Slovinec v. Communications Workers of Am.

860 F.Supp.2d 25

Joseph SLOVINEC, Plaintiff,

v.COMMUNICATIONS WORKERS OF AMERICA, Defendant.

Civil Action No. 11–0254 (RWR).

United States District Court, District of Columbia.

May 16, 2012.

Joseph Slovinec, Washington, DC, pro se.

Katherine A. Roe, Communications Workers of America, Washington, DC, Alan M. Compagnon, Weissman & Mintz LLC, Bowie, MD, for Defendant.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

This matter is before the Court on defendant's motion to dismiss the complaint. For the reasons discussed below, the motion will granted.

I. BACKGROUND

From March 2008 until his termination on January 8, 2009, plaintiff was employed “as a fundraiser for Share Group,” a client of which was The Humane Society of the United States. Compl. ¶ 1. Plaintiff was charged with entering a false pledge:

On 11/25/08 [plaintiff] put through a pledge of $10 per month by check for an HSSP donor. The donor and client complained that the donor never made a pledge, and that further the call was rude. The complaint was to the extent that [a] request was made that [plaintiff] make no more calls for [The Humane Society].

Id., App. E (Employee Accountability Form, Share Group, Inc., dated January 8, 2009).

Pursuant to a collective bargaining agreement between Share Group and the Communications Workers of America (“CWA”), a four-step grievance process was available for the resolution of “problems aris[ing] in the workplace,” id., App. A–2 (excerpt from collective bargaining agreement), the first two steps of which are relevant to this action:

Step One

An employee may choose to present his/her own grievance, without the Union's involvement on his/her behalf. If an employee presents his/her own grievance, the Union retains the right to review any adjustment or resolution of such grievance to insure that it is consistent with the provisions of this Agreement. Grievances must be presented initially with the Associate Call Center Director within 21 days of the occurrence that gave rise to the grievance. If Share [Group] does not agree, in writing, to the remedy requested there shall be, within 7 days, a meeting including the Union Steward and/or representative, the employee, if he/she chooses to attend, and the Associate Call Center Director. The Associate Call Center Director shall give a written response to the grievance within 7 days of that meeting.

Step Two

If the grievance has not been settled through Step One, it may be resubmitted in writing to the Director of Labor Relations ... within 7 business days of the receipt of the Associate Call Center Director's final response to Step One. Within 14 days there shall be a meeting including the Union Steward and/or representative, the grievant, if the Grievant chooses to attend, and the Director of Labor Relations.... The Director of Labor Relations ... will give his/her written response to the grievance within 7 business days of that meeting.

Id., App. A–3 (excerpt from collective bargaining agreement). If the grievance is not settled in Step Two, either CWA or Share Group may request mediation from the Federal Mediation and Conciliation Service (Step Three), and if mediation is unsuccessful, CWA may submit the grievance to the American Arbitration Association (Step Four). Id.

Plaintiff presented a grievance with respect to his termination. See Compl., App. (Statement of Occurrence, Local 2336, dated January 8, 2009). Share Group provided “no written response” after Step One of the grievance process, and CWA's representative “did not provide one” either. Id.¶ 7. CWA “appealed the ... grievance to the second step of the process on January 16, 2009.” Id., App. D (Letter to plaintiff from Michael B. Harris, President, Communications Workers of America, Local 2336, dated March 26, 2009). According to plaintiff, CWA violated the collective bargaining agreement when its representative did not allow plaintiff to attend a January 23, 2009 meeting with a Share Group representative at Step Two of the grievance process, during which Share Group decided “to uphold [plaintiff's] termination.” Id. “Based on [Share Group's] policy, and information provided at the grievance meeting regarding discipline of [plaintiff],” CWA opted “not to pursue this case any further.” ¹Id.

