Anderson v. Consolidation Coal Company et al
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT: Granting 50 Plaintiff's Motion to File a Surreply; and Denying 39 Def's Motion to Dismiss.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 1:11CV138
CONSOLIDATION COAL COMPANY
and CONSOL ENERGY, INC.,
MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDER OF THE COURT
GRANTING PLAINTIFF’S MOTION TO FILE A SURREPLY
AND DENYING DEFENDANTS’ MOTION TO DISMISS
The plaintiff, Joyce Anderson, commenced this civil action by
filing a complaint in the Circuit Court of Marion County, West
Virginia. The plaintiff alleges that after recovering from a workrelated injury, she sought to return to work but the original
defendants, CONSOL Energy Incorporated (“CONSOL”) and Consolidation
Coal Company (“CCC”),1 prohibited her from returning and thus
terminated the plaintiff.
The plaintiff asserts three claims
arising from that termination.
First, the plaintiff claims that
the defendants terminated her and therefore retaliated against her
as a result of their animus arising out of the plaintiff’s filing
of a workers’ compensation claim or her future eligibility to file
After the defendants filed their second motion to dismiss,
this Court, upon the parties’ stipulation, dismissed CONSOL with
prejudice. See ECF No. 56.
such a claim.
Second, the plaintiff argues that her termination
was also motivated by her gender, the perception that she had a
disability, or her actual disability in violation of the West
Virginia Human Rights Act (“WVHRA”).
Lastly, the plaintiff argues
that the defendants violated the WVHRA by relying on osteoporosis
as a reason for terminating the plaintiff’s employment, because
such a practice has a disparate impact on women.
CONSOL and CCC later removed the action to this Court.
defendants’ motion to dismiss, but she also filed a motion for
leave to amend the complaint.
This Court granted the plaintiff’s
motion for leave to amend and denied the defendants’ motions to
dismiss without prejudice subject to refiling based upon the
allegations and contents of the amended complaint.
complaint does not contain any additional claims.
amended complaint only includes additional factual allegations in
support of the plaintiff’s original claims.
Thereafter, the defendants refiled their motion to dismiss.
defendants argue: (1) the Federal Labor Management Relations Act
preempts state law claims that require the interpretation of a
collective bargaining agreement (“CBA”); (2) the plaintiff is
collaterally estopped from re-litigating any factual issues decided
indispensable party, in this situation the Union,2 that prosecuted
her grievance in arbitration.
The plaintiff filed a response arguing: (1) the plaintiff’s
claims are not preempted by federal law because they do not require
the interpretation of a CBA; (2) the arbitrator’s determination
that the discharge did not violate the CBA is not dispositive of
the plaintiff’s right under West Virginia law; (3) the decision of
the arbitrator does not collaterally estop the plaintiff from
pursuing the claims in her complaint in a judicial forum; and (4)
the Union is not an indispensable party.
The defendants then filed a reply wherein they argued: (1) the
plaintiff’s alleged facts and inferences are misleading and without
the support necessary to withstand a motion to dismiss; (2)
plaintiff’s termination of employment cannot be separated from
operation of the CBA, and the CBA must be interpreted in order to
determine whether her rights were violated; (3) plaintiff’s other
demonstrate her inability to state a claim; (4) the arbitrator’s
decision is entitled to collateral estoppel under the facts of this
case; and (5) plaintiff’s arguments are inconsistent with her
position that the Union is not an indispensable party.
After a review of the record, this Court is unable to
determine the exact name of the union of which the plaintiff was a
member. Therefore, this Court will refer to it as the “Union.”
Soon after receipt of the defendants’ reply, the plaintiff
filed a motion to file a surreply.
In this motion, the plaintiff
argues that the defendants introduced and relied upon a number of
cases that were not addressed in either their initial motion or in
the plaintiff’s response. In fairness, the plaintiff believes that
this Court should provide her with an opportunity to respond to the
The plaintiff attached the reply to her motion
to file a surreply, wherein she argued that none of the newly cited
cases support defendants’ motion to dismiss.
The plaintiff then filed a motion requesting that this Court
hold oral argument on the defendants’ motion to dismiss.
plaintiff stated that she believed oral argument was necessary due
to the complex and important issues in the law of discrimination
and preemption that the motion to dismiss presents.
granted the plaintiff’s motion, and thereafter held oral argument
on defendants’ motion to dismiss.
