United States District Court, E.D. Virginia, Norfolk Division
RODNEY O. SCOTT, Plaintiff,
VIRGINIA PORT AUTHORITY, et al., Defendants.
UNITED STATES MAGISTRATE JUDGED REPORT AND
J. KRASK UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on motions to dismiss filed by
defendants Virginia International Terminals, LLC (ECF No.
37), Michael L. Brewer (ECF No. 35), Hampton Roads Shipping
Association (ECF No. 39), and International
Longshoremen's Association, Local 1624 (ECF No. 61), a
motion to quash by International Longshoremen's
Association, Local 1624 (ECF No. 58), and a request for entry
of default against International Longshoremen's
Association, Local 1624 filed by plaintiff, Rodney O. Scott
(ECF No. 60). The first three motions to dismiss were
referred to the undersigned on October 23, 2017 and ECF Nos.
60 and 61 were referred on February 5, 2018.
reasons stated herein, the Court RECOMMENDS
that Virginia International Terminals' motion be
GRANTED, Michael L. Brewer's motion be
GRANTED in part and DENIED in part, Hampton
Roads Shipping Association's motion be
GRANTED, International Longshoremen's
Association, Local 1624's motions be
GRANTED, and Scott's request for default
in 1988, Rodney O. Scott ("Scott"), an African
American resident of Chesapeake, Virginia, worked as a
longshoreman and waterfront worker for approximately 30 years
for various employers. Am. Compl., ECF No. 32 ¶¶
12, 28. Scott was employed by defendant Virginia
International Terminals, LLC ("VIT"), in Norfolk,
Virginia until VIT terminated his employment on April 1,
2016. Am. Compl. ¶ 28. Scott alleges that two of his
Caucasian co-workers, Toby Paulk and Mike Albertson, harassed
Scott and directed racial epithets and otherwise derogatory
language towards him during 2015 and 2016. Am. Compl. ¶
49. Scott's two co-workers allegedly harassed and
intimidated Scott on March 27, 2016, as Scott prepared to
begin work. Am. Compl. ¶ 50. Scott responded by
"telling his two co-workers that he would 'kill
them' if he thought they would do something, as they
continued to harass and abuse him." Id. Scott
was unarmed at the time. Id.
Paulk reported to VIT management that Scott had threatened
him and Mike Albertson, and did not report any inciting
actions on his part. Am. Compl. ¶ 51. VIT then
terminated Scott's employment and notified him that he
was permanently ineligible to work for VIT as of April 1,
2016. Am. Compl. ¶ 52. VIT did not hold a hearing
regarding the incident. Id. Toby Paulk and Mike
Albertson continued their employment with VIT. Am. Compl.
Michael L. Brewer ("Brewer") is the Chief of Police
for the Virginia Port Authority ("VPA") in Hampton
Roads, Virginia. Am. Compl. ¶ 29. Brewer made the
decision to confiscate Scott's credentials and badge,
prohibiting Scott from entering onto property owned and
operated by the VPA. Am. Compl. ¶ 54. Brewer notified
Scott of this decision in a letter dated June 17, 2016, in
which Brewer explained that there was no appeal process and
offered to meet with Scott to discuss his decision. Am.
Compl., Ex. 6. Brewer also stated that the decision rested
solely with him and that he made the decision after an
independent police investigation. Id. Brewer did not
take any action against Toby Paulk or Mike Albertson. Am.
Compl. ¶ 59.
to Scott, Brewer placed false information in Scott's
file, "including information that falsely accused Scott
as a violent person who is a violent threat to other workers
on the waterfront." Am. Compl. ¶ 18. He also
alleges that Brewer "illegally publicized untrue
statements and innuendo that Scott engaged in inappropriate
acts, including false statements that accused Scott of
potential criminal activity," Am. Compl. ¶ 8, and
that Brewer published "this information to prospective
and private employers of Scott and to private third
parties," Am. Compl. ¶ 22.
further alleges that a VIT management employee gave false
information to Scott's co-workers, and that VIT placed
false information in his personnel file stating "that
Scott was guilty of wrongdoing and misconduct at work."
