UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PAULA PRUITT,

Plaintiff,

vs. Case No. 14-12696

AFSCME COUNCIL 25, AFSCME LOCAL 2650, HON. AVERN COHN

AL GARRETT, and SANDRA CRAYTON,

Defendants.

_________________________________________/

DECISION AND ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 14)

AND DENYING PLAINTIFF’S MOTION TO AMEND (Doc. 17) 

AND DISMISSING CASE1

I. Introduction/Summary of Decision

This is a labor case arising out of an employment dispute. Plaintiff Paula Pruitt,

proceeding pro se, is suing defendants AFSCME Council 25 and its affiliated AFSCME

Local 2650 (collectively, the Union), Al Garrett, President of AFSCME Council 25, and

Sandra Crayton, President of AFSCME Local 2650. As will be explained, Pruitt was

terminated from her position as a Nurse Assistant II at McLaren Regional Medical

Center-Flint2

 for harassing and threatening another employee. The Union represented

1

Although this matter was originally scheduled for hearing, upon review of the

parties’ papers, the Court deems this matter appropriate for decision without oral

argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

2

Pruitt also has a case pending before the undersigned against McLaren

Regional Medical Center-Flint and several individuals, case no. 14-12074. 

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Pruitt in arbitration; the arbitrator upheld her termination. In broad terms, Pruitt claims

that the Union failed to provide her with fair representation during the arbitration

process, resulting in a violation of her right to due process under 42 U.S.C. § 1983 and

causing her emotional distress.

Before the Court is the Union’s motion for summary judgment and Pruitt’s motion

for leave to file an amended complaint. For the reasons that follow, the Union’s motion

will be granted and Pruitt’s motion will be denied. The case will be dismissed.3

As will be explained, none of Pruitt’s claims under federal law, whether as

currently plead or as she proposes to amend, carry the day. Regarding her claims

under federal law, the Union cannot be sued for discrimination under § 1983, the Union

fairly and throughly represented Pruitt in arbitration, and there is no evidence the Union

discriminated against her in the way it pursued her grievance. 

Finally, Pruitt’s claim under state law for intentional infliction of emotional distress

will be dismissed without prejudice to her right to pursue it in the state courts. 

II. Background

A. Factual

The material facts as gleaned from the parties’ papers follow:4

Pruitt was an employee of McLaren Regional Medical Center (Hospital). The

3

Pruitt recently filed a Motion for Court Appointed Attorney. (Doc. 21). Given the

ruling on the pending motions, Pruitt’s motion for a court appointed attorney is MOOT.

4

The Union did not file a statement of material facts not in dispute in separately

numbered paragraphs as required in the Court’s motion practice guidelines. Pruitt did

not file a response to the Union’s motion; instead, she filed a motion for leave to amend

her complaint. Be that as it may, the record is sufficiently clear so as to enable a

decision on the pending motions.

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Hospital is privately owned with locations throughout mid-Michigan. Pruitt was

employed as a Nurse Assistant II, a classification whose terms and conditions of

employment are contained within the collective bargaining agreement (CBA) between

the Hospital and the Union and its affiliated Local 2650. Local 2650 is a bargaining unit

which represents various classifications employed by the Hospital. Local 2650 is

affiliated with the Union, which is a statewide labor organization employing professionals

such as Staff Representatives, Staff Specialists, and Staff Attorneys, who assist local

union officers in a variety of functions, including collective bargaining, grievance

processing, as well as providing advocacy in various proceedings including arbitrations.

On March 12, 2013, Pruitt was issued a Step 1 verbal warning by her supervisor,

Cathleen Hipps. The stated reason for discipline was Pruitt’s alleged failure to answer

call lights and failure to clean and change a patient's soiled linens during two previous

shifts. During the subsequent arbitration, Hipps testified that Pruitt became very vocal

and upset when issued the discipline. 

On March 26, 2013, Pruitt met with Hipps to receive her performance evaluation.

