OPINION
Plaintiff Nick Kovach claims in his 313 paragraph Third Amended Complaint that his labor union, and certain of its representatives, forced him to quit his job with Turner Dairy Farms, Inc., and placed him at the risk of serious bodily harm when a co-worker/Union steward threatened to beat him up and repeatedly tried to run him over with a truck all in retaliation for Plaintiffs actions as a Union member. He claims that Turner failed to put a stop to such activity when it had the duty and opportunity to do so.
Kovach filed this action against Turner Dairy Farms, Inc. (“Turner”), his Union— Service Personnel and Employees of the Daily Industry Local Union No. 205 (“Union”), — and Union officials Greg Shafer and William Lickert, Jr. He alleges a wide variety of federal civil claims, some obvious in the circumstances alleged, many not. Plaintiff brings Counts I and II under the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. §§ 411, 501. Counts III, IV, V, and VI allege state law tort claims for Interference with Contractual Relations and Economic Opportunities, Negligent Supervision and Retention, and Assault. Count VII is brought under the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. Count VIII is brought under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Counts IX, X, and XI are brought under the Age Discrimination
Turner filed a Motion to Dismiss all claims against it, which consist of Counts V, VII, VIII, IX, X, and XI. The Union, Shafer, and Lickert filed a Motion to Dismiss all federal claims brought against them, which consist of Counts I, II, VII, IX, X, and XI.
The Motions to Dismiss are granted in part and denied in part. Specifically, the Motions to Dismiss are granted with regard to claims under 29 U.S.C. § 411(a)(1) asserted in Count I, and as to Counts VII, VIII, IX, X, and XI. The Motions to Dismiss are otherwise denied.
I. PROCEDURAL POSTURE
Plaintiff brought this suit on April 4, 2012 and then amended his Complaint twice. ECF Nos. 1, 17, 33. All Defendants filed Motions to Dismiss following the original Complaint, the First Amended Complaint, and the Second Amended Complaint. ECF Nos. 12, 15, 18, 20, 34, 36. At oral argument the Defendants did not object to Plaintiffs request to file a Third Amended Complaint (“TAC”) and stated that such Third Amended Complaint would not alter any existing Motions to Dismiss. The parties then stipulated that all previous Motions to Dismiss would apply with full force to the TAG.
II. FACTUAL BACKGROUND
When considering a motion to dismiss under Fed.R.Civ.P. 12, the Court must accept the factual allegations in the TAC as true and draw all reasonable inferences in the Plaintiffs favor. Malleus v. George,
Plaintiff is a 55-year-old male employed as a track driver for Turner for 23 years. TAC at ¶¶ 8, 10. Local Union No. 205 represents the truck drivers at Turner. Id. at ¶ 3. Greg Shafer is also an employee at Turner, has been the Steward for the Union for at least five years, and allegedly held animosity towards Plaintiff for ten years prior to his becoming the Steward. Id. at ¶¶ 4, 28. William Lickert, Jr. is the Secretary-Treasurer and a principal officer of the Union. Id. atH 5.
A Union ratification meeting was scheduled for May 1, 2011 to address Turner’s proposal that it be permitted to assign Turner truck drivers to a four-day route (where the driver worked four (4) ten hour works days), instead of a five-day route (where the driver worked five (5) eight hour work days), without regard to seniority. Id. at ¶ 12. Union leadership favored the proposal and wanted the rank-and-file Union members to ratify it. Id. at ¶ 18. Plaintiff informed Shafer that he opposed this proposal and gave Shafer a signed document as his opposition vote in the event he did not make the Union meeting. Id. at ¶¶ 14-15. Because Plaintiffs wife suffered an eye injury, he was unable to attend the Union meeting. Id. at ¶¶ 16-17. Shafer later confronted Plaintiff about his absence from the meeting, and Plaintiff explained that he had to take care of his wife. Id. at ¶¶ 20-21. Shafer allegedly challenged this as being untrue and stated that Plaintiff had planned to not attend all along. Id. at ¶ 22.
A. Plaintiff’s interaction with the Union regarding Shafer
On May 4, 2011, Plaintiff spoke to Lickert by telephone regarding what he perceived as Shafer’s abusive conduct and requested a meeting to discuss Shafer’s removal as Union steward. Id. at ¶ 31. Plaintiff also asked Lickert if the truck drivers’ seniority was being compromised and Lickert told him that it was not. Id.
