DEFENDANT HIGHWAY DRIVERS, DOCKMEN, SPOTTERS, RAMPMEN, MEAT PACKING HOUSE, AND ALLIED PRODUCTS DRIVERS AND HELPERS, OFFICE WORKERS AND MISCELLANEOUS EMPLOYEES, LOCAL UNION NO. 710'S MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT FEDERAL RULE OF CIVIL PROCEDURE 12(c)

CHARLES P. KOCORAS, Magistrate Judge.

NOW COMES Defendant Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House, and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees, Local Union No. 710 ("Local 710"), by through its undersigned counsel, pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, to dismiss with prejudice Counts I, III IV, VII, and IX of the amended complaint filed by Plaintiff Billy Earl ("Plaintiff") for failure to state a claim for which relief may be granted. In support of this motion, Local 710 avers as follows:

1. In his amended complaint, Plaintiff asserts claims against Local 710 for (a) breach of the duty of fair representation under Section 301 of the Labor Management and Relations Act ("LMRA"), 29 U.S.C. § 185, et seq., (Count I); (b) race discrimination and retaliation under 42 U.S.C. § 1981 (Counts III and IV); (c) race discrimination and retaliation under 42 U.S.C. §§ 2000e, et seq. (Counts VII and IX). Dkt. No. 35, Amended Complaint.

2. Plaintiff's claims arise from his prior employment with Defendant Jewel Food Stores, Inc. ("Jewel") and his membership in Local 710's bargaining unit.

3. Local 710 and Jewel are parties to a collective bargaining agreement ("CBA") which provides, among other things, an Attendance Policy which states that an employee shall be discharged for failing twice within twelve months to call-in an absence from work.

4. Jewel terminated Plaintiff's employment for failing twice in less than twelve months to call-in his absence. The Local grieved and arbitrated Plaintiff's termination.

5. In his amended complaint, Plaintiff claims that the Local (a) failed to pursue discrimination claims he allegedly submitted to Local 710; (b) inadequately investigated his termination grievance; (c) failed to present sufficient testimonial and documentary evidence at his arbitration hearing thereby causing the arbitrator to deny the grievance; and, (d) failed to advocate or assist Plaintiff with re-hire to his prior position at Jewel or a substantially-similar position.

6. Plaintiff claims that the Local's conduct was racially motivated and retaliatory because he brought discrimination complaints to Local 710's attention, and because he filed discrimination and retaliation complaints against the Local.

7. In his amended complaint, Plaintiff references the grievances he has filed, cites to documents he believes should have been submitted at the arbitration hearing, claims that the arbitration award, which the Local provided to him, was decided incorrectly, that some of the testimony referenced in the arbitration award is incorrect, and claims that the Local, who arbitrated the termination grievance filed on his behalf, failed to advocate for him or otherwise assist him in getting re-hired by Jewel.

8. Federal Rule of Civil Procedure 12(c) provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." By order issued April 9, 2019, the Court directed the Local to file its motion by May 3, 2019. Dkt. No. 34.

9. The facts, arguments and authorities in support of this motion are sent forth in Local 710's memorandum of law, which is being filed contemporaneously with this motion, along with Local 710's answer to the amended complaint and its attachments, all of which are incorporated by reference into this motion as though fully set forth herein.

WHEREFORE, Defendant Local 710 respectfully requests the Court to grant its motion for judgment on the pleadings and dismiss Counts I, III, IV, VII, and IX of the amended complaint with prejudice, and to grant to it any such relief the Court deems just and appropriate.

DEFENDANT LOCAL UNION NO. 710'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(c)

Pursuant to Federal Rule of Civil Procedure 12(c), Defendant Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House, and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees, Local Union No. 710 ("Local 710", "Local" or "Union"), by and through its undersigned counsel, submits this Memorandum of Law in support of its Motion for Judgment on the Pleadings seeking to dismiss Counts I, III, IV, VII, and IX of Plaintiff's Amended Complaint.

