Lugo v. Int'l Bhd. of Elec. Worker Local

JOHN LUGO, Plaintiff, v. INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKER LOCAL #134,EDWIN D. HILL, LONNIE R. STEPHENSON,INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS LOCAL #538,MTS TITAN ELECTRIC,INDUSTRIAL CONSTRACTORS SKANSKA, Defendants.

No. 15 CV 03769

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 28, 2017

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff John Lugo, a Hispanic electrician with American Indian heritage, has sued two unions, two of his former employers, and one individual for racial discrimination and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2.¹ One of the employers, Industrial Contractors Skanska, Inc., opted to answer the second amended complaint. The other employer, MTS Titan Electric, LLC ("Titan"), the two unions ("Local 134" and "Local 538"), and Lonnie Stephenson have all moved to dismiss under Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, Titan's motion to dismiss is granted in part and denied in part, the union locals' motions to dismiss are denied, and Stephenson's motion to dismiss is granted in full.

BACKGROUND

For the purpose of this motion to dismiss, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in Lugo's favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court need not accept as true legal conclusions and "mere conclusory statements" supported by "[t]hreadbare recitals of the elements of a cause of action." Id. The Court addresses Lugo's interactions with each defendant separately in the hope of providing a clearer timeline.

I. Local 134

Plaintiff John Lugo is a Hispanic electrician of American Indian heritage living in Illinois. Second Am. Compl. ("Compl.") ¶ 11. He was a member of the International Brotherhood of Electrical Workers ("IBEW") union from 1993 through 2007, although it is not clear exactly when he was affiliated with the various locals during this period. Id. at ¶ 12. Lugo states he had a "long history of membership and affiliation" with Locals 134 and 538, so presumably he was a member of those units for at least some part of 1993-2007. Id. at ¶ 19. Lugo communicated a number of times with his union in 2003 and again in late 2007 through 2008 regarding what he perceived to be disparate treatment of himself and other individuals based on race. Id. at ¶ 20.² He also communicated with the National Labor Relations Board ("NLRB") three times regarding perceived racial discrimination - on December 9, 2003, August 21, 2012, and February 24, 2014. Id. at ¶ 31. Lugo left the IBEW union in 2007, he says, after he was subjected to "racially motivated disparaging remarks" and being laid off when he complained. Id. at ¶ 21.

All this is the backdrop for Lugo's more recent complaints about his treatment by Local 134. Lugo opted to remain unaffiliated with the union until 2012, when he decided to reapply due to "pressure from other union members" and a lack of job placements. Id. at ¶ 26. In March 2012, he contacted Local 134 business representative Richard Murphy to re-apply for union membership. Id. Lugo alleges that processing a union membership application typically takes a "small number of days, typically less than 5" and that approval is normally "automatic" once a completed application and dues are received. Compl. ¶ 27. Murphy, however, was aware of Lugo's prior complaints to the union and refused to provide Lugo with an application.³ Id. Lugo contacted Murphy "every 2 to 3 days for five months via telephone and email" to try to get an application, but Murphy still refused. Id. at ¶ 28.

Lugo finally received an application from Local 134 on July 9, 2012, which he submitted "promptly" thereafter.⁴ Id. at ¶ 29. Two days later, Lugo's credentials were altered from Group One Member Journeyman Electrician, an experienced category, to "A2 agency payer." Id. Lugo alleges this "severely undermined" his employability and that he was laid off from "Grurt Electric" three days later despite having worked there for five years. Id. Lugo contacted Murphy to try to get his credentials restored and his application approved. Compl. ¶ 30. Lugo alleges his Journeyman Electrician credentials (which are independent from union membership) were not honored from January 19⁵ to November 15, 2013 due to his race, while the credentials ofCaucasian members and non-members were honored. Id. at ¶ 32. Lugo also alleges that during this time Local 134 was aware of his previous complaints regarding racial discrimination. Id. Lugo also alleges that during the same January 19 - November 15, 2013 period, Local 134 denied his applications for union membership on the basis of his race and that Caucasian applicants were "routinely approved." Id. at ¶ 31. He specifically notes that he applied for membership again on or about March 15, 2013 and was denied. Id. at ¶ 44. He further alleges that, through January 15, 2014, his credentials were manipulated in ways that prevented him from gaining employment or got him fired.⁶ Id. at ¶ 37.