Following the oral argument,
this Court entered an order, upon stipulation of the parties,
dismissing CONSOL as a party to this action.
This Court then
issued a letter setting forth its tentative findings as to the
defendants’ motion to dismiss and plaintiff’s motion to file a
The letter indicated that this Court denied defendants’
motion to dismiss and granted the plaintiff’s motion to file a
surreply. This order confirms those rulings in more detail for the
reasons set forth below.
The plaintiff started her employment with CCC in 1981 as a
On November 3, 2009, the plaintiff fell and was
injured while working.
She fractured her pelvis and right forearm
as a result of the fall.
On March 24, 2010, the plaintiff
allegedly notified CCC that she was ready to return to work. CCC’s
workers’ compensation administrator, Wells Fargo, then scheduled an
appointment for a doctor’s evaluation in connection with the
plaintiff’s workers’ compensation claim.
The doctor who evaluated
the plaintiff, Dr. Steinman, then issued his evaluation finding
that the plaintiff had only sustained a 1% whole person impairment
as a result of the fall, but her osteoporosis precluded her from
returning to work.
The plaintiff then met with her treating orthopedist, Dr.
McKinley, who disagreed with Dr. Steinman’s evaluation.
McKinley felt that the plaintiff was able to return to work and
that there was no “evidence based data to reflect her risk to
herself or others.”
ECF No. 38 *3.
Two other doctors, the
plaintiff’s gynecologist and physical therapist, also released the
plaintiff to return to work.
The defendants, however, allegedly
had another doctor review Dr. Steinman’s report, and this doctor
agreed with Dr. Steinman, finding that the plaintiff should not
For the purposes of this opinion, this Court adopts, for the
most part, the facts as set forth by the plaintiff in the amended
return to work.
Based on this finding, along with Dr. Steinman’s
evaluation, CCC refused to allow the plaintiff to return to work
because she suffered from osteoporosis.
At the time of her
termination, the plaintiff was 52 years old and had not yet reached
the minimum retirement age of 55.
According to the plaintiff, under the CBA an employee cannot
be terminated for medical reasons unless a majority of an employerapproved physician, an employee-approved physician, and a physician
agreed to by the parties agree “that there has been a deterioration
in physical condition which prevents the Employee from performing
his regular work.”
ECF No. 38 *4 (citing the Article III(j) of the
CBA). Therefore, another evaluation of the plaintiff was performed
by Dr. Sethi, who was chosen as the third physician.
like Dr. Steinman, that the plaintiff should not return to work.
The plaintiff then filed a grievance requesting that CCC
reinstate her as an employee despite the doctors’ opinions.
grievance proceeded to arbitration.
Allegedly, the Union, on
behalf of the plaintiff, challenged CCC’s refusal to let the
According to the plaintiff, however, the
arbitrator denied the plaintiff’s grievance based solely on the
contractual provision from Article III(j) of the CBA, which is
explained above. Supposedly the arbitrator stated that “[t]here is
no language in the [CBA] which grants this Arbitrator or any
arbitrator the authority and jurisdiction to interpret and rule on
matters of state worker’s compensation law or other laws not
addressed in the CBA.”
ECF No. 38 *5 (quoting the Arbitrator’s
alternative position to the plaintiff.
After arbitration was
completed, the plaintiff contacted CCC employees to inquire about
possible positions with CCC in other areas besides coal mining.
The contacts were unresponsive to her inquires. When the plaintiff
supposedly denied her employment.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court must accept all well-pled facts contained in the complaint as
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d
250, 255 (4th Cir. 2009). However, “legal conclusions, elements of
a cause of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule 12(b)(6)
Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
inferences, unreasonable conclusions, or arguments.”
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir.
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.
5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
The Rule 12(b)(6) motion also must be distinguished from a
motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.
purposes of the motion to dismiss, the complaint is construed in
allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
Motion for leave to file surreply
The local rules of this Court state that a party should not
file a surreply without first obtaining the permission of the
L. R. Civ. P. 7.02(b)(4); Thomas v. Branch Banking & Trust
Co., 443 F. Supp. 2d 806, 809 n.2 (N.D. W. Va. 2006).
a surreply is permitted when a party seeks to respond to new
material that an opposing party has introduced for the first time
in its reply brief. Schwarzer, Tashima, & Wagstaffe, Federal Civil
Procedure Before Trial 12:110 (The Rutter Group 2008).