I. INTRODUCTION

Plaintiff Billy Earl, a member of Local 710's bargaining unit, was terminated from his employment with defendant Jewel Food Stores, Inc. ("Jewel") for violating the no-call, no-show provision of the collective bargaining agreement ("CBA") between the Local and Defendant Jewel Foods, Inc. ("Jewel"). The Local filed a grievance challenging the termination and arbitrated the grievance. The Local, and thereby Plaintiff, were represented by the Local's counsel. The arbitrator denied the Local's grievance ruling that Jewel had just cause to terminate Plaintiff under the no-call/no-show provision of the CBA. The Local mailed a copy of the arbitration decision to Plaintiff.

In Count I of the amended complaint, Plaintiff asserts against the Local a hybrid section 301 breach of the duty of fair representation claim under the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Plaintiff claims the Local should have but failed to properly investigate, process and handle his discharge grievance and, through its counsel, failed to present witnesses and introduce evidence Plaintiff believes were warranted in his case. Additionally, Plaintiff alleges that the Local breached its duty to him by failing to pursue discrimination grievances he filed in or around 2015 through 2017. As set forth in more detail below, Plaintiff's amended complaint fails to state a claim for breach of the duty of fair representation and therefore Count I of the amended complaint should be dismissed.

In Count III of the amended complaint, Plaintiff alleges that the Local violated 42 U.S.C. § 1981 by the manner in which the Local's counsel presented his discharge grievance to an arbitrator and thereby failed to protect his rights and benefits under the CBA because of his race. Additionally, Plaintiff claims that the Local knew of, but failed to address, Jewel's alleged racially discriminatory practices thereby acquiescing to Jewel's discriminatory conduct. Relying on these same allegations, in Count IV of the amended complaint, Plaintiff claims that the Local retaliated against him in violation of Section 1981 and that the Local did so with malice or reckless indifference to his federally protected rights.

In Count VII of the amended complaint, Plaintiff alleges that the Local violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., because it did not advocate or otherwise assist Plaintiff with re-obtaining his previous position or a similar assignment with Jewel even though it has done so for similarly-situated members who were not African American. In Count IX of the amended complaint, Plaintiff relies upon this allegation, as well as claiming that the Local retaliated against Plaintiff for filing his EEOC Complaint by failing to investigate, present or adequately argue his grievance. Plaintiff claims that the Local retaliated against him in violation of Title VII of the Civil Rights Act of 1964 and that the Local did so with malice or reckless indifference to his federally protected rights.

As argued in detail below, Plaintiff's Section 301 claim fails because, even taking the allegations set forth in his amended complaint as true, he has failed to state a claim for breach of the duty of fair representation. For these same reason, Plaintiff's race discrimination and retaliation claims under Section 1981 and Title VII fail. Accordingly, the Court should dismiss Plaintiff's Section 301 claim (Count I), Section 1981 claims for race discrimination (Count III) and retaliation (Count IV) against the Local, and Title VII claims for race discrimination (Count VII) and retaliation (Count IX) against the Local.

II. STATEMENT OF THE RELEVANT FACTS

Local 710 is a labor organization that represents the hourly employees employed by Jewel at Jewel's Melrose Park, Illinois warehouse. Am. Compl., ¶ 5. Jewel operates a chain of super markets. Id., ¶ 4. Local 710 and Jewel are parties to a CBA which governs the terms and conditions of employment of the Local's bargaining unit members employed at Jewel's Melrose Park warehouse. Id., ¶ 18.

Plaintiff was employed by Jewel from September 1988 to July 7, 2017, and most recently worked in the Maintenance and Sanitation Department at Jewel's Melrose Park warehouse. Id., ¶¶ 6, 16. Throughout his employment with Jewel, Plaintiff was a member of the Local's bargaining unit. Id., ¶ 7. Accordingly, his employment was governed by the CBA. Id., ¶ 18.

