Ault v. CenturyLink et al

Filing 52

MEMORANDUM DECISION AND ORDER granting 41 Defendants' Motion for Summary Judgment; and granting 48 Defendants' Motion to Dismiss for Failure to State a Claim. Plaintiff's claims are dismissed with prejudice. The Clerk of the Court is directed to close this case forthwith. Defendants' request for attorneys' fees is denied without prejudice. Signed by Judge Ted Stewart on 7/11/2016. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRIAN C. AULT,

v.

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AND MOTION TO DISMISS

CENTURYLINK, QWEST
CORPORATION, COMMUNICATIONS
WORKERS OF AMERICA, CWA LOCAL
7705,

Case No. 1:15-CV-2 TS

Plaintiff,

District Judge Ted Stewart

Defendants.

This matter is before the Court on Defendants Century Link and Qwest Corporation’s
(collectively, “Defendants’”) Motion for Summary Judgment and Motion to Dismiss. For the
reasons discussed below, the Court will grant Defendants’ Motions.
I. BACKGROUND
Plaintiff Brian C. Ault was employed by Defendant Qwest Corporation as a Center Sales
and Service Associate for approximately five months, beginning on August 26, 2013. The terms
of Plaintiff’s employment were governed by a collective bargaining agreement (“CBA”)
negotiated between Defendants and the Communication Workers of America and Local 7705
(collectively, “the Union”). The CBA provides that “just cause” is needed for discipline and
discharge, and provides a designated grievance and arbitration procedure so that employees
could grieve any discipline or general dispute. The CBA also provided that “[a]n employee has

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the right to a union representative, upon request, in investigatory interviews, and when discipline
is being administered.” 1
On February 19, 2014, a meeting took place during which Plaintiff was suspended. A
Union representative was not present at the meeting. Plaintiff alleges he requested Union
representation at the meeting, but was denied. On February 25, 2013, Plaintiff received a letter
dated February 24, 2013, from Defendants requesting he report back to work and warned that
failure to do so by Wednesday, February 26, 2014, would result in termination. Plaintiff did not
return to work. Plaintiff received a letter of termination on February 27, 2014. Plaintiff did not
attempt to contact the Union after receiving the February 24 letter.
More than nine months later, on December 3, 2014, Plaintiff filed suit in Utah state court
asserting claims for breach of the collective bargaining agreement and intentional infliction of
emotional distress against Defendants and for breach of the duty of fair representation against the
Union. On January 6, 2015, Defendants and the Union removed the case to federal court.
Plaintiff, proceeding pro se, filed a Motion to Remand to State Court. The Court denied his
Motion. Plaintiff then filed a Second Motion to Remand and a Motion for Leave to File
Amended Complaint. In his proposed Amended Complaint, Plaintiff removed all claims against
the Union, all references to the CBA, and reduced his claim for damages to $72,000. The Court
granted his Motion to amend his complaint, but denied his Motion to Remand holding that

1

Docket No. 41-1, at 174.

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“Section 301 of the Labor Management Relations Act preempts his state law claims and [that]
this Court maintains federal subject matter jurisdiction under 28 U.S.C. § 1331.” 2
Plaintiff filed an Amended Complaint on April 11, 2016 alleging: (1) wrongful
termination of employment, (2) constructive discharge from employment, (3) breach of oral
contract of employment, (4) breach of written contract of employment, (5) breach of implied
covenant of good faith and fair dealing, and (6) intentional infliction of emotional distress.
Defendants filed a Motion for Summary Judgment prior to the Court’s order on Plaintiff’s
Second Motion to Remand and Motion for Leave to File Amended Complaint and have now
filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and request that
the motion be treated as a motion for summary judgment pursuant to Rule 12(d).
II. LEGAL STANDARD
Under Rule 12(d), “If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” 3 Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
2

Docket No. 43, at 5.

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The Court notes that Plaintiff is not prejudiced by the Court’s treatment of the Motion to
Dismiss as one for summary judgment. Defendants’ Motion to Dismiss merely incorporates the
Motion for Summary Judgment. Plaintiff has responded substantively to both Motions and has
submitted documents outside of the pleadings in support of his position. See Marquez v. Cable
One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006); See also Americable Intern., Inc. v. Dep’t of
Navy, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997) (“Given that the motions were in the alternative
for summary judgment and that the parties had the opportunity to submit and submitted materials
in support and in opposition, it is not unfair to [plaintiff] to treat the decisions as summary
judgments.”).

