Bailey v. First Transit Inc., 20-cv-1238 (DWF/TNL)

Jeffrey L. Bailey and Marlon E. Carter, Plaintiffs, v. First Transit Inc., Tim Ogren, Don Johnson, Troy Gustafson, Metropolitan Council, Teamsters Local 120, First Group America Inc., and First Student Inc., Defendants.

No. 20-cv-1238 (DWF/TNL)

United States District Court, D. Minnesota

July 30, 2021

Jeffrey L. Bailey and Marlon E. Carter (pro se Plaintiffs)

Brian Hentosz, Littler Mendelson, and Holly M. Robbins, Littler Mendelson, (for Defendants First Transit Inc., Tim Ogren, Don Johnson, Metropolitan Council, First Group America Inc., and First Student Inc.)

Katrina E. Joseph, Teamsters Local No. 120, (for Defendants Troy Gustafson and Teamsters Local 120).

REPORT AND RECOMMENDATION

Tony N. Leung, United States Magistrate Judge District of Minnesota

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendants' Teamsters Local 120 &amp Troy D. Gustafson Motion to Dismiss Plaintiff's [sic] Second Amended Complaint (ECF No. 15), Motion to Dismiss Filed on Behalf of Defendants First Transit, Inc., First Group America Inc., First Student Inc., the Metropolitan Council, Don Johnson, and Tim Ogren (ECF No. 26), and Plaintiffs' motions to deny the motions to dismiss (ECF Nos. 33 & 38). These motions have been referred to the undersigned for a report and recommendation to the Honorable Donovan W. Frank, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. (ECF No. 4.) Based on all the files, records, and proceedings herein, and for the reasons set forth below, the Court recommends that the Teamsters Local 120 and Troy D. Gustafson's motion be granted; that First Transit, Inc., First Group America Inc., First Student Inc., the Metropolitan Council, Don Johnson, and Tim Ogren's motion be granted in part and denied in part; and the motions to deny the motions to dismiss be denied as moot.

I. BACKGROUND

A. Prior Litigation

In October of 2019, Plaintiffs filed a Second Amended Complaint in a related case against Defendants Metropolitan Council (“Met Council”), First Transit, Inc. (“First Transit”), Tim Ogren (“Ogren”), Patricia Vold (“Vold”), Don Johnson (“Johnson”), Troy Gustafson (“Gustafson”), Teamsters Local 120 (“Local 120”), and Dean Vinge (“Vinge”), alleging that, while they were members of Local 120 and employees of First Transit, they were discriminated against and retaliated against after engaging in various protected activities. See Bailey v. Metro. Council, No. 19-cv-1024 (DWF/TNL), 2020 WL 3633132, at *1-2 (D. Minn. Feb. 19, 2020) [hereinafter Bailey I], report and recommendation adopted, 2020 WL 1934428 (D. Minn. Apr. 22, 2020) [hereinafter Bailey II]. Of particular note, this was not Plaintiffs' first attempt at seeking relief for their alleged grievances. See Bailey I, 2020 WL 3633132, at *2 (summarizing that Plaintiffs had previously filed a grievance through their union, filed an unfair labor practice charge against First Transit and Local 120, filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and filed charges with the Occupational Safety and Health Administration (“OSHA”)).^[1]

On February 19, 2020, the Court, after considering motions to dismiss, recommended dismissing Plaintiffs' claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and Minnesota Statutes § 541.05 with prejudice; and dismissing Plaintiffs' claims under the National Transit Systems Security Act (“NTSSA”), 6 U.S.C. § 1142(a)(1) and (b)(1), Title VI of the Civil Rights Act (“Title VI”), 42 U.S.C. § 2000d, the False Claims Act (“FCA”), 31 U.S.C. § 3729(a)(1)(B), 42 U.S.C. § 1981 (“Section 1981”), and Minnesota Statutes § 181.932 (“Minnesota Whistleblower Act”) without prejudice. Id. at *8. The Court further recommended that Plaintiffs' motions to deny the motions to dismiss be denied. Id. On April 22, 2020, after considering Plaintiffs' objections and reviewing the record de novo, the district judge found that this Court's recommendations were “factually and legally correct, ” overruled Plaintiffs' objections, and adopted the recommendations made in Bailey I. Bailey II, 2020 WL 1934428, at *2. Plaintiffs' Title VII and Minnesota Statutes § 541.05 claims were dismissed with prejudice, and their claims under the NTSSA, Title VI, the FCA, Section 1981, and the Minnesota Whistleblower Act were dismissed without prejudice. Id.

