Jones v. International Association of Bridge Structural Ornamental and Reinforcing Iron Workers et al

Filing 125

DECISION AND ORDER signed by Magistrate Judge Patricia J Gorence on 3/28/2012. International Association of Bridge, Structural, Ornamental & Reinforcing Ironworkers, AFL-CIOs 18 motion to dismiss is granted in part and denied in part as stated her ein. Ironworkers District Council of North Central States 21 motion to dismiss is granted in part and denied in part as stated herein. Ironworkers Local 8 Health and Welfare Fund Board of Trustees 33 motion to dismiss is granted in part and de nied in part as stated herein. Ironworkers Local 8 and members of its Executive Board, Tom Cullen, Gilbert Toslek, William Fleming and Richard Hansons 30 motion to dismiss is granted in part and denied in part as stated herein. DWD Bureau of Ap prenticeship and Karen Morgans 47 motion to dismiss is granted. J.P. Cullen Construction Companys 60 motion to dismiss is denied. The plaintiffs WFEA, duty of fair representation, 42 U.S.C. § 1983 and 42 U.S.C. § 1985 claims are dismissed. Counts III and IV of the complaint are dismissed. The stay previously entered in this case be and hereby is lifted. (cc: all counsel, to plaintiff via USPS) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICKY JONES,
Plaintiff,
v.
INTERNATIONAL ASSOCIATION OF
BRIDGE STRUCTURAL ORNAMENTAL
AND REINFORCING IRON WORKERS et al.,

Case No. 10-C-560

Defendants.

DECISION AND ORDER

On July 7, 2010, plaintiff Ricky Jones filed a pro se civil rights complaint under 42
U.S.C. §§ 1981, 1983, 1985, the 14th Amendment to the United States Constitution, the
Employee Retirement Income Security Act (ERISA), and the Union Member Bill of Rights.
The plaintiff alleges that the defendants discriminated against him on the basis of his race
and retaliated against him “for his success on previous lawsuits.” (Complaint at 2). The
plaintiff also alleges that defendant Ironworkers Local 8 Welfare Fund violated ERISA
when it “arbitrarily terminated my spouse and my health insurance benifits [sic], violated
confidentiality based on a discriminatory and retalitory [sic] animus from privious [sic]
lawsuits filed by me.” Id.
The defendants each filed motions to dismiss. The following motions are currently
pending: (1) defendant International Association of Bridge, Structural, Ornamental &
Reinforcing Ironworkers, AFL-CIO’s (International Association) motion to dismiss (Docket
1

#18); (2) defendant Ironworkers District Council of North Central States’ (District Council)
motion to dismiss (Docket # 21); (3) defendants Ironworkers Local 8 and members of its
Executive Board, Tom Cullen, Gilbert Toslek, William Fleming and Richard Hanson’s
motion to dismiss (Docket # 30); (4) defendant Ironworkers Local 8 Health and Welfare
Fund Board of Trustees’ motion to dismiss (Docket # 33); (5) defendants DWD Bureau of
Apprenticeship and Karen Morgan’s motion to dismiss (Docket # 47); and (6) defendant
J.P. Cullen Construction Company’s motion to dismiss (Docket # 60).
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The
case was assigned according to the random assignment of civil cases pursuant to 28
U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D. Wis.).

The parties have

consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)
and General Local Rule 73.1 (E.D. Wis.).
MOTION TO DISMISS STANDARDS
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint
to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To state
a cognizable claim under federal notice pleading, the plaintiff is required to provide a
“short and plain statement of the claim showing that [she] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2).

It is not necessary for the plaintiff to plead specific facts and the

statement need only “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 [1957]). Although detailed factual allegations
are not required, Rule 8 “demands more than an unadorned, the-defendant-unlawfully2

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 555).

However, a pleading that offers “labels and

conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Id.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face. 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. The
plausibility standard is not akin to a probability requirement, but it asks for more than a
sheer possibility that a defendant has acted unlawfully. “Where a complaint pleads facts
that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 555, 557, 570) (internal citations omitted).
Determining whether a complaint states a plausible claim for relief will be a
content-specific task that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has not
“show[n]” – “that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal
citations omitted).
In considering a motion to dismiss, courts should follow the principles set forth in
Twombly by first “identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. Legal conclusions
must be supported by factual allegations.