The CBA includes an Attendance Policy which provides that employees who fail to report or call-in to work ("no call/no show") twice within twelve (12) months shall be discharged from their employment. Ex. D, Ans. to Am. Compl., pp. 8-9. On July 5, 2016, Plaintiff failed to report to work and did not call-in. Id., ¶¶ 29-30. Less than a year later, on June 5, 2017, Plaintiff again failed to report to work and did not call-in. Id., ¶ 41. The following day, Jewel managers met with Plaintiff and Al Wiegel, a Local 710 representative to discuss his absence. Id., ¶ 42. During the meeting, Plaintiff claimed that he was absent on June 5, 2017 because he was pre-approved to take the day as a vacation day by his supervisor William Knedler. Id. ¶¶ 32, 34, 41. Jewel management held a second meeting on June 16, 2017 with Plaintiff and Local representative Jim Bradford to discuss Plaintiff's June 5, 2017 absence. Id., ¶ 43. At this meeting, Plaintiff produced a document showing that he had requested, and Knedler had approved, his request to take June 5 as an extra vacation day. Id. Knedler denied that he approved Plaintiff's request. Id. On this same day, Bradford and the Jewel managers went to Knedler's office to examine Plaintiff's vacation form on file and, upon comparison of the vacation form in Knedler's office and the form submitted by Plaintiff, Knedler claimed that the documents did not match. Id., ¶¶ 43-45. On June 29, 2017, Jewel suspended Plaintiff without pay claiming he falsified company records, i.e., his vacation form. Id., ¶ 46. Subsequently, on July 7, 2017, Jewel terminated Plaintiff's employment for twice violating the "no call/no show" provision of the Attendance Policy. Id., ¶ 47.

Local 710 filed a grievance challenging Plaintiff's suspension and discharge. Id., ¶ 47; see also, Ex. E, Ans. to Am. Compl., Local's Grievance Package. Thereafter, the Local filed a demand for arbitration. Id., ¶ 47. An arbitration hearing was held on July 13, 2018 before Arbitrator Brian Clauss. Id., ¶¶ 48-49. Laurence Goodman, Esquire, counsel to Local 710, presented the Plaintiff's suspension and termination grievance at the arbitration hearing. Id. Prior to the arbitration hearing, Goodman reviewed with Plaintiff his vacation request forms going back as far as 2013. Id., ¶ 49. By decision dated September 26, 2018, Arbitrator Clauss denied the Local's grievance. Id., ¶ 50; see also, Ex. C, Ans. to Am. Compl., pp. 7-10. Specifically, after reviewing the original vacation form maintained in Knedler's office and the vacation form by Plaintiff, Arbitrator Clauss concluded that the vacation form produced by Knedler was the accurate form and not the form produced by Plaintiff. Id. Accordingly, Arbitrator Clauss ruled that Jewel had just cause to terminate Plaintiff's employment. Id. The Local forwarded a copy of the arbitration decision to Plaintiff. Id., ¶ 51.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." "The pleadings include `the complaint, the answer, and any written instruments attached as exhibitsl.1 Callanetics Mgmt Co., v. Pinckney, 2013 U.S. Dist. LEXIS 173750 at *8 (N.D. Ill., Dec. 11, 2013) citing N. Ind. Gun & Outdoor Shows v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). A district court may consider documents "`incorporated by reference' in the pleadings. Arethas v. S/TEC Group, Inc., 2005 U.S. Dist. LEXIS 7677 at *7-8 (N.D. Ill., April 14, 2005) (other quoted citation omitted). "To the extent that an exhibit contradicts the complaint's allegations, the exhibit takes precedence." Phillips v. Prudential Ins. Co., of Am., 714 F.3d 1017, 1020 (7th Cir. 2013).

Attaching documents to the pleadings themselves, or even to a motion for judgment on the pleadings itself, is not only permitted, but particularly appropriate if the documents attached are referenced in the pleadings — attaching such documents does not, in any way, morph a motion for judgment on the pleadings to one of summary judgment. Adams v. City of Indianapolis, 742 F.3d 720, 724, 729 (7th Cir. 2014); Langone v. Miller, 631 F.Supp.2d 1067, 1070-71 (N.D. Ill. 2009).