On March 16, 2013, Lugo became aware that he had been the subject of postings in a union members-only Facebook group. Compl. ¶ 41. Lugo alleges the page contained a series of posting by IBEW members regarding both Lugo's race and his union status. Id. Lugo alleges the posts contained racial epithets as well as threats that he should "have his teeth kicked in," a picture of a Mexican individual being hung from a tree, and a picture of "a Mexican man wearing a sombrero with a rope around his neck being pulled by a truck with a confederate flag." Id. Lugo alleges the racial postings were later deleted, leaving only ones concerning his union activity. Id. All the post authors Lugo identifies are members of Local 134, although it is not clear if only Local 134 members participated.

On May 10, 2013, Lugo discovered a hangman's noose in his bag while working for Neutron Electric. Compl. ¶ 42. Lugo alleges other minority workers had also found nooses in their tool bags. Id. Lugo reported the incident to Murphy on May 15, 2013, but Local 134 did notrespond. Id. Lugo alleges he was also subjected to threats of assault, racial slurs, and was spat on by Caucasian members of Local 134. Id. at ¶ 43. He reported these incidents to Murphy on April 15, September 15, and October 15, 2013 but received no response other than continued denials of his requests for union membership and reclassification. Id.

Lugo filed an Equal Employment Opportunity Commission ("EEOC") charge against Local 134 on November 15, 2013 regarding his credentials and the denial of his application to rejoin the union. See EEOC Charge, ECF No. 95 Ex. 1. Ten days later, on November 25, 2013, Local 134 official Diane Gartland refused to allow Lugo to sign the "out of work book" that union and non-union electricians used to seek work. Compl. ¶ 48. Instead of allowing him to sign, Gartland rolled her eyes at Lugo and mumbled "I don't care how many EEOC complaints you file, you're not signing this book, you better get used to selling tacos." Id. The next day, November 26, 2013, Lugo was granted union membership, but he was still not allowed to sign the "out of work" book. Id. at ¶ 49.

Lugo received his right to sue letter from the EEOC on January 30, 2015 and filed his first complaint in this lawsuit on April 29, 2015. Compl. ¶ 34.

II. Local 538

Lugo alleges he had some history of "membership and affiliation" with Local 538, by which he presumably means during some portion of his first round of union membership from 1993-2007. Compl. ¶ 19. The first time Local 538 meaningfully enters the narrative of this case is October 2014, when Lugo alleges Local 538 denied him membership from October 15-30, 2014 "as a direct result of racial discrimination and retaliation." Id. at ¶ 37. Lugo also alleges that Local 538 manipulated or altered his credentials during an unspecified period of time. Id at ¶ 40.Lugo further alleges that Local 538 was aware of his prior complaints to union officials and government agencies, presumably including the EEOC charge against Local 134. Id.

On October 21 2014, Lugo was terminated from his job at Skanska. Compl. ¶ 54.1.⁷ At that time, an unidentified job steward of Local 538 told Lugo he would "never get a job there after filing a race discrimination complaint" and that he should be "working landscaping or removing insulation" rather than doing "white man work." Id. at ¶ 54.2. Lugo further alleges that Local 538 official Jim Baily told him, during an October 22, 2014 conversation in which Lugo complained he had not received the proper pay rate at Skanska, "That pay rate is only for white workers." Id. at ¶ 38. Lugo further alleges that Local 538, along with Local 134, communicated with each other and to various employers about Lugo, including racially motivated disparaging remarks and denied Lugo work as a result of his EEOC charge. Id. at ¶ 37, 53.

Lugo filed a claim with the EEOC against Local 538, which was dated July 20, 2015 but not received until August 4, 2015. See Supplemental Response, Ex. 4, ECF No. 71. Lugo received his right to sue letter from the EEOC on September 29, 2015. Lugo filed his right to sue letter on the docket in this case on October 9, 2015. See id.

III. Titan

Titan is "an electrical contracting company" based in Itasca Illinois. Compl. ¶ 8. Lugo began working at Titan on November 15, 2014. Id. at ¶ 57. One month later, Titan Project Manager Ken Kovach, during a conversation with Titan foreman Brett Epperson and a job steward from Local 134, pointed to Lugo and said "so he is the one that filed with EEOC, can't believe he would do that to his own union. Somebody needs to call immigration on him." Id. A few days later, on December 24, Kovach told Lugo he was fired as a result of a "one-man layoff,reduction in force" while a Local 134 job steward who walked Lugo to his car said "you never going to...