                        UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
Walter Irving Banks,                      )
                                          )
       Plaintiff,                         )
                                          )
              v.                          )   Civil No. 15-cv-01598 (APM)
                                          )
International Union of                    )
Operating Engineers Local 99, et al.,     )
                                          )
       Defendants.                        )
_________________________________________ )

                          MEMORANDUM OPINION AND ORDER

       Plaintiff Walter I. Banks claims that his union, Defendant International Union of Operating

Engineers, Local 99 (“IUOE”), and certain of its officials and representatives, discriminated

against him based on his race, age, and disability while representing him in grievance proceedings

against his former employer. Plaintiff also appears to assert that Defendants breached their duty

of fair representation in those proceedings.      Defendants have moved to dismiss Plaintiff’s

Complaint in its entirety, contending that (1) his statutory discrimination claims are preempted by

federal labor law; (2) his duty of fair representation claim is barred by the statute of limitations;

and (3) his discrimination claims are not plausible.

       For the reasons set forth below, Defendants’ Motion to Dismiss is granted in part and

denied in part. Plaintiff has stated plausible claims of discrimination against IUOE based on race,

age, and disability. Those claims against the named IUOE officials and representatives, however,

must be dismissed because there is no individual liability under the relevant federal discrimination

statutes. Further, Plaintiff’s claim for breach of the duty of fair representation is time-barred and

therefore must be dismissed.
II.           BACKGROUND

              A.             Factual Background

              Plaintiff is a 62-year old African American male, who, until October 2013, was employed

as a “material handler” by LB&B Associates, Inc., in Columbia, Maryland. Notice of Removal,

ECF No. 1, Compl., ECF No. 1-1, ¶¶ 2-3, 5, 13.1 In early October 2013, Plaintiff sustained a back

injury during a workplace accident. Id. ¶ 5. Shortly thereafter, he filed an injury report with his

employer, who fired him roughly a week later, on October 17, 2013. Id.

              Plaintiff then turned to his union—IUOE—for assistance. He first spoke with Defendant

Mark Sexton, described by Plaintiff as the “union representative,” who referred him to IUOE’s

President, Defendant Michael Murphy. Id. ¶¶ 6-7. Murphy advised Plaintiff that his employer

had violated the collective bargaining agreement by terminating him and that the union would

pursue a grievance on his behalf through arbitration proceedings. Id. ¶ 7. The union hired an

outside lawyer, Defendant Jordan Kaplan, to represent Plaintiff. Id. ¶ 8.

              Plaintiff alleges that Kaplan’s representation of him was deficient in multiple respects.

Kaplan informed Plaintiff that his employer did not want him to return with a disability or with

accommodations. Id. ¶ 10. When Plaintiff asked whether his employer’s position would violate

the Americans with Disabilities Act, Kaplan told him that he did not know. Id. Kaplan further

advised Plaintiff that the union had no intention of moving forward with arbitration proceedings

and suggested that Plaintiff consider retirement as an option because of his age. Id. Kaplan also

said that Plaintiff’s employer had threatened to fire him again even if Plaintiff were to prevail at

arbitration and be reinstated to his position. Finally, Kaplan informed Plaintiff that he had no



                                                            
1
 ECF Number 1-1 contains multiple copies of the Complaint. The court cites only to the first, which can be found
on ECF-generated page numbers five through seven.

                                                               2 
 
further recourse and would have to accept the employer’s settlement offer of $12,000—and, even

if he refused, the union nonetheless would accept the offer and “close the case.” Id. ¶ 11.

       Plaintiff further alleges that the union represented white members eight years earlier—in

2006—in similar grievance proceedings and helped them get their jobs back. Id. ¶ 12. He also

claims that the union failed to provide him with various policies and other relevant documents

during his grievance process. Id. ¶ 13.

       B.      Procedural Background

       On August 11, 2015, Plaintiff filed a pro se suit in the District of Columbia Superior Court

against IUOE and its individual officials and agents. See generally Compl. His Complaint alleges

statutory claims of discrimination based on his race under Title VII, 42 U.SC. § 2000e-2; his age

under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; and his

disability under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Id. at 1.

And, although far from crystal clear, Plaintiff also appears to allege a breach of the union’s duty

of fair representation. Id. (alleging “In addition, breach of Fair Representation Duty”).

       On October 1, 2015, Defendants removed the case to this court. See Notice of Removal.

