TIMOTHY S. HILLMAN, DISTRICT JUDGE.
Raymond R. Mason, Sr. ("Plaintiff") brings this action against several parties. For the purposes of this order, the relevant parties are Plaintiff's union, Amalgamated Transit Union Local 22 ("the Union"), and Business Agent for the Union, Kenneth Kephart ("Mr. Kephart") (collectively "Defendants"). In his Amended Complaint, Plaintiff alleges claims for breach of the duty of fair representation, violations of Title VII, the Fifth, Sixth, and Fourteenth Amendment, 18 U.S.C. § 241, and Mass. Gen. Laws ch. 12 § 11I. Defendants have filed a motion to dismiss all counts against them. (Docket No. 16). For the reasons stated below, Defendants' motion is
The following facts are taken from Plaintiff's First Amended Complaint (Docket No. 14) and are assumed to be true for the purposes of this motion.
On May 5, 2003, Plaintiff began working for Worcester Regional Transit Authority ("WRTA")/Central Mass Transit Management, Inc ("CMTM") as a part-time van driver. On December 23, 2015, CMTM and the Union entered into a Supplemental Agreement that stated, "if [an] employee is found to be using a personal electronic device and the employee is in front of the yellow line in a fixed route bus or in front of the curb side door well stanchion in a lift equipped van, the consequence will be immediate termination of employment by the Company." (Docket No. 14-1, at 6). This agreement also stated that, "an employee cannot challenge the discipline imposed for an employee's use of a personal electronic device while on duty." Id. Neither the Union nor CMTM circulated this agreement to their employees.
On April 3, 2017, Plaintiff returned to work after a medical emergency at his home. At 2:23 p.m., as he was leaving the parking lot of WRTA in his van, he received a call on his cell phone from Ms. Jandrow, Transportation Coordinator for CMTM. Unsure if the call was related to the previous emergency, Plaintiff answered the call and Ms. Jandrow offered him a night-time position at the WRTA Van Division.
The next day, David Trabucco ("Mr. Trabucco"), Assistant General Manager for CMTM, notified Plaintiff that CMTM was investigating Plaintiff's improper cell phone use while on duty.
After the meeting, Plaintiff and Mr. Trabucco went to the office of Jo-Ann Clougherty, from Human Resources, where Plaintiff was instructed by Mr. Trabucco to sign the Notice of Termination. Plaintiff signed the notice and was terminated from his position.
After he was terminated, and before filing this claim, Plaintiff filed claims with the National Labor Relations Board ("NLRB"). Plaintiff provided the Court with a response letter from the NLRB dated July 26, 2018. This letter references a March 9th, 2018 letter from Plaintiff to the NLRB, "requesting, for a second time, reconsideration of [the NLRB's] decision denying [Plaintiff's] appeal in the captioned cases." (Docket No. 14-1, at 18). The heading of the July 26, 2018 letter references two cases against CMTM/WRTA and one against the Union.
Plaintiff also claims that Mr. Kephart represented two other employees who were caught using their cell phones while driving. Unlike Plaintiff, those employees did not lose their job.
A defendant may move to dismiss, based solely on the complaint, for the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955,
In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a "context-specific task" to determine "whether a complaint states a plausible claim for relief," one that "requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). "[W]here 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." Id. (quoting Fed. R. Civ. P. 8(a)(2)). On the other hand, a court may not disregard properly pled factual allegations, "even if it strikes a savvy judge that actual proof of those facts is improbable." Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
Because Plaintiff appears pro se, we construe his pleadings more favorably than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Nevertheless, Plaintiff's pro-se status does not excuse him from complying with procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
Plaintiff claims that the Union breached the duty of fair representation by failing to represent Plaintiff appropriately throughout the events leading up to and following his termination. The Union argues that the statute of limitations has run on Plaintiff's claim, as it is part of a hybrid Section 301/fair representation claim. To prevail on a statute of limitations defense at the motion to dismiss stage, "the facts establishing that defense must: (1) be definitively ascertainable from the complaint and other allowable sources of information, and (2) suffice to establish the affirmative defense with certitude." Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008) (quotation marks and citation omitted).