Am. Compl. ¶¶ 91-92. Scott alleges that other
employers in the industry "would likely request
information from VIT and VPA from its records regarding
Scott's disciplinary records, his security clearance
records with VPA and VIT, and will further inspect the
reasons for the ending of Scott's long term work and
employment." Am. Compl. ¶ 19. Indeed, Scott alleges
that he believes prospective employers have already requested
and seen such information, and that Scott's co-workers
have also seen such information. Am. Compl. ¶¶
to the amended complaint, defendant Hampton Roads Shipping
Association ("HRSA") qualifies employees to work in
the longshore industry and provides port numbers to employees
that allow them to work on the waterfront. Am. Compl. ¶
34. On February 21, 2017, HRSA sent Scott a letter notifying
him that his port number was in danger of being deactivated
because he had worked for less than 150 hours during the last
quarter of 2016. Am. Compl., Ex. 7. The letter identified the
Port Number Review Committee ("PNRC") as the entity
with decision-making authority, and is signed by the
executive vice-president of the HRSA. Id. The letter
stated that if Scott did not return to work by March 22,
2017, and work 150 hours in the next quarter, his port number
would not be maintained. Id.
Longshoremen's Association, Local 1624 ("Local
1624" or "union") is a labor union which
represents employees in the longshoremen's industry,
including Scott. Am. Compl. ¶ 32. HRSA members and Local
1624 are subject to a collective bargaining agreement
("CBA"). Section 25 of the CBA creates a contract
board, which is an entity comprised of equal numbers of HRSA
management and labor union members which administers and
interprets the CBA. ECF No. 10-1 at 18-21. The PNRC is a
subcommittee, also made up of equal members of Local 1624 and
HRSA members, which is responsible for maintaining port
numbers. Am. Compl. ¶ 77, ECF No. 10-1 at 18, 50.
1624 filed a grievance letter on Scott's behalf with the
contract board. ECF No. 10-1 at 56, Ex. B. The letter, dated
October 10, 2016, indicates that Local 1624 filed a grievance
with the contract board on Scott's behalf, based on
Scott's contention that "his termination [was]
unjust and excessive" and that Scott denied the
allegations against him. Id. The grievance letter
did not allege that VIT discriminated against Scott based on
his race in terminating him. Id. Scott's
grievance was raised at a meeting of the contract board on
October 18, 2016, and was tabled at the suggestion of the
vice president of Local 1624, Rob Versprille. ECF No. 10-1 at
57, Ex. C. Scott's grievance was again on the agenda at a
November 22, 2016 meeting of the contract board, and again
tabled at the request of Local 1624, this time indefinitely.
ECF No. 10-1 at 64, Ex. D.
16, 2016, Scott filed formal charges of employment
discrimination with the United States Equal Employment
Opportunity Commission ("EEOC") alleging violations
of Title VII of the Civil Rights Act against
the VPA. Am. Compl., Ex. 1, ECF No. 32. He filed an amended
charge of discrimination with the EEOC against VIT and the
VPA on September 6, 2016. Am. Compl. ¶ 38; Am. Compl.,
Ex. 2. On March 27, 2017, the EEOC issued Scott a notice of
right to sue letter. Am. Compl. ¶ 39; Am. Compl, Ex. 3.
March 31, 2017, Scott filed a complaint against VIT, the
HRSA, the VPA, and Brewer. Compl., ECF No. 1. On April 25,
2017, HRSA filed a motion to dismiss, ECF No. 7; VIT filed a
motion to dismiss, ECF No. 9; and Brewer and the VPA filed a
joint motion to dismiss, ECF No. 14.
responded to these motions on May 11 and 12, 2017. ECF Nos.