(“Surreplies may be permitted when the moving party would be unable
to contest matters presented to the court for the first time in the
opposing party’s reply.”).
If a court does not rely upon the new
material raised in the opposing party’s reply brief to reach its
See e.g. EEOC v. LA Weight Loss, 509 F. Supp. 2d 527,
540 (D. Md. 2007) (denying the parties’ motions to file surreplies
because the court did not rely upon the new case law and evidence
in making its decision); First Penn-Pacific Life Ins. Co. v. Evans,
162 F. Supp. 2d 423, 430 (D. Md. 2001) (denying plaintiff leave to
file a surreply “[s]ince the Court will not be considering the
additional contentions advanced”).
In those circumstances, a
motion for leave to file a surreply should be denied.
Here, the plaintiff is specifically responding to new case law
cited by the defendant for the first time in its reply brief.
unnecessary, as it provides the plaintiff an opportunity to address
newly cited and relied upon case law that this Court may address
below in its analysis of the defendant’s motion to dismiss.
Therefore, this Court grants the plaintiff’s motion to file a
Motion to dismiss
The defendant first argues that federal law preempts the
plaintiff’s state law claims, which require the interpretation of
a collective bargaining agreement.
Therefore, CCC argues that
because the plaintiff is not bringing a federal law claim, nor
plaintiff responds by stating that her claims do not require the
interpretation of the CBA.
She argues that her right to be free
from discrimination and retaliation under West Virginia law are
independent of any right she may have under the CBA.
Section 301(a) of the Labor Management Relations Act (“LRMA”)
“mandate[s] resort to federal rules of law in order to ensure
uniform interpretation of collective-bargaining agreements, and
thus to promote the peaceable, consistent resolution of labormanagement disputes.”
Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399, 404 (1988).
The Supreme Court in Lingle stated “if
the resolution of a state-law claim depends upon the meaning of a
collective-bargaining agreement, the application of state law . . .
is pre-empted and federal labor-law principles . . . must be
Id. at 406.
employed to resolve the dispute.”
This does not mean,
however, that the claims are preempted by federal law merely
because the resolution of the claims either through arbitration
under the CBA or through other means would involve addressing the
same set of facts.
Id. at 409.
Instead, “as long as the state-law
claim can be resolved without interpreting the agreement itself,
the claim is ‘independent’ of the agreement for § 301 pre-emption
In Lingle, the Supreme Court found that the resolution of the
Id. at 407.
The plaintiff made a claim under
Illinois state law for retaliatory discharge based on filing a
workers’ compensation claim.
Under Illinois law, to prove such
claim, the plaintiff had to show that “(1) he was discharged or
discharging or threatening to discharge him was to deter him from
exercising his rights under the Act or to interfere with his
exercise of those rights.”
The Supreme Court found that
neither element required an interpretation of the applicable CBA.
Id. at 407.
This Court starts by addressing the defendant’s first argument
as to why the plaintiff’s claims are preempted.
argues that the CBA establishes the procedure for the determination
of a miner’s fitness to return to work, and the plaintiff cannot
present evidence contrary to the CBA’s collectively bargained
Namely, she cannot “engraft a wholly different process
and set of obligations on the Defendants than the one which was
ECF No. 39 *10.
The plaintiff in
opposition argues that the fact that the CBA includes provisions
that govern the plaintiff’s return to work does not mean that those
provisions preempt her rights under state law.
argues that the defendant has failed to assert any provision of the
CBA that requires interpretation to present her claims.
Merely because the CBA in this action provides for a process
to determine whether the plaintiff may or may not return to work
discrimination require the interpretation of the CBA.
above, in order for this Court to find that the plaintiff’s state
law claims are preempted by federal law, they must require the
interpretation of the CBA.