Second, if there are well-pleaded factual

3

allegations, the court must “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
When deciding a motion to dismiss, a court must construe the complaint “in the
light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and
drawing all possible inferences” in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008) (citing Twombly, 550 U.S. at 555). The court, however, is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Twombly,
550 U.S. at 555.
Motion to Dismiss: Defendant International Association of Bridge,
Structural,Ornamental and Reinforcing Ironworkers, AFL-CIO (International
Association)
Defendant International Association asserts that Count I of the complaint (the only
count that purports to state a claim against it) should be dismissed, pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction over
the claim because the plaintiff failed to exhaust his administrative remedies prior to filing
suit and because he did not bring his claim within the relevant statute of limitations.
Additionally, defendant International Association asserts that Count I fails to state a claim
for which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
In response, the plaintiff asserts that he need not present any theory of his case at
this stage of the proceedings. The plaintiff cites Hart v. Transit Management of Racine,
Inc., 426 F.3d 863 (7th Cir. 2005) in support of his assertion. The plaintiff also states that
“[t]he crux of the action seeks to vendicate [sic] rights pursuant to 42 U.S.C. § 1981.”
(Plaintiff’s Reponce [sic] to Dft’s motion to dismiss at 1).
In Count I, the plaintiff alleges that defendant International Association:
4

discriminated against me in the enforcement of the CBA (collective
bargaining agreement) when they denied me, an Afro-American, the same
guarantees and provisions given to Caucasians in same or similar
circumstances to wit:
A. failed to enforce my right to free speech at Union meeting on 3-26.09
B. failed to vendicate (sic) my right to proper notice
C. failed to require that I receive an exact copy of the charges through
proper service
D. violated my right to present a defense prohibiting me from returning E.
back to hearing when members assaulted me during entermination (sic).
I was taken to hospital though trial went on without me.
E. violated my rights by finding guilt without any evidence denying my
without considering any of my argument.
(Complaint at 1).
Defendant International Association construes the plaintiff’s claim as one brought
pursuant to Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C.
§20002, et seq., or the Wisconsin Fair Employment Act (WFEA), Wis. Stats. 111.31 et
seq.
As a general rule, a plaintiff may not bring a Title VII suit in federal court without
first filing a timely complaint with the Equal Employment Opportunity Commission
(EEOC). Rush v. McDonald’s Corp., 966 F.2d 1104, 1111 (7th Cir. 1992). Contrary to
the defendants assertion, however, the filing of a timely charge of discrimination with the
EEOC is a statute of limitations, rather than a jurisdictional prerequisite. Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982). As a result, the timely filing requirement is
subject to waiver, estoppel and equitable tolling. Id.; see also, Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450 (7th Cir. 1990). Accordingly, the court does not lack jurisdiction
and Count I of the plaintiff’s complaint is not subject to dismissal based on Rule 12(b)(1).
Moreover, because a complaint need not anticipate and attempt to plead around
affirmative defenses, dismissal under Rule 12(b)(6) on statute of limitations grounds is
5

“irregular.” See United States v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). A
motion to dismiss may raise the statute of limitations if "the allegations of the complaint
itself set forth everything necessary to satisfy the affirmative defense." Brooks v. Ross,
578 F.3d 574, 579 (7th Cir. 2009) (quoting United States v. Lewis, 411 F.3d 838, 842 [7th
Cir. 2005]).
In this case, however, the relevant dates are not “set forth unambiguously in the
complaint” and, therefore, it is not appropriate for the court to consider the statute of
limitations. See Brooks, 578 F.3d at 579. Thus, defendant International Association’s
motion to dismiss the plaintiff’s Title VII claim based on Rule 12(b)(1) will be denied. 1
Similarly, defendant International Association’s motion to dismiss the plaintiff’s
WFEA claim for failure to plead or attach evidence showing his actual compliance with the
complaint filing and administrative hearing procedures under the act will be denied.
Nevertheless, the plaintiff’s WFEA claim will be dismissed because the plaintiff cannot
maintain a private cause of action under the WFEA for the discrimination alleged in his
complaint.
Prior to the enactment of 2009 Wisconsin Act 20, a plaintiff could not maintain a
private cause action under WFEA. See Staat v. County of Sawyer, 220 F.3d 511, 516
(7th Cir. 2000). The amendments under the Act were effective on July 1, 2009, and first
applied to acts of employment discrimination occurring on or after that date.

See

Wisconsin Act 20, § 9(2). Thus, the plaintiff can only maintain a private cause of action

1

While the court is holding that a plaintiff does not have to allege either that he filed a timely charge of
discrimination and received a right to sue letter, in this case, while the plaintiff does not indicate affirmatively
that he did not file an EEOC charge, it does not appear that he did. If the plaintiff failed to file an EEOC
charge, that will be dispositive of his Title VII claim.