II. DISCUSSION

A plaintiff need only provide a “short and plain statement of [his] claim showing that [he] is entitled to relief,” Fed.R.Civ.P. 8(a)(2), that “give[s] the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotation marks omitted). Plaintiff plainly states that he “sues [CWA] for breach of duty of fair representation and 42 U.S.C. [§ ] 1983 due process violation.” Compl. at 1. CWA argues that it “is entitled to judgment on the pleadings dismissing this action as a matter of law since the allegations of the complaint fail to state a claim upon which relief can be granted.” Motion to Dismiss ¶ 2; see generally Memorandum of Points and Authorities in Support of Defendant's Motion for Judgment on the Pleadings (“Def.'s Mem.”) at 5–9.

A. Judgment on the Pleadings Under Rule 12(c)

“After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” ²Fed.R.Civ.P. 12(c). “A Rule 12(c) motion is appropriately granted when no material issue of fact remains to be resolved, and the movant is clearly entitled to judgment as a matter of law.” Montanans for Multiple Use v. Barbouletos, 542 F.Supp.2d 9, 13 (D.D.C.2008) (brackets and citations omitted), aff'd,568 F.3d 225 (D.C.Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 3331, 176 L.Ed.2d 1222 (2010); see Lans v. Adduci Mastriani & Schaumberg, L.L.P., 786 F.Supp.2d 240, 265 (D.D.C.2011) (“Where the well-pleaded facts set forth in the complaint do not permit a court, drawing on its judicial experience and common sense, to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief.” (internal quotation marks and citation omitted)). The Court “employ[s] the same standard that governs a Rule 12(b)(6) motion to dismiss.” Lans, 786 F.Supp.2d at 265 (citing Jung v. Ass'n of Am. Med. Colls., 339 F.Supp.2d 26, 35–36 (D.D.C.2004)).

A complaint survives a motion under Rule 12(b)(6) only if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). In considering such a motion, the “complaint is construed liberally in the plaintiff['s] favor, and [the Court] grant[s] plaintiff [ ] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, “the [C]ourt need not accept inferences drawn by plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Id. The Court need not accept “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or “naked assertions devoid of further factual enhancement.” Iqbal, 129 S.Ct. at 1949–50 (internal quotation marks, brackets and citation omitted). The Court also may consider “any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997) (footnote omitted).

B. Breach of Duty of Fair Representation

In conclusory fashion, plaintiff alleges a breach of CWA's duty of fair representation, Compl. at 1, by its refusal to allow him to attend the meeting with a Share Group representative at Step Two of the grievance procedure.³Id. ¶ 7. CWA argues that the allegations of the complaint do not state a claim for breach of duty of fair representation. See Def.'s Mem. at 5–7.

“It is now well established that, as the exclusive bargaining representative of the employees in [a] bargaining unit, [a union has] a statutory duty fairly to represent all of those employees, both in its collective bargaining with [an employer] ... and in its enforcement of the resulting collective bargaining agreement.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (citations omitted). That duty “includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Id. A plaintiff states a claim for breach of the duty of fair representation by alleging “that the union represented [him] in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” Harris v. Amalgamated Transit Union Local 689, 825 F.Supp.2d 82, 86 (D.D.C.2011) (internal quotation marks and citations omitted).

“[A] union is allowed a ‘wide range of reasonableness' in serving the unit it represents,” Robeson v. U.S. Steel Corp., No. 09–11231, 2011 WL 4527840, at *5 (E.D.Mich. Sept. 29, 2011) (citing United Steelworkers v. Rawson, 495 U.S. 362, 374, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990)), and its actions “are arbitrary only if, in the light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside the ‘wide range of reasonableness' as to be irrational,” id. (citing Air Line Pilots Assoc. Int'l v. O'Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)). For example, actions that are “intentional, severe, and unrelated to legitimate union objectives,” such as discrimination based on race, are unreasonable. Mathis v. CWA Local Union 4320, No. 2:10–cv1093, 2011 WL 3497189, at *4 (S.D.O...