Lingle, 486 U.S. at 406.
that the plaintiff intends to mount a direct challenge to the
process of determining whether an employee may return to work under
Whether or not the plaintiff disagrees with the process
afforded to her under the CBA, however, is irrelevant to the
As stated by the plaintiff, although the CBA
“resolves disputes over an individual’s return to work . . . it
does not relieve defendants from their obligations under West
ECF. No. 45 *20.
CCC is certainly allowed to make
the claim that it had just cause for terminating the plaintiff as
her discharge was the result of it following the procedures under
the CBA and was not the result of any bad motive.
Such a defense,
however, does not require that this Court interpret the CBA process
in order to resolve the plaintiff’s claims.
As the Supreme Court
in Lingle stated, “[i]n the typical case a state tribunal could
resolve either a discriminatory or retaliatory discharge claim
486 U.S. at 413.
CCC’s next argument in favor of preemption is that the
plaintiff’s termination was contractually mandated without regard
to her status as an applicant for or former recipient of workers’
compensation benefits and the plaintiff will have to prove that
defendant’s reliance on such procedures was a pretext for illegal
discrimination. This, the defendant claims, brings the analysis of
the CBA “squarely into focus.”
The plaintiff, in opposition,
argues that her disparate impact claim and reasonable accommodation
claim do not involve the proof of pretext.
plaintiff states that the defendant still fails to explain exactly
which provisions of the CBA need to be interpreted.
Without delving into which of the plaintiff’s claims requires
the proof of pretext, this Court agrees with the plaintiff insomuch
as she argues that the defendant has failed to indicate a provision
of the CBA that requires this Court’s interpretation in order to
provide a resolution.
The United States Court of Appeals for the
Fourth Circuit in Martin Marietta Corp. v. Maryland Comm’n on Human
Relations, found that the Maryland state law tort of retaliatory
discharge creates rights independent of those provided under the
38 F.3d 1392, 1402 (4th Cir. 1994).
followed the terms of the CBAs in terminating the plaintiff, the
defendant still may have used the terms as a pretext to engage in
retaliatory discharge. Id. at 1403. This, as the court found, did
not require any interpretation of the CBA, but was instead a purely
factual inquiry. Id.
Similarly, this Court finds that even if the
plaintiff must prove pretext to establish her claims, it does not
require an interpretation of any provision of the CBA.
to say that it requires interpretation of the process that CCC uses
under the CBA to determine whether an employee may return to work.
This Court, however, need not interpret such process in determining
whether such process was used in a pretextual manner.
CCC next argues that an interpretation of the seniority and
plaintiff’s reasonable accommodation claim in order to establish
whether there was an available position to which she may have been
The plaintiff argues that she has not requested
relief that implicates any seniority or bidding provision because
she is not arguing that she should have been offered any other
position governed by the CBA. Therefore, the plaintiff states that
because interpretation of those provisions is not required, the
plaintiff’s claims are not preempted.
This Court agrees with the plaintiff.
In the plaintiff’s
complaint, she has not alleged that she is entitled to any position
covered by the CBA as a reasonable accommodation.
actually specifically states in her complaint in relation to her
reasonable accommodation claim that “[f]ollowing the arbitration
decision, defendant could have placed her in another position
that did not involve underground coal mining and that was not
subject to the [CBA].”
ECF No. 38 *9.
In addressing whether a plaintiff’s reasonable accommodation
claim would require interpretation of the applicable CBA, the Sixth
restrictive provisions in the CBA as a defense to why the plaintiff
was not provided a reasonable accommodation.
Paul v. Kaiser
Foundation Health Plan of Ohio, 701 F.3d 514, 520-521 (6th Cir.
Therefore, the court found that the plaintiff’s state law
reasonable accommodation claims were not preempted because reliance
on a CBA term purely as a defense does not result in preemption.
Id. at 521; see Humble v. Boeing Co., 305 F.3d 1004, 1011 (9th Cir.
2002) (finding that while a dispute may arise regarding what jobs
provisions, any necessary interpretation is “only potential and
accommodation claim is not preempted).
This Court likewise finds that CCC is only relying on the
seniority provisions as a defense or justification as to why it did
or could not offer the plaintiff a reasonable accommodation.
accommodation claim is not preempted based on the possibility of
having to interpret the CBA as a result of the defendant’s possible
defense. Further, if the plaintiff is not claiming that CCC should
have provided her with a reasonable accommodation in the form of
another job governed by the CBA, the seniority provisions are
As this Court reads the amended complaint, the
plaintiff is specifically stating that CBA should have provided her
with an accommodation in the form of a position not subject to the
As such, this Court finds that the interpretation of the CBA
is unlikely and preemption is therefore inappropriate.