"`A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is governed by the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6)." BBL Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015) citing Adams at 727-28. When deciding a motion to dismiss for failure to state a claim, the only question is `whether the complaint includes factual allegations that state a plausible claim for relief." BBL Inc., 742 F3d at 325. Accordingly, "[i]n reviewing a motion to dismiss for failure to state a claim for which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), a court accepts all well-pleaded facts as true and views them in a light most favorable to the plaintiff. Allegations that amount to no more than conclusions, however, are not entitled to the same assumption of truth. To determine whether a plaintiff has adequately stated a claim for relief, a court must assess whether the complaint's well-pleaded factual allegations plausibly give rise to an entitlement to relief" Med. Mut. of Ohio v. Abbvie Inc. (In re Testosterone Replac. Therapy Prods. Liab. Litig. Coord. Pretrial Proceed.), 159 F.Supp.3d 898, 908-09 (N.D. Ill. 2016) (internal citations and quotations omitted). Indeed, "Plaintiff's claims must include enough details to present `a story that holds together.'" Flanagan v. Excel Staff. Sols., LLC, 2018 U.S. Dist. LEXIS 12054 at *4 (N.D. Ill., Jan. 25, 2018) (other citations and quotations omitted). Plaintiff's amended complaint contains no such story, and is legally deficient under Rule 12(c) and Rule 12(b)(6).

IV. ARGUMENT

A. Plaintiff's Breach of the Duty of Fair Representation Claim in Count I Should Be Dismissed for Failure to State A Claim for which Relief May Be Granted.

1. Standard for Breach of the Duty of Fair Representation

To succeed in a hybrid section 301 action, a plaintiff must plead facts that plausibly show the employer breached a collective bargaining agreement by taking an adverse employment action against the plaintiff and that the union violated its duty of fair representation in handling the employee's grievance over the that action. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983); Vaca v. Sipes, 386 U.S. 171, 185-86 (1967). "In order for a plaintiff to prevail in [a breach of the duty of fair representation claim], he must have a meritorious claim against both the union and the employer; the claims are interlocking in the sense that neither is viable if the other fails." Neal v. News. Hold., Inc., 349 F.3d 363, 368 (7th Cir. 2003) citing Crider v. Spectrulite Consort., Inc., 130 F.3d 1238, 1241 (7th Cir. 1997). Although both elements are essential, the duty of fair representation element is "the indispensable predicate" for a Section 301 action — without it, the employee's case fails. United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 62 (1981), overruled on other grounds by DelCostello, 451 U.S. at 172.

A union breaches its duty of fair representation only if its actions are arbitrary, discriminatory or in bad faith. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991); Vaca, 386 US. at 190; Neal, 349 F.3d at 369. A plaintiff is successful in pleading a breach of the duty of fair representation claim if he plausibly pleads a breach under any of the three prongs. Rupcich v. United Food & Commercial Workers Int'l Union, 833 F.3d 847, 854 (7th Cir. 2016). "A union's actions are arbitrary only if the union's behavior is so far outside a wide range of reasonableness as to be irrational." Neal, at 369 quoting Filippo v. M. Ind. PSC, 141 F.3d 744, 749 (7th Cir. 1998). A union's actions are discriminatory if "substantial evidence" indicates that discriminatory conduct was "intentional, severe and unrelated to legitimate union objectives." Amalgam. Ass'n of St. Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971). A union's actions are deemed to be in bad faith when it "acted (or failed to act) due to an improper motive." Neal, at 369.

When pursuing a grievance on an employee's behalf:

Glenn v. Terminal R.R. Ass'n of St. Louis, 2015 U.S. Dist. LEXIS 91333 at *37-38 (S.D. Ill., June 14, 2015) (internal citations and quotation marks omitted). Likewise, poor judgment and tactical errors do not amount to a breach of the duty of fair representation. Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1176-77 (7th Cir. 1995). Further, failure to submit favorable evidence at an arbitration hearing may constitute a breach of duty but "only if that evidence probably would have brought about a different decision." Garcia, 58 F.3d at 1177; Taha v. Int'l Bhd. of Teamsters, 2018 U.S. Dist. LEXIS 209722 at *8 (N.D. Ill., Dec. 12, 2018). "Accordingly, [a plaintiff] must state a claim from which a reasonable inference could be made `that the outcome of the arbitration would probably have been different but for the union's activities." Id.

The standard for a breach of the duty of fair representation claim is extremely deferential and precludes courts from `substituting their judgment for that of the union, even if, with the benefit of hindsight, it appears that the union could have made a better call." Neal, at 369, quoting Ooley v. Schwitzer Div., House. Mfg. Inc, 961 F.2d 1293, 1302 (7th Cir. 1992).