20-22. Scott asked in the alternative for leave to amend his
complaint. ECF No. 20 at 15; ECF No. 21 at 9-10; ECF No. 22
at 7. The Court granted Scott's request to amend on
September 8, 2017, ECF No. 30, and denied the motions to
dismiss as moot on October 6, 2017. ECF No. 41.
filed an amended complaint on September 17, 2017. Am. Compl,
ECF No. 32. In his amended complaint, Scott no longer names
the VPA as a defendant, but now names Local 1624 as a
defendant. Am. Compl. at 1.
first count is against Brewer individually and in his
official capacity, pursuant to 42 U.S.C. § 1983. Am.
Compl. ¶¶ 60-67. Scott alleges that Brewer violated
his due process rights by confiscating his badge and
credentials to work as a longshoreman on VPA property without
a "name clearing" hearing. Am. Compl. ¶¶
61-63. Scott seeks injunctive relief requiring Brewer to
reactivate Scott's credentials and return Scott's
badge so that he may work on the waterfront once more. Am.
Compl. ¶ 66. Scott also asks the Court to enjoin Brewer
from violating Scott's or any other person's due
process rights in the future. Am. Compl. ¶ 67.
second count, Scott alleges that VIT breached the CBA by
engaging in discrimination in violation of Title VII of the
Civil Rights Act and wrongfully terminating Scott's
employment. Am. Compl. ¶¶ 68-74. Specifically,
Scott alleges that VIT treated his Caucasian co-workers
differently than himself when VIT disciplined Scott for an
altercation between Scott and said co-workers. Am. Compl.
¶¶ 69-70, 72-73.
third count is against Local 1624 for breach of the duty of
fair representation. Am. Compl. ¶¶ 75-80.
Specifically, Scott alleges that Local 1624 failed to
initiate a proper grievance proceeding on his behalf
regarding his discrimination claim against VIT. Am. Compl.
fourth count alleges that HRSA breached the CBA by not
maintaining Scott's port number, despite being aware that
Scott was at that time barred from working with VIT and from
entering VPA property. Am. Compl. ¶¶ 81-89.
in count five, Scott alleges that VIT published defamatory
information to potential future employers of Scott, as well
as Scott's co-workers. Am. Compl. ¶¶ 90-95. The
allegedly defamatory information is "VIT's decision
that Scott was guilty of wrongdoing and misconduct at
work," based on the threat Scott is alleged to have
made. Am. Compl. ¶¶ 91-92.
December 14, 2017, 88 days after filing the amended
complaint, a summons was returned executed by Scott as to
Local 1624. ECF No. 56. The summons was addressed to 1355
International Terminal Boulevard, Suite 201, Norfolk,
Virginia 23505. Id. The proof of service stated that
the summons was left with Paulette Brown at the business of
Larry A. Bachtell, President of Local 1624. Id. at
January 7, 2018, Local 1624 made a special appearance and
filed a motion to quash service of process and dismiss the
complaint, with a supporting memorandum. ECF Nos. 58-59.
The following day, on January 8, 2018, Scott filed a request
for entry of default against Local 1624, claiming that it had
not answered his complaint within 21 days of receiving
service of process. ECF No. 60. Local 1624 filed a memorandum
in opposition to that request on January 15, 2018. ECF No.
63. On January 23, 2018, Scott filed a memorandum opposing
the motions to quash and to dismiss, and supporting his
request for an entry of default. ECF No. 64. Local 1624
replied on February 1, 2018. ECF No. 67.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) allows a defendant to
challenge a complaint on the ground that a court lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The
plaintiff bears the burden to prove that the court has
subject matter jurisdiction. Richmond, Fredericksburg
& Potomac R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991). "In determining whether jurisdiction
exists, the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Id.
Generally, allegations of Eleventh Amendment immunity are
treated as challenges to subject matter jurisdiction.