Plaintiff received a rating of 2.15 out of a possible 5 points, which rates as “partially

meets expectations.” Hipps further testified at arbitration that Pruitt became "enraged"

and argued with her about the evaluation. 

Approximately five days later, Hipps found two voice messages on her work

phone. The first message had been left at 10:42 the previous evening, and simply

stated: “You's [sic] a stupid bitch.”

The second message was left at 11:26 the previous evening, and was about one

minute long. Hipps went to the employer's Human Resources office and played the

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message for Teea Moore, the Senior Human Resource Consultant. Moore later had the

message transcribed. The message said:

I wanna [sic] give you something to think about. You're in a

position of power and watching over people and also watching

over employees and you take that to your advantage. I don't know

how you sleep at night. God does not like ugly. I hope you listen

to these words and know that the things you do to your patients

and to your employees is despicable. You gon [sic] burn in hell for

it! Have your patients and your employees having problems

because of your evilness. And God is going to make you pay for

it! I hope you let everybody hear this! You will be getting a

lawsuit filed against you for the shit you do to people and the

unfairness that you do to people and the stress you bring upon

people's lives! You think about that when you think about

different things and tragedies that's happened in your own life. Sit

and think about that! You gon [sic] rot in hell! You's [sic] a bitch!

The Hospital employees immediately suspected Pruitt as the unidentified caller.

Testimony during the arbitration hearing revealed that, after listening to the voicemail,

Moore located Pruitt in the building and interviewed her, with a union representative

present. During the interview, Pruitt denied leaving the messages, but did not provide

any details about her whereabouts at the time the calls were made. Moore's interview

notes indicate that Pruitt initially denied having a cell phone at all, but later stated she

had a cell phone for emergencies. Pruitt was suspended at the end of the interview.

On April 5, 2013, Pruitt was terminated. The stated reason for termination was

that Pruitt had left two inappropriate and threatening messages on her supervisor's

office voicemail. The Hospital took the position that this conduct violated Human

Resource Policies 405, 410 and 0130. HR Policy 405 addresses “Personal Appearance

and Behavior” and the section addressing conduct includes a statement that the

Employer maintains a "zero tolerance" policy for "intimidating and/or disruptive

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behavior,” including harassment, vulgarity, abuse, or any such behavior which. . . is

unduly offensive to others,” and including “insulting, demeaning, humiliating. . . a

co-worker.” HR Policy 410 is entitled “Corrective Action Program,” and contains both

major and minor infractions. The notice of termination cited a violation of item 16, under

major infractions, which states: “Conduct of an indecent or seriously inappropriate

nature which creates an adverse impact on MHCC/MRMC or any employee/group.” HR

Policy 0130 is entitled “Harassment and Discrimination.” The policy prohibits

unwelcome or offensive conduct or communication “based on race, color, national

origin, religion, sex, sexual orientation, age, height, weight, marital status, disability,

genetic information, veteran status, or any other protected status.”

On April 10, 2013, the Union filed a grievance protesting Pruitt’s termination.

The grievance was denied at Step 2 on August 2, 2013. On August 13, 2013, the Union

appealed to arbitration. On December 20, 2013, the advocate assigned to handle

Pruitt’s grievance, William Farmer, spoke on the phone with Pruitt and Crayton about

her case and scheduled a preparatory meeting. On December 27, 2013, Farmer met

with Pruitt and Crayton at the Local 2650 offices in Flint. During the meeting, which

lasted approximately two hours, all aspects of Pruitt’s grievance were discussed,

including potential witnesses, the timeline and sequence of events, the materials which

the Hospital was likely to present, and in particular, the cell phone issue. 

Although Pruitt says otherwise, defendants say that neither the Union or any

agent of the Union take Pruitt’s cell phone without her permission. The Union says that

Pruitt handed her cell phone to either Farmer or Crayton so they could figure out which

carrier provided service. This was done in an attempt to produce call records which

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would show no calls were made from the phone as the Hospital alleged. In any event,

the manner in which Pruitt’s cell phone was procured is not material to her claims.