Their Motion to Dismiss followed six days later. See generally Defs.’ Mot. to Dismiss, ECF No.

3, Defs.’ Mem. of P&A in Supp. of their Mot. to Dismiss, ECF No. 3-1 [hereinafter Defs.’ Mot.].

III.   LEGAL STANDARD

       Where, as here, the plaintiff is proceeding pro se, the court must construe the complaint

liberally, and hold it to “less stringent standards than formal pleadings drafted by lawyers,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

       Further, in evaluating a motion to dismiss under Rule 12(b)(6), the court must accept the

plaintiff’s factual allegations as true and “construe the complaint ‘in favor of the plaintiff, who



                                                 3 
 
must be granted the benefit of all inferences that can be derived from the facts alleged.’” Hettinga

v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d

605, 608 (D.C. Cir. 1979)). The court need not accept as true “a legal conclusion couched as a

factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), or “inferences . . . unsupported

by the facts set out in the complaint,” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994).

       “To survive a motion to dismiss, 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). The factual allegations in the complaint need not be “detailed”; however, the

Federal Rules demand more than “an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. (citing Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S.

at 555). If the facts as alleged fail to establish that a plaintiff has stated a claim upon which relief

can be granted, a court must grant defendant’s Rule 12(b)(6) motion. See Am. Chemistry Council,

Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).




                                                   4 
 
IV.           DISCUSSION

              A.             Breach of Duty of Fair Representation

              The court begins with Plaintiff’s claim that IUOE breached its duty of fair representation

when counseling him in grievance proceedings against his former employer.2 Compl. at 2.

Defendants contend that, if Plaintiff’s breach of duty of fair representation claim fails, so too must

his statutory discrimination claims. Defs.’ Mot. at 7.

              As the exclusive bargaining representative of employees within Plaintiff’s bargaining unit,

see Compl. ¶ 3, IUOE had a statutory duty to fairly represent Plaintiff and all other covered

employees. See Vaca v. Sipes, 386 U.S. 171, 177 (1983). That duty required IUOE, among other

things, not to ignore a meritorious grievance against Plaintiff’s employer or process such grievance

in a “perfunctory fashion.” Id. at 191. IUOE risked breaching its duty of fair representation if its

“conduct toward a member of the collective bargaining unit [wa]s arbitrary, discriminatory, or in

bad faith.” Id. at 190.

              IUOE argues that Plaintiff’s claim for breach of the duty of fair representation must be

dismissed because it is barred by the statute of limitations. Defs.’ Mot. at 6-7. The court agrees.

Such a claim is governed by a short, six-month limitations period. See DelCostello v. Int’l Bhd. of

Teamsters, 462 U.S. 151, 169-70 (1983). Plaintiff alleges that IUOE breached its duty of fair

representation by coercing him to accept a settlement against his wishes on or around May 5, 2014.

Compl. ¶¶ 9-12. The limitations period began to run no later than that date under the facts alleged.

See Simmons v. Howard University, 157 F.3d 914, 916 (D.C. Cir. 1998) (stating that the statute of

limitations begins to run on a breach of duty of fair representation claim when “the claimant


                                                            
2
  In his opposition, Plaintiff concedes that his claim for breach of duty of fair representation cannot be brought against
the individual defendants. Pl.’s Mot. in Opp’n, ECF No. 6 [hereinafter Pl.’s Opp’n], at 10. Accordingly, the court
considers that claim as made only against IUOE.

                                                               5 
 
discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting

the alleged violation”) (citation omitted). Plaintiff did not, however, file his lawsuit in Superior

Court until August 11, 2015, well after the six-month limitations period had expired. See Compl.

at 1. Plaintiff does not offer any basis to toll the limitations period. See Pl.’s Opp’n at 9-10. Nor

can the court discern any such basis from the Complaint. See Simmons, 157 F.3d at 917 (stating

that the limitations period may be tolled “when the plaintiff is fraudulently induced to delay filing

his suit” or “in good faith attempts to exhaust grievance procedures”). Accordingly, Plaintiff’s

claim against IUOE for breach of the duty of fair representation is dismissed.