See, e.g., Edelman v. Jordan, 415 U.S. 651, 678
(1974). In considering a motion to dismiss under Rule
12(b)(1), a court may consider evidence extrinsic to the
complaint, such as the CBA in this case. See Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Rule of Civil Procedure 12(b)(6) permits a court to dismiss
complaints, or claims within complaints, upon which no relief
can be granted. Fed.R.Civ.P. 12(b)(6); Sonnier v. Diamond
Healthcare Corp., 114 F.Supp.3d 349, 354 (E.D. Va.
2015). In order to survive a motion to dismiss, the complaint
must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). This pleading standard requires that
the complaint state a claim for relief that is
"plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In essence, "[a]
claim has facial plausibility when the plaintiff pleads
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
(2009). Ascertaining whether a complaint states a plausible
claim for relief is a "context-specific task" that
requires the court to "draw on its judicial experience
and common sense." Id. at 679.
motion to dismiss pursuant to Rule 12(b)(6) challenges
"the sufficiency of a complaint; it does not resolve
disputes over factual issues, the merits of a claim, or the
applicability of a defense." SunTrust Mortg., Inc.
v. Simmons First Nat'l Bank, 861 F.Supp.2d 733, 735
(E.D. Va. 2012) (citing Republican Party of N.C v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992)). Therefore,
"[i]n ruling on a 12(b)(6) motion, a court 'must
accept as true all of the factual allegations contained in
the complaint' and 'draw all reasonable inferences in
favor of the plaintiff.'" Kensington Volunteer
Fire Dep't, Inc. v. Montgomery Cty., Md, 684 F.3d
462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours
& Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011)). The factual allegations, however, "cannot
be mere speculation, and must amount to more than 'a
sheer possibility that a defendant has acted
unlawfully.'" Brach v. Conflict Kinetics
Corp., 221 F.Supp.3d 743, 747 (E.D. Va. 2016) (quoting
Iqbal, 556 U.S. at 678). In addition, "legal
conclusions, elements of a cause of action, and bare
assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes."
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 255 (4th Cir. 2009) (citing Iqbal, 556
U.S. at 678).
Counts two and five against Virginia International Terminals
should be dismissed.
Count two against Virginia International Terminals is barred
by the statute of limitations.
argues that Scott's discrimination claim is barred by the
statute of limitations contained in section 301 of the Labor
Management Relations Act ("LMRA"). ECF No. 38 at
2-6. Section 301 of the LMRA states that "[s]uits for
violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce . . . may be brought in any district court of the
United States having jurisdiction of the parties." 29
U.S.C. § 185(a). Section 301 thus preempts state law
suits for breach of contract when labor contracts are
involved. Suits pursuant to section 301 are governed by
federal substantive law, and the Supreme Court has
interpreted section 301 as "a congressional mandate to
the federal courts to fashion a body of federal common law to
be used to address disputes arising out of labor
contracts." Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 209 (1985) (citing Textile Workers v. Lincoln
Mills, 353 U.S. 448 (1957)).
before an employee can bring suit against an employer for
breach of a collective bargaining agreement, the employee
must exhaust any grievance or arbitration remedies provided
in the agreement. Republic Steel Corp. v. Maddox,
379 U.S. 650, 652-53 (1965). However, the Supreme Court has
"recognized that this rule works an unacceptable
injustice when the union representing the employee in the
grievance/arbitration procedure acts in such a discriminatory
. . . fashion as to breach its duty of fair
representation." DelCostello v. Int'l Broth. Of
Teamsters, 462 U.S. 151, 164 (1983). Accordingly,
employees may bring a "hybrid" claim: a suit
against the employer pursuant to section 301, and a suit
against the union "for breach of the union's duty of
fair representation, which is implied under the scheme of the
National Labor Relations Act." Id. While
seemingly two separate causes of action, they are
"inextricably interdependent," and form a hybrid
claim governed by its own rules of substantive law.
counts two and three of Scott's amended complaint
comprise a hybrid section 301/duty of fair representation
claim. Count two alleges that VIT breached the CBA by
discriminating against Scott in violation of Title VII. Am.