The arbitration hearing took place on February 6, 2014. Farmer represented

Pruitt at the hearing. Hipps, Moore, and Lisa Rogers, the Director of Human

Resources, testified on behalf of the Hospital. Pruitt was the only witness who testified

on her behalf. After taking testimony and receiving evidence, the Arbitrator closed the

hearing. The Union submitted a post-hearing brief in support of Pruitt’s grievance. 

On April 17, 2014, the Arbitrator issued an Opinion and Award. The Arbitrator

framed the issue for decision as follows: "[d]id the Employer have just cause for

terminating the employment of Paula Pruitt on April 5, 2013? If not, what is the

remedy?" 

The Arbitrator first made a factual determination that Pruitt had made the calls

and left the messages to Hipps. The Arbitrator then turned to the question of whether

the discharge was the appropriate penalty, in light of all the evidence. The Arbitrator

considered the various HR Policies of which Pruitt was accused of violating, in light of

the evidence as well as the arguments advanced by the Union and the Hospital. The

Arbitrator accepted the Union's argument that, even if Pruitt left the messages, she had

not violated HR Policy 0130, because there was no indication that any protected status

was involved. However, the Arbitrator found that the messages were of a harassing

nature, and particularly offensive, since they appeared to reference the recent death of

Hipps' husband, and this conduct was prohibited under Policy 405. Further, the

Arbitrator reasoned that the anonymous nature of the messages contributed to their

threatening nature, and the severity of their inappropriateness constituted a major

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violation of Policy 410. Having found that Pruitt violated two of the three HR Policies

alleged, the Arbitrator then reasoned that termination was appropriate considering the

severity of the offenses, and that Pruitt’s conduct in leaving the messages appeared to

spurred by the attempts by Hipps to correct Pruitt’s behavior, i.e. the March 12 verbal

warning and the March 26 evaluation. The Arbitrator reasoned that if these attempts at

correcting Pruitt's behavior were clearly unsuccessful, and led only to the messages

being left on Hipps' voicemail, it was difficult to see how Pruitt could re-establish a

working relationship with Hipps. 

Days after the Arbitrator’s decision, on April 27, 2014, Pruitt faxed a letter to the

Union’s Arbitration Department requesting an appeal of the arbitration decision. On

May 5, 2014, the Union’s Arbitration Director, Herb Sanders, notified Pruitt that the

Union had decided not to further pursue her grievance.

B. Procedural

On July 9, 2014, Pruitt filed her complaint against defendants. The complaint is

in three counts, phrased by Pruitt as follows:

Count I Union refused the right of fair representation. Union refused to

pursue the grievance of protected class worker (Harassment);

union official failed to respond to plaintiff’s complaint because of

personal reasons.

Count II Taft-Hartley Act for intentional misconduct, intentional infliction of

emotional distress and breach of duty of fair representation

Count III Intentional infliction of emotional distress of plaintiff by defendants

In reading the body of the complaint and affording a liberal construction, Count I asserts

a claim under 42 U.S.C. § 1983 for violation of her constitutional rights. Count II asserts

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a breach of the Union’s duty of fair representation under federal law. Count III asserts a

claim under state law. 

On September 8, 2014, the Court held a status conference with the parties after

which it issued a scheduling order. The scheduling order (Doc. 13) provides in relevant

part:

Defendants will file a motion for summary judgment within 21 days. Plaintiff shall

file a response to the motion 21 days thereafter. Defendants will have 10 days to

file a reply. After receipt of the papers, the Court will determine whether to set

the motion for hearing or decide it on the papers.

On September 29, 2014, defendants filed the instant motion for summary

judgment. Pruitt did not file a response to defendants motion. Instead, on October 14,

2014, she filed a motion for leave to amend the complaint. Defendants filed a response

to Pruitt’s motion and Pruitt filed a reply. Both motions are ready for decision.