6

under the WFEA if any alleged discrimination occurred on or after July 1, 2009. However,
the complaint identifies the discrimination as occurring prior to July 1, 2009. Therefore,
defendant International Association’s motion to dismiss plaintiff’s claim arising under the
WFEA will be granted.
With regard to any claim for breach of the duty of fair representation, the plaintiff
was required to file his complaint with the proper court within six months of the events
giving rise to his claim. See 29 U.S.C. §160(b); DelCostello v. International Brotherhood
of Teamsters, 462 U.S. 151, 154 n.2, (1983). In this case, however, the plaintiff identifies
March 26, 2009, as the date on which International Association allegedly violated his
rights in relation to the duty of fair representaton. The plaintiff did not file this case until
July 2010, more than one year after the events giving rise to his claim. Because the
“’complaint plainly reveals that [the] action is untimely under the governing statute of
limitations,’” defendant International Association’s motion to dismiss the plaintiff’s duty of
fair representation claim will be granted. See Andonissamy v. Hewlett-Packard Co., 547
F.3d 841, 847 (7th Cir. 2008) (quoting United States v. Lewis, 411 F.3d 838, 842 [7th Cir.
2005]).
As previously indicated, in response to defendant International Association’s
motion to dismiss, the plaintiff stated that his claim was really one arising under 42 U.S.C.
§ 1981. Section 1981 does not require the filing of an EEOC charge, but is governed by
the same standards of liability as Title VII. See Bullard v. Sercon Corp., 846 F.2d 463,
469 (7th Cir. 1988). Defendant International Association maintains that regardless of
whether the plaintiff is attempting to bring his claim pursuant to Title VII or §1981, the
complaint alleges what only amounts to legal conclusions and fails to identify a “real world
7

act or event” which under any set of circumstances purport to make it liable for the
alleged discrimination.
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his
'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do . . .. Factual allegations must be
enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555
(citations omitted). Factual allegations are presumed true, "even if doubtful in fact." Id.
However, legal conclusions are not entitled to this assumption of truth. Iqbal, 129 S. Ct.
at 1950. While "labels and conclusions" and "a formulaic recitation of the elements" are
insufficient, the complaint need only "raise a right to relief above the speculative level."
Twombly, 550 U.S. at 555.
The court of appeals for this circuit explained in Swanson v. Citibank, N.A., that “in
none of the three recent decisions -- Twombly, Erickson 2 , or Iqbal -- did the Court cast
any doubt on the validity of Rule 8 of the Federal Rules of Civil Procedure. 614 F.3d 400,
403 (7th Cir. 2010). Rule 8(a)(2) provides:
(a) Claim for Relief. A pleading that states a claim for relief must
contain:
...
(2) a short and plain statement of the claim showing that the pleader
is entitled to relief. . ..
The court in Swanson stated that “the statement need only give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Swanson, 614 F.3d

2

Erickson v. Pardus, 551 U.S. 89 (2007).

8

at 404 (quoting Erickson, 551 U.S. at 93). Thus, “[t]he plaintiff must give enough details
about the subject matter of the case to present a story that holds together. In other
words, the court will ask itself could these things have happened, not did they happen.”
Swanson, 614 F.3d at 404.
The court further explained that “in many straightforward cases, it will not be any
more difficult today for a plaintiff to meet that burden than it was before the Court’s recent
decisions.

A plaintiff who believes that she has been passed over for a promotion

because of her sex will be able to plead that she was employed by Company X, that a
promotion was offered, that she applied and was qualified for it, and that the job went to
someone else.” Id.
The court held that the complaint stated a claim under the Fair Housing Act,
explaining that the plaintiff’s “complaint indentified the type of discrimination that she think
occurs (racial), by whom (Citibank, through Skertich, the manager, and the outside
appraisers it used), and when (in connection with her effort in early 2009 to obtain a
home-equity loan). This is all she needs to put in the complaint.” Id. at 405 (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-512 (U.S. 2002).
Thus, in this case, the plaintiff sufficiently stated a claim under either Title VII or 42
U.S.C. §1981 when he alleged in Count I that defendant International Association
discriminated against him in the enforcement of the CBA when he, an Afro-American, was
denied the same guarantees and provisions given to Caucasians in same or similar
circumstances. See Complaint at 1. Accordingly, defendant International Association’s
motion to dismiss will be granted in part and denied in part.

9

Motion to Dismiss: Defendant Ironworkers District Council
of North Central States (District Council)
Defendant District Council asserts that Count II of the complaint (the only count
that purports to state a claim against it) should be dismissed pursuant to Rule 12(b)(1) for
lack of subject matter jurisdiction because the plaintiff did not exhaust administrative
remedies prior to filing suit and because he did not bring his claims within the relevant
statute of limitations. Additionally, defendant District Council asserts that Count II fails to
state a claim for which relief can be granted. Defendant District Counsel further asserts
that even if the court construes Count II as a § 1981 claim, Twombly, 550 U.S. at 55 and
Iqbal, 129 S. Ct. 1937 still require dismissal of the claim. The plaintiff’s 42 U.S.C. §1983
claim fails to state a claim according to defendant District Council because it is a private
entity, not the State. Finally, defendant District Council asserts that there is no cognizable
42 U.S.C. § 1985 claim because the plaintiff can not assert a Title VII or WFEA claim
through § 1985.
In Count II, the plaintiff alleges the following:
A.