Compl. ¶¶ 68-74. Section 46 of the CBA provides
that "[t]he employer members of HRSA and the ILA agree
that. . . they will not discriminate against any employee
because of race ... and will comply with all applicable laws
prohibiting discrimination [including] Title VII of the Civil
Rights Act of 1964." ECF No. 10-1 at 44. That section
also provides that "[a]ny and all disputes, claims,
charges or complaints arising under this Section, including
those claiming a violation of Title VII .. . shall be brought
before the Contract Board." Id. at 40. Count
two thus comprises the first component of the hybrid claim, a
suit against an employer for breach of a collective
bargaining agreement. Count three alleges that Local 1624
breached its duty of fair representation in failing to file a
proper grievance for discrimination with the contract board
on Scott's behalf. Am. Compl. ¶¶ 75-80. Count
three comprises the second half of the hybrid claim.
six-month statute of limitations applies to section 301
hybrid claims. Foy v. Giant Food Inc., 298 F.3d 284,
291 (4th Cir. 2002) (applying six-month statute of
limitations to a section 301 hybrid action alleging that
employer breached a collective bargaining agreement in
discharging employee); Smith v. United Parcel Serv.,
Inc., 116 F.2d 99, 100 (4th Cir. 1985) (same); see
also 29 U.S.C. § 160(b) (establishing six-month
statute of limitations for complaints filed with the National
Labor Relations Board). The six months "begins to run
when an employee discovers, or should have discovered, the
acts constituting the alleged violation." Tall v. MV
Transp., No. RWT 12-417, 2012 WL 4480720, at *3 (D. Md.
Sept. 27, 2012), aff'd 512 Fed.Appx. 355 (4th
Cir. 2013) (citing Simmons v. Howard Univ., 157 F.3d
914, 916 (D.C. Cir. 1998)). "[T]he claim arises when the
plaintiff could first successfully maintain a suit based on
that cause of action, or when the claimant discovers, or in
the exercise of reasonable diligence should have discovered,
the acts constituting the alleged violation."
Gilfillan v. Celanese Ag, 24 Fed.Appx. 165, 167 (4th
Cir. 2001) (internal citations omitted). Generally, this will
mean when he discovered or should have discovered the union
chose not to represent him in the grievance process. See
Id. at 166.
Scott's original complaint, filed on March 31, 2017, he
did not allege that Local 1624 failed to adequately represent
him in the pursuit of his grievance against VIT. See
generally Compl., ECF No. 1. Scott added Local 1624 as a
defendant in his amended complaint, filed on September 17,
2017. ECF No. 32. VIT argues that Scott knew or should have
known of his claim against the union by December 2016, at the
latest, rendering his September 2017 amended complaint beyond
the six-month statute of limitations. ECF No. 38 at 4. Scott
argues that he was not aware that Local 1624 had breached its
duty of fair representation until April 25, 2017, when he saw
for the first time the grievance letter filed by the union
with the contract board, which was attached to VIT's
previously filed motion to dismiss. ECF No. 46 at 5.
amended complaint alleges that "Scott afforded ample
opportunities for ILA Local 1624 to represent him on this
discrimination claim through at least December 31, 2016, but
Local 1624 never acknowledged this claim of Scott['s] or
offered to represent him on the discrimination claims."
Am. Compl. ¶ 5. Scott does not explain, either in the
amended complaint itself or in his brief, the significance of
the December 31, 2016 date. The reading urged by VIT is that
December 31, 2016 is when Scott became aware that the union
was not representing him on his discrimination claim. The
Court agrees with this reading. Scott argues in his
opposition brief that he was unaware, prior to April 25,
2017, that the union had not pursued his discrimination
claim, but his own amended complaint contradicts this
statement. Based on the amended complaint, by late December
2016, nearly nine months after Scott's termination, Scott
had still received no indication from the union that it was
pursuing his discrimination claim, despite Scott having given
the union "ample opportunities" to do so. Am.