On May 26, 2011, Plaintiff met with Lickert, Shafer, and Union official John Winters. Id. at ¶ 32. Lickert minimized Shafer’s previous behavior by stating that Shafer had had a “bad day,” and that Shafer should not have “lost it” on Plaintiff. Id. at ¶¶ 33-34. Plaintiff presented a doctor’s note regarding his wife’s eye injury in an effort to explain his absence from the previous meeting, but Lickert refused to look at it. Id. at ¶¶ 35-36. Shafer also told Plaintiff that “[y]ou should have put your big boy pants on and come talk like a man.” Id. at ¶ 37. Finally, Plaintiff asked that Shafer be removed as the Union Steward but Lickert said that he would not do this. Id. at ¶ 38. Shafer then continued to verbally abuse Plaintiff on a daily basis, and told Plaintiff that he was not going to stop his abuse and harassment. Id. at ¶¶ 39-40.
In a letter dated May 30, 2011, Kovach complained in writing to Lickert about Shafer’s abusive and threatening behavior. Id. at ¶ 41. Lickert responded by letter dated June 3, 2011 that he would not replace Shafer because Plaintiff “would only start on the new Steward with your same complaints and after a period of time we would be back in this same position.” Id. at ¶¶ 42-43. Lickert also accused Plaintiff of harassing Shafer. Id. at ¶ 42. Lickert stated that if the matter between Kovach and Shafer escalated, that Kovach alone would be responsible as a “grown man.” Id. at ¶ 44. Plaintiff alleges that at that point felt that further use of the Union’s internal grievance procedure would be futile. Id. at ¶ 46.
Plaintiff alleges that the Union has retaliated against members who file grievances. Id. at ¶ 49. For instance, Bob Janicki, who had filed grievances in 2010, was “called into the office” for the two times he was late and was told by a plant foreman and the then union steward that “[i]f you didn’t file grievances, we wouldn’t be sitting here right now.” Id. at ¶ 52. The second time he was “called into the office” for being late the plant foreman told him “[pjeople like you that file grievances should know better than to be late for work.” Id. at ¶ 53. Moreover, Union stewards are allegedly told by their superiors to not file grievances and are then treated favorably for following these orders. Id. at ¶ 54.
Plaintiff also points to incidents involving the Union that occurred nearly two decades ago. In 1993 Plaintiff was allegedly not permitted to speak to and was “personally attacked” by former Union President William Lickert, Sr. at a Union meeting. Id. at ¶ 47. Plaintiff at that time wrote a letter to Lickert Sr., with a
B. Plaintiff’s Interaction with Turner Dairy regarding Shafer
Plaintiff claims to have reported his coworker Shafer’s misconduct to Turner. Id. at ¶ 55. Turner Dairy’s “Corporate Safety and Health Policy” prohibits fighting and harassment. Id. at ¶ 59. On May 13, 2011, Plaintiff met with Turner President Chuck Turner, Jr. and Human Resources Manager Cathy Turner. Id. at ¶ 56. President Turner requested that Plaintiff put his concerns in writing and advised him to ignore Shafer. Id. at ¶ 57. In a letter dated May 30, 2011, Plaintiff complained about Shafer’s conduct and stated that he considered Shafer’s conduct to be a “hostile and serious threat towards me.” Id. at ¶ 58.
Plaintiff met with Turner management again on June 6, 2011 and complained about Shafer’s daily verbal abuse. Id. at ¶ 60. President Turner told Plaintiff that he could not control how Shafer speaks to Plaintiff, and Cathy Turner stated that discipline for Shafer would not be necessary. Id. at ¶ 62.
Despite these complaints to Turner and the Union, Shafer’s abuse of Plaintiff continued. Id. at ¶ 63. On August 16, 2011, Shafer “drove fast” in his personal truck toward Plaintiff, spewing rock, sand and cinders at him in the Turner parking lot. Id. at ¶ 64. On or about September 2, 2011, in response to Plaintiffs comment that he could have been seriously injured, Shafer stated, “[fit’s all fun and games until someone loses an eye” (allegedly referencing Plaintiffs wife’s eye injury and his failure to support the proposal at the Union meeting in May). Id. at ¶¶ 66-67.
On September 15, 2011, Plaintiff met with Turner management to again complain about Shafer’s conduct. Id. at ¶ 68. Again, Turner management requested that Plaintiff put his complaints in writing and also advised him to avoid Shafer. Id. at ¶ 69.
On September 26, 2011, Shafer once again “drove fast” in his personal truck towards Plaintiff in the parking lot, just missing his person and yelling “Nicholas, Nicholas!” Id. at ¶ 71. Plaintiff complained of the ongoing abuse by letter dated September 27, 2011, but no one from Turner responded to this letter. Id. at ¶¶ 73-74. On October 12, 2011, Plaintiff filled out paperwork to retire because he felt that he no longer could safely work at Turner. Id. at ¶ 75.
Also on October 20, 2011, Gary Agate, a supervisor at Turner asked why Plaintiff was retiring. Id. at ¶ 84. Plaintiff explained that he was retiring because of Shafer’s misconduct towards the Plaintiff and Turner’s lack of response. Id. at ¶¶ 85-90. Agate knew about Plaintiffs situation with Shafer and said that it was “a shame.” Id. at ¶ 88.