The defendant next argues that the plaintiff is collaterally
estopped from relitigating any issues decided by the arbitrator.
Under West Virginia law, the following four conditions must be met
in order for this Court to find that collateral estoppel applies:
(1) The issue previously decided is identical to the one
presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the
party against whom the doctrine is invoked was a party or
in privity with a party to a prior action; and (4) the
party against whom the doctrine is raised had a full and
fair opportunity to litigate the issue in the prior
Syl. pt. 1, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
The defendant asserts that all of the above cited requirements
are met, and thus this Court should apply the principles of
opposition that the decision of the arbitrator does not preclude
the plaintiff from pursuing her state law claims and even so, she
does not believe that at least two of the above requirements are
met. The plaintiff specifically argues that the first requirement,
which is that the issue previously decided is identical to the
issue presented in this action, is not met. The defendant, asserts
that at least the issue of whether the plaintiff was medically fit
This Court notes that the defendant seems to be arguing that
the plaintiff is barred only from relitigating the issue of whether
the plaintiff was medically fit to return to work, as the defendant
does not assert that any other issue was decided by the arbitrator.
to return to work, however, is identical to an issue presented in
This Court finds that this argument is similar to that
asserted by the defendant in Peters v. Rivers Edge Min., Inc.,
insomuch as it relates to the plaintiff’s gender discrimination and
workers’ compensation retaliatory discharge claims. In Peters, the
West Virginia Supreme Court found that collateral estoppel did not
apply to an issue previously decided in arbitration.
791, 809-810 (W. Va. 2009). The defendant in Peters, asserted that
the issue of whether the defendant was justified when it fired
plaintiff based upon his violation of a certain employee rule,
which was the issue decided in arbitration, was the same issue to
be decided by the trial court.
Id. at 809.
The West Virginia
Supreme Court found that this issue was not the same as the issue
decided by the trial court.
Instead, the court found that the
violation was pretext for the discrimination that actually formed
the basis for its decision to discharge the plaintiff.
Therefore, the court determined that because the issues were
different, the requirement that the issues be identical was not
Id. at 809-810.
Similarly, this Court finds that the issue in this case
concerning whether the plaintiff was medically fit to return to
work underground is not identical to any issue that will be
addressed in this case.
Specifically, as to plaintiff’s gender
discrimination and workers’ compensation retaliatory discharge
claims, the issue to be decided is whether the medical findings
were used as pretext for the plaintiff’s termination, not whether
the plaintiff was or was not medically fit to return to work.
This Court also finds that the plaintiff’s disparate impact
claim does not require the relitigation of whether the plaintiff
was medically fit to return to work. Under the West Virginia Human
Rights Act, in order to establish a prima facie case for disparate
impact, “a plaintiff bears the burden of (1) demonstrating that the
employer uses a particular employment practice or policy and (2)
establishing that it causes a disparate impact on a class protected
by the statute.”
West Virginia University/West Virginia Bd. of
Regents v. Decker, 447 S.E.2d 259, 266 (W. Va. 1994). The employer
then has the opportunity to prove “that the practice is ‘job
related’ and ‘consistent with business necessity.’”
plaintiff may then rebut this evidence by showing that “a less
burdensome, alternative practice exists which the employer refuses
This Court finds that none of the elements of a
disparate impact claim require the defendant to prove that the
plaintiff was medically unfit to return to work.
identical issue exists as to this claim, and collateral estoppel
does not apply.
Further, plaintiff’s disability discrimination claim also does
not require the relitigation of the issue of whether the plaintiff
was medically fit to return to work.
As the plaintiff indicates,
the defendant may have to prove that her disability posed a “direct
threat . . . of injury to [her] health and safety.”
St. R. 77-1-4.3.
W. Va. Code
The defendant, however, must show that it made
such determination “based on an individualized assessment of the
functions of the job.”