       B.      Statutory Discrimination Claims

       The court now turns to Plaintiff’s statutory discrimination claims. Defendants first contend

that Plaintiff “seeks redress under the laws of the District of Columbia and Title VII” and “[i]n so

doing, [Plaintiff] raises a matter wholly preempted by federal labor law.” Defs.’ Mot. at 3. But

Plaintiff has not asserted any claims under District of Columbia law. And Defendants offer no

authority for the proposition that federal anti-discrimination statutes are preempted by federal labor

laws. Nor could they. Each of the three federal statutes that Plaintiff invokes—Title VII, the

ADEA, and the ADA—expressly applies to labor unions. See 42 U.S.C. § 2000e-2(c) (expressly

forbidding a “labor organization” from discriminating “against[] any individual because of his

race”); 29 U.S.C. § 623(c) (making it unlawful, under the ADEA, for a “labor organization” “to

discriminate against[] any individual because of his age”); 42 U.S.C. § 12111(2) (defining, under

the ADA, the term “covered entity” to include a “labor organization”).

       Next, Defendants argue that a breach of the duty of fair representation is an element of a

discrimination claim against a union, and that because Plaintiff’s breach-of-duty claim is time-

barred, so too are Plaintiff’s discrimination claims. Defs.’ Mot. at 7. Their argument must fail,



                                                  6 
 
however, because its premise is wrong—a breach of the duty of fair representation is not an

element of a prima facie discrimination case.

       Our Court of Appeals has recognized that a union can be held liable under the anti-

discrimination laws for failing to carry out its duty of fair representation and the “facts support a

finding of [ ] discrimination” by the union. Macklin v. Spector Freight Sys., Inc., 478 F.2d 979,

(D.C. Cir. 1973), disapproved of on other grounds by Johnson v. Ry. Exp. Agency, Inc., 421 U.S.

454 (1975) (holding that “if the local’s performance is found to be arbitrary or in bad faith and the

facts support a finding of racial discrimination, then [the local] would appear liable under Title

VII”). It has not, however, articulated the precise elements of such a hybrid claim. Defendants

cite York v. AT&T Co., 95 F.3d 948, 957 (10th Cir. 1996), for the proposition that:

       To establish a prima facie Title VII claim against a union for breach of its duty of
       fair representation, a plaintiff must show (1) the employer violated the collective
       bargaining agreement with respect to the plaintiff, (2) the union permitted the
       violation to go unrepaired, thereby breaching the union’s duty of fair representation,
       and (3) there was some indication that the union’s actions were motivated by
       discriminatory animus.

See Defs.’ Mot. at 7.

       Other circuits, however, have not made a breach of the duty of fair representation a separate

element of a prima facie case under either Title VII or other anti-discrimination statutes. Recently,

in Garity v. APWU National Labor Organization, No. 13-15195, 2016 WL 3607049, at * 8 (9th

Cir. July 5, 2016), the Ninth Circuit held that a plaintiff, who had asserted discrimination claims

against a union under Title VII and the ADA, similar to the claims at issue here, did not need to

prove as an element of his prima facie case a breach of the duty of fair representation. The Ninth

Circuit’s opinion in Garity embraced the holding and reasoning of the Seventh Circuit in Green v.

American Federation of Teachers/Illinois Federation of Teachers Local 604, 740 F. 3d 1104 (7th

Cir. 2014). See Garity, 2016 WL 3607049 at *12 (“We are persuaded by the Green court’s

                                                 7 
 
decision that a Title VII claim against a union does not include an extra-textual ‘breach of the duty

of fair representation’ element.”). In Green, the Seventh Circuit held that “[a] claim against a labor

organization under [Title VII] does not depend on showing that either the employer or the union

violated any state statute or contract. Such a requirement cannot properly be added as part of the

prima facie case.” Green, 740 F.3d at 1107. The court explained that “[n]othing in the text or

genesis of Title VII suggests that claims against labor organizations should be treated differently”

than similar types of claims against employers. Id. at 1105. The court in Green thus “with[drew]

the language” from prior circuit decisions which had suggested that, to make out a prima facie of

discrimination against a union, a plaintiff had to show “‘the [union] breached its own duty of fair

representation by letting the breach [of the collective bargaining agreement] go unrepaired.’” Id.

at 1106 (quoting Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 866 (7th Cir. 1997)).