That the Midwestern states district counsel violated the International
Constitution, C.B.A. and Federal Constitution when they went outside of the
notice of charges appealed from, added evidence to trial record and
interviewed all parties except me in appeal for Ironworker Local 8 expulsion,
unlike the appeal process given to whites. That Midwestern states district
counsel violated my rights when they vendicated [sic] Rights of white
Ironworker in dispute with OFT, J.P. Cullen over unlawful termination and would
not address by greivance [sic] over same incident and allowed J.P. Cullen to
place deroggatory [sic] letter in my file when I complained to them directly.
Fired all minorities at Columbia St. Marys hospital approx. 10-1-08.

B.

That Defendants district counsel and Ironworkers Local 8 conspired to
discriminate against me when they failed to represent me in accordance with
the C.B.A.; The international remanded the Executive Boards original decision
to expel me on June 27th 2009. I reported to the union hall and and [sic] won a
card pull that dispatched me to T.N.T. Rebar. I go to the jobsite to learn that
10

union officials had contacted employer prior to my arrival and directed them not
to hire me based on my race and religious beliefs. The District Counsel [sic]
and union officials declined to review my greivance [sic].

The plaintiff raises substantially the same claims against defendant District Council
as he did against defendant International Association. As with defendant International
Association’s motion to dismiss, defendant District Council’s motion to dismiss the
plaintiff’s Title VII and WFEA claims pursuant to Rule 12(b)(1) for lack of jurisdiction will
be denied.

Nonetheless, as stated previously, the plaintiff cannot maintain a private

cause of action under the WFEA for the discrimination alleged in his complaint and,
therefore, the plaintiff’s WFEA claim will be dismissed. Moreover, the plaintiff’s claim for
breach of the duty of fair representation is untimely under the governing statute of
limitations. Therefore, that claim also will be dismissed.
Additionally, as explained previously, the plaintiff sufficiently stated a claim under
either Title VII or 42 U.S.C. §1981 when he alleged in Count II that defendant District
Council violated his rights when it discriminated against him when it would not address his
grievance regarding his termination by J.P. Cullen even though it did so for a white
Ironworker. See Complaint at 2.
In addition to the claims the court already addressed, the plaintiff alleges claims
pursuant to the 42 U.S.C. §§ 1983 and 1985 against defendant District Council. To state
a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived
of a right secured by the Constitution or laws of the United States; and 2) the deprivation
was visited upon him by a person or persons acting under color of state law. BuchananMoore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village
11

of North Fond du Lac, 384 F.3d 856, 861 [7th Cir. 2004]); see also, Gomez v. Toledo, 446
U.S. 635, 640 (1980). Defendant District Council is not a state actor and, therefore, the
plaintiff’s claim brought pursuant to § 1983 will be dismissed.
Finally, the plaintiff’s § 1985(3) claim also must be dismissed. The plaintiff alleges
that District Council and Ironworkers Local 8 conspired to discriminate against him on the
basis of his race and religious beliefs in that they caused him not to be given a position at
T.N.T. Rebar. “In order to recover under § 1985(3), a plaintiff must establish ‘some racial,
or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action exists.”

D’Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1485

(quoting Griffin v. Breckenridge, 403 U.S. 88. 102 [1971]). However, the “deprivation of a
right created by Title VII cannot be the basis for a cause of action under § 1985 (3).” See
Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 378 (1979). “If a violation of
Title VII could be asserted through § 1985 (3), . . . the complainant could completely
bypass the administrative process, which plays such a crucial role in the scheme
established by Congress in Title VII.” Id. at 376. Accordingly, the plaintiff’s § 1985 claims
against defendants District Council and Ironworkers Local 8 will be dismissed.
Motion to Dismiss: Defendant Ironworkers Local 8, Members of its
Executive Board, Tom Cullen, Gilbert Toslek, William Fleming, and Richard Hanson
(Ironworkers Local 8)
Defendant Ironworkers Local 8 and the individual members of its Executive Board
(Ironworkers Local 8) filed a motion to dismiss, asserting that the plaintiff failed to allege
that he exhausted required EEOC procedures prior to filing suit for race and religious
discrimination, failed to allege what provisions of the labor agreement were violated by
the Ironworkers Local 8 defendants and failed to include sufficient details in his complaint
12