2. The Complaint Fails to Allege Plausible Facts for Breach of the Duty of Fair Representation.

Plaintiff first alleges that the Local failed to grieve his discrimination claims. Am. Compl., ¶ 59. However, the amended complaint is devoid of any allegations identifying the union representative to whom he submitted his alleged discrimination grievance(s) and the specific date he submitted the grievance(s), or whether the grievance(s) was submitted orally or in writing. Absent such necessary factual allegations, Plaintiff has failed to plead a breach of the duty of fair representation on this issue.

Critically, the only detail pled by Plaintiff claims that the alleged discriminatory treatment by Jewel supervisors occurred in "2015 or 2016" and "[s]ometime around 2016 into 2017." Id., ¶¶ 19, 22, 23. Without specifying the timeframe, Plaintiff claims he reported these acts to the Local. Id., ¶ 24. To the extent Plaintiff claims he reported these matters or otherwise provided the Local with discrimination complaints in 2015, 2016, or 2017, any duty of fair representation claim arising from these claims is time barred as the statute of limitations in such a case is six months. DelCostello, 462 U.S. at 158-172.

As to his discharge grievance, there was no reason for the Local's attorney to argue Plaintiff's discharge was motivated by race because the grievance forms that Plaintiff signed and the two statements he wrote himself and signed do not mention discrimination in any fashion. Ex. E, Ans. to Am. Compl., Local's Grievance Package; Ex. D, Ans. to Am. Compl., Grievance Investigation Package, pp. 23-27; Ex. B, Ans. to Am. Compl., Arb. Trans., pp. 76-77.

Further, Plaintiff's own sworn testimony at arbitration defeats his broader duty of fair representation claim that the Local's conduct was discriminatory and based upon race. Upon questioning by Jewel's counsel at the arbitration hearing, Plaintiff testified that he did not experience race discrimination during his employment with Jewel:

Ex. B, Ans. to Am. Compl., Arb. Trans., pp. 84-85 (emphasis added). Accordingly, Plaintiff's Amended Complaint fails to meet the standard for discrimination in a breach of duty case. Moreover, Plaintiff's arbitration testimony contradicts the allegations in his complaint and, for this reason, his transcript testimony takes precedence. Phillips, 714 F. 3d at 1020. Accordingly, the Local did not breach its duty of fair representation by not arguing that Jewel discriminated against Plaintiff and that his termination was racially motivated. Plaintiff next claims that the manner in which the Local investigated his grievance and presented the grievance at the arbitration hearing was arbitrary, discriminatory and in bad faith. Am. Compl., ¶¶ 60-68. To this end, Plaintiff first claims that the Local should have called certain Jewel managers as witnesses at the arbitration hearing. Id., ¶¶ 60, 61, 67. However, he fails to allege how Jewel's managers would have testified or how the presence of their testimony would have caused the arbitrator to sustain rather than deny his grievance.2 Further, the Local called Local representative Al Wiegel to testify at the hearing. Wiegel's testimony corroborated Plaintiff's testimony regarding the vacation form given to Plaintiff by Carroll. Ex. B., Ans. to Ani. Compl., Arb. Trans., pp. 93-101. Absent his unsubstantiated belief that Jewel's managers might have testified favorably on his behalf, Plaintiff has not pled facts from which it may be plausibly inferred that the Local's decision not to call Jewel's managers was so far outside the wide range of reasonableness as to be irrational. Air Line Pilots Ass'n, 499 U.S. at 67; see, e.g., Garcia, at 1179 (a union's failure to call key witnesses and view surveillance videotape did not violate the duty of fair representation as these judgment calls fell within the "wide range of reasonableness" afforded to unions and plaintiff failed to establish that the outcome of the arbitration "would probably have been different but for the union's activities."); Cannon v. Consol. Freight. Corp., 524 F.2d 290, 294 (7th Cir. 1975) (rejecting the plaintiff's claim that the union's failure to make a specific argument at arbitration violates the duty of fair representation).

