                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
FREDERICK B. HOLLIE,                       )
                                           )
                        Plaintiff,         )
                                           )
            v.                            )  Civil Action No. 11-0561 (ESH)
                                           )
ANTHONY SMITH, et al.,                     )
                                           )
                        Defendants.        )
                                           )

                                  MEMORANDUM OPINION

       Frederick Hollie, proceeding pro se, has sued his former union, the International

Brotherhood of Teamsters, Local Union 639 (“Union”), as well as his union representative,

Anthony Smith, seeking damages resulting from gross negligence, breach of contract, and breach

of the duty of fair representation. The Union has moved to dismiss Hollie’s claims, pursuant to

Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the following reasons, the Union’s motion will be

granted in part and denied in part.

                                        BACKGROUND1

       Hollie was employed by the United Parcel Service (“UPS”) and was a member of the

Union. (Am. Compl. at 1.) On December 12, 2008, Hollie was discharged by UPS. (Id.) The

Union successfully reversed the discharge, and Hollie was allowed to return to work on January

12, 2009. (Id.) On January 15, Hollie’s manager told him that he needed to take a physical in

order to continue working because his most recent physical was insufficient. (Id. at 1-2.) On

February 19, Hollie was fired for taking an unauthorized leave of absence. (Id. at 2; see also

       1
         The dates given by Hollie in his complaint are confusing and frequently do not match
the dates listed in his supplemental materials. The Court will use the dates that it believes are
correct based on all of the materials submitted by Hollie.
Compl. Ex. C, at 2.) On March 19, Hollie filed a grievance with the Union. (Compl.,

Chronology of Events (“Chronology”), at 3.) Hollie alleges that the Union never responded to

the grievance he filed. (Am. Compl. at 2.)

         Hollie also alleges that on October 20, 2010, he attended a panel hearing of the Atlantic

Area Parcel Grievance Committee, after which he was discharged for “not filing a timely

grievance in response to the February 19” discharge. (Id.) Moreover, he alleges that the Union

“reversed” his reinstatement from his December 12, 2008, discharge on December 22, 2010.

(Id.)

         Hollie filed suit against Smith and the Union in Superior Court on February 22, 2011.

(Notice of Removal, Ex. A, at 1.) He alleged that defendants failed to “investigate grievances in

January and February” 2009, that he had not received “back pay for wrongful terminations,” that

he received “unfair representation” when he was not allowed to present his case “verbally” at the

2010 “hearing panel,” that they failed to “return calls or contact” him about his grievances, and

that they had failed to contact him. (Id. at 5.) The Union removed the case on March 16, 2011,

on the grounds that Hollie claimed a breach of the federal “duty of fair representation.” (Notice

of Removal at 2-3.) The Union moved to dismiss HollieDefs.’’s claims on March 24, 2011.

(Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) at 11.) Hollie filed an amended complaint on May 5,

2011.2

         2
          The Union argues that Smith is no longer a party in this suit because the amended
complaint does not include any claims against him. (Defs.’ Reply at 1-2 n.1.) Although the
filing of an amended complaint generally “renders the original complaint a nullity,” Affinity
Healthcare Servs., Inc. v. Sebelius, 746 F. Supp. 2d 106, 111 n.7 (D.D.C. 2010), when a plaintiff
is proceeding pro se, the Court must “read[] all of the plaintiffs filings together.” See
Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999); see also Silvious v. Snapple
Beverage Corp., No. 11-630, 2011 WL 2530897, at *2 (D.D.C. June 27, 2011) (“in construing
pro se filings liberally, courts should read all of the pro se party’s filings together”). Thus,
Hollie’s amended complaint supplements, rather than replaces his original complaint, and his
claim against Smith survives.

                                                  2
                                            ANALYSIS

I.     STANDARD OF REVIEW

       To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face,’” such that a court may “draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In ruling on a 12(b)(6) motion, a court may

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

matters of which courts may take judicial notice, and documents appended to a motion to dismiss

whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim.

U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 24-25 (D.D.C. 2010).

II.    HOLLIE’S COMPLAINT ONLY ALLEGES BREACH OF THE DUTY OF FAIR
       REPRESENTATION

       Although Hollie has “attempt[ed] to bring a state law action,” the Union argues that his

state law claims are pre-empted because his complaint also alleges a breach of the Union’s duty

of fair representation. (Defs.’ Mot. at 5.) Hollie’s original complaint did not cite any statutory

basis for his action. Rather, it alleged that the Union and Smith failed to investigate Hollie’s

grievances and failed to successfully win him his back pay, that he was unfairly represented at a

recent hearing, and that the Union and Smith failed to return his calls and to contact him.