to meet the pleading requirements set out by the federal rules of civil procedure. The
Ironworkers Local 8 defendants also assert that the remaining claims against them are
untimely or otherwise barred because they could have been raised in a state court
complaint that was dismissed.
The court already has concluded that the plaintiff does not have to allege either
that he filed an EEOC charge or received a right to sue letter. Thus, the Ironworkers
Local 8 defendants’ motion to dismiss the plaintiff’s Title VII claim on that basis will be
denied. Additionally, like the previous two defendants, defendant Ironworkers Local 8’s
motion to dismiss the plaintiff’s claim for breach of the duty of fair representation will be
granted. The plaintiff’s claim for breach of the duty of fair representation is untimely under
the governing statute of limitations. See DelCostello, 462 U.S. at 154, n.2.
Count III of the complaint the plaintiff alleges that Ironworkers Local 8 interfered
with his rights under the Union Members’ Bill of Rights, 29 U.S.C. § 411, by failing to give
him notice of the hearing and charges against him. The Ironworkers Local 8 defendants
assert that Counts III and IV are barred because they could have been brought in a
previous complaint that the plaintiff filed against it in Milwaukee County Circuit Court.
The doctrine of res judicata, also referred to as claim preclusion, bars parties or
their privies from relitigating a final judgment on the merits where the issues were, or
could have been, raised in the first action. Hawxhurst v. Pettibone Corp., 40 F.3d 175,
180 (7th Cir.1994) (citing Federated Department Stores, Inc. v. Moitie, 453 U.S. 394, 398
[1981]). It “operates to prevent the litigation of any claim or ground of recovery that was
available to a party in a prior action,” whether or not the prior judgment actually
determined that claim or ground. Allahar v. Zahora, 59 F.3d 693, 696 (7th Cir. 1995).
13

In order for claim preclusion to apply there must be: (1) a final judgment on the
merits in the prior action; (2) identity of the cause of action in both the prior and
subsequent suits; and (3) identity of the parties or their privies in these suits. Hawxhurst,
40 F.3d at 180. Identity of the causes of action in the two suits is determined by what is
referred to as the “same transaction” test:
[A] cause of action consists of a single core of operative facts giving rise to
a remedy. . . . Once a transaction has caused injury, all claims arising from
that transaction must be brought in one suit or lost. A plaintiff may not avoid
an earlier judgment on the merits by merely concocting a new legal theory.
Highway J Citizens Group v. United States DOT, 456 F.3d 734, 743 (7th Cir. 2006)
(quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 913 [7th Cir. 1993]). Therefore, if the
same set of facts is essential to both claims, then there is identity between the two causes
of action asserted and claim preclusion bars the latter from being litigated. Because claim
preclusion is an affirmative defense, a defendant has the burden of showing that the issue
was already litigated and resolved elsewhere. See United States v. Fidelity and Deposit
Co., 986 F.2d 1110, 1116 (7th Cir. 1993).
The plaintiff filed a complaint in the Milwaukee County Circuit Court against
Ironworkers Local 8 and its officers and Executive Board members. Defendant Local 8
submitted a copy of the complaint and a decision of the Milwaukee County Circuit Court in
response to the plaintiff’s motion for a temporary restraining order. The complaint alleged
in Count III that the union deprived him of his notice and hearing rights in the process of
fining and expelling him from the union. The Milwaukee County Circuit Court dismissed
Count III of the plaintiff’s complaint with prejudice.

14

In the Milwaukee County case, the plaintiff alleged that Ironworkers Local 8 and
the individual union defendants unlawfully tried, fined and expelled him. He also alleged
that he received a different version of the charges than the ones used to try him. Thus,
whether the plaintiff received adequate notice of the charges against him and adequate
notice of the hearing were among the central facts of his complaint filed in Milwaukee
County. Thus, the same set of facts is essential to both claims and there is identity
between the two causes of action asserted. Therefore, claim preclusion bars this claim
from being litigated in this case. Accordingly, defendant Ironworkers Local 8’s motion to
dismiss Count III of the complaint will be granted.
Count IV of the complaint alleges that defendants Cullen, Toslek, Fleming “in their
individual and personnal [sic] capacities violated [the plaintiff’s] rights when they filed
bogas [sic] charges against [him] in retaliation for [his] success on previous lawsuits.”
(Complaint at 2). Defendants Ironworkers Local 8 maintain that this count, like Count III
of the complaint, is subject to dismissal on the basis of claim preclusion.
Count IV of the plaintiff’s Milwaukee County complaint alleged that defendants
Fleming, Cullen and Toslek, in their individual capacities “conspired to inflict injury on
plaintiff by filing charges and assessing excessive punishment against him in 2008, 2006,
2009 in retaliation from privious [sic] lawsuits filed against the union contrary to standards
applied to whites in same or similar circumstances.” (Affidavit of Yingtao Ho [Ho Aff.],
Exh. 1 at 2). The plaintiff’s federal and state court complaints are based on identical
central facts and involve the same parties. Count IV of the plaintiff’s Milwaukee County
complaint was dismissed with prejudice and, therefore, claim preclusion bars Count IV of