Plaintiff then alleges the Local failed to submit into evidence at the hearing a copy of Plaintiff's prior vacation forms. Am. Compl., ¶ 62. This allegation is belied by the fact that Plaintiff's prior vacation forms were admitted into evidence by the arbitrator at the hearing and Plaintiff testified on direct examination regarding those forms. Ex. B., Ans. to Am. Compl., Arb. Trans., pp. 64-66; Ex. A., Ans. to Am. Compl., Pl.'s 2014-2016 Vacation Forms. Again, Plaintiff's arbitration hearing testimony contradicts the allegations in the Amended Complaint and therefore, the transcript of his testimony takes precedence. Phillips, at 1020. Moreover, even if the vacation forms were not submitted into evidence at the hearing, Plaintiff fails to allege facts from which it may be inferred that this decision was arbitrary, discriminatory, or made in bad faith.

Next, Plaintiff alleges that the Local failed to engage a documents expert to disprove Jewel's position that the vacation form in its possession did not show that Plaintiff requested June 5 as an extra vacation day. Am. Compl., ¶ 63. This strategic decision was not irrational or an egregious disregard of Plaintiff's rights and the engagement of the expert would not have changed the outcome of the arbitrator's decision, despite Plaintiff's speculative conclusion3 to the contrary in his amended complaint. Id. The document which Plaintiff contends was doctored by Jewel was submitted into evidence at the arbitration hearing. The Arbitrator and Plaintiff examined the original form during the hearing and both concluded that they could not see that the document had been tampered with. Plaintiff testified regarding his examination of the vacation form Jewel submitted into evidence as follows:

Ex. B, Ans. to Am. Compl., Arb. Trans., pp. 82:3-6, 83:9-21. Once again, Plaintiff's arbitration hearing testimony contradicts the allegations in the amended complaint. Phillips, supra. The transcript of Plaintiff's testimony takes precedence over the allegations in the amended complaint. Therefore, Plaintiff's allegations regarding the Local's decision not to engage a documents expert is of no moment.

Plaintiff also alleges that the Local should have argued that it was implausible for him to have falsified his vacation form because he did not have access to Knedler's office to examine the vacation form himself and that the Local's counsel failed to examine Jewel's original form for tampering. Am. Compl., ¶¶ 64-65. However, the Local had no basis to take such actions as a Local representative examined the original form on June 16, 2017 (Id., ¶ 45) and, as Plaintiff testified at the hearing, he was invited to go with his union representative and Jewel managers to examine the form in Knedler's office on June 16. The Local's representative accepted the offer, Plaintiff declined it:

Ex. B, Ans. to Am. Compl., Arb. Trans., pp. 75:7-18. Plaintiff's hearing testimony, which takes precedence over the allegations in his complaint, demonstrates that the vacation form in Jewel's possession was examined prior to the arbitration hearing and that Plaintiff rejected the opportunity to examine the document himself Accordingly, it cannot be plausibly inferred from the allegations in the amended complaint that the Local's conduct and strategic decisions were arbitrary, discriminatory, or made in bad faith. Therefore, these decisions do not constitute a breach of the Local's duty of fair representation.

In summary, the documents which Plaintiff refers to in his amended complaint, and which are attached as exhibits to the Local's answer to the amended complaint, demonstrate that the Local did not process Plaintiff's grievance or present his grievance at the arbitration hearing in a manner from which it may be plausibly inferred that the Local's conduct was arbitrary, discriminatory or in bad faith. Even if the Court sets aside the arbitration hearing transcript and exhibits and the arbitrator's decision, and focuses on the allegations in the amended complaint, the conduct of which Plaintiff complains amounts to nothing more than his disagreement with the Local's strategy, which as a matter of law, does not constitute a breach of the duty of fair representation. See Garcia, supra. There are no factual allegations in the complaint from which it may be plausibly inferred that the Local's processing of Plaintiff's grievance and the presentation of his grievance at the arbitration hearing was arbitrary, discriminatory, or the product of bad faith, or that the arbitrator would otherwise have sustained the grievance.4 Therefore, Plaintiff's breach of the duty of fair representation against the Local, as set forth in Count I of the amended complaint, should be dismissed with prejudice.

B. Plaintiff's Claims of Race Discrimination and Retaliation under 42 U.S.C. § 1981 Should Be Dismissed for Failure to State a Claim for which Relief May Be Granted.