(Compl. at 1.) Hollie’s amended complaint alleges that the “Union never responded to

grievances as agreed by Union Representative Anthony Smith,” and that “a breach of an explicit

or implied contract of employment or an employer-union collective bargaining agreement” led to

his constructive discharge. (Am. Compl. at 2.) Moreover, Hollie alleges that damages were

“increased by the Union’s gross negligence, breach of contract and its statutory duty of fair


                                                  3
representation.” (Id.) Thus, Hollie now explicitly alleges that the Union and Smith breached

their duty of fair representation.

        Even if Hollie had not specifically raised this claim, the Court would read his complaint

to allege a breach of the duty of fair representation because he alleges that the Union and Smith

failed to follow the grievance procedure detailed in the collective bargaining agreement with

UPS. See Price v. Union Local 25, No. 10-1865, 2011 WL 2144564, at *2-*3 (D.D.C. June 1,

2011) (where plaintiff made no “specific legal claim,” the court construed his complaint as

asserting a duty of fair representation claim because it alleged that his union “arbitrarily

ignore[d] a meritorious grievance or process[ed] it in perfunctory fashion”) (quoting Vaca v.

Sipes, 386 U.S. 171, 191 (1967)). Moreover, “[t]o the extent that the Union had a duty to

[Hollie], that duty is defined . . . by a collective bargaining agreement . . . as well as applicable

federal statutes,” and is, therefore, governed by § 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185. Ramey v. Int’l Bhd. of Elec. Workers, 580 F. Supp. 2d 44, 47-48

(D.D.C. 2008) (construing claim of conspiracy against union as one for breach of the duty of fair

representation). Thus, no matter how Hollie has labeled his claims, the Court would construe

them as claims brought pursuant to § 301 of the LMRA. Id. at 48 (quoting Taylor v. Giant Food,

Inc., 438 F. Supp. 2d 576, 581 (D. Md. 2006)).

        To the extent Hollie alleges that the same conduct also gives rise to claims under state

law, these claims are preempted because they do not “arise wholly outside the ambit of those

obligations circumscribed by a union’s duty of fair representation under the collective bargaining

agreement.” Condon v. Local 2944, United Steelworkers of Am., AFL-CIO, 683 F.2d 590, 595

(1st Cir. 1982); see also May v. Shuttle, Inc., 129 F.3d 165, 179 (D.C. Cir. 1997) (agreeing that

“the federal duty of fair representation preempts identical state law claims”); Price, 2011 WL



                                                   4
2144564, at *4 n.3 (“identical state law claims based on the same conduct” are “preempted by

the federal” duty of fair representation claim”). To the extent Hollie states claims other than a

breach of the duty of fair representation, these claims will be dismissed.

III.   HOLLIE’S CLAIM AGAINST THE UNION

       A.        Failure to Exhaust Internal Remedies

       The Union argues that Hollie’s claim that it breached its duty of fair representation

should be dismissed because he failed to exhaust his internal union remedies. (Defs.’ Mot. at 9.)

The Union argues that “ordinarily, . . . an employee is required to attempt to exhaust any

grievance or arbitration remedies provided in the collective bargaining agreement.” Majewski v.

B’Nai B’Rith Int’l, 721 F.2d 823, 824 n.6 (D.C. Cir. 1983) (quoting DelCostello v. Int’l Bhd. of

Teamsters, 462 U.S. 151, 163 (1983)). This requirement, however, applies to suits brought

against an employer by an employee, not to suits against the union itself. See id. at 824;

DelCostello, 462 U.S. at 163. Because Hollie sued his union under the LMRA, the Court “ha[s]

the discretion to decide whether to require exhaustion of internal union procedures.”3 Clayton v.

Int’l Union, United Auto., Aerospace, and Agric. Implement Workers of Am., 451 U.S. 679, 689

(1981); see also O’Hara v. Dist. No. 1-PCD, 56 F.3d 1514, 1522 (D.C. Cir. 1995) (courts “may

enforce” union constitution’s “requirement of exhaustion of internal union remedies . . . under

appropriate conditions”). When exercising this discretion:

       at least three factors should be relevant: first, whether union officials are so
       hostile to the employee that he could not hope to obtain a fair hearing on his
       claim; second, whether the internal union appeals procedures would be inadequate
       either to reactivate the employee's grievance or to award him the full relief he
       seeks under § 301; and third, whether exhaustion of internal procedures would
       unreasonably delay the employee's opportunity to obtain a judicial hearing on the
       merits of his claim. If any of these factors are found to exist, the court may
       properly excuse the employee's failure to exhaust.