III. Motion for Summary Judgment

A. Legal Standard

“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A moving party may meet that burden “by

‘showing’ – that is, pointing out to the district court -- that there is an absence of

evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). Revised Rule 56 expressly provides that:

A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion

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only), admissions, interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to

properly support or address a fact:

If a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact as required by Rule 56(c), the

court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials –

including the facts considered undisputed – show that the movant is

entitled to it; or

(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

When the moving party has met its burden under Rule 56, “its opponent must do

more than simply show that there is some metaphysical doubt as to the material facts.” 

Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

Ultimately a district court must determine whether the record as a whole presents a

genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light

most favorable to the non-moving party,” Hager v. Pike County Bd. Of Education, 286

F.3d 366, 370 (6th Cir. 2002).

B. Analysis

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As an initial matter, the fact that Pruitt did not file a response to defendants’

motion does not automatically mean that defendants are entitled to a ruling in their

favor. Rather, the Court must examine the record to determine whether there are

genuine issues of material fact and/or whether Pruitt’s claims fail as a matter of law. 

See Carver v. Bunch, 946 F.2d 451, 454–55 (6th Cir. 1991); cf. Advisory Committee

Note on 1963 Amendment to Subdivision (e) of Fed R. Civ. P. 56 (explaining that the

amendment was not “designed to affect the ordinary standards applicable to the

summary judgment motion,” and that “[w]here the evidentiary matter in support of the

motion does not establish the absence of a genuine issue, summary judgment must be

denied even if no opposing evidentiary matter is presented”).

1. Count I - Violation of § 1983

Defendants argue that this claim must be dismissed as a matter of law because

they are not subject to liability under § 1983. The Court agrees.

 “To prevail on a § 1983 claim, a plaintiff must establish that a person acting

under color of state law deprived the plaintiff of a right secured by the Constitution or

laws of the United States.” Waters v. City of Morristown, 242 F.3d 353, 358–59 (6th

Cir.2001) (citation omitted). In Lugar v. Edmondson Oil Co., the Supreme Court held

that “the deprivation must be caused by the exercise of some right or privilege created

by the State or by a rule of conduct imposed by the state or by a person for whom the

State is responsible.” 457 U.S. 922, 937 (1982). 

Moreover, “[a] plaintiff may not proceed under § 1983 against a private party ‘no

matter how discriminatory or wrongful’ the party's conduct .” Tahfs v. Proctor, 316 F.3d

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584, 590 (6th Cir.2003) (quoting, in part, Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)). Yet, “[i]f a private party has conspired

with state officials to violate constitutional rights, then that party qualifies as a state actor

and may be held liable pursuant to § 1983 ....” Cooper v. Parrish, 203 F.3d 937, 952 n.

2 (6th Cir.2000). “A private actor acts under color of state law when its conduct is ‘fairly

attributable to the state.’ ” See Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 636

(6th Cir.2005) (citation omitted); see Memphis, Tenn. Local, Am. Postal Workers Union,

AFL–CIO v. City of Memphis, 361 F.3d 898, 905 (6th Cir.2004).FN4

In general, three tests apply to determining whether a private entity acted under

the color state law: “(1) the public function test, (2) the state compulsion test, and (3) the

symbiotic relationship or nexus test.” Romanski, 428 F.3d at 636 (citations omitted). But

these three “tests are ‘relevant only in cases in which there are no allegations of

cooperation or concerted action between state and private actors.’ ” Revis v. Meldrum,

489 F.3d 273, 290 (6th Cir.2007) (quoting, in part, American Postal Workers Union,

Local 96 v. City of Memphis, 361 F.3d 898, 900–01 (6th Cir.2004)). 

Neither the union nor the individual defendants are alleged to have engaged in a

public function, nor are their any allegations that the state had any influence over the

arbitration process or that there is a nexus between defendants and the state. Simply

put, there is nothing in the complaint which could plausibly be read, nor could a

reasonable juror conclude, that defendants are state actors subject to liability under §

1983. Defendants are entitled to judgment on Count I.

B. Count II - Breach of Duty of Fair Representation

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As a general matter, federal courts have jurisdiction under 28 U.S.C. § 1337 to

hear a claim for breach of a union’s duty of fair representation without an accompanying

claim for breach of contract under § 301. Storey v. Local 327, Int'l Bhd. of Teamsters,

Chauffeurs, Warehousemen and Helpers, 759 F.2d 517, 523 (6th Cir. 1985). A union

breaches its duty of fair representation when its conduct toward a member of the union

is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967); Air

Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991).