On October 27, 2011 at 4:30 a.m., on the way to work, Shafer drove very closely to Plaintiffs car bumper while flashing his high beams for several hundred yards, then sped up and passed Plaintiff on a double yellow line, and after he pulled in front of Plaintiff Shafer jammed on his brakes a number of times allegedly trying to force Plaintiff into rear-ending his (Shafer’s) vehicle. Id. at ¶ 91. When they arrived at the Turner facility, Plaintiff confronted Shafer about his driving in front of Lou Palmer, a foreman/supervisor for Turner. Id. at ¶ 93. Plaintiff later called Palmer to tell him that he was at his wit’s end as a result of Shafer’s conduct, Palmer stated “I know and I don’t know what to do about the situation either.” Id. at ¶¶ 94-95. After completing his route and returning to Turner, Plaintiff quit his job. Id. at ¶ 96. Plaintiff alleges that “he involuntarily quit his job because of the constant abuse and harassment he suffered from Shafer in violation of work rules and the refusal of both Turner Dairy and Local 205 to prevent further abuse which, under the circumstances, could have resulted in serious bodily injury or death.” Id.
After Plaintiff separated from his job, Turner Vice President Tim Turner told Plaintiff that he was “sorry” for how things ended for Plaintiff and that he should have called the police regarding the October 27 driving incident. Id. at ¶ 97.
C. The Rest of the Story
Plaintiff also points to a montage of other seemingly unrelated incidents in the TAC.
First, Plaintiff complained that at varying and undefined times the seniority lists that were posted at work unnecessarily listed each truck driver’s date of birth. Id. at ¶ 98. These lists supposedly resulted in discussions among employees about when older employees would be retiring. Id. at ¶ 99. In response to his complaint about this to Turner management, Plaintiffs birthdate was first listed as “NONE”, and then left blank after he complained about the birthday lists again. Id. at ¶ 100. Despite his complaints, the list with each driver’s birth date (other than his) continued to be used. Id. at ¶ 101.
Second, sometime in 2011, Plaintiffs supervisor allegedly asked him when he was going to retire even though Plaintiff had never raised the issue of retirement. Id. at ¶¶ 104-05. Plaintiff had also complained to Turner management about being assigned overtime because this was impermissible under the collective bargaining agreement without the driver agreeing to do so. Id. at ¶¶ 102-103, 114. In response, his supervisor called him an “old guy” on several occasions and told him to “suck it up.” Id. at ¶ 103.
Third, Plaintiff also alleges a violation of the Fair Labor Standards Act, (“FLSA”),
Fourth, Plaintiff points to events involving Tom Bergamasso, a younger Turner truck driver. Bergamasso was allegedly given a preferable four-day route after participating in the practice of not reporting overtime worked. Id at ¶¶ 109-12. Bergamasso completed his route in eight hours even though he was assigned the more favorable four-day ten-hour route, and Plaintiff had been assigned to cover some of Bergamasso’s stops. Id at ¶¶ 112-19. When Plaintiff complained about this practice, he was told to “suck it up” and said that “if you can run 500 cases like Tom, I’ll let you go home early too.” Id at ¶ 117. However, due to vehicular and pedestrian traffic in the Oakland section of Pittsburgh, where Plaintiffs route was located, running 500 cases “is not plausible.” Id at ¶ 118.
Fifth and finally, sometime in the 1990’s, Plaintiff had allegedly complained and filed a grievance with Turner Management and the Union when Turner gave a more preferable four, ten-hour route (as opposed to a five, eight-hour day route) to a younger employee without putting the route up for bid. Id at ¶¶ 106-07. This grievance was rejected by Turner management and the Union. Id at ¶ 107.
III. DISCUSSION
A. Legal Standard
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
First, the Court must “take[] note of the elements a plaintiff must plead to state a claim,” Second, the Court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Third, “whe[n] there are well-pleaded factual allegations, a Court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.
The third step of the sequential evaluation requires this Court to consider the specific nature of the claims presented and to determine whether the facts pled to substantiate the claims are sufficient to show a “plausible claim for relief.” See Iqbal,
B. Count 1 — 29 U.S.C. § 411 Claims Against the Union
Kovach filed this action against Local Union 205 pursuant to § 102 of the LMRDA, 29 U.S.C. § 412.
The Union has moved to dismiss this claim, asserting that Plaintiff did not state a claim under 29 U.S.C. § 411 because the actions “do not implicate any formal union activities or procedures.” ECF No. 12 at 7. More specifically, it claims that Section 411 relates to the “institution of formal procedures against union members for asserting their rights under the Union Members Bill of Rights, not for situations involving informal discussions between one union member and the officer of a union.” Id. The Union argues that Plaintiff was not barred from attending or speaking at a Union meeting, and was not disciplined or threatened as a result of speaking at a Union meeting or filing a grievance. Id. Alternatively, the Union argues that the facts allegedly do not show that Shafer was acting on behalf of the Union, and therefore that his actions are not attributable to the Union. Id. The Court will first address the Union’s attribution defense.