A hybrid Section 301/fair representation claim, "is one in which the plaintiff has a cause of action against both the employer and the union." Cabarga Cruz v. Fundacion Educativa Ana G. Mendez, Inc., 822 F.2d 188, 191 (1st Cir. 1987). A hybrid claim specifically, "involves a claim that the employer violated the collective bargaining agreement and the union failed to handle properly the grievance of the plaintiff-employee." Id. Plaintiff has named the Union and Mr. Kephart as defendants in this case, as well as WRTA/CMTM and their respective managers, and alleges that CMTM violated the CBA (Docket No. 14, at 6). Plaintiff also alleges that the Union "breached [their] duty of fair representation in [their] handling of the Plaintiff's `grievance.'" Id. at 4. In Cabarga Cruz v. Fundacion Educativa Ana G. Mendez,
In DelCostello v. Int'l Bhd. of Teamsters, the Supreme Court applied a six-month statute of limitations to hybrid Section 301/fair representation claims. 462 U.S. 151, 172, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).
Plaintiff also claims the Union violated Title VII because they represented two other employees who were also caught using their cell phones while driving, and that these employees were not fired.
Title VII makes it unlawful for employers to:
42 U.S.C. § 2000e-2(a). "These two proscriptions, often referred to as the `disparate treatment' (or `intentional discrimination') provision and the `disparate impact' provision, are the only causes of action under Title VII." E.E.O.C. v. Abercrombie & Fitch Stores, Inc., ___ U.S. ___, 135 S.Ct. 2028, 2032, 192 L.Ed.2d 35 (2015).
To establish a prima facie case of disparate treatment discrimination, a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his position; (3) his employer took an adverse employment action against him; and (4) some evidence of a causal link between his protected status and the adverse employment action. Bhatti v. Trustees of Boston University, 659 F.3d 64, 70 (1st Cir. 2011). Plaintiff does not allege that he is a member of a protected class, or that the adverse employment action by the Union could be linked to his protected status.
Plaintiff additionally alleges that the Union violated the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. These claims, under 42 U.S.C § 1983, require state action to give rise to a private cause of action. See Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295-305, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (determining if the Tennessee Secondary School Athletic Association is a state actor for purposes of applying 42 U.S.C § 1983). Labor Unions, however, are not state actors. Hovan v. United Brotherhood of Carpenters & Joiners, 704 F.2d 641, 642-645 (1st Cir. 1983). Accordingly, Plaintiff's constitutional claims must be dismissed.
Plaintiff mentions 18 U.S.C. § 241. This is a criminal statute and there is no, "authority for permitting a private individual to initiate a criminal prosecution in his own name." Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964).
"[S]tate law is preempted whenever a plaintiff's claim invokes rights derived from a union's duty of fair representation." BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 830 (1st Cir. 1997); see also Condon v. United Steelworkers of America, 683 F.2d 590, 594-95 (1st Cir. 1982) (explaining that Congress "occupied the field" of "a union's rights and duties as the exclusive bargaining agent in carrying out its representational functions" and consequently "closed it to state regulation" (quoting Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 261, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964))). While the Complaint is not entirely clear, insofar as Plaintiff asserts claims of emotional distress, tortious interference with employment relationship, and breach of contract against the Union, these claims are preempted and must be dismissed.
Plaintiff also asserts a claim pursuant to Mass. Gen. Laws ch. 12, § 11I ("MCRA").
Here, Plaintiff has not alleged any pattern of harassment or intimidation and the Company was entitled to terminate his employment. Mr. Kephart simply highlighted Plaintiff's options: resign or be fired. Consequently, Mr. Kephart's proposition is not actionable under the MCRA.
Plaintiff alleges various claims against Mr. Kephart in his individual and official capacity. The First Circuit has, "long held that `union agents' are not personally liable to third parties for acts performed on the union's behalf in the collective bargaining process." Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir. 1989) (quotation marks and citation omitted). Accordingly, the claims against Mr. Kephart must be dismissed.
For the reasons stated above, Defendants' motion is