Fischer, Mark v. United Steel, Paper And Forestry, Rubber, Manufacturing, Energy, Allied Industrial And Service Workers International Union

Brief in Support of 5 Motion to Dismiss

W.D. Wis.March 15, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN MARK L. FISCHER, Plaintiff, v. Case No. 17-cv-174 UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, Defendant. DEFENDANT UNION’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COMPLAINT Defendant United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC (“USW”) provides this Memorandum in Support of its Motion to Dismiss the Complaint. Introduction All claims against the USW must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). The Plaintiff is a former employee of Verso Corporation (“Verso”), and was represented by the USW during his tenure at Verso. The Plaintiff alleges in the Complaint that the USW breached the duty of fair representation owed to Plaintiff when it decided not to continue pursuing a grievance filed on Plaintiff’s behalf challenging his termination from Verso. The Complaint correctly states that the USW informed Plaintiff by letter dated February 12, 2016, that the USW was no longer processing the grievance. Based on this fact, the Complaint itself establishes that Plaintiff’s 1 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 1 of 10 claim is brought outside of the six-month statute of limitations period applicable to suits alleging a breach of the duty of fair representation. Therefore, the Complaint must be dismissed. Factual Background Defendant largely adopts the following facts from the Complaint solely for purposes of this motion: The USW, on behalf of certain USW local unions, including USW Local 2-187 (“Local”) (the USW and the Local are referred to together as “Union”), and NewPage Wisconsin Systems, Inc. (“NewPage”) were parties to a Collective Bargaining Agreement (“CBA”) dated April 1, 2010, through March 31, 2015. (Dkt. 1-1, Compl. ¶ 4; see also Feistel Decl., Ex. A).1 The USW and NewPage were also parties to a Master Labor Agreement (the “Master Agreement”) dated December 21, 2012, through December 20, 2016. (Dkt. 1-1, Compl. ¶ 5; see also Feistel Decl., Ex. B). The Master Agreement extended the CBA through March 31, 2018. (Dkt. 1-1, Compl. ¶ 5; see also Feistel Decl., Ex. B, p. 18-19). During the terms of the CBA and the Master Agreement, NewPage was purchased by Verso Corporation (“Verso”). (Dkt. 1-1, Compl. ¶¶ 7, 9-10). Verso agreed to assume both the CBA and the Master Agreement, to be bound by those agreements, and to continue the terms and conditions contained therein. (Dkt. 1-1, Compl. ¶ 7, 9). Mark Fischer was an employee of Verso and a member of the bargaining unit represented by the Union. (Dkt. 1-1, Compl. ¶ 3). Fischer was terminated by the Company on December 21, 2015. (Dkt. 1-1, Compl. ¶ 4). The Company terminated Fischer for repeatedly violating an employer rule prohibiting the use of “vile, abusive, or insulting remarks to or about another person on Company premises.” (Dkt. 1-1, Compl. ¶ 11; see also Feistel Decl., Ex. A, p. 38). The 1 See infra pp. 4-6, discussing the “incorporation by reference” doctrine. 2 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 2 of 10 Union filed a grievance on behalf of Fischer challenging his termination, pursuant to the grievance and arbitration procedure outlined in the CBA. (Dkt. 1-1, Compl. ¶¶ 12, 17). The Union decided not to pursue the grievance filed on Fischer’s behalf to arbitration. (Dkt. 1-1, Compl. ¶ 17). On February 12, 2016, Sally Feistel, USW Sub-District Director, mailed Fischer a letter informing him that the Union decided not to process the grievance to arbitration. (Dkt. 1-1, Compl. ¶¶ 14 and 16; see also Feistel Decl., Ex. C). On February 9, 2017, Fischer filed a Complaint against the USW in the Circuit Court of Wood County in the State of Wisconsin. (Dkt. 1-1). On March 8, 2017, the Union filed a Notice removing the action to this Court. (Dkt. 1). In the Complaint, Fischer alleges his “termination was unlawful under the Collective Bargaining Agreement because Plaintiff did not have the requisite number of violations within a one (1) year period that would have warranted a termination under Section 14(b) of the Collective Bargaining Agreement.” (Dkt. 1-1, Compl. ¶ 11). And, Fischer contends that “[o]n or about February 12, 2016, the Union did unlawfully refuse to represent [Fischer]” by virtue of a letter sent on that date, which informed Fischer of the Union’s decision to withdraw, prior to arbitration, a grievance filed on his behalf concerning his termination. (Dkt. 1-1, Compl. ¶ 14). The Complaint erroneously alleges that the Union’s decision not to arbitrate the grievance “was arbitrary, discriminatory, and in bad faith and it constituted