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judgment as a matter of law.” 4 In considering whether a genuine dispute of material fact exists,
the Court determines whether a reasonable jury could return a verdict for the nonmoving party in
the face of all the evidence presented. 5 The Court is required to construe all facts and reasonable
inferences in the light most favorable to the nonmoving party. 6
III. DISCUSSION
Plaintiff alleges Defendants wrongfully terminated him without just cause, without
following “any due process and known disciplinary steps and paperwork processes, pursuant to
the Defendants’ own known Code of Conduct and Employee Handbook,” 7 and without
providing a Union representative at the time of suspension. Plaintiff alleges he is entitled to one
year severance pay, tuition reimbursement, and continued employment after his training period.
He further alleges that Defendants discriminated against him based on his criminal history and
created an “intimidating, harassing, and hostile work environment.” 8
Defendants argue Plaintiff’s claims should be dismissed because they are preempted by
Section 301 of the Labor Management Relations Act. As such, Defendants argue Plaintiff was
required to exhaust administrative remedies before filing suit in court and allege that the Union
breached its duty of fair representation. Moreover, Defendants argue Plaintiff’s claims are
barred under the six month statute of limitations period for Section 301 suits.
4

Fed. R. Civ. P. 56(a).

5

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
6

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
7

Docket No. 44, at 20.

8

Id. at 4.

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Section 301 preempts state-law claims when the application of state law “requires the
interpretation of a collective-bargaining agreement.” 9 Here, Plaintiff’s allegations against
Defendants for wrongful termination, breach of contract, and intentional infliction of emotional
distress arise under provisions within the CBA and require its interpretation. The CBA governs
the disciplinary process, including suspension and discharge, and all terms and conditions
regarding severance pay, tuition reimbursement, wages, bonuses, commissions and benefits for
employees. Article 16 of the CBA also provides a grievance and arbitration procedure for
employees to grieve disciplinary action and disputes covered by the CBA. Accordingly,
Plaintiff’s claims against Defendants require interpretation of the CBA and are thus, preempted
by Section 301. Therefore, “federal, and not state, law must be used in adjudicating these
claims.” 10
When an employee brings a suit against his employer for breach of a collective
bargaining agreement under Section 301, the employee must first exhaust the grievance and
arbitration procedures contractually agreed upon between the employer and the Union. 11
Additionally, to prevail against the employer, the employee “must not only show that [his]
discharge was contrary to the contract but must also carry the burden of demonstrating a breach
of duty by the Union.” 12 The employee may choose to sue the employer and the Union, or sue
one and not the other, “but the case he must prove is the same whether he sues one, the other, or

9

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988).

10

Johnson v. Beatrice Foods Co., 921 F.2d 1015, 1018 (10th Cir. 1990).

11

United Paperworkers Int’l Union v. Miso, Inc., 484 U.S. 29, 37–38 (1987).

12

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 67 (1981).

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both.” 13 Further, a Section 301 suit against an employer for breach of the collective bargaining
agreement is subject to a six-month statute of limitations. 14
Here, Plaintiff failed to first exhaust the grievance and arbitration procedures under the
CBA before bringing his suit. Plaintiff states he did not contact the Union at any point after
receiving the February 24 letter and did not engage in the grievance and arbitration procedures
under the CBA. 15 Plaintiff also fails to demonstrate that the Union breached its duty of fair
representation to Plaintiff. Though Plaintiff’s original complaint asserted breach of the duty of
fair representation against the Union, Plaintiff chose to amend his complaint and drop all claims
against the Union. Even if the Court were to now allow Plaintiff to allege that the Union
breached its duty, Plaintiff failed to provide evidence of such a breach. Therefore, Plaintiff
cannot successfully bring his claims under Section 301.
Moreover, Plaintiff untimely filed his lawsuit outside the six-month statute of limitations
for his claims under Section 301. Plaintiff did not file this action until over nine months after his
termination. Thus, this Court will grant Defendants’ Motion for Summary Judgment and Motion
to Dismiss. The Court need not consider Defendants’ alternative arguments for dismissal under
state law because—as the Court previously held in its ruling on Plaintiff’s Second Motion to
Remand and Motion for Leave to File an Amended Complaint—Plaintiff’s claims are preempted
under Section 301.

13

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 (1983).

14

Id. at 169.

15

Docket No. 41-6, at 12.

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IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion for Summary Judgment (Docket No. 41) and
Motion to Dismiss (Docket No. 48) are GRANTED. Plaintiffs’ claims are dismissed with
prejudice. The Clerk of the Court is directed to close this case forthwith.
Defendants’ request for attorneys’ fees is denied without prejudice. Defendants fail to
provide legal authority for their request.
DATED this 11th day of July, 2016.
BY THE COURT:

Ted Stewart
United States District Judge

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