A union's handling of a grievance may be arbitrary if “it handles a grievance in a

‘perfunctory’ manner, with caprice or without rational explanation.” Poole v. Budd Co.,

706 F.2d 181, 183 (6th Cir. 1983); see also Vaca, 389 U.S. at 190 (conduct is arbitrary

“only if, in light of the factual and legal landscape at the time of the union's actions, the

union's behavior is so far outside a ‘wide range of reasonableness' ... as to be

irrational”) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97

L.Ed. 1048 (1953)). “[M]ere negligence or mistaken judgment is insufficient to establish

a breach of the union's duty.” Poole, 706 F.2d at 183. Judicial review of a union's

conduct “must be highly deferential, recognizing the wide latitude that negotiators need

for the effective performance of their bargaining responsibilities.” O'Neill, 499 U.S. at

78; see also id. at 77 (Vaca standard applies to challenges to a union's contract

administration and enforcement efforts as well as its negotiation performance) (quoting

Commc'ns Workers v. Beck, 487 U.S. 735, 743 (1988)).

Here, as described in detail above, the Union expended time and effort in

challenging Pruitt’s termination and pursuing a grievance through arbitration. The fact

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that the Arbitrator found in favor of the Hospital is not indicative of defendants’ bad faith. 

The Union advanced arguments in support of Pruitt’s position and was successful in

having the Arbitrator agree that Pruitt’s termination did not violate HR Policy 0130

pertaining to protected class conduct. The arbitration turned on a factual issue of

whether Pruitt made the phone calls and legal issue of whether termination was

justified. The Arbitrator carefully considered the record and found against Pruitt. 

Moreover, a reasonable juror could not find the fact that the Union chose not to

appeal the Arbitrator’s decision amounts to bad faith. “Unions are not ... obligated to

prosecute grievances that they find to be merciless.” Kelley v. FormTech Indus., 305 F.

App’x 266, 269 (6th Cir.2008) (citing Williams v. Molpus, 171 F.3d 360, 366–67 (6th

Cir.1999)). 

Based on the record, the Union’s decision not to appeal the Arbitrator’s decision

falls well within its authority to exercise discretion in representing its members. 

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45–46 (1998) (“This ‘wide range of

reasonableness' gives the union room to make discretionary decisions and choices,

even if those judgments are ultimately wrong.”); see also Linton v. United Parcel Serv.,

15 F.3d 1365, 1372 (6th Cir. 1994) (“ordinary negligence or mistaken judgment by the

union in failing to pursue a grievance is not actionable under section 301”). 

In short, defendants are entitled to summary judgment on Count II.

C. Count III - Intentional Infliction of Emotional Distress

Defendants argue that the Court should declines to exercise supplemental

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jurisdiction over this claim or, alternatively, the claim fails for lack of merit.

While the court possesses pendant jurisdiction over Pruitt’s state law intentional

infliction of emotional distress claim under 28 U.S.C. § 1367(a), that section also

provides that a district court may “decline to exercise supplemental jurisdiction over a

claim ... if the district court has dismissed all claims over which it has original

jurisdiction....” 28 U.S.C. § 1367(c)(3). “It is generally recognized that where ... federal

issues are dismissed before trial, district courts should decline to exercise pendent

jurisdiction over state law claims.” Gaff v. Fed. Deposit Ins. Corp., 814 F.2d 311, 319

(6th Cir.1987). 