a breach of the Union’s duty of fair representation under federal and state law.” (Dkt. 1-1, Compl. ¶ 18). The only specific cause of action enumerated by Fischer is titled “discrimination” – specifically, he alleges that the “union failed to provide fair representation to Plaintiff because of its perception that Plaintiff suffered from a disability,” namely, “anger 3 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 3 of 10 management issues,” “that is protected under state and federal law.” (Dkt. 1-1, Compl. ¶¶ 22, 25). Argument A. Standard of Review “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief can be granted.” J.B. Hunt Transp., Inc. v. Bolton, 2006 WL 1722430, at *3 (W.D. Wis. June 20, 2006), citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997).The motion must be viewed in the light most favorable to the plaintiff, and all well-pleaded allegations in the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, the Court should not accept legal conclusions set forth as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). B. Incorporation by Reference Doctrine Ordinarily, when considering a 12(b)(6) motion, “a court simply examines the allegations in the complaint to determine whether they pass muster.” Gen. Elec. Capital Corp., 128 F.3d at 1080. However, in the Seventh Circuit, courts may consider “documents attached to a motion to dismiss when those documents are referred to in complaint and are central to plaintiff’s claim.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). See also Wright v. Associated Ins. Companies Inc., 29 F.3d 1244, 1248 (7th Cir. 1994); Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (in accordance with the “incorporation by reference” doctrine, “a court may look beyond the pleadings without converting a Rule 12(b) motion into one for summary judgment.”); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (internal citation and quotation marks omitted) (courts may take into account “documents whose contents are alleged in a complaint and whose authenticity no party 4 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 4 of 10 questions, but which are not physically attached to the plaintiff’s pleading.”); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (finding that when the plaintiff does not attach a document upon which it relies and which is integral to the complaint, “the defendant may produce the [document] when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure.”), cert. denied, 503 U.S. 960 (1992). When a defendant offers a document that is incorporated by reference, “the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss.” U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). In his Complaint, Fischer references the CBA between the Union and Verso and the Master Agreement, both of which govern the parties’ relationship. (Dkt. 1-1, Compl. ¶¶ 4-5; see also Feistel Decl., Ex. A and B). Fischer alleges that his employment at Verso was “subject to” the CBA and that his termination was “unlawful under” the CBA. (Dkt. 1-1, Compl. ¶¶ 4, 11). The CBA and the Master Agreement are central to Fischer’s Complaint because in order to succeed in his claim he must prove that Verso violated the parties’ agreements when it terminated his employment. Souter v. Int’l Union, UAW, Local 72, 993 F.2d 595, 598 (7th Cir. 1993) (explaining that when an employee’s underlying contract claim lacks merit as a matter of law, the employee cannot complain that the union breached its duty of fair representation in failing to process the grievance because the “employee suffers no injury when the union fails to go forward with a meritless claim.”). Fischer also references the February 12, 2016, letter informing him of the USW’s decision not to process the grievance filed on his behalf to the next step of the grievance procedure. (Dkt. 1-1, Compl. ¶¶ 14, 16; see also Feistel Decl., Ex. C). Fischer alleges that “[o]n 5 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 5 of 10 or about February 12, 2016, the Union did unlawfully refuse to represent Mark L. Fischer at the next step of the grievance process following his termination . . . .” (Dkt. 1-1, Compl. ¶ 14). He further alleges that “[t]he Union’s February 12, 2016 letter means that the Plaintiff was not provided with fair representation that is afforded under the law.” (Dkt. 1-1, Compl. ¶ 16). Thus, Fischer alleges that it was through this letter that the Union’s breach of its duty occurred and, as such, the February 16, 2016, is central to Fischer’s claim. The Court should consider the CBA, the Master Agreement, and the February 16, 2016, letter when consider this Motion to Dismiss. Venture Assocs. Corp., 987 F.2d at 431. C. Plaintiff’s Complaint, Governed by Section 301 of the Labor Management Relations Act, Should