville Railroad 1 and
Conley v. Gibson.2 (Dkt. # 5 at 3.)
A. Applicable Law
Although federal preemption “is an affirmative defense that a
defendant must plead and prove,” it is properly the subject of a Rule 12(b)(6)
motion where the “complaint itself establishes the applicability of the defense.”
Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir. 2012). It is well settled that a
union acting in its representative capacity owes a duty of fair representation to its
constituents. Lindsey v. ATU Int’l, No. 3:08-CV-0232-G, 2008 WL 2434302, at
*2 (N.D. Tex. June 17, 2008) (citing Ford Motor Company v. Huffman, 345 U.S.
330, 337–38 (1953)). The duty of fair representation is implied by the National
Labor Relations Act (“NLRA”) and requires a union to “fairly to represent all of
those employees subject to a collective bargaining agreement with an employer.”
Phillips Petroleum Co., 527 F. Supp. 2d at 691 (citing Vaca v. Sipes, 386 U.S. 171,
177 (1967)).
A union breaches its duty of fair representation when it represents one
of its members in a grievance procedure and acts in a “discriminatory, dishonest,
arbitrary, or perfunctory fashion.” Smith v. Int’l Org. of Masters, Mates & Pilots,

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323 U.S. 192 (1994).
355 U.S. 41 (1957).
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296 F.3d 380, 382 (5th Cir. 2002) (quoting DelCostello v. Int’l Brotherhood of
Teamsters, 462 U.S. 151, 164 (1983)). A union’s duty of fair representation can
also be breached by discriminatory failure to process a grievance. Steele v.
Louisville & Nashville Railroad, 323 U.S. 192, 202–203 (1944). A complaint
stating a duty of fair representation claim “allege[s] a breach by the Union of a
duty grounded in federal statutes, and . . . federal law . . . governs [the] action.”
Vaca, 386 U.S. at 177. Thus, state law is preempted where a plaintiff states a duty
of fair representation claim. See Richardson v. United Steelworkers of Am., 864
F.2d 1162, 1169 (5th Cir. 1989).
B. Analysis
Here, Plaintiff alleges (1) that Defendant had a “fiduciary duty” to
fairly represent Plaintiff in the grievance process due to Plaintiff’s membership
status in the Union, 3 and that Defendant breached its duty by failing to file a
grievance under the ADA. (Compl. at 7.) Plaintiff seeks damages in the amount
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While Plaintiff’s complaint never explicitly identifies the function of the National
Postal Mail Handler’s Union, the Court takes judicial notice of the fact that
Defendant is the exclusive bargaining representative for all mail handlers
employed by the USPS. See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.
2011) (finding that a district court may take judicial notice of facts “not subject to
reasonable dispute . . . generally known within the territorial jurisdiction of the trial
court” at the motion to dismiss stage, without converting the motion into one for
summary judgment (quoting Fed. R. Evid. 201(b))); see also Kitty Hawk Air
Cargo, Inc., v. Chao, 418 F.3d 453, 457 (2005) (taking judicial notice of the
union’s status as the collective bargaining representative).
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of $450,000 as a result of this alleged failure. (Id. at 8.) Based on the substance of
the complaint, it is clear that Plaintiff’s complaint states a cause of action for
breach of the duty of fair representation. See Smith, 296 F.3d at 382 (holding that
the plaintiff’s cause of action was a claim for breach of the duty of fair
representation where the plaintiff “allege[d] damages arising out of the Union’s
refusal to pursue the grievance mechanism”); see also Mitchell v. Cont’l Airlines,
Inc., 481 F.3d 225, 232 (5th Cir. 2007). Therefore, Plaintiff’s state law claim for
breach of fiduciary duty is preempted by the duty of fair representation; whether
the claim is time-barred will be addressed accordingly.
II.

Applicable Statute of Limitations
A claim for the breach of the duty of fair representation is governed

by a six-month limitations period. DelCostello, 462 U.S. at 170 (applying the
limitations period from § 10(b) of the NLRA to fair representation claims upon
finding the short limitations period balances “the national interests in stable
bargaining relationships . . . [with] an employee’s interest in setting aside what he
views as an unjust settlement” (quoting United Parcel Service v. Mitchell, 451 U.S.
56, 70 (1981))). “A motion to dismiss may be granted on a statute of limitations
defense where it is evident from the pleadings that the action is time-barred, and
the pleadings fail to raise some basis for tolling.” Taylor v. Bailey Tool Mfg. Co.,
744 F.3d 944, 946 (5th Cir. 2014).

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Plaintiff argues that his case should be governed by the four-year state
statute of limitations for fraud or breach of fiduciary duty, as provided in
Section 16.004(4)(5) of the Texas Civil Practice and Remedies Code. (Dkt. # 5 at
3.) However, as established above, Plaintiff’s claim is a claim for the breach of the
duty of fair representation, and a six-month limitations applies. Smith, 296 F.3d at
382 (holding that a six-month statute of limitations period applies to an employee’s
duty of fair representation claim against a union); see also Richardson, 864 F.2d at
1167; Thomas v. LTV Corp., 39 F.3d 611, 622 (5th Cir. 1994) (noting that
“hybrid” suits are still subject to a six-month statute of limitations).
Here, Plaintiff’s grievance was denied on December 26, 2008 and
Plaintiff did not file suit in state court until April 17, 2015. (Dkt. # 1 at 6–7.)
Since Plaintiff filed suit outside the applicable six-month limitations period, his
claim is time-barred and must be dismissed.
III.

