Jones v. Local 798 of the United Ass'n of Journeymen

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RODNEY JONES, JOHN MCINTOSH MARCUS BALL, KELLY JORDAN, ANTHONY TAYLOR on behalf of themselves and all others similarly situated, Plaintiffs, v. LOCAL 798 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Defendant.

No. 4:20-cv-00585-CRK-CDL

United States District Court, N.D. Oklahoma

March 26, 2024

OPINION AND ORDER

CLAIRE R. KELLY, JUDGE ^[*]

Before the Court is a motion to dismiss for failure to state a claim pursuant to Federal Rule Civil Procedure 12(b)(6) by Defendant Local 798 of the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (“Local 798,” “the Union,” or “Defendant”). See [Def.] Mot. & Br Supp'n Of Mot. To Dismiss Under [Fed. R. Civ. P 12(b)(6)] at 1, Sept. 19, 2023, ECF No. 61 (“Def Mot.”). Local 798 seeks to dismiss racial-discrimination claims brought against it by Plaintiffs Rodney Jones, John McIntosh, Marcus Ball, Kelly Jordan, and Anthony Taylor (collectively, “Plaintiffs”) under 42 U.S.C. § 1981, and 42 U.S.C. § 2000e (“Title VII”) in their Third Amended Class Action Complaint (“TAC”), Aug. 8, 2023, ECF No. 57. For the following reasons, Local 798's motion is granted.

BACKGROUND

The Court presumes familiarity with the facts of this case from this Court's two previous opinions dismissing the complaint in this action without prejudice. See Jones v. Local 798 of the United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the United States & Can., No. 4:20-cv-00585-CRK-CDL, 2022 WL 17417980, at *1 (N.D. Okla. Dec. 5, 2022) (“Jones I”); Jones v. Local 798 of the United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the United States & Can., No. 4:20-cv-00585-CRK-CDL, 2023 WL 3666090, at *1 (N.D. Okla. May 25, 2023) (“Jones II”).^[1] In Jones I, the Court dismissed Plaintiff Jones' two claims under 42 U.S.C. § 1981 and his claim under Title VII for failure to enforce the National Pipeline Agreement (“CBA”) without prejudice. Jones I, 2022 WL 17417980 at *11-12. The Court dismissed Mr. Jones' claim for discrimination in advancement under Title VII without leave to amend, as this claim was not properly exhausted before the Equal Opportunity Employment Commission (“EEOC”). See Jones I, 2022 WL 17417980, at *11-12.

Again, in Jones II, this Court held that Plaintiff Jones failed to state a claim for failure to enforce the CBA under Section 1981 because his allegations lacked factual support. Jones II, 2023 WL 3666090, at *3-7. Even where he alleged facts, Mr. Jones did not allege: that he pursued a grievance upon which the Union failed to act; that the Union controlled any of the individuals about whom Mr. Jones had alleged facts; or any other facts that would demonstrate the Union's intent to discriminate. Id. at *3-5. Likewise, the Court dismissed Mr. Jones' failure to advance claim because he did not plead any facts that, if proven, could plausibly lead to the inference that the Union intentionally prevented Jones' from advancing. Id. at 5-6. Although Mr. Jones claimed the Union was responsible for his failure to obtain sufficient work hours and letters of recommendation to advance, he pled no facts to support those allegations. Id. at 5. The Court also dismissed without prejudice Mr. Jones's claim that Local 798 failed to enforce the terms of the CBA because Mr. Jones is Black. Id. at 6. The Court dismissed the disparate treatment claim under Title VII for failure to plead intent and noted that Mr. Jones had failed to pursue the disparate impact claim in his second amended complaint. Id.

The TAC includes newly named Plaintiffs: John McIntosh, Marcus Ball, Kelly Jordan, and Anthony Taylor. TAC at ¶¶ 2-5. The TAC asserts that the named Plaintiffs act on behalf of themselves and all others similarly situated. Id. at 1; id. at ¶¶ 202-223. Plaintiffs McIntosh, Ball, Jordan and Taylor, along with Mr. Jones, are the members of the class action suit which arises “out of Plaintiffs' status as Union Members with [Defendant], and the race discrimination they experienced at the hands of Defendant.” Pls. Resp. [Def. Mot.] at 2, Nov. 11, 2023, ECF No. 65 (“Pls. Resp.”). The TAC re-alleges two claims under Section 1981, as well as his failure to enforce claim under Title VII. See TAC at ¶¶ 224-76. Additionally, Plaintiffs assert two new claims for race discrimination under Section 1981: Count 4, “Unequal Terms and Conditions of Employment”; and Count 5, “Hostile Work Environment.” See Id. at ¶¶ 266-276.