be Dismissed as Untimely Fischer alleges his “termination was unlawful under the Collective Bargaining Agreement . . . .” (Dkt. 1-1, Compl. ¶ 11). He further alleges that the Union breached its duty of fair representation owed to him under “federal and state law.” (Dkt. 1-1, Compl. ¶ 18). While Fischer does not cite any specific statute or law in his Complaint, claims that an employer breached a collective bargaining agreement and that a union breached the duty of fair representation owed to its members are referred to as “‘hybrid’ section 301/fair representation” actions, which are governed by “section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, and sections 8(b) and 9(a) of the National Labor Relations Act, 29 U.S.C. §§ 158(b), 159(a).” See Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003), citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-65 (1983); Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 86-87 (1989). As the Supreme Court 6 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 6 of 10 explained in DelCostello, hybrid section 301/fair representation actions do not have a state law equivalent.2 462 U.S. at 165. Fischer’s claim is a hybrid section 301/fair representation action. It is well-established that hybrid section 301/fair representation claims are subject to a six-month statute of limitations. See DelCostello, 462 U.S. at 172; Bonds v. Coca-Cola Co., 806 F.2d 1324, 1325 (7th Cir. 1986); Metz v. Tootsie Roll Indus., Inc., 715 F.2d 299, 303 (7th Cir. 1983); Moder v. L.E. Meyers Co., 589 F. Supp. 2d 1043, 1052 (W.D. Wis. 2008). Generally, the six-month statute of limitations period begins to run “when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.” Metz, 715 F.2d at 304 (internal citations omitted); see also Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 914 (7th Cir. 1999); Krygowski v. AT & T Corp., 2003 WL 164223, at *4 (N.D. Ill. Jan. 23, 2003) (explaining that the “Seventh Circuit has held that when a union fails to pursue a grievance on an employee’s behalf, the claim accrues when the employee knows that the union has made this 2 To the extent Fischer has adequately alleged any state law claims (which, he has not), those claims are preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Section 301 of the LMRA expressly vests federal courts with jurisdiction over claims involving alleged violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce. See Olson v. Bemis Co., 800 F.3d 296, 301 (7th Cir. 2015). “State law claims for violation of a labor contract are entirely displaced by federal law under Section 301.” United Steelworkers of Am. v. Rawson, 495 U.S. 362, 368 (1990). Further, state-law claims against labor unions are preempted if they attempt to impose obligations on a union that are subsumed by the duty of fair representation. See Marrero v. Modern Maint. Bldg. Servs., Inc., 318 F. Supp. 2d 721, 724 (E.D. Wis. 2004), citing Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1158 (10th Cir. 2000) (stating that “[w]here a plaintiff’s allegations fall within the scope of the duty of fair representation, federal labor law governs and ordinarily preempts any state-law claims based on those allegations”); BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 831-32 (1st Cir. 1997) (holding that “state law is preempted whenever a plaintiff’s claim invokes rights derived from a union’s duty of fair representation”). See also Nelson v. Stewart, 422 F.3d 463, 470 (7th Cir. 2005) (“[w]e may assume for purposes of our decision today that our sister circuits have decided correctly that a union’s implied duty of fair representation involving a section 301 contract effects complete preemption.”). 7 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 7 of 10 decision.”). Here, Fischer states in his Complaint that “[o]n or about February 12, 2016, the Union did unlawfully refuse to represent Mark L. Fischer . . . .” (Dkt. 1-1, Compl. ¶ 14). Thus, his Complaint, filed on February 9, 2017, is untimely. The Union recognizes that dismissal under Rule 12(b)(6) on statute of limitations grounds is “irregular.” Jones v. Int’l Ass’n of Bridge Structural Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 767 (E.D. Wis. 2012) (internal citations omitted). However, “[a] motion to dismiss may raise the statute of limitations if ‘the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense.’” Id., quoting Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.2009) (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005)). In Brooks, the Seventh Circuit considered the statute of limitations as dispositive on a motion to dismiss “because the relevant dates [were] set forth unambiguously in the complaint.” 