Whether Sanctions Should be Issued
Defendant requests that the Court impose monetary sanctions against

Plaintiff and Plaintiff’s counsel for filing a frivolous complaint. (Dkt. # 4 ¶¶ 4, 8.)
Defendant asserts that Plaintiff’s counsel should have known that Plaintiff’s claim
was both preempted and time-barred, because he was involved in a nearly identical
suit against National Mail Handlers Union in 2008. (Id. ¶ 4) (citing Miranda v.
Nat’l Mail Handlers Union, 219 Fed. App’x 340, 2007 WL329261 (5th Cir. 2008)

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(finding that state law claims were preempted by federal law and time-barred due
to a six-month limitations period)).
Since Plaintiff’s complaint was filed in Texas state court, the Court
applies the Texas state sanctions rules. Tompkins v. Cyr, 202 F.3d 770, 787 (5th
Cir. 2000) (“[S]tate sanctions rules [apply] to pleadings filed in state court before
removal.”). Rule 13 of the Texas Rules of Civil Procedure states that an attorney
who signs a “pleading, motion, or other paper” is certifying that the filing “is not
groundless and brought in bad faith or groundless and brought for the purpose of
harassment.” Tex. R. Civ. P. 13; see also Tompkins, 202 F.3d at 787. Where a
filing “is signed in violation of this rule, the court . . . shall impose an appropriate
sanction available under [Texas] Rule 215 upon the person who signed it, a
represented party, or both.” Tex. R. Civ. P. 13; see also Thompkins, 202 F.3d at
787.
A “groundless” paper is one with “no basis in law or fact and not
warranted by good faith argument for the extension, modification, or reversal of
existing law.” Tex. R. Civ. P. 13. “To determine if a pleading was groundless, the
trial court uses an objective standard: did the party and counsel make reasonable
inquiry into the legal and factual basis of the claim?” Harrison v. Harrison, 363
S.W.3d 859, 863 (Tex. App. 2012) (quoting In re United Servs. Auto. Ass’n, 76
S.W.3d 112, 116 (Tex. App. 2002)).

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In addition to showing that the suit was groundless as defined in Rule
13, the party must also demonstrate that it was “brought in bad faith” or “brought
for the purpose of harassment.” Tex. R. Civ. P. 13. Rule 13 contains a
presumption that papers are filed in good faith. Id. “The party seeking sanctions
bears the burden of overcoming this presumption of good faith.” Design Holdings,
L.P. v. MMP Corp., 339 S.W.3d 195, 203–04 (Tex. App. 2011). Moreover, “[b]ad
faith is not simply bad judgment or negligence, but means the conscious doing of a
wrong for dishonest, discriminatory, or malicious purpose.” Keith v. Solls, 256
S.W.3d 912, 916 (Tex. App. 2008). To establish bad faith, the movant must show
more than mere negligence or bad judgment; it must prove “the conscious doing of
a wrong for dishonest, discriminatory, or malicious purpose.” Robson v.
Gilbreath, 267 S.W.3d 401, 407 (Tex. Ap. 2008). Finally, a claim is not brought
in bad faith simply because it is time-barred. See Cal. Fed. Mortg. Co. v. St., 824
S.W.2d 622, 627 (Tex. App. 1991) (declining to hold as a matter of law that
Plaintiff’s time-barred suit was groundless and brought in bad faith).
A. Appropriateness of Sanctions as to Counsel
Defendant contends that at the time Plaintiff’s counsel filed the
original petition, Plaintiff’s counsel knew that the claim was preempted by federal
law and time-barred by the applicable six-month statute of limitations.
(Dkt. # 4 ¶¶ 4, 6.) Plaintiff’s original petition may be groundless; however,

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Defendant has failed to demonstrate that the complaint was also “brought in bad
faith,” or brought for the purposes of harassment. Alejandro v. Robstown Indep.
Sch. Dist., 131 S.W.3d 663, 670 (Tex. App. 2004) (explaining that “[a] movant
seeking rule 13 sanctions must” demonstrate the pleading was both groundless and
made in bad faith); Chambless v. Barry Robinson Farm Supply, Inc., 667 S.W.2d
598, 604 (Tex. App. 1984) (“The fact that [a] suit . . . [is] groundless does not per
se establish bad faith.”). Because the required showing of bad faith or harassment
has not been made, the Court will not impose monetary sanctions on Plaintiff’s
counsel.
B. Appropriateness of Sanctions as to Plaintiff
In Texas, courts are prohibited from imposing “monetary sanctions
against a represented party based on the legal contentions in a pleading.”
Nath v. Texas Children’s Hosp., 446 S.W.3d 355, 369 (Tex. 2014) (citing Tex.
Civ. Prac. & Rem. Code § 10.004(d)). Defendant’s request for monetary sanctions
against Plaintiff is DENIED.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion to
Dismiss and DENIES Defendant’s request for monetary sanctions (Dkt. # 4). This
case is DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.
DATED: Midland, Texas, March 1, 2016.

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David Alan Ezra
Senior United States Distict Judge

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