       3
           Hollie does not argue that he exhausted his internal remedies. (See Pl.’s Reply at 2-4.)

                                                  5
Clayton, 451 U.S. at 689. Thus, the Court must first determine whether Hollie has shown that

the Union’s internal procedures cannot reactivate his grievance or “grant [him] full relief.”4 Id.

at 696. If the Union’s internal procedures are inadequate, Hollie will not be “required to expend

time and resources seeking a necessarily incomplete resolution of his claim prior to pursuing

judicial relief.”5 Id.

        Hollie argues that the Court should excuse his failure to exhaust because the Union’s

internal procedures are inadequate to reactivate his grievance and reinstate him. (Pl.’s Reply at

3.) As proof, Hollie attaches the decision from the October 2010 hearing panel, which clearly

states that a decision by the panel is “final, conclusive and binding with no appeal.” (Pl.’s Reply,

Ex. J, at 3.) Moreover, after the panel issued its decision, Smith informed Hollie that his “claim

[was] untimely and would fail at any attempt to adjudicate it.” (Id., Ex. J. at 1.) Finally,

although the Union suggests that Hollie can pursue disciplinary action against union officers, it

does not argue that his grievance could be reactivated. (Defs.’ Mot. at 9.) Therefore, the Court

concludes that the Union’s internal procedures cannot reactivate Hollie’s grievance.

        Requiring Hollie to seek money damages through the Union’s internal grievance process

would also be futile. Clayton, 451 U.S. at 689 (internal remedies must be unable “either to

        4
         Hollie carries the burden of establishing that exhausting his internal remedies would be
futile. Although there is no post-Clayton precedent in this Circuit, the Court held in Winter, a
pre-Clayton case, that a plaintiff was required to make a “clear and positive showing of futility”
before the Court could excuse a failure to exhaust internal union remedies. Winter v. Local
Union No. 639, Affiliated with Int’l Bhd. of Teamsters, 569 F.2d 146, 149 (D.C. Cir. 1977); see
also Pierce v. Bahr, No. 96-0680, 1996 WL 33675196, at *4 n.9 (D.D.C. May 9, 1996) (burden
on plaintiffs to “prove the futility of exhausting their union remedies”).
        5
        The Union suggests that Ruzicka v. General Motors Corp., 523 F.2d 306, 311 (6th Cir.
1975), counsels that the Court should stay its hand until the Union has “had at least some
opportunity to resolve disputes concerning its own internal affairs.” (Defs.’ Mot. at 10.)
However, Ruzicka was decided before Clayton, which explicitly rejected any general internal
exhaustion requirement. See Clayton, 451 U.S. at 696.


                                                  6
reactivate the employee's grievance or to award him the full relief he seeks under § 301”).

Although the Union argues that its Constitution provides “a damages and injunctive remedy,”

(Defs.’ Mot. at 9 (citing Tinsley v. United Parcel Serv., 665 F.2d 778, 779-80 (7th Cir. 1981)),

Article XIX of the Union’s Constitution does not appear to provide for an award of money

damages to an individual union member.6 (Defs.’ Mot., Ex. A, at 89-90 (“[i]f a fine is assessed

against a Local Union by a Joint Council, the payment shall be to the treasury of the Joint

Council”).) Moreover, the Court of Appeals has read the Union’s constitution to prevent a

plaintiff from “obtain[ing] money damages through union disciplinary channels.” Winter, 569

F.2d at 149 (plaintiff “probably could not” obtain money damages); see also Beyene v. Coleman

Sec. Servs., Inc. 854 F.2d 1179, 1181 (9th Cir. 1988) (“[o]n its face,” Teamsters Constitution

“does not authorize the payment of money damages to a union member who successfully asserts

an internal charge against a Local Union.”). Thus, because the Union’s internal procedures

cannot provide Hollie the full relief he seeks, it would be futile to require him to exhaust his

internal remedies. Clayton, 451 U.S. at 696.

       B.      Statute of Limitations

       In its Reply brief, the Union argues that Hollie’s claims are also barred by the statute of

limitations.7 (Defs.’ Reply at 2-5.) A six-month statute of limitations applies to claims against a

       6
         Although Hollie does not cite to the Union’s Constitution in his complaints, it is a
verifiable public document and, therefore, may be considered by the Court without converting
the Union’s motion to dismiss into a motion for summary judgment. Cf. Sears v. Magnolia
Plumbing, Inc., 778 F. Supp. 2d 80, n.6 (D.D.C 2011) (taking judicial notice of corporate
resolutions made publicly available through Maryland government website).
       7
        The Court generally will not consider arguments raised for the first time in a defendant’s
reply. See Jones v. Mukasey, 565 F. Supp. 2d 68, 81 (D.D.C. 2008) (citing Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008)). However, Hollie filed an amended
complaint after the Union’s initial motion to dismiss, but before its reply. Moreover, Hollie has
responded to the arguments made in the Union’s reply. (See Pl.’s Reply Brief in Opp’n of Defs.’
Mot. to Dismiss (Dkt. No. 8).) Thus, because the Union’s reply responded to new issues raised

                                                  7
union for breach of the duty of fair representation. George v. Local Union No. 639, Int’l Bhd. of

Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 100 F.3d 1008, 1014 (D.C.

