Clark v. United Parcel Service, Inc. et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In SupportN.D. Ga.January 31, 2017LEGAL02/36946193v1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ERIC CLARK, Plaintiff, v. UNITED PARCEL SERVICE, INC. AND TRUCK DRIVERS AND HELPERS LOCAL NO. 728 Defendants. Case No. 1:17-cv-00073-SCJ-AJB DEFENDANT UNITED PARCEL SERVICE, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW Defendant United Parcel Service, Inc. and, pursuant to Fed. R. Civ. P. 12(b)(6), and other applicable law, moves to dismiss with prejudice the Complaint filed by Plaintiff Eric Clark because the claims set forth therein fail to state a claim upon which relief can be granted. In support of its Motion to Dismiss, UPS relies on the Memorandum of Law filed contemporaneously herewith. Case 1:17-cv-00073-SCJ-AJB Document 5 Filed 01/31/17 Page 1 of 3 2 LEGAL02/36946193v1 Respectfully submitted this 31st day of January, 2017. s/ Alexandra Garrison Barnett Glenn G. Patton Georgia Bar No. 567235 glenn.patton@alston.com Alexandra Garrison Barnett Georgia Bar No. 498906 alex.barnett@alston.com ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 881-7000 Facsimile: (404) 881-7777 ATTORNEYS FOR DEFENDANT UNITED PARCEL SERVICE, INC. Case 1:17-cv-00073-SCJ-AJB Document 5 Filed 01/31/17 Page 2 of 3 LEGAL02/36946193v1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ERIC CLARK, Plaintiff, v. UNITED PARCEL SERVICE, INC. AND TRUCK DRIVERS AND HELPERS LOCAL NO. 728 Defendants. Case No. 1:17-cv-00073-SCJ-AJB CERTIFICATE OF SERVICE I hereby certify that on January 31, 2017, a copy of the foregoing DEFENDANT UNITED PARCEL SERVICE, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT was served via first class mail with adequate postage addressed as follows: Eric Clark 3689 Deer Springs Trail Ellenwood, Georgia 30294 s/ Alexandra Garrison Barnett Alexandra Garrison Barnett Case 1:17-cv-00073-SCJ-AJB Document 5 Filed 01/31/17 Page 3 of 3 LEGAL02/36944812v3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ERIC CLARK, Plaintiff, v. UNITED PARCEL SERVICE, INC. AND TRUCK DRIVERS AND HELPERS LOCAL NO. 728 Defendants. Case No. 1:17-cv-00073-SCJ-AJB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT UNITED PARCEL SERVICE, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant United Parcel Service, Inc. (“UPS”) respectfully submits this Memorandum of Law in Support of its Motion to Dismiss Plaintiff’s Complaint, showing the Court as follows: I. INTRODUCTION Plaintiff Eric Clark (“Plaintiff”) has filed this untimely pro se lawsuit in which he appears to assert claims under § 301 of the Labor Management Relations Act (“LMRA”), codified at 29 U.S.C. § 185 (“§ 301”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff is a current UPS union employee, and Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 1 of 17 2 LEGAL02/36944812v3 the terms and conditions of his employment are governed by the collective bargaining agreement (“CBA”) between UPS and the International Brotherhood of Teamsters. In his Complaint, Plaintiff alleges that UPS breached the CBA bydisciplining him and that Defendant Teamsters Local 728 (the “Union”) breached its duty of fair representation to him. Although Plaintiff does not mention the particular statute under which he brings these claims, his allegations suggest that he is trying to assert a cause of action under § 301 for breach of the CBA. As explained below, Plaintiff’s § 301/duty of fair representation claim is subject to dismissal because (1) it was filed outside of the applicable six-month limitations period, and (2) he has failed to plead facts sufficient to state a claim under § 301. Plaintiff also makes a passing reference to a Title VII retaliation claim. To the extent that Plaintiff is attempting to assert a substantive claim under Title VII, it should be dismissed because (1) it is time-barred, and (2) he has failed to assert facts sufficient to state a retaliation claim that is plausible on its face. Because neither Plaintiff’s § 301 claim, nor his Title VII claim can withstand this motion to dismiss, Plaintiff’s Complaint should be dismissed in