1. Union Liability
The Union argues that Shafer’s conduct was not attributable to the Union. Id. In response, Plaintiff argues that the Union may be liable because he brought suit against Shafer in Shafer’s capacity as Union Steward, common law agency principles apply, and that the Union was well aware of Shafer’s harassment and failed to take any steps to prevent it. ECF No. 28 at 6.
According to the Third Circuit, “[p]rivate misconduct which incidentally may frustrate appellant’s rights as a union member does not give rise to an action under the bill-of-rights section.” Tomko v. Hilbert,
Moreover, unions may be held liable through application of ordinary rules of agency or ratification of the conduct by
Viewing the facts in the light most favorable to Plaintiff, it may reasonably be inferred that Shafer was acting on behalf of the Union, and/or that the Union ratified his actions. Central to the resolution of this issue is whether or not Shafer could be found to have been acting within the scope of his Union capacity when the threatening remarks and actions were taken towards Plaintiff. Because the events precipitating Shafer’s acts of alleged misconduct included a complaint regarding a Union issue and Shafer’s Union leadership role, it is more than plausible to infer that Shafer was acting in his capacity as a Union official when he allegedly bullied, threatened and taunted Plaintiff. Also at issue is whether the Union’s subsequent actions (or lack of action) could constitute condonation of this conduct. The alleged failure on the part of the Union to investigate the allegations or to reprimand Shafer, considered in conjunction with the Union officials’ statements to the effect of Shafer was “just having a bad day,” demonstrates that it is certainly plausible that the Union ratified or condoned Shafer’s alleged threatening behavior.
Considering the factual allegations as true, reasonable inferences drawn from the facts alleged would, if proven, place liability squarely on the Union as to Count I. The Court therefore turns to the substance of the LMRDA violation allegation.
2. 29 U.S.C. § 411
The LMRDA’s “primary objective [is] ensuring that unions [are] democratically governed and responsive to the will of their memberships.” Finnegan v. Leu,
Title I of the LMRDA is referred to as the union members’ Bill of Rights, and was adopted as an amendment on the Senate floor by “legislators [who] feared that the bill did not go far enough because it did not provide general protection to union members who spoke out against the union leadership.” United Steelworkers of Am., AFL-CIO-CLC v. Sadlowski,
The Supreme Court in Lynn explained that for a section 411 claim to be cognizable, there must first be an interference with or violation of Title I rights.
[t]his is not, of course, the end of the analysis. Whether such interference with Title I rights gives rise to a cause of action under § 102 must be judged by reference to the LMRDA’s basic objective: “to ensure that unions [are] democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections.”
Id. (quoting Finnegan,
a. 29 U.S.C. § 411(a)(2) — Free Speech
Count I of Plaintiffs Third Amended Complaint references both 29 U.S.C. § 411(a)(1) and § 411(a)(2). TAC at ¶ 133. Subsection 411(a)(2), which is also § 101(a)(2) of the LMRDA, guarantees a union member the right of free speech and assembly, subject to the reasonable rules of the union. It reads:
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
29 U.S.C. § 411(a)(2).
Section 411(a)(2) demonstrates that Congress “recognized that democracy
In his TAC, Plaintiff alleges that he opposed a proposal which was favored by top Union leadership that allegedly diminished certain seniority rights, TAC at ¶ 14, voiced an opinion regarding a seniority issue, id. at ¶ 23, and spoke with Union leaders to discuss Shafer’s misconduct and potential removal as Union Steward. Id. at ¶¶ 38, 41. Seniority issues that are in the process of being voted on by the Union and criticism regarding Union leadership, here the Union Steward, directly relate to Union issues. See Semancik,
After Plaintiff failed to attend the Union meeting in which the Union membership voted on the new proposal, Shafer confronted Plaintiff about his absence in an allegedly critical fashion. TAC at ¶ 22. After Plaintiff tried to discuss a seniority issue with Shafer, Shafer told him to “shut the f**k up, I’m tired of hearing your sh*t”, and challenging him to a fist fight. Id. at ¶¶ 27, 29. After Plaintiff met with Union leadership to report Shafer’s actions, Shafer told him that “[y]ou should have put your big boy pants on and come talk like a man.” Id. at ¶ 37. Throughout this timeframe, Plaintiff alleges that Shafer continued to verbally abuse and physically endanger Plaintiff, including Shafer’s driving at Plaintiff with his truck on several occasions. Id. at ¶¶ 39-40, 64, 71, 91.
