Tabbatha JOHNSON, Plaintiff-Appellant, v. EAST BATON ROUGE FEDERATION OF TEACHERS, Defendant-Appellee.
No. 17-30175
United States Court of Appeals, Fifth Circuit.
Filed August 30, 2017
699 F. App‘x 397
Summary Calendar
Julie M. Richard-Spencer, Esq., Kevin Renee Mason-Smith, Robein, Urann, Spencer, Picard & Cangemi, A.P.L.C., Metairie, LA, for Defendant-Appellee
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiff Tabbatha Johnson’s fraud and breach of duty of fair representation claims were dismissed by the district court for failure to state a claim. Because Johnson’s complaint failed to allege sufficient facts, and because none of the new arguments or factual allegations Johnson raises on appeal reveals a plain error in the district court’s determination, we AFFIRM.
In 2008, Johnson began working for the East Baton Rouge Parish School System as a teaching paraprofessional. In 2015, after she reported that a number of students’ individualized education program files had gone missing, the School System proposed Johnson’s termination. A meeting was held, at which the president of defendant East Baton Rouge Federation of Teachers (the Union) discussed with the School System’s representatives the possibility of transferring Johnson rather than terminating her. Nevertheless, the School System ultimately terminated Johnson.
Thereafter, Johnson filed a complaint with the Equal Employment Opportunity Commission against the Union in which she alleged retaliation in violation of Title VII of the Civil Rights Act.
On November 15, 2016, the Union filed a motion to dismiss for failure to state a claim. Johnson never filed a response to the Union’s motion. The motion was granted and the case dismissed without prejudice on January 23, 2017, and the district court stated: “If no response to this Ruling is filed within fourteen (14) days, this dismissal is converted to a dismissal with prejudice.” Johnson did not file a response to the ruling, and the dismissal was converted to a dismissal with prejudice. Then, on March 2, 2017, Johnson appealed from the district court’s final judgment against her, and in her notice attempted to supply additional arguments and factual allegations to support her claims.
II.
We review a district court’s decision to dismiss for failure to state a claim de novo. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012). We review arguments raised for the first time on appeal solely for plain error. Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir. 2004).
To satisfy this requirement, a complaint must “plead[] factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We undertake a two-step analysis to determine whether a complaint has met this requirement. Id. First, we identify any allegations in the complaint that are conclusory, as these will not be afforded a presumption of truth. Id. Second, we analyze the remaining factual allegations to determine if, when presumed true, they add up to a violation of the law. Id.
III.
In its motion to dismiss in the district court, the Union argued that it was not the exclusive bargaining representative of Johnson and therefore could not have owed a duty of fair representation to her. Moreover, the Union points out that even though some greater degree of leniency should be afforded a party proceeding pro se, pro se complaints are still required to comply with Rule 8(a)(2). See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). The Union contends that Johnson’s complaint failed to meet this requirement not only because it did not meet Iqbal and Twombly’s plausibility standard, but also because it was “virtually incomprehensible and full of legal conclusions.” The district court agreed with the Union, and so do we.
The Supreme Court has explained that as the exclusive bargaining agent, a union has “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.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). “The critical question is whether a union’s conduct was arbitrary, discriminatory, or in bad faith, so that it undermined the fairness or integrity of the grievance process,” Landry v. The Cooper/T. Smith Stevedoring Co., 880 F.2d 846, 852 (5th Cir. 1989). Thus, in order to state a claim for breach of duty of fair representation, a complainant must allege enough facts that if presumed true, permit the inference that the complainant’s exclusive bargaining agent acted arbitrarily, discriminatorily, or in bad faith in its representation of the complainant. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Vaca, 386 U.S. at 177, 87 S.Ct. 903.
Johnson’s complaint alleges only that the Union “failed to provide representation,” “[s]ought to prevent the defendant from seeking whistleblower protection in a timely manner,” and “committed a fraud.” As nothing more than bare allegations, these statements are insufficient to survive a Rule 12(b)(6) motion to dismiss. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (explaining that Rule 8(a)(2) “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).
Johnson did include in her notice of appeal additional factual allegations in an attempt to substantiate her claims or permit the necessary inferences. Because these additional allegations were not raised before final judgment was entered by the district court, they are evaluated under the plain-error standard of review. Apfel, 172 F.3d at 870. That is, these allegations must reveal a plain error in the district court’s determination that affects Johnson’s substantial rights in such a way as to undermine the “fairness, integrity, or public reputation of judicial proceedings.” Crawford, 131 F.3d at 1124. We conclude that nothing in the additional arguments or allegations Johnson raises on appeal reveals any such error.
Because Johnson’s complaint failed to allege facts sufficient to state claims for fraud or breach of duty of fair representation, and because nothing that Johnson raises on appeal reveals a plain error in the district court’s determination, we AFFIRM.1
Judge King concurs in the judgment.