15

the present complaint from being litigated. Accordingly, defendant Local 8’s motion to
dismiss Count IV of the complaint will be granted.
Count V of the plaintiff’s complaint alleges that:
Defendants Hansen, Morgan and Ironworker Local 8 conspired to violate
C.B.A., when they entered into an agreement granting me journeyman
status and then going behind my back to the employers representing
differently. When Dft. Morgan made aware of situation she did nothing to
stop it. unlike the treatment of whites.”
(Complaint at 2).
The Ironworkers Local 8 defendants assert that the plaintiff failed to allege either
the provisions of the labor agreement allegedly violated by them or that what the
Ironworkers Local 8 defendants told prospective employers was false. These defendants
maintain that a complaint should be dismissed when it fails to allege the provisions of the
agreement allegedly violated, citing Gandhi v. Sitara Capital Mgmt., LLC, 689 F. Supp. 2d
1004 (N.D. Ill. 2010). The facts in Gandhi, a multi-defendant securities fraud case, are
not only distinguishable, but the court finds that court’s reasoning unpersuasive.

A

plaintiff is not required to identify a specific contract provision that was breached in order
to plead breach of contract under the federal pleading standard. As the court has stated,
it is not necessary for the plaintiff to plead specific facts and the complaint need only "give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests."
See Twombly, 550 U.S. at 555 (citation omitted). Thus, Ironworkers Local 8 defendants’
motion to dismiss Count V for failure to allege the provisions of the labor agreement
allegedly violated by the Ironworkers Local 8 defendants will be denied.
The Ironworkers Local 8 defendants also assert that the plaintiff never alleged in
Count V of his complaint that they denied to his prospective employers that he was
16

officially a journeyman. The Ironworkers Local 8 defendants ask the court to take judicial
notice of the plaintiff’s response to their motion to dismiss in the Milwaukee County case
in which he admitted that he was granted journeyman status pursuant to a litigation
settlement and alleged that Local 8 defendants told an employer in North Dakota that he
was not a real journeyman. Rule 12(b) provides that if matters outside the pleadings are
presented to and not excluded by the court in a Rule 12(b)(6) motion, the motion “shall be
treated as one for summary judgment” and “all parties shall be given reasonable
opportunity to present all material made pertinent to such motion by Rule 56.: Fed. R.
Civ. P. 12(b).
The court may take judicial notice of matters of public record without converting a
Rule 12(b)(6) motion into a motion for summary judgment. Henson v. CSC Credit Servs.,
29 F.3d 280, 284 (7th Cir. 1994); see also, Opoka v. INS, 94 F.3d 392, 394 (7th Cir.1996)
(recognizing that proceedings in other courts, both inside and outside the federal system,
may be judicially noticed); Charles Alan Wright and Arthur R. Miller, Federal Practice and
Procedure, Civil 2d § 1364 at 475-479 (2nd ed. 1990).
The court can take judicial notice of a recorded judgment, Henson, 29 F.3d at 284,
or the decision of another court or agency, including the decision of an administrative law
judge. Opoka, 94 F.3d at 394. However, the plaintiff’s “admissions” in his brief filed in
response to the defendant’s motion to dismiss in state court are not proper matters for
judicial notice. See Travel All Over the World v. Kingdom of Saudi Arabia, 73 F.3d 1423,
1429 n.6 (7th Cir. 1996). Thus, the court declines to take judicial notice of the plaintiff’s
response to their motion to dismiss in the Milwaukee County case. Moreover, the court
declines to treat the defendants’ motion as one for summary judgment.
17