Compl. ¶ 5. At the very least, even if Scott did not
actually know, it should have been apparent to him by
December 2016 that the union was not pursuing his
discrimination claim. See Starnes v. Veeder-Root,
No. 1:15cvl002, 2017 WL 913633, at *11-12 (M.D. N.C. Mar. 7,
2017) ("'[t]o say, . . ., that the running of the
statute of limitations will be postponed indefinitely until
actual notification is received from the Union or the
employer, would be contrary to the policy of prompt
resolution. Lack of notification would leave claims
unresolved indefinitely and leave the procedure open to all
the vices which statutes of limitations were intended to
eliminate.'") (quoting Samuels v. Am. Transit
Corp., 595 F.Supp. 840, 843 n.5 (M.D. N.C. 1984)).
Scott's hybrid claim tolled by virtue of filing a charge
with the EEOC. "The statute of limitations does not toll
because a plaintiff files a complaint with an administrative
body." Minor v. Washington Metro. Area Transit
Auth., No. 8:12cvl061, 2013 WL 3776365, at *3 (D. Md.
July 16, 2013) (holding that the filing of an EEOC charge did
not toll the six-month statute of limitations for a hybrid
claim) (citing Kolomick v. United Steelworkers of Am.
District 8, 762 F.2d 354, 355-57 (4th Cir. 1985)
(holding that a complaint to the National Labor Relations
Board did not toll the statute of limitations in a section
301 hybrid claim, because section 301 serves as an exception
to the agency's preemptive jurisdiction)).
claim of unfair representation may still be timely if it
relates back to the filing of the original complaint. Rule 15
of the Federal Rules of Civil Procedure permits a party to
amend its pleadings when "the amendment asserts a claim
or defense that arose out of the conduct, transaction, or
occurrence ... in the original pleading." Fed.R.Civ.P.
15(c)(1)(B). Courts in this circuit consider "whether
there was (1) a sufficient factual nexus between the
amendments and the prior pleadings and (2) whether defendant
had sufficient notice of these new claims such that he will
not suffer prejudice if the amendments are found to relate
back." McCray v. Infused Solutions, LLC, No.
4:14cvl58, 2017 WL 4111958, at *6 (E.D. Va. Sept. 15, 2017)
(citing U.S. ex rel Carter v. Halliburton Co., 315
F.R.D. 56, 61-63 (E.D. Va. 2016)).
relation back inquiry here is not whether Local 1624 was put
on notice in the original complaint, because "plaintiffs
suing under a § 301/[duty of fair representation] theory
need not sue their union at all: it could hardly be that the
running of the limitations period as to the union
extinguishes the right of action against the employer."
White v. White Rose Food, a Div. of DiGiorgio Corp.,
128 F.3d 110, 116 (2d Cir. 1997). Nevertheless, the Court
must still analyze whether VIT was on notice that it would
have to defend against a claim that Scott was not fairly
represented by his union during the grievance procedure, and
whether there is a sufficient factual nexus between the
claims in the original and amended complaints. This is so
because Scott's claims against the union and VIT are
"'interlocked: neither claim is viable if the other
fails.'" Thompson v. Aluminum Co. of Am.,
276 F.3d 651, 657 (4th Cir. 2002) (quoting Crider v.
Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th
Cir. 1997)). "The key factor in a hybrid § 301 suit
is not who the plaintiff chooses to sue, or which parties
appear before the court, but rather what the plaintiff must
prove in order to recover." Int' l
Longshoremen's Ass 'n v. Va. Int'l Terminals,
Inc., 938 F.Supp. 335, 338 (E.D. Va. 1996). As the
Supreme Court put it in DelCostello:
[T]he two claims are inextricably interdependent. To prevail
against either the company or the Union [the plaintiff] must
not only show that [his] discharge was contrary to the
contract but must also carry the burden of demonstrating a
breach of duty by the Union. The employee may, if he chooses,
sue one defendant and not the other; but the case he must
prove is the same whether he sues one, the other, or both.
