Prince v. Nat'l Labor Relations Bd.

EARL KELLY PRINCE, et al., Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants.

Case No. 1:16-cv-419

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

April 20, 2017

Barrett, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

I. Procedural background

Plaintiffs Earl Kelly Prince and Ingrid Prince, proceeding pro se, bring this action against the National Labor Relations Board (NLRB) and several individual defendants. Plaintiffs were granted leave to proceed in forma pauperis and filed the original complaint on April 21, 2016. (Docs. 3, 4). Plaintiffs filed an amended complaint on May 20, 2016. (Doc. 6). In addition to the NLRB, plaintiffs name as defendants Vivian Robles, Deborah MP Yaffe, Peter Ohr, and Robert Chavarry,¹ each in their individual capacity, and Lafe E. Solomon.² This matter is before the Court on (1) the United States' motion to dismiss plaintiffs' state law tort claims under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Doc. 21), (2) the NLRB's motion for summary judgment as a matter of law on plaintiffs' claim brought against it under the FOIA (Doc. 23), and (3) defendants Robles and Ohr's motion to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 24). Plaintiffs have not filed memoranda in opposition to these motions.

Plaintiffs make the following allegations in the original and amended complaints (Docs. 4, 6) in support of their claims: Plaintiff Earl Kelly Prince (Prince) was hired by "the CTU" in 1979 and was employed at all relevant times as a field representative. (Doc. 6, ¶ 10). In March of 2004, the Chicago Tribune Newspaper announced Prince was a candidate for president of the CTU. (Id., ¶ 11). No candidate received a majority of votes due to voter "fraud" and "irregularities," and a runoff was held between the incumbent Debra Lunch and Marilyn Stewart. (Id.). The two candidates offered Prince a job in their administrations in return for his endorsement in the runoff. (Id., ¶ 12). Prince endorsed Lunch, who offered him a promotion which he accepted; however, the offer was "later rescinded due to provisions in the new contract that would cause him to lose 18 years of severance pay." (Id., ¶ 13)

Stewart was declared the winner of the election. (Id., ¶ 14). She immediately retaliated against Prince for running against her and not endorsing her in the runoff by having him notified that he was terminated from his field representative job and was to vacate his office before she physically reported for her job. (Id., ¶¶ 15, 16). Stewart took this action even though Prince's contract provided he could be terminated only for "cause." (Id., ¶ 16). Prior to his termination and his participation in the union election, Prince had accumulated over 26 years of service with the CTU, including 23 years as a field representative. (Id., ¶ 17).

In August 2004, Prince filed an unfair labor practice charge with the NLRB against Stewart and the CTU alleging violations of 29 U.S.C. § 158(a)(1) and (a)(3) stemming from his discharge and the discharge of "a number of other employees in alleged retaliation for Union activity."³ (Id.). Prince filed a complaint under § 158(a)(3) arising from his termination from his field representative position "due to his union and/or protected concerted activity." (Id.). TheNLRB dismissed Prince's complaint on the ground its evidence showed he was a managerial employee and not a field representative. (Id., ¶ 18). Prince appealed and requested a copy of the evidence showing he was a manager, but the evidence was never provided to him and the NLRB dismissed his appeal on the same ground as the original dismissal. (Id., ¶¶ 19, 20, 21). Prince made repeated requests for evidence from the NLRB showing he was a manager, but the NLRB did not send him the evidence required to substantiate its finding. (Id., ¶¶ 22, 23, 24). Prince retained personnel to investigate his termination proceeding, and they purportedly "found evidence of fraud" and "concealed evidence of perjury." (Id., ¶ 25). The investigators also allegedly discovered after reviewing the records of NLRB investigator Robles that she did not speak to Prince's direct supervisor or to anyone else with personal knowledge of his job to verify his employment as of the date of his termination. (Id.).

Prince filed suit against the CTU based on the allegedly fraudulently investigation and notified the NLRB of the suit. (Doc. 4 at 3). When he raised the "NLRB file" at the trial, "the NLRB immediately destroyed the files" on which the trial was based. (Id.). Plaintiffs were notified on March 20, 2013, that the file was intentionally destroyed. (Id.). Plaintiffs allege they are unable to file an appeal due to the destruction of the file. (Id.).

Plaintiffs bring state law claims for intentional destruction and spoliation of evidence and intentional infliction of emotional distress. (Doc. 6., pp. 5-7). In support of the spoliation claim, plaintiffs allege that the NLRB was given written notice that Prince had filed a lawsuit regarding his unfair labor practice charge and alleged fraud in the NLRB and Robles' investigation; the NLRB was required to preserve Prince's file; and the NLRB intentionally destroyed the file after acknowledging Prince's potential tort claims. (Id., pp. 5-6). Prince alleges that "defendant" intentionally caused him severe emotional distress by unlawfully terminating his fieldrepresentative position in retaliation for his protected union activity in reckless disregard of his rights. (Id., p. 7). Plaintiffs also bring a due process claim under the Fourteenth Amendment based on the alleged intentional destruction of evidence. (Id., pp. 5-6). Plaintiffs allege that at the time the NLRB allegedly destroyed Prince's file, he had a motion to reopen his case pending with the NLRB and a right to appeal the NLRB's final determination to the federal court, but he was unable to pursue these remedies after the file was destroyed. (Id., pp. 5-6). Plaintiffs bring a claim under the FOIA alleging that they made a FOIA request to the NLRB on April 5, 2016, to which the NLRB has failed to respond or state any exemptions. (Id., pp. 6). As relief for the alleged violations of their rights, plaintiffs seek $7 million in compensatory damages and $5 million in punitive damages.

On December 22, 2016, the United States filed a Notice of Substitution under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679, and a certification of scope of employment in this action. (Doc. 20). The United States substituted itself as defendant for the individual defendants on the state law claims for spoliation of evidence and intentional infliction of emotional distress. Subsequently, on February 9, 2017, the undersigned issued a supplemental Report and Recommendation which recommended that the complaint against defendants Yaffe, Solomon and Chavarry be dismissed without prejudice for failure of service.⁴ (Doc. 29).

II. Defendants Robles and Ohr's motion to dismiss

Defendants Robles and Ohr move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the following grounds: (1) plaintiffs do not have a remedy under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); (2) even if plaintiffs did have such a remedy, it would be barred by the statute of limitations; (3) plaintiffs fail to allege sufficient factsto state a plausible claim to overcome these defendants' entitlement to absolute and qualified immunity; and (4) plaintiffs do not have a FOIA claim against the individual defendants. (Doc. 24).

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is entitled to relief is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). "[T]he statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not plead specific facts, the "[f]actual allegations must be enough to raise a right to relief above the speculative level" and to "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555, 570). The complaint must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

It is well-settled that a document filed pro se is "to be liberally construed" and that a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme Court's liberal construction case law has not had the effect of "abrogat[ing] basic pleading essentials" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Plaintiffs' claim against defendant Ohr must be dismissed because plaintiffs have failed to satisfy basic pleading essentials as to this defendant. Plaintiffs name Ohr as a defendant but neither the original nor amended complaint includes any allegations against him. Plaintiffs' complaint therefore does not suffice to give this defendant fair notice of plaintiffs' claim against him and does not state a plausible claim to relief against Ohr.

Further, insofar as plaintiffs seek to assert claims against defendant Ohr and Robles for violations of their federal due process rights, their claims must be dismissed as time-barred. Defendants properly construe plain...