Relying on the same facts as relied on for his breach of the duty of fair representation claim, in Counts III and IV of the amended complaint, Plaintiff attempts to state a claim under 42 U.S.C. § 1981 for race discrimination and retaliation, respectively. Am. Compl., pp. 13-17. However, like his breach of duty claim, his Section 1981 claims are fatally flawed. There are no factual allegations in the amended complaint from which it may be plausibly inferred that the Local's investigation of his grievance and the presentation of the grievance at arbitration was racially motivated.

Race discrimination and retaliation claims under Section 1981 are analyzed under the same standard as Title VII of the Civil Rights Act. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2010); Rippley v. Teamsters Local 525, 2012 U.S. Dist. LEXIS 29180 at *12 (S.D. Ill., Mar. 6, 2016). Regardless of whether Plaintiff presents his claims under the direct or indirect method to prove race discrimination under Section 1981, none of the allegations in the amended complaint would lead to a plausible inference that the Local's conduct and arbitration strategy was based on Plaintiff's race.

Further, as Plaintiff's arbitration hearing testimony demonstrates, he did not experience race discrimination at Jewel. See, supra, at 9. In addition, neither the termination grievance forms that he signed nor the statements he typed himself, signed and attached to the grievance forms, make any mention of discrimination. Id.

To adequately plead that the Local retaliated against him in violation of Section 1981, Plaintiff would need to allege that the Local's conduct was in response to Plaintiff's opposing impermissible discrimination and that there is a causal connection between his protected activity and the Local's conduct. O'Leary, 657 F.3d at 630. Plaintiff's amended complaint falls woefully short of any allegations sufficient to plead these requirements. Although he alleges that he complained to the Local about Jewel's discrimination, he fails to allege any facts identifying the Local representative to whom he made the complaint(s), the information given to the Local to be investigated, when the complaint was made, or whether the complaint was made verbally or in writing. Rather, Plaintiff makes conclusory allegations that the Local's conduct was based upon the complaints he made. This is insufficient to plead a plausible claim for retaliation based on Section 1981.

Therefore, it may not be plausibly inferred that Plaintiff submitted discrimination claims to the Local, that the Local failed to pursue his discrimination complaints, or that the Local mishandled the investigation of his grievance and the arbitration hearing based on his race or in retaliation for Plaintiff complaining about race discrimination. Critically, Plaintiff pleads no plausible fact linking his purported opposition to Defendant Jewel's alleged discrimination to any retaliatory action on the part of the Local.

Accordingly, Plaintiff's Section 1981 claims for race discrimination and retaliation, as set forth in Counts III and IV of the complaint, should be dismissed.

C. Plaintiff's Claims of Race Discrimination and Retaliation under Title VII Should Be Dismissed for Failure to State a Claim for which Relief May Be Granted.

In Counts VII and IX of the amended complaint, Plaintiff attempts to state a claim under Title VII of the Civil Rights Act of 1964 for race discrimination and retaliation, respectively. Am. Compl., pp. 20-21, 23-25. In contrast to his Section 1981 claims, Plaintiff's Count VII is based upon a new factual allegation that the Local subjected him to discrimination "in part due to his race" from July 2017 onward by failing to advocate for or assist Plaintiff in getting rehired in his position at Jewel when, Plaintiff alleges, "other similarly situated members who are not African American were re-hired into their roles or offered substantially similar assignments." Id., ¶ 136; see also, ¶ 54. Plaintiff's new Count IX, alleging retaliation, relies upon the same allegation as in Count VII, but also alleges retaliation in the form of the Local's failure to investigate, present, or adequately argue his grievance. Id., ¶ 161. Unlike Count IV's claim of retaliation, in Count IX, Plaintiff alleges the Local took these retaliatory acts in response to his filing a complaint of discrimination against the Local. Id., ¶¶ 159, 161. Just as with Plaintiff's Section 1981 claims, these claims also do not pass muster.

With regard to Count VII, and as discussed supra, the same standard applies in Title VII claims as in Section 1981 claims of race discrimination and retaliation. Regardless of whether Plaintiff presents his claims under the direct or indirect method to prove race discrimination under Title VII, none of the allegations in the amended complaint would lead to a plausible inference that the Local's conduct after Plaintiff's termination — that is, during the grievance and arbitration procedure — was impacted in any way whatsoever by Plaintiff's race. Id., ¶ 47, 48, 51.