its entirety.1 1 The deficiencies in Plaintiff’s § 301/duty of fair representation and Title VII claims are further discussed in Defendant Teamsters Local 728’s Memorandum of Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 2 of 17 3 LEGAL02/36944812v3 II. ARGUMENT AND CITATION OF AUTHORITY A. Motion to Dismiss Standard under Fed. R. Civ. P. 12(b)(6). All of the claims set forth in Plaintiff’s Complaint are subject to dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a). While the pleading standard under the Federal Rules of Civil Procedure is by no means onerous, in Bell Atlantic Corp. v. Twombly, the Supreme Court held that Rule 8(a) requires more than a conclusory recitation of the elements of a claim: “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. 550, 555 (2007) (internal quotations and citations omitted). In articulating this pleading standard, the Court in Twombly disapproved the pleading standard articulated in Conley v. Gibson, 355 U.S. 41 (1957). Twombly, 550 U.S. at 563 (holding that the standard articulated in Conley v. Gibson - that complaints should not be dismissed unless there is “no set of facts” which plaintiff could prove Law in Support of its Motion to Dismiss Complaint and incorporated herein. Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 3 of 17 4 LEGAL02/36944812v3 to support its claim - is “best forgotten as an incomplete, negative gloss on an accepted pleading standard”). Two years later, in Ashcroft v. Iqbal, the Supreme Court elaborated upon its holding in Twombly, explaining that Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and emphasizing that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 556 U.S. 662, 678 (2009). The Court also emphasized that although a court must accept all factual allegations as true for purposes of deciding a motion to dismiss, this requirement does not apply to legal conclusions or to “‘legal conclusion[s] couched as factual allegation[s].’” Id. (quoting Twombly, 550 U.S. at 555). The Court admonished that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. This requires more than the “mere possibility of misconduct.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550 U.S. at 570). Significantly, this pleading standard applies to all complaints, including complaints filed by pro se plaintiffs. See Enwonwu v. Fulton Cty. Marshal, No. Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 4 of 17 5 LEGAL02/36944812v3 1:16-cv-797-WSD, 2016 U.S. Dist. LEXIS 166401, at *7-*13 (N.D. Ga. Dec. 2, 2016) (applying pleading standard articulated in Twombly to motion to dismiss pro se plaintiff’s complaint, though noting that pro se complaints are held to less stringent standards); Washington v. CSX Transp. (R.R.), No. CV408-247, 2009 U.S. Dist. LEXIS 129203, at *4-*5 (S.D. Ga. Mar. 9, 2009) (“[T]he Twombly pleading standard, even when applied to pro se plaintiffs, simply does not permit a Court to ‘reverse-engineer’ a plaintiff’s conclusion that he is entitled to relief. Instead, the plaintiff must plead facts and law showing why he is entitled to relief. He thus must assert non-conclusory allegations supporting the elements of his claims.”), adopted by 2009 U.S. Dist. LEXIS 39308 (S.D. Ga. May 8, 2009). In other words, notwithstanding liberal construction of their claims, pro se plaintiffs must allege facts that state a cognizable cause of action and provide sufficient detail to make clear the nature of their claims and allow defendants a fair opportunity to respond to those claims. Plaintiff clearly cannot meet this standard with respect to the claims asserted in his Complaint. B. Plaintiff’s § 301 Claim Fails to State a Claim Upon Which Relief Can be Granted. Plaintiff’s § 301 claim should be dismissed pursuant to Rule 12(b)(6) for at least two reasons. First, Plaintiff’s § 301 claim, which stems from events that occurred between March and May 2016, should be dismissed because he filed this Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 5 of 17 6 LEGAL02/36944812v3 lawsuit outside of the applicable six month limitations period. Second, Plaintiff’s § 301 claim is barred because he failed to allege sufficient facts to state a claim that is plausible on its face that UPS breached the CBA.2 1. Plaintiff’s § 301 Claim is Untimely. Plaintiff’s § 301 claim is due to be dismissed because Plaintiff filed his Complaint outside of the applicable six month statute of limitations period. While an employee may bring a lawsuit against his employer for breach of a collective bargaining agreement, before doing so, the employee must first attempt to exhaust the grievance and arbitration remedies set forth in the CBA. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983). Regardless of the outcome of the grievance or arbitration proceeding, the employee can bring a lawsuit against both 2 To the extent that Plaintiff actually seeks to assert a breach of contract claim under Georgia state law, such a claim is completely preempted by § 301 of the LMRA because resolution of a state law breach of contract claim would require interpretation and application of the CBA and the disciplinary and grievance procedure set forth therein. Therefore, analysis under § 301 applies regardless of whether Plaintiff seeks to assert this claim under Georgia state law or § 301. See United Steelworkers of Am. v. Rawson, 495 U.S. 362, 368 (1990) (“[A]ny state-law cause of action for violation of collective-bargaining agreements is entirely displaced by federal law under § 301.”); Clarke v. Laborers’ Int’l Union of N. Am., 916 F.2d 1539, 1541 (11th Cir. 1990) (“Because of a need for uniformity in the interpretation of collective bargaining agreements, any state law cause of action for violation of such agreements is entirely displaced by federal law under § 301.”) (internal citations omitted); Agee v. Huggins, 888 F. Supp. 1573, 1578 (N.D. Ga. 1995) (“Section 301 preempts any state law cause of action for violation of a collective bargaining agreement.”) (internal citations omitted). Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 6 of 17 7 LEGAL02/36944812v3 the employer and the union. Id. at 164. Under these circumstances, the breach of the CBA action against the employer arises under § 301, and the action against the union is for a breach of the union’s duty of fair representation. Id. These claims, which are known as “hybrid § 301/fair representation” claims, are recognized as being “inextricably interdependent.” Id. In DelCostello, the Supreme Court held that the applicable statute of limitations for § 301 hybrid claims is six months. Id. at 172. It is well-settled that where a plaintiff files a complaint asserting a hybrid § 301/fair representation claim outside of the six-month limitations period, the Complaint is due to be dismissed. See Shanks v. Potter, 451 F. App’x 815, 817 (11th Cir. 2011) (“[Plaintiff] filed the instant complaint more than one year after receiving notice of the grievance process’s final decision. Thus, his hybrid § 301/fair representation claims were time-barred.”); Reed v. United States Postal Serv., 288 F. App’x 638, 641 (11th Cir. 2008) (dismissing plaintiff’s § 301 hybrid claims “[b]ecause [plaintff’s] § 301 hybrid claims were filed nearly a year and a half after his arbitration decision became final - well beyond the six month limitations period . . . .”); Gillman v. George A. Hormel & Co., No. C84-2046A, 1985 U.S. Dist. LEXIS 21330, at *8-*9 (N.D. Ga. Mar. 17, 1985) (dismissing hybrid suit where plaintiff filed her complaint more than seven months after she Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 7 of 17 8 LEGAL02/36944812v3 was notified of her union’s decision not to arbitrate her grievance). Here, Plaintiff’s § 301/duty of fair representation claim should be dismissed pursuant to Rule 12(b)(6) because he filed this lawsuit nearly eight months after receiving notice of the final disposition of the grievance he filed regarding the “disciplinary discharge” issued to him on March 24, 2016. (See Complaint ¶¶ 11- 13.) Specifically, the March 29, 2016 intent-to-discharge letter issued to Plaintiff referenced a March 24, 2016 meeting in which Plaintiff’s continued failure to follow instructions was discussed. (See Complaint ¶ 11; March 29, 2016 Letter, Exhibit