Given this factual background and considering the proximity in the timing óf the events, the Court is unable to say at this stage that Shafer’s conduct towards the Plaintiff was in all respects unrelated to the Plaintiffs opinions regarding Union matters and was not an attempt to interfere with the protected rights of the Plaintiff. It is more than plausible that the conduct and harassment by Shafer, if proven, was indeed a very direct reprisal for Plaintiffs criticism of Union policy and Shafer’s leadership as Union Steward. Intimidation and impeding speech would naturally discourage members from invoking their legal rights under federal labor law, and is wholly antithetical to the protection of the LMRDA. See Maier,
The Union argues, however, that Plaintiffs actions are not protected activities under the LMRDA because no formal Union procedures were implicated, such as speaking at a Union meeting or being formally disciplined by the Union.
The Court first looks to the language of the statute. See Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp.,
Moreover, the Third Circuit has articulated a general rule that under the LMRDA, “the members’ right of free speech is given an expansive protection.” Mallick v. Int’l Broth. of Elec. Workers,
While the Union cites to cases which involve formal disciplinary actions brought by a union, they fail to cite any cases which hold that activity outside of the scope of formal procedures by a union is never protected activity. Furthermore, prior court decisions have held that a myriad of less traditional methods of infringing free speech rights are actionable. See Maier,
The Supreme Court explained that Congress “recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal.” Sadlowski,
Plaintiff alleges that he faced direct physical intimidation, verbal abuse, and other harassment in retaliation for his speech as a member of the Union. Plaintiff claims that a long-time Union official tried to run him off of the road and to beat him up because of Plaintiffs position on important Union matters. Such actions would violate the substantive provisions of § 411(a)(2), and the allegations here are more than sufficient to state a claim for relief under that statutory provision. Therefore, the Union’s Motion to Dismiss the § 411(a)(2) claims asserted in Count I of the TAC is denied.
b. 29 U.S.C. § 411(a)(1) — Equal Rights
Under 29 U.S.C. § 411(a)(1), also known as § 101(a)(1) of the LMRDA, every union member has “equal rights and privileges” of participation in the internal affairs of the union subject to reasonable Union rules. That section provides;
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.
29 U.S.C. § 411(a)(1).
“The United States Supreme Court has determined that the provisions of § 101(a)(1) are narrow in scope.” Conery v. Niccollai,
Section 411(a)(1) “is an anti-discrimination provision, pure and simple.” Ackley,
Plaintiff alleged that he gave Shafer his signed, written vote for the May 1, 2011 Union ratification meeting. TAG at ¶¶ 14-15. However, Plaintiff does not allege that his vote was not accepted nor cast. While Plaintiff took a position contrary to the Union on a proposal, he does not allege that he was refused the opportunity to persuade other Union members. See Bauman v. Presser, No. 84-2699,
Read in a light most favorable to Plaintiff and also through the lens of plausibility, the TAG does not allege that Plaintiff was discriminated against in his right to nominate or vote for candidates or issues. Plaintiff fails to allege how the events he recounts interfered with his right to vote or nominate candidates, or the democratic governance of the Union. Moreover, he does not allege that the Union allowed other members to take these actions when he was not permitted to do so, in violation of equal rights. For these reasons, the Union’s Motion to Dismiss with regard to the § 411(a)(1) claims of Count I will be granted.
C. Count II — 29 U.S.C. § 501 Claims as to Lickert & Shafer
In Count II, Plaintiff alleges that Liekert, Jr. and Shafer acted in violation of their fiduciary duty under 29 U.S.C. § 501. They argue, similar to the Union’s argument as to Count I, that there could be no violation because “none of the Plaintiffs issues were ever raised in the context of a formal meeting.” ECF No. 12 at 5. This argument misses the mark.
The Third Circuit has held that the fiduciary duty of union officers under § 501
29 U.S.C. § 501(b) provides that when any Union officer has violated his duties as proscribed in section 501(a), the aggrieved member must first ‘request’ that the union or its officers “sue or recover damages or secure an accounting or other appropriate relief.” If the union fails to file suit, the aggrieved member may then sue after establishing “good cause.” See Sabolsky,
In his TAC, Plaintiff alleges that Shafer infringed his political rights through harassment and intimidation, that Lickert, Jr. was made aware of Shafer’s brazen misconduct and then failed to take any action, and, as a result, both of these Defendants breached their § 501 fiduciary duties as an officer and agent of the Union. TAC at ¶¶ 142-52. In O’Rourke v. Crosley,
the harassment suffered by plaintiff, and yet did nothing to remedy the situation.” Id. at 1221.