B. Present Litigation

Plaintiffs filed a new Complaint against a similar group of Defendants raising similar allegations on May 22, 2020. (ECF No. 1.) Plaintiffs amended the Complaint on August 20, 2020 (ECF No. 5) and again on September 18, 2020 (ECF No. 10). The operative Second Amended Complaint names the same Defendants as in Bailey I, except that Vold and Vinge are not listed in this action, and Plaintiffs have added Defendants First Group America Inc. (“First Group”) and First Student Inc. (“First Student”) as parties. (See ECF No. 10.) Plaintiffs again allege that Defendants have violated the NTSSA, Title VI, the FCA, Section 1981 and the Minnesota Whistleblower Act. (See id.) Plaintiffs also allege that Defendants have violated two additional Minnesota Statutes: Minnesota Statutes §§ 181.74 and 268.095. (See id.)

C. The Second Amended Complaint

The Second Amended Complaint includes 61 paragraphs containing allegations against Defendants. (See id.) The Court summarizes Plaintiff's Second Amended Complaint as follows:

Plaintiffs state that by filing this action they are exercising their rights under the NTSSA's kick-out provision.”^[2] (ECF No. 10 ¶ 6.) Plaintiffs allege that they are two African American males who were “Union Drivers” for the Met Council's “Metro Mobility ADA Program.” (Id. ¶ 8.) They allege that they were hired by First Transit and that First Transit terminated each of their employment on September 26, 2016. (Id. ¶¶ 11, 44; see also Id. ¶ 27 (stating First Transit and First Transit General Manager Ogren terminated Plaintiff Carter (“Carter”) on this date); ¶ 33 (stating First Transit and Ogren terminated Plaintiff Bailey (“Bailey”) on this date).) Plaintiffs allege that they were members of Local 120 while employed. (Id. ¶ 11.) Local 120 and First Transit entered into a collective bargaining agreement (“CBA”) in January 2013. (Id.)

Plaintiffs allege that “Metro Mobility is a door-to-door service that receives federal funds from the Federal Transportation Authority (FTA) and must comply” with federal regulations implementing “transportation-related provisions of the Americans with Disabilities Act.” (Id. ¶ 8.) According to Plaintiffs, in 2015 the Met Council entered into an agreement with First Transit for First Transit to perform services for operation of the Metro Mobility Demand ParaTransit Agency. (Id. ¶ 9.) Pursuant to this contract, First Transit “receives payment for services according to vehicle revenue hours.” (Id.) The Met Council provided buses, dispatch equipment, and other supplies for the operation. (Id.)

Plaintiffs generally allege that they were discriminated against and retaliated against when Defendants did not properly respond to their various investigations and the protective activity they engaged in when reporting various violations of the CBA, other contracts, and the law. (See generally ECF No. 10; see e.g., id. ¶ 61 (“Instead of thoroughly investigating the alleged misconduct that led to Plaintiffs' termination, all ‘Defendants' retaliated and discriminated against Plaintiff's [sic] by using policies, processes and procedures in an egregious discriminatory and retaliatory manner.”).) Plaintiffs also accuse Local 120 of being “complicit” with First Transit in violating provisions of the CBA and also allege that Local 120 retaliated and discriminated against Plaintiffs by ignoring their grievances and “allowing” their pay and hours to be reduced. (Id. ¶ 17.)

Plaintiffs allege that in 2015 they began experiencing heavier workloads due to inadequate staffing and transfers, which resulted in “fatigue, ride harassment, end times being excessively abused and lunch breaks & breaks violations.” (Id. ¶ 10.) They state that First Transit falsified and altered their lunch, break, and start and end times in the Met Council's dispatch software systems. (Id.) High turnover and low driver retention caused high work demands, heavy workloads, driver fatigue, wheelchair tips, and accidents. (Id.)

On September 9, 2015, Carter filed a grievance pursuant to the CBA against First Transit related to a dispute over his lunch break and alleged that First Transit discriminated against him by reducing his hours and pay when he stated he wanted to take his lunch break before conducting any more rides. (Id. ¶ 12.) In October 2015, this grievance was not resolved at the Step 1 meeting and was elevated to Step 2. (Id. ¶ 13.) Plaintiffs allege that Greg Tvet, a white First Transit employee and Local 120 Union Steward, was permitted to file similar grievances in October 2015 (in those instances alleging that First Transit forced employees to work beyond their shifts); that Local 120 took different action (in this case asking First Transit to cease and desist); and thus First Transit and Local 120 discriminated against Plaintiffs by “allowing [Tvet] to file grievances and engage in Protected Activity without being subjected to retaliation.” (Id. ¶ 14.)

Bailey also states he filed a grievance pursuant to the CBA on November 14, 2015, where he alleged that he was denied a 40-hour route he was originally assigned and instead assigned a route that was more than 40 hours, causing stress and excessive fatigue. (Id. ¶ 15.) At the Step 1 grievance meeting, the Local 120 representative spoke on behalf of Bailey and informed those in attendance from First Transit, including...