Where, as here, the Court has dismissed both of Pruitt’s original federal claims,

the balance of judicial economy, convenience, fairness, and comity all point toward

declining supplemental jurisdiction. Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350,

108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Musson Theatrical, Inc. v. Fed. Exp. Corp., 89

F.3d 1244, 1254–55 (6th Cir.1996) (“When all federal claims are dismissed before trial,

the balance of considerations usually will point to dismissing the state law claims, or

remanding them to state court if the action was removed.”). Accordingly, under 28

U.S.C. § 1367(c)(3), this Court will exercise its discretion and will dismiss Pruitt’s state

law claim without prejudice.

IV. Motion to Amend

Pruitt proposes to amend her complaint to assert the following claims:

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Count I Pruitt was discharged from employment by her employer; 

Without “just cause”

Count II Violating 42 U.S.C. § 1985 - conspiracy to interfere with Plaintiff’s

civil rights. 42 U.S.C. § 1986 - Action for neglect to prevent

Count III 18 U.S.C. § 241 - Conspiracy against rights and 18 U.S.C. § 245 -

Federally protected activities

Defendants contend that the motion should be denied because none of these

claims could survive a motion to dismiss; therefore, amendment would be futile. 

A. Legal Standards

Under Fed. R. Civ. P. 15(a), a party may amend their pleadings after 20 days

“only by leave of court or by written consent of the adverse party; and leave to amend

pleadings "shall be freely given when justice so requires." The decision whether or not

to permit the amendment is committed to the discretion of the trial court. See, e.g.,

Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32 (1971); Estes v.

Kentucky Util. Co., 636 F.2d 1131, 1133 (6th Cir. 1980). This discretion, however, is

“limited by Fed.R.Civ.P. 15(a)'s liberal policy of permitting amendments to ensure the

determination of claims on their merits.” See Marks v. Shell Oil Co., 830 F.2d 68, 69

(6th Cir. 1987) (citation omitted). In determining whether to permit amendment, some of

the factors which may be considered by the district court are undue "delay in filing, lack

of notice to the opposing party, bad faith by the moving party, repeated failure to cure

deficiencies by previous amendments, undue prejudice to the opposing party, and

futility of amendment." Hageman v. Signal L.P. Gas, Inc. 486 F.2d 479, 484 (6th Cir. 

1973). See also Foman v. Davis, 371 U.S. 178, 182 (1962). Delay by itself is not

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sufficient to deny a motion to amend. Hageman, 486 F.2d at 484. See also General

Elec. Co. v. Sargent & Lundy 916 F.2d 1119, 1130 (6th Cir. 1990). 

Defendant argues that amendment is improper because it would be futile. A

proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6)

motion to dismiss. Thiokol Corp. v. Department of Treasury, State of Michigan,

Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993). Thus, it is appropriate to set forth

the standard for a Rule 12(b)(6) motion. A motion to dismiss under Fed. R. Civ. P.

12(b)(6) tests the sufficiency of a complaint. To survive a Rule 12(b)(6) motion to dismiss,

the complaint's “factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all of the allegations in the complaint are true.” 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). See also Ass’n of Cleveland

Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). The court is

“not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). 

Moreover, “[o]nly a complaint that states a plausible claim for relief survives a motion to

dismiss.” Id. at 679. Thus, “a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than conclusions, are not entitled

to the assumption of truth. While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations. When there are well-pleaded

factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Id. In sum, “[t]o survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to state a claim for

relief that is plausible on its face.” Id. at 678 (internal quotation marks and citation

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omitted).

In ruling on a motion to dismiss, the Court may consider the complaint as well as

(1) documents referenced in the pleadings and central to plaintiff's claims, (2) matters of

which a court may properly take notice, (3) public documents, and (4) letter decisions of

government agencies may be appended to a motion to dismiss. Tellabs, Inc. v. Makor

Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 2509 (2007). 

