                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 BRIAN DAVID FILLMORE,

        Plaintiff,
                v.                                         Civil Action No. 15-661 (JEB)
 AT&T MOBILITY SERVICES LLC;
 CWA LOCAL 2336,

        Defendants.


                                  MEMORANDUM OPINON

       Pro se Plaintiff Brian David Fillmore worked for Defendant AT&T Mobility Services

LLC for nearly three years between early 2011 and his termination in early 2014. He has filed

suit against both AT&T and his union, CWA Local 2336, asserting separate claims of age

discrimination against each. Although AT&T has not yet been served, the union now moves to

dismiss the Complaint with prejudice, arguing that Plaintiff has failed to state a claim upon

which relief may be granted. Agreeing that his allegations against the union are insufficient, the

Court will grant the Motion, but dismiss that Defendant without prejudice.

I.     Background

       The Court, as it must in a case brought by a pro se plaintiff, considers the facts as alleged

in both the Complaint and Plaintiff’s Opposition to Defendant’s Motion to Dismiss. See Brown

v. Whole Foods, 789 F.3d 146, 152 (D.C. Cir. 2015) (court should consider “the facts alleged in

all of [a pro se plaintiff’s] pleadings” when evaluating a defendant’s motion to dismiss).

According to the former, Fillmore began working for AT&T as a Sales Support Representative

(SSR) on January 16, 2011, and was promoted to Financial Service Representative (FSR) two


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months later. See Compl. at 2. He initially worked at the AT&T store at Potomac Yards in

Alexandria, Virginia, but transferred in March 2012 to the one in the Chinatown section of

Washington, where he served as that location’s FSR. See id. In May 2013, Plaintiff’s supervisor

– the Chinatown store manager – mandated that he attend counseling due to his inability to

complete required job responsibilities – namely, an accurate count of phones and other store

inventory. See id. at 3; see also ECF No. 1 at 10 (Letter from Nickolas Parker). The document

notifying Plaintiff of the required counseling stated that failure to improve his job performance

could result in further disciplinary procedures “up to and including dismissal.” Parker Letter at

ECF p. 11. In August 2013, AT&T informed its employees that all FSR positions and some SSR

positions would be eliminated in January 2014. See Compl. at 3. On September 13, 2013, the

union notified affected employees that they would be allowed to apply for open positions within

AT&T and that employees facing active disciplinary procedures would be treated “as if they had

clean discipline records.” Id.; see ECF No. 1 at 7 (Local 2336 Letter).

       Fillmore took short-term disability leave from his job between August 25, 2013, and

October 1, 2013. See Compl. at 4. Upon returning, he was again asked to conduct an inventory

count of available phones and reported over three hundred missing, whereupon he was removed

from inventory-counting responsibilities. Id. On November 12, 2013, he “informed [union]

Executive VP Terrence Richardson” that a job applicant from outside the Company had been

hired as an SSR at the Chinatown store while Plaintiff was “in jeopardy of being laid off.” Id.

Fillmore was suspended without pay on November 15, 2013, and subsequently “went to see

Terrence & filed a grievance.” See id. The exact substance of Plaintiff’s grievance against

AT&T is unclear and could concern the hiring of an outside applicant for the available SSR

position, Plaintiff’s suspension without pay, both incidents, or something entirely different.



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Although the Complaint never explicitly mentions that he was subsequently terminated, Fillmore

attaches a document from the D.C. Department of Employment Services, which is dated January

23, 2014, and states that AT&T fired him “due to investigation for ‘fraudulently altering phone

counts.’” ECF No. 1 at 12 (D.C. DOES Determination by Claims Examiner).

       The Complaint alleges two separate counts of age discrimination, one against AT&T and

one against Local 2336. The sole factual basis for the latter is unrelated to discharge; instead,

Fillmore alleges that when he was suspended without pay, he “went to see Terrence & filed a

grievance. Terrence had a duty to act and chose not to.” Compl. at 4. Nothing further is alleged,

and only in his Opposition do we find out Plaintiff’s age – 48. See Opp. at 7. The union now

moves to dismiss.