ALLEGATIONS IN THIRD AMENDED COMPLAINT

Throughout the TAC, as was the case in the First and Second Amended Complaint, Plaintiffs make two types of allegations: (i) conclusory allegations lacking factual content; and (ii) allegations with factual content. Only those allegations containing some factual content are assumed to be true for the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Frey v. Town of Jackson, 41 F.4th 1223, 1232-33 (10th Cir. 2022). General allegations without factual content are insufficient to survive a motion to dismiss. See Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). Although the Tenth Circuit does not require pleadings to contain any specific facts in particular, “there are certain details the Plaintiff[s] should know and could properly plead to satisfy the plausibility requirement.” Id. at 1194. The Court must “disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Id. at 1190.

Here, the TAC makes many assertions which do not contain factual content and therefore, whether or not they are true, the Court cannot presume them to be true for the purposes of this motion. See Khalik, 671 F.3d at 1190 (citing Iqbal, 556 U.S. at 678). For example, the TAC alleges that “the Union Stewards, Business Agents, Organizers, Foreman, Supervisors and Management knowingly and intentionally violated Title VII and Section 1981.” TAC at ¶ 48. Likewise, Unnamed Class Member 3 (“UCM 3”) alleges that Black union members “were afraid to report the discrimination or lodge complaints, for fear of retaliation.” Id. at ¶ 206:h. As another example, the TAC alleges the Union: “refus[ed] to protect Black members from race discrimination,” id. at ¶ 48:e; refused to “report or remedy illegal and discriminatory conduct against Black members in the same manner as it does for White members,” id. at ¶ 48:g; and refused “to pursue grievances on behalf of Black members in the same manner as White members.” Id. at ¶ 48:h; see also, e.g., id. at ¶¶ 54, 142, 162, 179, 201, 205:a, 205:j, 205:m, 206:I, 245, 269.^[2] Statements such as these or that “White Helpers, Welders, Foremen, Supervisors, Journeymen, and others routinely used racial slurs and derogatory language when speaking to or about Black people,” id. at ¶ 205:j, do not provide specific factual content and cannot be presumed true for the purposes of this motion. See Iqbal, 556 U.S. at 664; Twombly, 550 U.S. at 555; Khalik, 671 F.3d at 1193.

ALLEGATIONS OF FACT

Allegations Concerning the Union in General

Defendant Local 798 “is a member organization of the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO.” TAC at ¶ 6. Local 798 represents employees with employers, through a CBA. Id. at ¶ 50. The CBA contains a non-discrimination provision that states: “Employer and Union agree that neither of them shall take any action or refuse to take any action which shall discriminate against any individual with respect to his compensation, conditions, or privileges of employment because of the individual's race, age, color, religion, sex national origin or disability.” Id. at ¶ 51. Union members can report the violations to “the employer's on-site representative-the Foreman-and Local 798's on-site representative-the Steward.” Id. at ¶ 53.

The TAC alleges that all elected officers, business agents, organizers, and leadership for Local 798 are and have always been White or White-passing men. Id. at ¶¶ 46, 59. Local 798's union members are generally classified into two positions- “Helper” or “Journeyman.” Id. at ¶ 61. The position that is the most highly regarded and compensated is that of Journeyman. Id. at ¶ 62. The position of Helper is less highly regarded and compensated at a lower rate than that of Journeyman. Id. at ¶ 63. Defendant Local 798's Handbook advises its members that they can become Journeyman by either becoming a Welder or a Spacer. Id. at ¶¶ 64-66. To become a Journeyman Welder, a union member must, among other things, complete the following:

a. Accrue 5,000 hours of Covered Employment;

b. Complete 3 years of experience in Covered Employment;

c. Obtain 5 letters of recommendation from Welder or Journeyman Members of the union with whom they have worked directly;

d. Submit an application and be accepted into the Local 798 Training Center Downhill Welding School;

e. Complete the Local 798 Training Center Downhill Welding School, certification tests, and pay applicable fees.

Id. at ¶ 65. To become a Journeyman Spacer, a union member must, among other things, complete the following:

a. Submit a request to advance or change classification from Helper to Journeyman;

b. Obtain 5 letters of recommendation from Journeyman Welders or Journeyman Spacers who have witnessed the union member working as a Journeyman Spacer;

c. Complete 3,000 Helper hours in the last 10 years;

d. Complete 500 Journeyman hours in a “pipe gang” during the last 2 years that are recorded at Local

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