United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOHN M. GERRARD UNITED STATES DISTRICT JUDGE
The defendant United Food & Commercial Workers Local Union No. 293 has moved to dismiss (filing 9) three causes of action in the plaintiffs complaint. For the reasons explained below, the Court will grant this motion.
The plaintiffs allegations are briefly summarized as follows. The plaintiff, James Wanner, is a Nebraska resident who is 54 years old and Caucasian. Filing 1-1 at 3. He was an employee of defendant Hormel Foods, Inc. Filing 1-1 at 1. The plaintiff worked at Hormel's facility in Fremont, Nebraska, filing 1-1 at 1, and he alleges that his job performance was satisfactory, filing 1-1 at 5. Additionally, he was a member of United Food & Commercial Workers Local Union No. 293 ("the Union") at all times relevant to this action. Filing 1-1 at 2. And at all times relevant to this action, the Union and Hormel were parties to a Collective Bargaining Agreement (CBA) that set forth terms and conditions of employment for members of the Union who worked at the Fremont facility. Filing 1-1 at 2.
On or about May 1, 2013, the plaintiff "was disciplined for misconduct relating to mislabeling product" at work. Filing 1-1 at 3. As a result, on June 10, 2013, Hormel and the Union entered into a "Last Chance Agreement, " wherein they agreed that if the plaintiff received another written notice of discipline within a year, he would be terminated. Filing 1-1 at 3. According to the plaintiff, the CBA between Hormel and the Union did not provide authority for this agreement. Filing 1-1 at 3. Subsequent to the Last Chance Agreement, the plaintiff was demoted from his Labeling position to a Pork Chop Saw Operator position. Filing 1-1 at 4. According to the plaintiff, employees who were female, non-Caucasian, and under the age of 40 also engaged in misconduct relating to mislabeling of products, but were not disciplined, demoted, or subjected to a Last Chance Agreement. Filing 1-1 at 4.
Next, on or about May 8, 2014, the plaintiff was disciplined for "an unsanitary practice of failing to change his gloves after picking up a piece of pork loin from the floor." Filing 1-1 at 4. He refused to sign the written disciplinary notice, and was placed on administrative leave pending an investigation. Filing 1-1 at 4. On May 13, he met with Mike Peck, a supervisor at Hormel, and Jeff Davenport, a steward of the Union. At this meeting, his employment was terminated. Filing 1-1 at 4. At the termination meeting, the plaintiff requested that Davenport file a grievance on his behalf. Filing 1-1 at 4. But Davenport refused. Filing 1-1 at 4. The following day, May 14, the plaintiff met with Daniel Hoppes, the president of the Union, and asked him to file a grievance. Filing 1-1 at 4. Hoppes said that neither he nor the Union could do anything about the termination. Filing 1-1 at 4. A week later, the plaintiff met with Hoppes and Mike Marty, secretary of the Union. Filing 1-1 at 4-5. Again, they refused to file a grievance on the plaintiffs behalf. Filing 1-1 at 5.
The plaintiff alleges that employees who were female, non-Caucasian, and under 40 engaged in misconduct related to unsanitary practices, but they were not disciplined, demoted, or terminated, nor were they denied union representation. Filing 1-1 at 5. According to the plaintiff, Davenport told him that the Union would file grievances on behalf of female employees, non-Caucasian employees, and employees under 40, but not for the plaintiff, because the Union "was afraid of discrimination complaints." Filing 1-1 at 5.
The plaintiff filed suit against both Hormel and the Union, alleging age discrimination, race and national origin discrimination, gender discrimination, wrongful discharge in violation of public policy, intentional infliction of emotional distress, breach of duty of fair representation, and breach of labor contract. Filing 1-1 at 6-11.
STANDARD OF REVIEW
A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id. And to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678.
The Union moves to dismiss three causes of action in the plaintiffs complaint: intentional infliction of emotional distress, filing 10 at 2, breach of duty of fair representation, filing 10 at 4, and breach of labor contract, filing 10 at 6.
(a) Intentional infliction of emotional distress
First, the Union moves to dismiss the plaintiffs intentional infliction of emotional distress claim. Filing 10 at 2. The plaintiff alleges that "Defendants subjected Plaintiff to adverse employment action and created a hostile work environment, " and that "Defendants terminated Plaintiffs employment after he complained of the discrimination, harassment, and hostile work environment." Filing 1-1 at 10. He alleges that, as a result, he "suffered severe emotional distress that no reasonable person should be expected to endure." Filing 1-1 at 10. The Union argues that to ...