II.    Legal Standard

       Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendant’s

Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must

grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United

States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms.,

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The notice-pleading rules are “not meant to

impose a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005),

and he must thus be given every favorable inference that may be drawn from the allegations of

fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).

       Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(quoting Twombly, 550 U.S. at 570). Plaintiff must put forth “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an

inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n.,

456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)

(internal quotation marks omitted)). For a plaintiff to survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” moreover, the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56

(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

       In evaluating the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6), the Court may

consider “the facts alleged in the complaint, any documents either attached to or incorporated in

the complaint and matters of which [the court] may take judicial notice.” Equal Emp’t

Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

Finally, the Court recognizes that pro se parties deserve a significant amount of leeway in their

pleadings. See, e.g., Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999) (“Courts

must construe pro se filings liberally.”). The Court, accordingly, will afford Plaintiff “the benefit

of the doubt and may ignore some technical shortcomings of [his] filings.” Voinche v. FBI, 412

F. Supp. 2d 60, 70 (D.D.C. 2006).

III.   Analysis

       Although never expressly mentioned in the Complaint, Plaintiff appears to base his claim

against the union on the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. In

addition to proscribing certain discriminatory acts taken by an employer, see § 623(a), the ADEA

prohibits “labor organization[s]” from discriminating against their members. See § 623(c) (“It

shall be unlawful for a labor organization—(1) to exclude or to expel from its membership, or
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otherwise to discriminate against, any individual because of his age.”) (emphasis added);

Younger v. D.C. Pub. Sch., 60 F. Supp. 3d 130, 141 (D.D.C. 2014). To make out an ADEA

claim against his union, a plaintiff must allege that “the union breached its duty of fair

representation and that its actions were motivated by discriminatory animus.” McIntyre v.

Longwood Cent. School Dist., 380 Fed. App’x. 44, 49 (2d Cir. 2010); see also Gallop-Liverpool

v. 1199 SEIU United Healthcare Workers East, No. 14-2879, 2014 WL 3897588, at *2

(E.D.N.Y. August 8, 2014) (applying same test as McIntyre in dismissing pro se plaintiff’s claim

that her labor union had violated ADEA in declining to file grievance on her behalf). Although a

plaintiff is not required to expressly state that the discriminatory actions were taken because of

his race, he must at a minimum present facts from which an “inference of discrimination” may

be drawn. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (addressing pleading

standards under Title VII) (quotation marks and citation omitted).

       In this case, the only fact Plaintiff alleges to support his claim is that Terrence

Richardson, the union official, “had a duty to act and chose not to.” Compl. at 4. Even if such a

cursory allegation was sufficient to establish a breach of fair representation, Plaintiff never

claims that Richardson’s decision was in any way related to his age. As there is thus no

allegation of discriminatory animus, see McIntyre, 380 Fed. Appx. at 49, nor facts from which

such an inference may be drawn, see Czekalski, 475 F.3d at 364, Plaintiff cannot sustain his

claim of ADEA discrimination against the union.

IV.    Conclusion

       While age-discrimination claims should be construed liberally at the motion-to-dismiss

stage, see Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57, 62 (D.D.C. 2014), the Court cannot

“create something out of nothing.” Jianqing Wu v. Special Counsel, Inc., 54 F. Supp. 3d 48, 56

(D.D.C. 2014). It will thus dismiss Plaintiff’s suit against the union. “The standard for
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dismissing a complaint with prejudice is high,” Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir.

2006), however, and “dismissal with prejudice is warranted only when a trial court determines

that the allegation of other facts consistent with the challenged pleading could not possibly cure

the deficiency.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (quotation marks

and citation omitted). Since the Court cannot so determine, it will dismiss the union without

prejudice. A contemporaneous Order shall so state.


                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: October 22, 2015




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