While Shafer and Lickert, Jr. argue that there could be no statutory violation because Plaintiff did not act within a formal Union membership meeting
Plaintiffs TAC is also sufficient to meet the “request” requirement. Plaintiff sought internal Union relief by meeting with Union leaders and writing a formal complaint to express his grievances and request Shafer’s removal as Union Steward. TAC at ¶¶ 32-38, 41. After the Union failed to address Plaintiffs concerns and he was told by Lickert that he alone was responsible as a “grown man” to resolve matters, Plaintiff reasonably believed that further use of the Union’s internal procedures would be futile. Id. at ¶¶ 39^11, 44, 46. Sabolsky holds that pure
Finally, a review of Plaintiffs claimed efforts paints a portrait of attempts to seek a remedy for the very misconduct that the LMRDA was created to prevent. The TAC is therefore sufficient to establish the requisite “good cause”, and thus Defendants Lickert and Shafer’s Motion to Dismiss Count II is denied.
D. Count V — Negligent Supervision & Retention Claims Against Turner
An employer owes a duty “to exercise reasonable care in selecting, supervising and controlling employees.” R. A. ex rel. N.A. v. First Church of Christ,
Once Plaintiff notified Turner’s management of Shafer’s alleged harassment and physically abusive behavior towards Plaintiff, Turner was put on notice of Shafer’s potential inclination towards violent behavior targeting Plaintiff, and could therefore be liable for the foreseeable future misconduct of that employee. See Hutchison ex rel. Hutchison v. Luddy,
Under the WCA:
an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.
Socha v. Metz,
Courts have explained that “[w]here the animosity between the third party and the injured employee is developed because of work-related disputes, the animosity is developed because of the employment.” Hammerstein v. Lindsay,
In Hammerstein, the court held that plaintiffs allegations did not fall into the personal animus exception where “[t]here has been no indication that there were personal reasons for Dr. Lindsay’s conduct, or that there was any pre-existing animosity between [plaintiff] and Dr. Lindsay.”
Plaintiff alleges that “Shafer acted in whole or in part to injure Plaintiff because of reasons personal to him, and not directed against him as an employee or because of his employment.” TAG at ¶ 177. Plaintiff also alleges that Shafer’s reactions to him “reflected] a pre-existing personal animosity towards Kovach.” Id. at ¶ 178.
Disposition of the Motion as to this Count is a close call. Pennsylvania law makes it plain that Plaintiffs injury must be either work-related or for purely personal reasons; it cannot be both. See Kohler,
Viewing these allegations and all inferences fairly deducible therefrom as true, the Court concludes that Plaintiff has (barely) sufficiently set forth an alternative cause of action within the “personal animus” exception under the WCA. Given the nearly thirty (30) dozen paragraphs of pleading in which Plaintiff claims that all the Defendants were out to get him because of workplace issues, Plaintiff may find it quite difficult to prove at trial (or to survive a summary judgment motion on the issue) that Shafer’s actions towards him did not arise at all out of work-related incidents, and that the claimed harassment was purely personal in nature. However, at this point the Court concludes that they are sufficiently pled alternatively to withstand Turner’s Motion to Dismiss Count V, subject to resurrection at the summary judgment stage, post-discovery.
E. Count VII — Labor Management Relations Act Claims Against Turner and the Union
Count VII of the TAC alleges that Turner violated the provisions of the collective bargaining agreement (“CBA”) between it and the Union by not providing a safe workplace for Kovach, and by discriminating against him for engaging in lawful work-related and Union-related activity. It also claims that the Union breached its duty of fair representation owed to him. It is in essence a claim by an individual employee that his employer breached the labor agreement as to which the employee (Kovach) is an intended third-party beneficiary. Plaintiff cites to no specific provisions of the CBA that have been breached. Instead, he either incorporates, or recites, a litany of events of abusive conduct toward him by the Union and its leaders, and Turner’s failure to protect him from that activity.
For decades, it has been settled law that an individual Union-represented employee, covered by a CBA, cannot bring a federal lawsuit under 29 U.S.C. § 185 alleging a breach of a CBA unless they have first fully exhausted any available grievance procedure under the CBA itself, reflecting a Congressional policy strongly favoring the informal resolution of such
Here, Kovach alleges that he is excused from the required initial recourse to the intra-CBA processes because of the laundry list of profoundly bad conduct toward him by Shafer and Lickert Jr. constituting a breach of the Union’s fair representation duty, and that given his gross mistreatment at their hands, any effort on his part to utilize those processes would have been both fruitless and pointless.
Assuming for the sake of discussion that his allegations in those regards are at least plausible, the remaining problem is that the allegations of Count VII, despite being part of a Third Amended Complaint, simply do not allege a breach of contract in the first instance. There is no specific reference to any provisions of the CBA that are enforceable as contractual obligations by Kovach or anyone else. While the factual allegations of this Count of the TAC surely do repeat in detail the various and sundry allegations of serious misconduct on the part of Shafer and Lickert, they do nothing to connect up those allegations (which are at the core of the allegations of the TAC) and a breach of any enforceable provision of the CBA by Turner. Thus, after four (4) pleading tries, this Count simply does not meet the basic plausibility pleading standard necessary for the assertion of such a breach of contract claim in this Court, and it is therefore dismissed with prejudice.