Section 1985(2) of Title 42 prohibits conspiracies to obstruct justice by intimidating
or threatening any party, witness or juror in a proceeding in any court of the United
States. The plaintiff alleges that several members of the Ironworkers Local 8 Executive
Board “conspired to violate [the] CBA.” (Complaint, Count V at 2). Even if the court
construes this claim as stating that the board members conspired to obstruct justice, the
plaintiff’s claim must be dismissed. That is because “[i]ntra-entity discussions that result
in discriminatory or retaliatory actions lie outside the scope of § 1985.” Wright v. Illinois
Dep't of Children & Family Servs., 40 F.3d 1492, 1508-1509 (7th Cir. 1994); see also,
Dombrowski v. Dowling, 459 F. 2d 190, 196 (7th Cir. 1972) (When members of a single
corporation act within the scope of their employment to make a single decision for the
corporation, it is a decision of the corporation and, therefore, the conspiracy requirement
of § 1985[2] is not satisfied.). Accordingly, the plaintiff’s claim, if any, under § 1985(2) in
Count V of his complaint will be dismissed.
Motion to Dismiss: Ironworkers Local 8 Health and Welfare Board of
Trustees (Board of Trustees)
Defendant Board of Trustees filed a motion to dismiss Count VI of the plaintiff’s
complaint pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6). Count VI alleges that:
I.W. Local 8 Welfare Fund violated rights gaurenteed (sic) under ERISA
when they arbitrarily terminated my spouses and my health insurance benefits
(sic), violated confidentiality based on a discriminatory and retalitory (sic) animus
from privious (sic) lawsuits filed by me.
Defendant Board of Trustees asserts that different courts have already dismissed
three cases filed by the plaintiff. Defendant Board of Trustees does nothing more than
set out the basic facts and disposition of these cases. Based on the brief facts presented,
defendant Board of Trustees was not a party to two of the cases – one in state court and
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one in federal court. Defendant Board of Trustees was the defendant in the second state
court case. However, the defendant Board of Trustees fails to provide any grounds or
argument for dismissal of this case against it based on the earlier state court case. It is
not the court’s responsibility to infer or develop arguments not articulated by counsel.
Since the defendant Board of Trustees merely asserts that the plaintiff’s claim against it
should be dismissed because he filed previously lawsuits, its motion to dismiss is denied.
Defendant Board of Trustees also asserts that the complaint fails to state a claim
against it, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Defendant
Board of Trustees fails to develop an argument properly to support its contention that the
complaint does not state a claim against it. Therefore, its motion to dismiss the plaintiff’s
claim on this basis will be denied.
Defendant Board of Trustees contends that the plaintiff failed to serve the Board of
Trustees with the summons or complaint in this case. Defendant Board of Trustees also
contends that the plaintiff fails to specify who on the board he is suing, since the
composition of the board changes periodically. Defendant Board of Trustees, however,
provides no evidentiary support for its assertion that it was not served. Accordingly, its
motion to dismiss based on a failure to serve will be denied.
Finally, defendant Board of Trustees asserts that the plaintiff’s claim is governed
exclusively by ERISA and must be dismissed. Defendant Board of Trustees maintains
that it is not apparent under which section of ERISA the plaintiff’s allegations fall. To the

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extent the plaintiff alleges a claim under § 502(a)(3) 3 , 29 U.S.C. § 1132(a)(3), defendant
Board of Trustees states that it must be dismissed because a plaintiff cannot seek money
damages under § 502(a)(3), which is all that the plaintiff seeks, and because such a claim
cannot be brought against the Trustees individually. To the extent the plaintiff alleges a
claim under § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), defendant Board of Trustees
asserts that the complaint fails to plead such a claim.
The plaintiff’s complaint only seeks money damages. The plaintiff cannot bring a
claim for money damages under § 1132(a)(3).

Section 1132(a)(3) only provides for

equitable remedies and an award of money damages is a form of legal relief, not
equitable relief. See Mondry v. Am. Fam. Mut. Ins. Co., 557 F.3d 781, 804 (7th Cir.
2009). Rather, a plaintiff seeking an award of money for benefits owed under an ERISA
plan must do so under § 1132(a)(1)(B). See id. at 804. The plaintiff cannot, however,
bring a claim under § 1132(a)(1)(B) against defendant Board of Trustees.

“'ERISA

permits suits to recover benefits only against the Plan as an entity.” Jass v. Prudential
Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir. 1996). Accordingly, defendant Board
of Trustees’ motion to dismiss the plaintiff’s ERISA claims will be granted.
Motion to Dismiss: Defendant J.P. Cullen & Sons, Inc. (J.P. Cullen)
Defendant J.P. Cullen contends that Count VII of the complaint (the only count that
purports to state a claim against it) should be dismissed because the plaintiff failed to
allege exhaustion of administrative remedies.

Like other defendants, defendant J.P.

Cullen construes the plaintiff’s complaint as alleging violations of Title VII and the WFEA.

3

Apparently, defendant Board of Trustees cited to ERISA § 502(a)(1)(B) when it meant to cite to ERISA
§502(a)(3) and vice versa.

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In response to defendant J.P. Cullen’s motion to dismiss, the plaintiff frames his claim as
one under 42 U.S.C. § 1981.
Count VII of the plaintiff’s complaint states “that Dft. J.P. Cullen violated my rights
when they terminated me on about 5-01-08 5 day [sic] on the basis of race from Columbia
Staint [sic] Mary’s hospital.” (Complaint, Count VII at 2). Like other defendants’ motions
to dismiss for lack of subject matter jurisdiction, defendant J.P. Cullen’s motion is based
on the plaintiff’s failure to allege that he filed an EEOC complaint and received a right to
sue letter. The court already has determined that dismissal on this ground is not
appropriate and, therefore, defendant J.P. Cullen’s motion to dismiss for lack of subject
matter jurisdiction will be denied. With respect to the plaintiff’s claim, if any, brought
pursuant to the WFEA, the plaintiff can only maintain a private cause of action under the
WFEA if any alleged discrimination occurred on or after July 1, 2009.