578 F.3d at 579. When “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations,” a motion to dismiss on that ground is appropriate. Lewis, 411 F.3d at 842. As explained above, the Complaint states the USW sent Fischer a letter dated February 12, 2016, informing him that the Union decided not to pursue the grievance filed on his behalf to arbitration. (Compl. ¶ 14, 16; see also Feistel Decl., Ex. C). The letter states: “After a thorough investigation of the facts, the Union has determined that the grievance lacks merit, and has chosen not to proceed further with it in the grievance procedure. As a result, the discharge stands.” (Feistel Decl., Ex. C). See Harper v. San Diego Transit Corp., 764 F.2d 663, 669 (9th Cir. 1985) (hybrid claim accrued “the day that [employee] received [union’s] letter that it would not pursue arbitration of [employee’s] discharge”). Fischer filed his Complaint on February 9, 8 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 8 of 10 2017, almost a year after the Union informed him that it would no longer pursue a grievance on his behalf. (See Dkt. 1-1). Therefore, the Complaint “plainly reveals that [the] action is untimely under the governing statute of limitations,” and, as a result, this Court should grant the USW’s Motion to Dismiss. Lewis, 411 F.3d at 842. D. To the Extent Fischer Has Plead any Claim Pursuant to Federal or State Discrimination Laws, Such Claim Should Also be Dismissed. Fischer alleges that the Union “failed to provide fair representation to Plaintiff because of its perception that Plaintiff suffered from a disability that is protected under state and federal law.”3 (Dkt. 1-1, Compl. ¶ 22). It appears from the Complaint that this allegation refers to the “discrimination” prong of the duty of fair representation. However, to the extent Fischer is attempting to plead a claim under the Americans with Disabilities Act (“ADA”), that claim must also be dismissed. An ADA plaintiff must file a charge with the Equal Employment Opportunity Commission (“EEOC”) before bringing a court action against an employer or a union. See Whitaker v. Milwaukee Cty., Wisconsin, 772 F.3d 802, 812 (7th Cir. 2014); Chicago Reg’l Council of Carpenters v. Pepper Constr. Co., 32 F.Supp. 3d 918, 925 (N.D. Ill. 2014). Fischer’s Complaint does not allege that any discrimination charge was filed against the USW regarding its handling of the grievance filed on his behalf and, in fact, no such charges were ever filed. 3 To the extent Fischer is attempting to assert a disability discrimination claim against the Union pursuant to Wisconsin state law, namely the Wisconsin Fair Employment Act, that claim is also subject to dismissal because, as explained above, the claim is preempted under Section 301 of the LMRA. And also, Fischer has not pled any facts regarding exhaustion of administrative remedies through the appropriate state agencies either. Koehn v. Pabst Brewing Co., 763 F.2d 865, 866 (7th Cir. 1985) (“one cannot bring a suit for wrongful discharge under the law of Wisconsin if one has not sought administrative redress”). See also Mursch v. Van Dorn Co., 627 F. Supp. 1310, 1314 (W.D. Wis. 1986), aff’d, 851 F.2d 990 (7th Cir. 1988). Further, in Wisconsin, a charge of discrimination actionable under federal law must be filed with the state Equal Rights Division within 300 days of the alleged discriminatory act. Alvey v. Rayovac Corp., 922 F. Supp. 1315, 1326 (W.D. Wis. 1996). 9 Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 9 of 10 10 Further, claims for discrimination under the ADA must be filed within 300 days “after the alleged unlawful employment practice occurred.” Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004). See also Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1995) (“a complainant must file a complaint within three hundred days of the alleged harassment. . . . Failure to do so renders the complaint untimely.”). Fischer states that the USW’s allegedly unlawful conduct occurred “on or around February 12, 2016” and the Complaint was filed over 300 days from that date. (Dkt. 1-1, Compl. ¶ 14). Therefore, again, the Complaint “plainly reveals that [the] action is untimely” and this Court should grant the USW’s Motion to Dismiss. Lewis, 411 F.3d at 842. Conclusion For the reasons set forth herein, the Complaint in this action should be dismissed, with prejudice. Dated this 15th day of March, 2017. /s/ Jill M. Hartley Jill M. Hartley (SBN: 1027926) JH@previant.com Erin F. Medeiros (SBN: 1097910) EFM@previant.com The Previant Law Firm, S.C. 310 W. Wisconsin Avenue, Suite 100MW Milwaukee, WI 53203 Tel. 414-271-4500 Fax 414-271-6308 Amanda M. Fisher United Steelworkers 60 Boulevard of the Allies, Suite 807 Pittsburgh, PA 15222 afisher@usw.org Tel. 412-562-2567 ATTORNEYS FOR DEFENDANT Case: 3:17-cv-00174-wmc Document #: 6 Filed: 03/15/17 Page 10 of 10