     Case: 17-30175      Document: 00514137339         Page: 1    Date Filed: 08/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 17-30175                                FILED
                                  Summary Calendar                        August 30, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
TABBATHA JOHNSON,

                                                 Plaintiff–Appellant,
v.

EAST BATON ROUGE FEDERATION OF TEACHERS,

                                                 Defendant–Appellee.


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                            USDC No. 3:16-CV-00423


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff Tabbatha Johnson’s fraud and breach of duty of fair
representation claims were dismissed by the district court for failure to state
a claim. Because Johnson’s complaint failed to allege sufficient facts, and
because none of the new arguments or factual allegations Johnson raises on
appeal reveals a plain error in the district court’s determination, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-30175

                                        I.
      In 2008, Johnson began working for the East Baton Rouge Parish School
System as a teaching paraprofessional. In 2015, after she reported that a
number of students’ individualized education program files had gone missing,
the School System proposed Johnson’s termination. A meeting was held, at
which the president of defendant East Baton Rouge Federation of Teachers
(the Union) discussed with the School System’s representatives the possibility
of transferring Johnson rather than terminating her. Nevertheless, the School
System ultimately terminated Johnson.
      Thereafter, Johnson filed a complaint with the Equal Employment
Opportunity Commission against the Union in which she alleged retaliation in
violation of Title VII of the 1964 Civil Rights Act. 42 U.S.C. § 2000e et seq.
The Commission issued Johnson a notice of her right to sue, and Johnson filed
a complaint pro se in the United States District Court for the Middle District
of Louisiana. In her district court complaint, Johnson raised causes of action
against the Union for “failure to provide union representation” and “fraud.”
The entirety of her description of her claim read: “Defendant failed to provide
representation. Sought to prevent the [plaintiff] from seeking whistleblower
protection in a timely manner. Defendant committed a fraud.”
      On November 15, 2016, the Union filed a motion to dismiss for failure to
state a claim. Johnson never filed a response to the Union’s motion. The
motion was granted and the case dismissed without prejudice on January 23,
2017, and the district court stated: “If no response to this Ruling is filed within
fourteen (14) days, this dismissal is converted to a dismissal with prejudice.”
Johnson did not file a response to the ruling, and the dismissal was converted
to a dismissal with prejudice. Then, on March 2, 2017, Johnson appealed from




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the district court’s final judgment against her, and in her notice attempted to
supply additional arguments and factual allegations to support her claims.
                                       II.
      We review a district court’s decision to dismiss for failure to state a claim
de novo. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012). We
review arguments raised for the first time on appeal solely for plain error.
Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir. 2004).
      Federal Rule of Civil Procedure 8 requires that a complaint contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,” a plaintiff is
nevertheless required to provide “more than labels and conclusions.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be
enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true.” Id.
      To satisfy this requirement, a complaint must “plead[] 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).
We undertake a two-step analysis to determine whether a complaint has met
this requirement. Id. First, we identify any allegations in the complaint that
are conclusory, as these will not be afforded a presumption of truth.           Id.
Second, we analyze the remaining factual allegations to determine if, when
presumed true, they add up to a violation of the law. Id.
      Any new arguments will be reviewed only for plain error on appeal. See
McGarity v. Apfel, 172 F.3d 870 (5th Cir. 1999) (unpublished); see also
Crawford v. Falcon Drilling Co., 131 F.3d 1120 (5th Cir. 1997) (explaining that
a court “review[s] unpreserved error in a civil case using the plain-error


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standard of review”). The plain-error standard of review requires that we
evaluate: “(1) if there was error, (2) if that error was plain, (3) if the error affects
substantial rights, and (4) whether allowing that error to stand seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Crawford, 131 F.3d at 1124.
                                          III.
      In its motion to dismiss in the district court, the Union argued that it
was not the exclusive bargaining representative of Johnson and therefore could
not have owed a duty of fair representation to her. Moreover, the Union points
out that even though some greater degree of leniency should be afforded a
party proceeding pro se, pro se complaints are still required to comply with
Rule 8(a)(2). See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th
Cir. 2002). The Union contends that Johnson’s complaint failed to meet this
requirement not only because it did not meet Iqbal and Twombly’s plausibility
standard, but also because it was “virtually incomprehensible and full of legal
conclusions.” The district court agreed with the Union, and so do we.
      The Supreme Court has explained that as the exclusive bargaining
agent, a union has “a statutory obligation to serve the interests of all members
without hostility or discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v.
Sipes, 386 U.S. 171, 177 (1967). “The critical question is whether a union’s
conduct was arbitrary, discriminatory, or in bad faith, so that it undermined
the fairness or integrity of the grievance process.” Landry v. The Cooper/T.
Smith Stevedoring Co., 880 F.2d 846, 852 (5th Cir. 1989). Thus, in order to
state a claim for breach of duty of fair representation, a complainant must
allege enough facts that if presumed true, permit the inference that the
complainant’s exclusive bargaining agent acted arbitrarily, discriminatorily,


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or in bad faith in its representation of the complainant. See Iqbal, 556 U.S. at
678; Twombly, 550 U.S. at 555; Vaca, 386 U.S. at 177.
      Johnson’s complaint alleges only that the Union “failed to provide
representation,”     “[s]ought   to     prevent   the    defendant   from    seeking
whistleblower protection in a timely manner,” and “committed a fraud.”
As nothing more than bare allegations, these statements are insufficient to
survive a Rule 12(b)(6) motion to dismiss.              See Iqbal, 556 U.S. at 678
(explaining that Rule 8(a)(2) “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation”).
      Johnson did include in her notice of appeal additional factual allegations
in an attempt to substantiate her claims or permit the necessary inferences.
Because these additional allegations were not raised before final judgment was
entered by the district court, they are evaluated under the plain-error standard
of review. Apfel, 172 F.3d at 870. That is, these allegations must reveal a plain
error in the district court’s determination that affects Johnson’s substantial
rights in such a way as to undermine the “fairness, integrity, or public
reputation of judicial proceedings.” Crawford, 131 F.3d at 1124. We conclude
that nothing in the additional arguments or allegations Johnson raises on
appeal reveals any such error.




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                                                 IV.
       Because Johnson’s complaint failed to allege facts sufficient to state
claims for fraud or breach of duty of fair representation, and because nothing
that Johnson raises on appeal reveals a plain error in the district court’s
determination, we AFFIRM. 1
       Judge King concurs in the judgment.




1        The Union’s brief to this court states that one of the issues on appeal is whether Johnson had
notice of the Union’s motion to dismiss. This issue is not raised by Johnson in her brief. She does
mention in her notice of appeal that she “did not receive the request to submit a memorandum in
opposition.” This is not equivalent to stating that she did not receive notice of the Union’s motion or
the court’s order. In any event, the additional arguments and allegations she raises for the first time
on appeal are insufficient to overcome the Union’s Rule 12(b)(6) motion to dismiss. Accordingly, the
district court did not err in converting the order granting the motion to dismiss into a dismissal with
prejudice.
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