A.) Plaintiff filed two grievances on March 25, 2016 in which he “protested” the intent-to-discharge notice about which he was notified the previous day. (See March 25, 2016 Grievance Forms, Exhibit B.) On May 12, 2016, the Union notified Plaintiff that several of the disciplinary notices he had received, including the March 29, 2016 intent-to-discharge letter, were reduced to a 25-day suspension. (See May 12, 2016 Letter, Exhibit C.) This letter notifying Plaintiff of the final disposition of his grievances challenging the discipline about which he was notified on March 24, 2016 was sent to Plaintiff nearly eight months before he filed this lawsuit on January 6, 2017. Due to this fatal flaw, Plaintiff’s § 301/duty of fair representation claim should be dismissed in its entirety because it is Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 8 of 17 9 LEGAL02/36944812v3 untimely.3 2. Plaintiff Failed to Allege Sufficient Facts Supporting his Contention that UPS Breached the Terms of the Collective Bargaining Agreement. Even if Plaintiff had filed this lawsuit within six months of the conclusion of his participation in the grievance process regarding the March 24, 2016 intent-to- discharge notice issued to him, his claim fails for the additional reason that he did not set forth sufficient facts in his Complaint showing that UPS breached the CBA. Instead, the only facts Plaintiff asserted in support of this element of his claim are: “On or about March 24, 2016, Plaintiff was issued a disciplinary discharge for the offense of failure to use methods.” (Complaint ¶ 11.) “As a result of this disciplinary offense, plaintiff was suspended from his job for a total of 35 days without pay.” (Id. at ¶ 13.) “Plaintiff would contend that this action was in direct breach of the collective bargaining agreement currently in effect.” (Id. at ¶ 14.) “In the almost 30 years that the plaintiff has been employed with the defendant, he has never been aware of an employee being suspended without pay for over 5 days.” (Id. at ¶ 15.) 3 Although not mentioned in the Complaint, Plaintiff attached to the Complaint discipline issued to him between January 21, 2015 and February 16, 2016, grievances he submitted between January 22, 2015 and February 16, 2016, and correspondence he received from the Union between March 24, 2015 and June 20, 2016 regarding the disposition of grievances he filed. None of the incidents underlying the grievances Plaintiff filed and addressed by the Union’s correspondence to him can serve as a basis for his § 301/duty of fair representation claim because they are all untimely. Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 9 of 17 10 LEGAL02/36944812v3 Even when considered together, these facts do not create a plausible inference that Plaintiff’s alleged receipt of a 35-day suspension4 constituted a breach of the CBA. Plaintiff did not identify which article(s) of the CBA he contends UPS breached or how his suspension amounted to a breach of a particular provision of the CBA. Rather than identifying a section of the CBA prohibiting suspensions of longer than five days, Plaintiff simply contended that he is not aware of an employee being suspended for more than five days. This is plainly insufficient to create an inference of a breach of the CBA that is plausible on its face. Accordingly, Plaintiff’s § 301 claim should be dismissed. C. Plaintiff’s Title VII Claim Fails to State a Claim Upon Which Relief Can be Granted. To the extent that Plaintiff’s passing reference to Title VII is interpreted as an attempt to plead a retaliation claim under Title VII, it should be dismissed pursuant to Federal of Civil Procedure 12(b)(6) because any such claim is untimely and he has asserted no facts in his Complaint to support his conclusory allegations of retaliation. 4 The Union’s May 12, 2016 letter to Plaintiff referenced a 25-day suspension, as did Plaintiff’s May 20, 2016 EEOC Charge. (See infra Exhibit D.) Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 10 of 17 11 LEGAL02/36944812v3 1. Plaintiff’s Title VII Claim is Time-Barred. Plaintiff’s Title VII retaliation claim should be dismissed because it is time- barred. A plaintiff asserting a Title VII retaliation claim must file a lawsuit within 90 days of receiving a Notice of Right to Sue letter from the Equal Employment Opportunity Commission (“EEOC”). 42 U.S.C. § 2000e-5(f)(1); see Cannady v. Automatic Data Processing, Inc., No. 1:05-cv-2855-WSD, 2006 U.S. Dist. LEXIS 85881, at *9 (N.D. Ga. Nov. 28, 2006) (applying the 90 day filing requirement to a pro se plaintiff). Plaintiff filed an EEOC Charge5 on May 20, 2016 in which he 5 A true and correct copy of Plaintiff’s May 20, 2016 EEOC Charge is attached hereto. Although the allegations of a complaint are the primary considerations in a Rule 12(b)(6) motion, the court “is not limited to the four corners of the complaint . . . .” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004). Without converting a Rule 12(b)(6) motion into one for summary judgment, the court may consider some matters outside the complaint, including documents incorporated into the complaint by reference, documents appearing in the record of the case, and matters of public record. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (recognizing that in ruling on 12(b)(6) motions, courts “ordinarily” examine sources other than the complaint including documents incorporated into the complaint by reference); accord Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (explaining that “in cases which a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss,” the Eleventh Circuit recognizes an exception to the general rule that it does not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss.); Brooks v. Blue Cross and Blue Shield, 116 F.3d 1364, 1369 (11th Cir. 1997) (“[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff’s Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 11 of 17 12 LEGAL02/36944812v3 alleged that: In or around 2011, I filed an EEOC complaint and lawsuit for breach of contract against my employer. On or around April 15, 2016, I was suspended for 25 days. The reason given for the suspension was that I misdelivered two packages. I believe that I am being retaliated against for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended. (See May 20, 2016 EEOC Charge, Exhibit D.) The EEOC dismissed Plaintiff’s Charge of Discrimination on June 28, 2016.6 (See June 28, 2016 Notice of Dismissal, Exhibit E.) Plaintiff did not file this lawsuit until January 6, 2017-192 days after the EEOC’s issuance of the Right to Sue letter. Accordingly, Plaintiff’s claims, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant’s attaching such documents . . . will not require conversion . . . into a motion for summary judgment.”). Because Plaintiff’s Complaint specifically references his EEOC Charge, the Court may consider the attached EEOC Charge. 6 A true and correct copy of the EEOC’s Right to Sue letter is attached hereto. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (explaining that “the court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff’s claim and (2) undisputed.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)); see, e.g., Horne v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010) (holding that district court properly considered right to sue letter attached to motion to dismiss because it was central to plaintiff’s complaint); Rogan v. Giant Eagle, Inc., 113 F. Supp. 2d 777, 782 (W.D. Pa. 2000) (“It is clear to us that . . . we may consider the EEOC charge and related EEOC documents, including the letter from the EEOC summarizing its investigation, the right to sue letter, and the intake questionnaire, either as undisputed documents referenced in the complaint or central to the plaintiff’s claim, or as information which is a matter of public record, without converting this motion to one summary judgment.”). Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 12 of 17 13 LEGAL02/36944812v3 retaliation claim is time-barred and should be dismissed. See Marshall v. City Sch. Bd. of the City of Selma, Ala., No. 08-0464-KD-B, 2008 U.S. Dist. LEXIS 118660, at *3 (S.D. Ala. Nov. 6, 2008) (dismissing plaintiff’s Title VII claim filed 91 days after plaintiff acknowledged receiving his right-to-sue letter), adopted by 2008 U.S. Dist. LEXIS 100147, at *2-*4 (S.D. Ala. Dec. 10, 2008); see also Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000) (per curiam) (“Title VII and ADEA actions may not be brought more than 90 days after a complainant has adequate notice that the EEOC has dismissed the Charge.”); White v. Ga. Dep’t of Motor Vehicle Safety, No. 1:06-CV-0124-TWT, 2006 U.S. Dist. LEXIS 36523, at *2 (N.D. Ga. April 17, 2006) (granting defendant’s motion to dismiss plaintiff’s complaint where the plaintiff filed his complaint 92 days after the date indicated on the notice of right to sue letter), adopted by 2006 U.S. Dist. LEXIS 36497, at *1 (N.D. Ga. May 19, 2006). 2. Plaintiff Failed to State a Title VII Claim That is Plausible on its Face. Even if the Court finds that Plaintiff’s Title VII retaliation claim is somehow timely, it should be dismissed because Plaintiff has failed to plead a Title VII claim that is plausible on its face. To state a viable retaliation claim, a plaintiff must plead and assert sufficient facts showing that (1) he engaged in a protected activity, (2) the employer took an adverse employment action against him, (3) a causal Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 13 of 17 14 LEGAL02/36944812v3 connection existed between the protected activity and the adverse employment action. Simpson v. All St.s & St. Lukes Episcopal Home for the Retired, No. 1:14- cv-4106-WSD, 2015 U.S. Dist. LEXIS 157307, at *10-*12) (citing Dixon v. The Hallmark Cos., Inc., 627 F.3d 849, 856 (11th Cir. 2010)). Here, Plaintiff’s Title VII claim consisted entirely of the following allegations: “This action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et. seq. and under the Civil Rights Act of 1991.” (Complaint ¶ 5.) “Defendant UPS retaliated against the plaintiff because he complained about discrimination and retaliation. This retaliation was in violation of Title VII.” (Id. at ¶ A.) Although Plaintiff identified his protected activity as “complain[ing] about discrimination and retaliation,” he presented no facts describing the nature of the alleged protected activity or when it occurred. Moreover, he did not identify the adverse action that UPS purportedly took against him in retaliation for engaging in some unidentified protected activity. He also identified no facts that would suggest any causal connection between the alleged protected activity in which he engaged and the unnamed adverse action he experienced.7 These threadbare recitals of the 7 If the Court infers that Plaintiff’s Title VII claim is based on the same events set forth in his May 20, 2016 EEOC Charge (see supra Exhibit D), Plaintiff’s claim still fails because he cannot present any facts showing the existence of a causal connection between his 2011 lawsuit and discipline issued to him five years Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 14 of 17 15 LEGAL02/36944812v3 elements of a retaliation claim are insufficient to set forth a claim that is plausible on its face. See Simpson, 2015 U.S. Dist. LEXIS 157307, at *10-*12 (N.D. Ga. Nov. 20, 2015) (adopting Magistrate Judge’s conclusion that “Plaintiff has not alleged facts which set forth a prima facie case for retaliation[] and recommend[ation] [that] any retaliation claim be dismissed” where the plaintiff failed to allege facts necessary to show he engaged in statutory protected activity); Greason v. Ga. Dep’t of Revenue, No. 1:11-CV-4506-TWT-JFK, 2012 U.S. Dist. LEXIS 102831, at *5-*7 (N.D. Ga. June 20, 2012) (dismissing plaintiff’s Title VII retaliation claim pursuant to F.R.C.P. 12(b)(6)) where the factual allegations asserted by the plaintiff were “obviously insufficient to state a plausible claim for relief.”). For all these reasons, Plaintiff’s retaliation claim is due to be dismissed. later in the spring of 2016. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing with approval decisions finding a 3-4 month period between protected activity and an adverse employment action to be insufficient); Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (examining and applying the Supreme Court’s Clark decision and noting that the Supreme “Court cited with approval decisions in which a three to four month disparity was found to be insufficient to show causal connection . . .”) (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir. 1997) (3-month period insufficient) and Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4-month period insufficient)); Drago v. Jenne, 453 F. 3d 1301, 1308 (11th Cir. 2006) (concluding that where “[t]he only evidence [plaintiff] has cited to support the causation element of his retaliation claims is that he was demoted approximately three months after complaining to his superiors and filing his EEO complaint,” he could not establish a prima facie case of retaliation). Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 15 of 17 16 LEGAL02/36944812v3 III. CONCLUSION For the foregoing reasons, UPS respectfully requests that, pursuant to Fed. R. Civ. P. 12(b)(6), this Court grant its Motion to Dismiss Plaintiff’s Complaint against UPS and dismiss the Complaint with prejudice. Respectfully submitted, this 31st day of January, 2017. s/ Alexandra Garrison Barnett Glenn G. Patton Georgia Bar No. 567235 glenn.patton@alston.com Alexandra Garrison Barnett Georgia Bar No. 498906 alex.barnett@alston.com ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, Georgia 30309 Tel. No. (404) 881-7000 Fax. No. (404) 881-7777 ATTORNEYS FOR DEFENDANT UNITED PARCEL SERVICE, INC. Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 16 of 17 LEGAL02/36944812v3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ERIC CLARK, Plaintiff, v. UNITED PARCEL SERVICE, INC. AND TRUCK DRIVERS AND HELPERS LOCAL NO. 728 Defendants. Case No. 1:17-cv-00073-SCJ-AJB CERTIFICATE OF SERVICE I hereby certify that on January 31, 2017, I served a copy of the foregoing MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT UNITED PARCEL SERVICE, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT via first class mail with adequate postage addressed as follows: Eric Clark 3689 Deer Springs Trail Ellenwood, Georgia 30294 s/ Alexandra Garrison Barnett Alexandra Garrison Barnett Case 1:17-cv-00073-SCJ-AJB Document 5-1 Filed 01/31/17 Page 17 of 17 EXHIBIT A Case 1:17-cv-00073-SCJ-AJB Document 5-2 Filed 01/31/17 Page 1 of 2 3930 PLEASANTDALE ROAD DORAVILLE, GA 30340 800.742.5877 Toll Free March 29, 2016 EMP 1D # 0224116 IN RE: Discharae - Failure to Follow Instructions FT - P' Dale East Eric Clark, 3689 Deere Springs Trail Elienwood, GA 30294 Dear Eric., On March, 24,:2011 6, a meeting was held ih the Pleasaiitdale bu ilding. Present were you, Business Manager, JasbwBarnett and Union repre'sentative, Quen.tin Biahon. Discussed at-tl-iis rn6eting was yobr coiitinued failure to follow instructions. You have been spoken to on several occasions concerning yoLir failure toTollow iiistructions. I'n previous conversatioiis you bave given your comn-iitinent to correct this yfoblem; yet, your failitre to foilow instrLictions remains unacceptable. As a result of your continued iailure to f6llow instructions, yc.0 are being discharged. This is an -Official"No'fice of Discharge, as outlined in Acticle'52. of the cui-rent 1.ahor agreement between.'U-PS-.and'IBT Local 728. Sincerely, UPS Wayne DeCraine Division Manager Cc: Division Manager Labor Manager IBT Local 728 UPS TRACKING -#,.J Z 30E 874 03 7761 0676 WD/aw Case 1:17-cv-00073-SCJ-AJB Document 5-2 Filed 01/31/17 Page 2 of 2 EXHIBIT B Case 1:17-cv-00073-SCJ-AJB Document 5-3 Filed 01/31/17 Page 1 of 3 T:tt:f3 Y1'03lM MUST BE iUSO YN FILING ALL GRUIrANCES FOR THE SOUMftUd REGION AREA PARCEL GRIBYANCE 60mmITEE MWMARINJ INBf?R1fA,TION: £ In order tLst t ' Committee members nay be famillar rr~ the important festares in ti~is case, tWs form.mnst be i~lled oot as complek~y aif posMa "Is 1armatiami wID 6e tt+eated omly as a preliminsry statement of yoar positlooe. l FORM MiTBT BB FILLaD ODT CO nnr.tera:TY. ~ Date grievaace ilkd by employee ! ~ ~ /1El 4G2 L Loal! A` 8W GA 36315 2. Nanu o~Bnsiset: Agent lundltng Ns grkernce /9 i. Plame; employea SdnB tbt 8rievanee ~Y' I c- Job I ' wtloa ~~ Daie of Emp3oya$ent 3eniority Date i . IIPS ~ D~tstrkt ~ C~~ GA Cente Loeatlon ~J ~ ~ 4. Natare dispnbe (chedc one): O Wsrntng L~ber O Disdplinary Tlme off C1-vGi" ~ 0 Bok pay cLim S Artide( y vbhbed ~~ 6. Date o8 i aBeged iinlatfon took ptaCe 7. Date oa hich ComPany toek actlam aB~inst. emPloyee i . ~ : , a Date ~ lgravance,►n Brst t.kan ap ettt~ a~ans~emeat . A o use badk or shxt 4~1 ~ 1rt)' ; i Qr 5`Af Of 1eLjQfjc<- rI, 4 e ©,~ ~ (i ~ r~,'n) /YlG lcf . c,+ ~ ell C(Aj L5 CO Nevl ~ C~ ! ~~ ~ ~ e_ ~ ,. . ~ 1 f BY pmmft 8riewma, tLe aaplayee gatts tLe;IInloa momplete suthority to present. ne~utLta and barpdn regarding this igkevance snd s~roes to be bomtd by sQc6 dlsposlfjoa of tbe grfievanoe ss may be made or agnaed to by the IIe[on or !b 6ated sentafte. Cdh6UTM USE ONLY ~ ~ Datt REC~v~d ~a of empb ~~ ~ ~ Doc9~et xo~ Dste Griev i ~a~Ct Heard Qh, St+te. 21p ~I ~7b-5 7c2- &;?13 I, Tdepbang pxmw aaU Date Reedv by IIIIion I.ast 4 -ySS( ~Qarid/emp4oyee ID ~M ~ ~i Case 1:17-cv-00073-SCJ-AJB Document 5-3 Filed 01/31/17 Page 2 of 3 7UW p'ORM, ST BE OSEiD lN FtLANG ALL GRl$YANCES FOR THE SOUIEE"'r( REGION AREA PARCEL GBYBYANCE ~OD+II~IITI'BE 11t~AZ1~T TION: ~ In order adti Commlttse membnre sn:y be famillu wilL tLe important fbatnres in tLir case, tbb form mnst be filled oQt as compktebi, ri i possible. T7ds inibsmaflon wID 6e t~atted only as a ptelimtnary stahment of yonr posftiva. !~ FOSM MUST BlC FII.LIED OO'P COMIXTEr.y ~ Dets g~levsace tled by employee ~ Jfi' m _ L Ime2i I I nion 7- 2SOLikewoodAi MM, SW GA 36315 2. Nixme-41irBudww Agent IundHng ads giievanee 'CI"/ G 1. Nsme o~ emPlay+en lfila6 tlds grievanee i" /~ .4 iT Job ~on ~ Date of B~nglaymestt ~© 3enlor(ty Date i , UPB';- L~ Z ~GA s C.enMrLoeatlan ~~ ~ 4. Natai'e if dispabe (chmk onej: O Warp~ Latter O Dbdpib~ar9 TYme o!T fl D6charge O But pip eWzo S. Arila' vlohbed _ . . 6. Date ua FI&halleged violatloa took plsoe ~ 7. Dsta oa kich Compnny toek nttba sgdast emploiyea ~1 8. . Dab qn gelevance was !lrnt lahen sp with mana~mea s/ grATEMD O nse back ofsleeet r~, rb ~~ ~ ~ v e ~ c~ ► ~u ►~e Y I , . •; ~ . . t ' . i r I. I BY premmong i vicvma, the mqAqw t;r=b fhe IIn1oa completie sutthorlty to presant, negQWb snd boegain regarding t4is and sigrees to be botmd by sscb dispodtloa of the grtievance as may be ssade or egmed to 6y the IIston or Ib ated c TER usE orLY Dstt ~ ed `i Sl®sstare oi emp , i , Q ~, ~ Docioet Nu ~ Dste Grk , I Heard I 4 ah. &a* zip ' i Tdepbmq pnr or aeII Da~ by IInion ~ Last 4- SS # e,ad employee ID0 I E ~ Case 1:17-cv-00073-SCJ-AJB Document 5-3 Filed 01/31/17 Page 3 of 3 EXHIBIT C Case 1:17-cv-00073-SCJ-AJB Document 5-4 Filed 01/31/17 Page 1 of 2 ' TRUCK DRIVERS & HELPERS LOCAL 7.25 Affiliated witll lhe Intemational Brotllerhoocl of Teani.•ters and Joint Cotuzcil 75 ~ 2540 LAKEWOOD AVENUE, SW • ATLANTA, GA 30315-6308 • Scott Webber, Secretary-Treasurer RANDY BROWN, PRESIDENT Chuck Stiles, vice Presidenl Jini Higginbotham, Recording Secretary J.W. Buyg. Truslee Rachad Fitipatrick, Trustee Billy Brannen, Trustee May 12, 2016 Eric Clark 3689 Deer Spring Trail Ellenwood, GA 30294 ~ Dear Eric, This is to notify you that a bundled settlement was reached on 4/12/16 on four (4) of your grievances you filed concerning Article 52 (163287 / 163218 / 162196 / 161544) that read as follows: The employees'. Intent to Suspend for five (5) days dated 2/17/16, the Intent to Term dated 3/11/16, the t Intent to-Term dated 3/29/16 and the Intent to Term dated 3/29/16 have been reduced to a 25-day Suspension to be served at the company's discretion. If you have any questions please feel free to contact me. Fraternally, Ev'i,ri Thorn.tovv ~ Eric Thornton Assistant Business Agent /Jb pllone: (404) 622-0521 • 800-635-.5371 - . fc_v: (404) 627-2045 • website: teamstc.rsloca1728.org Case 1:17-cv-00073-SCJ-AJB Document 5-4 Filed 01/31/17 Page 2 of 2 EXHIBIT D Case 1:17-cv-00073-SCJ-AJB Document 5-5 Filed 01/31/17 Page 1 of 2 Case 1:17-cv-00073-SCJ-AJB Document 5-5 Filed 01/31/17 Page 2 of 2 EXHIBIT E Case 1:17-cv-00073-SCJ-AJB Document 5-6 Filed 01/31/17 Page 1 of 3 Case 1:17-cv-00073-SCJ-AJB Document 5-6 Filed 01/31/17 Page 2 of 3 Case 1:17-cv-00073-SCJ-AJB Document 5-6 Filed 01/31/17 Page 3 of 3