Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rogers v. Amalgumated Transit Union Local 682

United States District Court, N.D. Indiana, Fort Wayne Division

October 11, 2017



          William C. Lee, Judge United States District Court

         This matter is before the Court on the motion to dismiss filed by Defendants Amalgamated Transit Union, Ernest Johnson, Steve Sustek, Sheila Roberson, Christopher Phillip, and Robert Almarode on July 20, 2017 (ECF 37).[1] Plaintiff Dorothea Rogers filed a response in opposition to the motion on August 3, 2017 (ECF 40). The Defendants chose not to file a reply brief and so the motion is ripe for resolution. For the reasons discussed below, the motion to dismiss is GRANTED and this case is DISMISSED WITH PREJUDICE.


         Dorothea Rogers, proceeding pro se, filed her original complaint on July 21, 2016 (ECF 1). The Defendants filed a motion to dismiss the complaint on October 27, 2016 (ECF 23) but the Court denied the motion as moot after Rogers filed an Amended Complaint on November 3, 2016 (ECF 26). See Opinion and Order, July 5, 2017 (ECF 36). The Defendants then filed this second motion to dismiss, which challenges the now controlling Amended Complaint. The Defendants bring their motion pursuant to Federal Rule 12(b)(6), arguing that Rogers' Amended Complaint fails to state any claim upon which relief can be granted. They are correct, although for the reasons discussed below, the Court also concludes that this case must be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).

         In her Amended Complaint, which specifically states that it is brought pursuant to 29 U.S.C. §§ 185 and 301 of the National Labor Relations Act, Rogers makes the following assertions and allegations:

1) As to Defendant Amalgamated Transit Union, Rogers contends that “Amalgamated . . . failed to represent [me] in unjustified termination from employer.” Amended Complaint, p. 3, ¶ 1.
2) As to the individual Defendants, Rogers contends that they are liable to her because they did not permit her “to file a grievance over loss of health insurance, ” “did not defend[] the current collective bargaining agreement concerning medical leave time, ” did “not follow[] the direction of the union attorney on action plan to reinstate petitioner to employment, ” “did not communicat[e] with petitioner, ” did “not keep[] themselves abreast to status of grievance and the communications of union attorney, ” and because they “acted with malice.” Id., ¶¶ 2-3.
3) As to FWPTC, Rogers contends that this public entity is liable to her for “dismissing petitioner while on medical leave and before contractual time of leave expired[, ]” not providing her with medical insurance while she was on leave, “per collective bargaining agreement[, ]” changing her job title so “as to interfere with short term disability requirement[, ]” and not reinstating her to her job, all of which she claims violated the collective bargaining contract between FWPTC and Amalgamated. Id., p. 4, ¶ 4.[2]

         It doesn't take much in the way of inference to understand that Rogers is suing the Defendants on the basis that they failed to represent her in her challenge to her termination, that they did so out of malice, and that their actions (or failure to act) violated the collective bargaining agreement. The Defendants argue that Rogers' allegations, even when taken as true for purposes of the present motion, lack a legal foundation. The Defendants state in their motion that “[b]ecause Plaintiff's former employer was a governmental entity, the Union owes Plaintiff no duty of fair representation under federal law, and therefore Plaintiff has failed to state a claim against the Union or its officers.” Motion to Dismiss, p. 1. The Defendants contend that:

Plaintiff's amended complaint is styled as a claim for breach of the duty of fair representation and makes allegations consistent with such a claim. But . . . the complaint and the collective-bargaining agreement which it incorporates by reference make plain that Plaintiff cannot state such a claim against the Union or the individual defendants. Because the amended complaint does not state any other basis for liability under federal law, the Court should grant Defendants' Rule 12(b)(6) motion and dismiss Plaintiff's complaint in its entirety as to [all Defendants].

         Defendants' Memorandum, p. 5. In other words, the Defendants argue that Rogers' Amended Complaint does not (and more importantly cannot) state a legally viable claim against them under the NLRA, rendering it facially insufficient and therefore subject to dismissal. The reason, according to the Defendants, is because Rogers' former employer, FWPTC, is a public employer and as such is “excluded from the definition of ‘employer' in, and thus from the coverage of, the NLRA. 29 U.S.C. § 152(2); NLRB v. Yeshiva University, 444 U.S. 672, 704 n.17 (1980) (‘the NLRA is not applicable to any public employer'). Thus the Union . . . owes its members no duty of fair representation enforceable by this Court. Plaintiff therefore fails to state a claim against the Union for breach of the duty of fair representation.” Id., p. 4.[3]

         The individual defendants argue that “regardless of whether the Union owed Plaintiff a duty of fair representation arising under federal law, there is no cause of action against individuals for breach of such a duty. Evangelista v. Inland Boatmen's Union of Pac., 777 F.2d 1390, 1400 (9th Cir. 1985) (holding that the language of § 301(b) of the National Labor Relations Act and the Supreme Court's holding in Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962) that individual union members are immune from liability under . . . Section 301(b) ‘also provide a shield for individual union members in suits for breach of the duty of fair representation'). See also Bey v. Williams, 590 F.Supp. 1150, 1154-55 (W.D. Pa. 1984), aff'd without opinion, 782 F.2d 1026 (3d Cir. 1986). Plaintiff fails to state a claim against the individual defendants, regardless of FWPTC's status as a public employer.” Id., pp. 4-5.

         Rogers' response in opposition to the motion to dismiss consists of a verbatim copy of her Amended Complaint, to which she adds at the end: “plaintiff . . . request[s] the court not dismiss this claim.” Plaintiff's Response (ECF 40). Rogers does not address the Defendants' arguments directly (or even indirectly). That doesn't matter though, since the issue before the Court is not whether Rogers' Amended Complaint is factually sufficient to state a plausible claim, but whether it has any legal foundation in the first place. The Court agrees with the Defendants that it does not.

         STANDARD ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.