The Fair Labor Standards Act of 1938 (“FLSA”) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. 29 U.S.C. § 201 et seq. The Act contains an anti-retaliation provision that forbids employers:
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a)(3).
In order to establish a prima facie case of discriminatory retaliation, “a plaintiff must show that (1) the plaintiff engaged in protected activity, (2) the employer took an adverse employment action against [him], and (3) there was a causal link between the plaintiffs protected action and the employer’s adverse action.” Preobrazhenskaya v. Mercy Hall Infirmary,
Plaintiffs allegations in Count VIII are conclusory, and are insufficient to get past even a most lenient application of the Twiqbal standard.
Plaintiff fails to allege facts that would allow a reasonable inference that he engaged in protected activity under the FLSA and that he did so within the statute of limitations. 29 U.S.C. § 255. Moreover, Plaintiff fails to articulate facts that would allow a plausible inference as to how an adverse employment action and Turner’s supposed retaliation was connected to any FLSA protected activity, especially in the context of his very direct and prolix assertions in hundreds of paragraphs that Plaintiff was forced to quit his job not because of FLSA-related issues, but because of Shafer’s threats and conduct.
G. Counts IX, X, & XI — ADEA claims against Turner & the Union
Counts IX, X and XI seek to allege various claims under the ADEA. TAC at ¶¶ 264-313. While the Twiqbal bar is not a high one, it is nonetheless a bar to be surmounted. The allegations of these Counts of the Complaint do not get over it, and they will be dismissed.
The heart of Kovach’s TAC centers on the profoundly bad treatment that he claims he was subjected to at the hands of his Union and its officials. Now, in these latter counts of the TAC, Kovach switches gears completely and instead claims that his victimization was not rooted in his activities within the Union, or in his opposition to the conduct of the Union, but instead was founded on his age.
The common thread of each of these Counts is that supposedly due to his age, Kovach was treated in a less favorable fashion than other employees by both the Union and Turner. The reality of the pleading, however, is that it simply lays out a series of facially disjointed events, ranging from events allegedly occurring up to twenty years ago, “in the 1990’s,” TAC at ¶ 277, to somewhat random events such as isolated allegedly ageist comments made at undefined times in unstated contexts, id. at ¶¶ 103-05, to Turner listing his date of birth as “NONE” on a seniority list and then leaving a blank line when he requested the posted list be removed, id. at ¶¶ 100, 272, to a supposedly younger driver treated “more favorably” in an undefined way at an undefined time, id. at ¶¶ 112, 116, 119, 280-81, to Kovach’s grievances being denied, id. at ¶¶ 38, 42-44, 82, 107,
This cloud of assertions is little more than a catch-all compilation of facially unrelated conclusions without the necessary factual plausibility that would support a claim that “but for” Kovach’s age, he would have been treated more favorably by his employer and his Union. Smith v. City of Allentown,
Plaintiff has now had four (4) opportunities to plead an ADEA case. These Counts of the TAC cannot in any fashion be construed as “pleading in the alternative” but instead would require the existence of two alternative universes — one in which Kovach’s woes centered on direct
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are granted with regards to subsection 29 U.S.C. § 411(a)(1) of Count I, and Counts VII, VIII, IX, X, and XI. Such claims are dismissed with prejudice. An appropriate order will follow.
Notes
. Saving the parties the expense of additional briefing, the Court did not require Defendants to re-file their Motions to Dismiss after the TAC had been filed.
. The TAC does not reveal why Shatter would care about Kovach’s whereabouts one way or the other.
. The Court recites these alleged facts purely to set forth the sweeping temporal scope of Plaintiff's assertions. It is far from obvious that such events, eighteen (18) years before the central events complained of here, have or legally (or logically) could have, much if anything to do with the claims Plaintiff now asserts. Plaintiff reached so deep into the past to include every conceivable issue he has ever had with one or more of the Lickerts that it strikes the Court as being an effort to capture a bridge too far. While it is certainly theoretically possible that the Defendants’ recent actions constituted eleven (11) separate intentional violations of five (5) different federal statutes, along with three (3) state law torts, it is also quite possible that the TAC runs the risk of the “wheat” of what may be meritorious claims being obscured by an overwhelming cloud of "chaff.”
. Without saying when.
. Moreover, the collective bargaining agreement states that a driver does not have to work overtime unless he or she agrees to do so. Id. at ¶ 113. In 2012, an unidentified employee complained to Turner and the Union because an unidentified union steward failed to report overtime in exchange for getting to go home early. Id. at ¶ 120. Plaintiff criticized the practice of employees not reporting overtime worked, the reporting of his own overtime worked was viewed negatively by Turner management, and Plaintiff alleges that he was consequently retaliated against for doing so. Id. at ¶¶ 123-26.