              For the reasons set forth in Green, this court agrees with the Seventh and Ninth Circuits

that a plaintiff is not required to show a breach of a union’s duty of fair representation in order to

make out a prima facie case of discrimination under Title VII, the ADA, and the ADEA.3 The

Tenth Circuit’s decision in York is no longer persuasive because, in York, the court directly relied

upon and imported the elements of a Title VII prima facie case from an earlier Seventh Circuit

decision, Babrocky v. Jewel Food Co., 773 F.2d 857, 868 (7th Cir.1985). See York, 95 F.3d at

955-56 (citing Babrocky). With the Seventh Circuit now having disavowed Babrocky and similar

cases, York’s inclusion of a breach of duty as an element of a statutory discrimination claim rests




                                                            
3
  Although neither Garity nor Green involved a claim, as here, under the ADEA, it is well established that cases
interpreting disparate treatment claims under Title VII are applicable to similar claims under the ADEA. See Koger
v. Reno, 98 F.3d 631, 633 (D.C. Cir. 1996) (“Age discrimination is governed by the disparate treatment analysis
developed in the Title VII context.”).

                                                               8 
 
on doubtful grounds. Accordingly, the fact that Plaintiff’s breach of duty claim is time-barred

does not similarly bar his discrimination claims.4

              Finally, Defendants argue that Plaintiff’s discrimination claims must be dismissed because

he has failed to plausibly allege that IUOE’s decision to settle, rather than arbitrate, Plaintiff’s

claim “was motivated by race or age discrimination, or disability.” Defs.’ Mot. at 7. The court

disagrees. A plaintiff alleging discrimination need not make out a prima facie case under the

McDonnell Douglas framework to defeat a motion to dismiss. See Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 511 (2002) (“This Court has never indicated that the requirements for establishing

a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs

must satisfy in order to survive a motion to dismiss.”). As long as the “allegations give [the

defendant] fair notice of what petitioner’s claims are and the grounds upon which they rest,” the

notice pleading requirement of Federal Rule of Civil Procedure 8(a) is met. Id. at 514; see also

Hill v. Bd. of Trs. of the Univ. of the D.C., 146 F. Supp. 3d 178, 184-85 (D.D.C. 2015) (observing

with respect to discrimination claims that the requirement that a plaintiff allege facts giving rise to

a plausible entitlement to relief is not a heavy burden and “the factual detail required to survive a

motion to dismiss can be quite limited”) (citing cases).

              Here, Plaintiff has alleged enough facts to give rise to a plausible inference that his union

discriminated against him on the basis of race, age, and disability. Plaintiff has alleged that he

possessed a valid grievance against his employer, which was acknowledged by union officials.

Compl. ¶ 7. Notwithstanding the validity of his grievance, Plaintiff contends that the union’s

lawyer essentially coerced him to drop his grievance, by telling him that if he refused, the union


                                                            
4
  Defendants also cite no authority for the dubious proposition that, even if a breach of the duty of fair representation
were an element of a prima facie case of discrimination, such an element of proof would somehow alter the statutory
limitations period for each of Plaintiff’s discrimination claims. Defs.’ Mot. at 7.

                                                               9 
 
would settle the matter over his objection. Id. ¶ 10. The union lawyer noted Plaintiff’s age—62

years old—and referenced retirement in urging him to settle. Id. He also ignored Plaintiff’s stated

concerns that his employer’s refusal to reinstate him with reasonable accommodations might be a

violation of the ADA. Id. And, finally, although seemingly remote in time, Plaintiff alleges that

white union members received more favorable treatment than he did when resolving similar

grievances with his employer. Id. ¶ 12. Based on the foregoing, the Plaintiff has satisfied the

notice pleading requirements of Rule 8 to state claims for discrimination under Title VII, the

ADEA, and the ADA.

       Finally, the court dismisses Plaintiff’s discrimination claims against the named individual

defendants. They cannot be held individually liable under Title VII, the ADEA, or the ADA.

See Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995) (holding that an individual employee

cannot be held liable under Title VII); Bilal-Edwards v. United Planning Org., 15 F. Supp. 1, 12

(D.D.C. 2013) (holding that an individual employee cannot be held liable under the ADEA and

citing cases); Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 186-87 (D.D.C. 1997)

(applying the holding in Gary to the ADA).

V.     CONCLUSION AND ORDER

       For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and denied in

part. The Motion is granted in its entirety as to the individual defendants—Murphy, Sexton, and

Kaplan—who are dismissed from this action. It is also granted as to Plaintiff’s claim against IUOE

for breach of duty of fair representation. The Motion, however, is denied in regard to Plaintiff’s

discrimination claims against IUOE under Title VII, the ADEA, and the ADA.



Dated: July 27, 2016                                  Amit P. Mehta
                                                      United States District Judge

                                                10 
 