Cir. 1996). The six months begin to run when the claimant “discovers, or in the exercise of

reasonable diligence should discover, the acts that form the basis of his claim.” McConnell v.

Air Line Pilots’ Ass’n, Int’l, 763 F. Supp. 2d 37, 41 (D.D.C. 2011). When a series of actions

allegedly violated the duty of fair representation, the “timeliness of the action is generally

measured from . . . when the employee knows or should have known of the last action taken by

the union which constituted the alleged breach of its duty of fair representation.” Watkins v.

Commc’ns Workers of Am., Local 2336, 736 F. Supp. 1156, 1159 (D.D.C. 1990); see also Plain

v. AT&T Corp., 424 F. Supp. 2d 11, 21 (D.D.C. 2006) (quoting Watkins, 736 F. Supp. at 1159).

Thus, Hollie’s cause of action did not accrue as long as he “reasonably thought that the grievance

process had not reached a final breakdown.” Watkins, 736 F. Supp. at 1160.

       Hollie’s claim is not untimely because the statute of limitations period did not begin to

run until October 2010. The Union argues that Hollie’s claim can be “traced back” to his

discharge on February 19, 2009, because Hollie alleges that it failed to investigate the grievances

he filed on January 22, 2009, and February 6, 2009. (Defs.’ Reply at 5.) Hollie replies that the

“primary basis” for his complaint was the panel hearing held on October 20, 2010, and that his

lawsuit was filed on February 18, 2011, well within the six-month statute of limitations. (Pl.’s

Reply at 2.) Hollie alleges that he was “unfair[ly] represent[ed] at recent hearing panel where

[he] was never allowed to present [his] case verbally,” (Compl. at 1) and that this hearing related

to his February 2009 discharge. (Am. Compl. at 2.) Construing Hollie’s complaint liberally, and

assuming that all of the facts he alleges are true, Toolasprashad v. Bureau of Prisons, 286 F.3d


in Hollie’s amended complaint, and because Hollie has had the opportunity to brief these issues,
the Court will consider the Union’s argument on the statute of limitations.

                                                  8
576, 583 (D.C. Cir. 2002), Hollie has alleged that he reasonably thought that the grievance

process had not reached a final breakdown prior to the October 2010 hearing. Thus, because

Hollie’s cause of action had not accrued until October 2010, the Court will deny the Union’s

motion to dismiss on the basis of the statute of limitations.

IV.    HOLLIE’S CLAIM AGAINST SMITH

       The Union also argues that Hollie’s claim against Smith should be dismissed because he

cannot bring a claim for breach of the duty of fair representation against an individual. (Defs.’

Mot. at 8.) The LMRA provides that “[a]ny money judgment” following an alleged breach of

the duty of fair representation “shall not be enforceable against any individual member” of a

union “or his assets.” 29 U.S.C. § 185(b). Thus, a money judgment “cannot be sought or

enforced against a union representative when the union violated its duty of fair representation.”

McMickle v. Aragon, 736 F. Supp. 2d 129, 130 (D.D.C. 2010) (dismissing claim against union

representative); see also Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-48 (1962) (“when

Congress passed” 29 U.S.C. § 185, “it declared its view that only the union was to be made to

respond for union wrongs, and that the union members were not to be subject to levy”); Price,

2011 WL 2144564, at *2-*3 (courts in this Circuit have “uniformly dismissed” fair

representation claims for damages “brought against individual union agents or officers”).

Hollie’s claim against Smith is solely based on Smith’s failure to adequately communicate with

him during the grievance process. (Compl. at 1 (alleging “failure to return calls or contact me

regarding my grievances”); Am. Compl. at 2 (“The Union never responded to grievances as

agreed by Union Representative Anthony Smith”).) Because Hollie cannot bring a claim against

an individual union officer, his claim against Smith must be dismissed. Price, 2011 WL

2144564, at *3.



                                                  9
                                         CONCLUSION

       For the foregoing reasons, the Union’s Motion to Dismiss (Dkt. No. 2) will be granted in

part and denied in part. The Union’s motion to dismiss Hollie’s state law claims and Hollie’s

claims against Anthony Smith will be granted. The Union’s motion to dismiss Hollie’s claim

against it for breach of the duty of fair representation will be denied. A separate Order

accompanies this Memorandum Opinion.



                                                                  /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

DATE: September 28, 2011




                                                10