. Subsection 29 U.S.C. § 412 allows union members to sue in federal court when rights guaranteed by the LMRDA have been violated, and provides: "Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”
. While neither party raises an issue as to whether the alleged actions attributable to the Union are to be considered "discipline” as considered under § 411(a)(5) or § 609, the Union argues that the allegations "do not implicate any formal union activities or procedures” and that Plaintiff was not "disciplined.” ECF No. 12 at 7. However, both "discipline” and "infringement” may be redressed under the LMRDA. See Finnegan,
. Other Circuits have articulated a three-step analysis when evaluating an alleged § 411(a)(2) violation. To establish a prima facie case for a violation of § 411(a)(2), "a union member must allege facts showing: (1) he or she exercised the right to oppose union policies; (2) he or she was subjected to retaliatory action; and (3) the retaliatory action was 'a direct result of his [or her] decision to express disagreement' with the union’s leadership.” Casumpang v. Int’l Longshoremen’s & Warehousemen's Union, Local 142,
. While Plaintiff does not allege that he was formally disciplined by the Union nor was he retaliated against for speaking at a Union meeting, he did invoke internal Union procedures by meeting with Union leadership to express his grievances and by filing a written complaint with the Union. TAC at ¶¶ 32, 41.
. 29 U.S.C. § 501(a), with respect to the fiduciary duties of officers, states in pertinent part: “The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to
. Contrary to this position, Plaintiff does allege that he raised his grievances concerning Shafer in a meeting with Union leaders, including Lickert, Shafer, and John Winters. TAC at 1i 32.
. The Court may exercise supplemental jurisdiction over Plaintiff's state law claims as they arise out of the same transaction or occurrence as the federal claims. 28 U.S.C. § 1367. Furthermore, "[t]he Court must apply Pennsylvania state law to Plaintiffs common law tort claims through the exercise of its supplemental jurisdiction.” Cahill ex rel. Cahill v. Live Nation,
. See also 77 P.S. § 481(a), which states in pertinent part: "The liability of an employer
. For instance, when Plaintiff spoke to Shafer regarding a seniority issue, Shafer responding by telling Plaintiff to "shut the P *k up, I'm tired of hearing your sh*t, ... fifteen years I've been hearing it.” TAC at ¶¶ 23, 27.
. One not made any simpler by Plaintiff's use of the phrase "in whole or in part” in the context of a legal test that demands purity as to motivation.
. Fed.R.Civ.P. 8(d)(2)-(3) reads; "(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.”
. The claim that a Union has breached it duty of fair representation is not a "stand alone" claim for affirmative relief, but if proven excuses the employee's compliance with a CBA’s grievance and arbitration procedure, allowing direct access to a federal court for a breach of labor contract claim against the employer and the Union actionable pursuant to 29 U.S.C. § 185 (commonly referred to as a "Section 301 claim,” referencing the applicable section of the LMRA). DelCostello,
. On top of this is the reality that Kovach’s one perhaps plausible Section 301 claim appears to arrive in this Court far too late. DelCostello announced a six-month statute of limitations for such claims.
. Twiqbal refers to the Twombly/Iqbal standard. See Bell Atl. Corp. v. Twombly,
. For instance, giving "comp time” within the same workweek is not an FLSA violation at all when it brings the hours worked in that workweek to 40 hours or less. Thus, invoking the phrase “comp time” in talismanic fashion does not set out an FLSA violation, or a claim of one, without much more.
.For instance, in an effort to establish the causal link between his protected activity and the employer’s adverse action, Plaintiff simply alleges ”[a]s a result of Kovach's reporting of
.This is especially so as to his FLSA and ADEA claims, given that Plaintiff quit his job. Therefore, to convert that resignation into an actionable FLSA or ADEA claim, Plaintiff must demonstrate that he was constructively discharged, either in retaliation for FLSAprotected actions, or because of his age. To make that claim, he needs to demonstrate that his employer (Turner) knowingly permitted unlawful working conditions (FLSA-based retaliation or age discrimination) that were so objectively intolerable that any reasonable person subjected to them would resign. Mandel v. M & Q Packaging Corp.,
. Given the Supreme Court’s holding in Gross v. FBL Fin. Servs., Inc.,
. See, supra, Fed.R.Civ.P. 8(d)(2)-(3).
. To the extent Kovach’s age claims somehow relate to what he viewed as a contractual seniority system for shift assignment that was less favorable to him, he nowhere addresses the application of 29 U.S.C. § 623(f)(2)(A), which provides a safe harbor for negotiated seniority systems.
. Plaintiff's allegations at TAC ¶ 286 that Shafer was "substantially younger” than Plaintiff does nothing to connect up Shafer’s behavior with Plaintiff's age, nor does it do anything to demonstrate any connection at all between any objectively intolerable conduct by Turner and Plaintiff's age.