W. Va. Code St. R. 77-1-4.8.
the state regulations, “[t]his assessment shall be based on a
reasonable medical judgment that relies on the most current medical
knowledge and/or on the best available objective evidence.”
The applicable CBA did not require such standards.
doctors determined that the plaintiff was not medically fit to
return to work as per the applicable CBA requirements is not the
same issue as whether the plaintiff posed a direct threat to her
health and safety as defined by the West Virginia Human Rights Act
and its applicable rules.
Therefore, any determination as to the
plaintiff’s fitness to return to work is inapplicable to the
plaintiff’s claim under the West Virginia Human Rights Act, as the
particular issue to be decided is not identical.
As such, because
this Court finds that the plaintiff’s claims do not require the
collateral estoppel is not applicable to the current action.5
The defendant’s final argument is that the plaintiff failed to
name an indispensable party, and therefore the complaint must be
The defendant specifically argues that the plaintiff
was required to join the Union that prosecuted her grievance in
The plaintiff, however, argues that she is not
required to join the Union and there is no case law to suggest
In support of its argument, the defendant cites this Court’s
opinion in Hines v. N.W. Va. Operations, No. 1:08CV144, 2009 WL
192446 (N.D. W. Va. 2009).
The pro se6 plaintiff in Hines brought
discrimination claim and a claim that the arbitrator’s decision
included errors. 2009 WL 192446 at *1. The defendant attempted to
argue that the Union, which prosecuted the plaintiff’s grievance,
was an indispensable party.
Id. at *3.
This Court, however,
found that the Union was not an indispensable party and the
As this Court finds that the issue of whether the plaintiff
was medically unfit to return to work is not identical to any issue
that the parties must address in this case, this Court need not
address the plaintiff’s further arguments in opposition to the
defendant’s assertion of collateral estoppel.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
defendant had failed to show how complete relief could not be
accorded among the parties in the absence of joinder.
Id. at *4.
This Court also cited and relied on cases wherein other courts made
similar rulings in making its determination.
Id. at *3 (citing
Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 170 (5th
Cir. 1977) (“The unions are not indispensable parties in a suit by
an employee against the employer but may be sued separately for an
alleged breach of duty.”)); Diaz v. Schwerman Trucking Co., 709
F.2d 1371, 1375 (11th Cir. 1983) (“This action is . . . an action
by the employees against their employer for back pay.
In such a
suit, the Union cannot be considered an indispensable party.
accorded the relief they seek from [the employer], with no Union
interest impaired, and without forcing [the employer] to face the
risk of inconsistent obligations.”); Holder v. Pet Bakery Div.,
I.C. Indus., Inc., 558 F. Supp. 287, 290 (N.D. Ga. 1982) (“Under
these standards, the union need not be joined. The action involves
a breach of contract, while a claim against the union involves
breach of a statutory duty.”)).
The defendant tries to distinguish Hines from this action by
arguing that this case is different because this case is not based
on allegations that the defendant violated the CBA.
defendant states that the plaintiff is arguing that the defendant’s
compliance with the CBA was discriminatory.
First, while this
Court in Hines cited a case, wherein a court found that a union is
not an indispensable party in an action by an employee against the
employer when the claim is based on a violation of the terms of the
CBA,7 this was not this Court’s finding based on the facts of
Hines. Instead, this Court’s actual finding was that the plaintiff
could be afforded relief for those claims that the plaintiff made
without impairing the Union’s interest or forcing the employer to
face inconsistent obligations based on the claims.
Further, this Court is unable to understand why such a
distinction would allow this Court to find that the Union is an
The defendant states that the “Union’s role
in the events leading up to the Plaintiff’s discharge were pivotal,
and its absence as a party subjects the Defendants to inconsistent
obligations which cannot be reconciled.”
ECF No. 40 *24.
statement, however, is nothing more than a conclusory allegation
plaintiff’s claims for retaliatory discharge and discrimination,
this Court finds that the plaintiff can be afforded relief without
impairing the Union’s interest or forcing the defendant to incur
See Kaiser v. Local No. 83, 577 F.2d 642, 644 (9th Cir. 1978).
For the reasons set forth above, the defendants’ motion to
dismiss (ECF No. 39) is DENIED and the plaintiff’s motion to file
a surreply (ECF No. 50) is GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
May 8, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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