In this case,

however, the complaint identifies the discrimination as occurring on May 1, 2008.
Therefore, the plaintiff’s claim, if any, arising under the WFEA will be dismissed.
With respect to the plaintiff’s assertion that his claim is brought pursuant to 42
U.S.C. § 1981, defendant J.P. Cullen maintains that the plaintiff failed to state a claim
upon which relief can be granted. Specifically, defendant J.P. Cullen contends that the
plaintiff alleges nothing other than a conclusory allegation that he was terminated “on the
basis of race.”
Contrary to defendant J.P. Cullen’s assertions, even after Twombly, a “complaint
need only be sufficiently detailed to ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” 550 U.S. at 555. The plaintiff’s allegation that “Dft.
J.P. Cullen violated my rights when they terminated me on about 5-01-08 5 day [sic] on
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the basis of race from Columbia Staint [sic] Mary’s hospital”, see Complaint, Count VII at
2, gives defendant J.P. Cullen fair notice the plaintiff’s claim against it. Thus, the plaintiff
sufficiently stated a claim under either Title VII or 42 U.S.C. § 1981 in Count VII of the
complaint. Accordingly, defendant J.P. Cullen’s motion to dismiss will be denied.
Motion to Dismiss: Defendants DWD Bureau of Apprenticeship
and Karen Morgan
Defendants DWD Bureau of Apprenticeship Standards and Karen Morgan filed a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b). The defendants assert that the
complaint was not properly or timely served on the defendants.

Alternatively, the

defendants assert that the complaint is barred by the applicable statute of limitations.
The defendants contend that the plaintiff sent a Waiver of Service of Summons
form that was not signed by the plaintiff or filled out with his name, address, telephone
number or email address as required by Rule 4(d) of the Federal Rules of Civil
Procedure. The defendants also maintain that the waiver failed to specify the date the
Request for Waiver was sent and, therefore, the complaint was not acknowledged and
service was not perfected. Moreover, the defendants state that the complaint was not
personally served on them. The plaintiff asserts that these defendants were properly
served and are now estopped from objecting.
Federal Rule of Civil Procedure 4(d) allows service by first-class mail of the
summons and complaint along with a request for waiver of personal service. Defendants
are not required to accept service by mail, but are required to bear the costs of personal
service if they decline the request for waiver without good cause. See Fed R. Civ. P.
4(d)(2). In this case, the plaintiff did not properly complete the waiver of service form and,
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therefore, defendants DWD Bureau of Apprenticeship Standards and Ms. Morgan did not
return it to him. Moreover, defendants DWD Bureau of Apprenticeship Standards and
Ms. Morgan were not personally served with the summons and complaint. Accordingly,
the court lacks personal jurisdiction over these defendants and, therefore, their motion to
dismiss pursuant to Fed. R. Civ. P. 12(b) will be granted.
ORDER
NOW, THEREFORE, IT IS ORDERED that defendant International Association of
Bridge, Structural, Ornamental & Reinforcing Ironworkers, AFL-CIO’s motion to dismiss
be and hereby is granted in part and denied in part as stated herein. (Docket #18).
IT IS FURTHER ORDERED that defendant Ironworkers District Council of North
Central States’ motion to dismiss be and hereby is granted in part and denied in part as
stated herein. (Docket # 21)
IT IS FURTHER ORDERED that defendant Ironworkers Local 8 Health and
Welfare Fund Board of Trustees’ motion to dismiss be and hereby is granted in part and
denied in part as stated herein. (Docket # 33).
IT IS ALSO ORDERED that defendants Ironworkers Local 8 and members of its
Executive Board, Tom Cullen, Gilbert Toslek, William Fleming and Richard Hanson’s
motion to dismiss be and hereby is granted in part and denied in part as stated herein.
(Docket # 30).
IT IS FURTHER ORDERED that defendants DWD Bureau of Apprenticeship and
Karen Morgan’s motion to dismiss be and hereby is granted. (Docket # 47).
IT IS ALSO ORDERED that defendant J.P. Cullen Construction Company’s motion
to dismiss be and hereby is denied. (Docket # 60).
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IT IS ALSO ORDERED that the plaintiff’s WFEA, duty of fair representation, 42
U.S.C. § 1983 and 42 U.S.C. § 1985 claims be and hereby are dismissed.
IT IS FURTHER ORDERED that Counts III and IV of the complaint be and hereby
are dismissed.
IT IS ALSO ORDERED that defendants DWD Bureau of Apprenticeship and Karen
Morgan be and hereby are dismissed.
FINALLY, IT IS ORDERED that the stay previously entered in this case be and
hereby is lifted.
Dated at Milwaukee, Wisconsin this 28th day of March, 2012.
BY THE COURT:
s/Patricia J. Gorence
PATRICIA J. GORENCE
United States Magistrate Judge

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