DelCostello, 462 U.S. at 164-65 (internal quotations
arguing that the claim does not relate back to the original
complaint, VIT relies on Heaning v. NYNEX-New York,
945 F.Supp. 640 (S.D.N.Y 1996). ECF No. 38 at 5-6. In
Heaning, the plaintiff originally brought a
complaint against his employer claiming that his termination
violated a collective bargaining agreement. Heaning,
945 F.Supp. at 642-43. Later, in opposition to summary
judgment, the plaintiff submitted an affidavit which
purported to show that he "was inadequately represented
by union officials." Id. at 643. Judge Sotomayor,
then a district judge, held that the hybrid claim did not
relate back to the original complaint, because the "new
allegations shift[ed] the primary focus of th[e] case from
the propriety of [plaintiffs] discharge ... to the adequacy
of his Union counsel." Id. at 648. Accordingly,
the court determined that the claim was barred by the
six-month statute of limitations.
other cases, courts have found no relation back when
employees initially filed complaints against their employers
based on improper arbitration decisions, and subsequently
amended those complaints to add union defendants,
transforming their claims into hybrids. See Holmes v.
Greyhound Lines, Inc., 151 F.2d 1563, 1566 (5th Cir.
1985); Painter v. Mohawk Rubber Co., 636 F.Supp.
453, 455-56 (W.D. Va. 1986). Courts have further found that a
claim related to the grievance or arbitration procedure and a
claim related to the underlying grievance do not share a
common set of operative facts. See Wolf Meek, Inc. v.
Plumbers Local No. 98 Detroit MI of the United Ass 'n of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the U.S. and Canada, AFL-CIO, No. 07-14199,
2008 WL 11355533, at *3 (E.D. Mich. Nov. 10, 2008) (citing
Tecam Elec. v. Local Union 701, IBEW, No. 01 C 3333,
2001 WL 1338985, at *6 (N.D. 111. Oct. 29, 2001); Penn.
Eng'g Corp. v. Islip Recovery Agency, 714 F.Supp.
634, 638 (E.D.N.Y. 1989)).
argues that there is a common nucleus of operative
facts-namely the incident on March 27, 2016 and the biased
treatment Scott received afterwards. ECF No. 46 at 6-7.
Further, Scott argues that he filed a charge of
discrimination with the EEOC related to that incident, and
that the EEOC would have provided VIT with notice of the
charge. Id. As for Scott's first argument, as
stated above, courts have drawn a distinction between
challenges to representation received during a grievance
process and the grievance itself. While the March 27, 2016
incident and termination certainly form the basis of the
underlying grievance, the facts related to the union's
representation of Scott would be quite different. Such facts
would not focus on the termination and confrontation between
Scott and his co-workers, but instead on Local 1624's
actions, or inactions, in bringing Scott's claim before
the contract board. If the cases cited above followed
Scott's argument, the outcomes would have been different.
In Hearting, for instance, the plaintiffs claim
against his employer was based on his termination, and his
claim against the union was based on the union's alleged
failure to adequately represent him in connection with that
termination. 945 F.Supp. 642-43. Based on Scott's
argument, both claims would share an operative set of facts,
namely, the reason for Heaning's termination. The court
in that case rejected such an argument. Id. at 648.
second argument falls prey to the same defect. Neither EEOC
charge mentions a claim against the union for breach of the
duty of fair representation. See ECF Nos. 32-1,
32-2. VIT does not assert that it was unaware of Scott's
claim of discrimination in connection with his termination,
which was clearly included in the original complaint, but
that the claim that VIT discriminated against Scott and the
claim that Local 1624 ...