Plaintiff has failed to plead any facts in the amended complaint from which it may be plausibly inferred that the Local's advocacy on Plaintiff's behalf post-termination, which is the same period of time in which the Local moved his grievance through the grievance procedure and to arbitration, was racially motivated. Id. In contrast, the period specified by Plaintiff — July 2017 to the present — encompasses a period of time in which Plaintiff's own pleading makes clear, and which the Local's Answer and attachments further illuminate, the Local grieved Plaintiff's termination, proceeded through the grievance process to arbitration, and arbitrated Plaintiff's grievance to conclusion. Id., ¶¶ 47, 48, 51. The Plaintiff has failed to plead any facts claiming what other action, if any, the Local should have taken on his behalf, either during the grievance process or after the Arbitrator issued his decision dismissing the Local's grievance. He simply alleges that he asked, without specifying whom he asked, for his job back in February, 2019 and otherwise concludes the that the Local failed to advocate or assist in his re-hire. Id., ¶¶ 54, 136.

Even if Plaintiff's pleadings did not fail to state a claim in the ways described above, he still fails to sufficiently plead any causal connection between the Local's alleged failure to advocate for him post-termination and his race. Rather, Plaintiff makes conclusory allegations that the Local's conduct was based upon his race.

Moreover, Plaintiff cannot sufficiently plead causation by merely alleging that "other similarly situated members who are not African American were re-hired into their roles or offered substantially similar assignments." Id., ¶ 136. Plaintiff has failed to plead any names, positions, timeframes, or even a hint of detail about these alleged similarly-situated members other than the above conclusion. More to the point, Plaintiff has failed to plead facts from which it may be plausibly inferred that the Local's advocacy or assistance is what, in fact, resulted in these unnamed individuals getting "re-hired into their roles or offered substantially similar assignments." Id., ¶ 161. This is insufficient to plead a plausible claim for race discrimination under Title VII.

To adequately plead that the Local retaliated against him in violation of Title VII, as discussed supra, Plaintiff would need to allege that the Local's conduct was in response to Plaintiff's filing his April 3, 2018 and December 18, 2018 EEOC complaints, and that there is a causal connection between his protected activity and the Local's conduct. Id., ¶¶ 159, 161. Plaintiff's amended complaint once again falls woefully short of any allegations sufficient to plead these requirements, for many of the reasons already stated in connection with Count IV and Count VII, supra.

Therefore, it may not be plausibly inferred that the Local failed to advocate or assist Plaintiff in connection with re-hire at Jewel based on his race, or that the Local failed to advocate or assist Plaintiff in connection with re-hire at Jewel or otherwise mishandled the investigation of his grievance and the arbitration hearing in retaliation for Plaintiff complaining about race discrimination.

Accordingly, Plaintiff's Section Title VII claims for race discrimination and retaliation, as set forth in Counts VII and IX of the amended complaint, should be dismissed.

IV. CONCLUSION

For the reasons and supporting law set forth herein, Local 710 respectfully requests the Court to grant its motion for judgment on the pleadings and dismiss Plaintiff's claims for breach of the duty of fair representation (Count I), race discrimination under 42 U.S.C. § 1981 (Count III), retaliation under 42 U.S.C. § 1981 (Count IV), race discrimination under Title VII of the Civil Rights Act of 1964 (Count VII), and retaliation under Title VII of the Civil Rights Act of 1964, with prejudice, and that the Court grant to the Local such other relief as deemed appropriate and just.

ORDER

AND NOW, on this __ day of __________, 2019, upon consideration of Defendant Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House, and Allied Products Drivers and Helpers, Office Workers, and Miscellaneous Employees, Local Union No. 710's motion for judgment on the pleadings, supporting memorandum of law, answer to the amended complaint and the exhibits attached thereto, and Plaintiff's response to Defendant's motion, it is hereby ORDERED that Defendant's motion is GRANTED and Counts I, III, IV, VII, and IX of the amended complaint as plead against Defendant, are dismissed with prejudice.