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.

Scott v. Virginia Port Authority

United States District Court, E.D. Virginia, Norfolk Division

February 7, 2018

RODNEY O. SCOTT, Plaintiff,
VIRGINIA PORT AUTHORITY, et al., Defendants.



         This 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.

         For the 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 be DENIED.


         Beginning 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.

         Toby 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. ¶ 53.

         Defendant 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.

         According 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.

         Scott 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. ¶¶ 20-22.

         According 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.

         International 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").[1] 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.

         Local 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.[2] 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.


         On June 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.

         On 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.

         Scott 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.

         Scott 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.

         Scott's 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.

         In his 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.

         Scott's 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. ¶76.

         Scott's 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.

         Finally, 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.

         On 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 2.

         On 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.[3] 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.[4] ECF No. 64. Local 1624 replied on February 1, 2018. ECF No. 67.


         Federal 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).

         Federal 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.

         A 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., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678).

         IV. ANALYSIS

         A. Counts two and five against Virginia International Terminals should be dismissed.

         1. Count two against Virginia International Terminals is barred by the statute of limitations.

         VIT 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)).

         Ordinarily, 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. Id.

         Here, 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.

         A 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.

         In 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.[5] ECF No. 46 at 5.

         Scott's 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)).

         Nor is 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)).

         Scott's 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)).

         The 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 omitted).

         In 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."[6] 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.

         In 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)).

         Scott 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.

         Scott's 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 ...

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.