B. Analysis

1. Count I

To the extent Pruitt is claiming that the Union discriminated against her based on

race in the way in which it handled her grievance, this claim too fails. The duty of fair

representation incorporates a requirement that the union not act discriminatorily. See

Emswiler v. CSX Transp., Inc., 691 F.3d 782, 793 (6th Cir.2012). Additionally, Title VII

makes it unlawful for a union to deny fair representation based upon race or sex. See

42 U.S.C. § 2000e–2(c)(1); Goodman v. Lukens Steel Co., 482 U.S. 656, 668–69, 107

S.Ct. 2617, 96 L.Ed.2d 572 (1987). Indeed, district courts in this circuit—following the

Seventh Circuit's test in Bugg v. International Union of Allied Industrial Workers of

America, Local 507 AFL–CIO, 674 F.2d 595, 598 n. 5 (7th Cir.1982)—have required

Title VII plaintiffs to prove that a union breached its duty of fair representation. 

Beshears v. Hennessey Indus., Inc., No. 3:12–00087, 2012 WL 6093457, at *2 (N.D.

Tenn. Dec. 7, 2012); Hout v. City of Mansfield, 550 F.Supp.2d 701, 727 (N.D. Ohio

2008). Therefore, a claim that the duty of fair representation was breached on account

of discrimination and a claim of discrimination in failing to fairly represent the employee

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are essentially the same. 

As discussed above, the Union did not breach its duty of fair representation in the

manner in which it pursued Pruitt’s grievance. It would be futile to permit Pruitt to

amend the complaint to add Count I as alleged in the proposed amended.

2. Count II

42 U.S.C. § 1985(3) prohibits conspiracies to deprive persons of their civil rights

under the law, and is directed at racial or otherwise protected class-based

discriminatory animus behind the conspirators' actions. Griffin v. Breckenridge, 403

U.S. 88, 101–02 (1971); United Brotherhood of Carpenters and Joiners of America v.

Scott, 463 U.S. 825 (1983). To state a claim under § 1985(3), the complaint must

allege a race or class-based discriminatory animus. Newell v. Brown, 981 F.2d 880,

886 (6th Cir.1992). In Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987), the

court clearly stated the well-settled rule “that conspiracy claims must be pled with some

degree of specificity and that vague and conclusory allegations unsupported by material

facts will not be sufficient to state such a claim....”

The proposed claim does not meet this standard. Pruitt provides no factual

allegations to suggest how defendants and the Hospital, who is not a party, conspired

together and does not allege they engaged in class-based discrimination. Pruitt does

not allege with specificity any overt acts in the conspiracy and does not include facts

which reasonably suggest the alleged conspirators had a “meeting of the minds” to

engage in class based discrimination against Pruitt. At best, Pruitt alleges that the

Union “intentionally conspired” with the Hospital to terminate her and that they have

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worked together to terminate “Black employees.” Such allegations are vague and

conclusory and do not state a plausible claim for relief. 

As to a claim under 42 U.S.C. § 1986, this section provides a cause of action

against anyone who neglects to prevent a violation of § 1985. Haverstick Enterprises,

Inc. v. Financial Federal Credit, Inc., 803 F.Supp. 1251, 1260 (E.D. Mich. 1992). A

colorable conspiracy claim under § 1985 is an absolute prerequisite to an action under §

1986. In other words, “[w]ithout a violation of section 1985, there can be no violation of

section 1986.” Id.; Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.1980). Because the

Pruitt has not shown a § 1985(3) violation, any claim under § 1986 would also be

dismissed under Rule 12(b)(6). 

3. Count III

In Count III, Pruitt claims defendants violated 18 U.S.C. §§ 241 and 242. These

are criminal statutes for violations of civil rights which do not provide a private right of

action. Booth v. Henson, 290 F. App'x 919, 920–21 (6th Cir. 2008) (a private citizen

lacks standing to file an action under §§ 241 and 242); United States v. Oguaju, 76 F.

App'x 579, 581 (6th Cir.2003) (same); Moore v. Potter, 47 F. App'x 318, 320 (6th Cir.

2002) (no private right of action under § 242); Deal v. Polk County, Tennessee, No.

1:03–CV–385, 2007 WL 1387918, at *14 (E.D. Tenn. May 8, 2007) (§ 245 is a criminal

statute “which does not give rise to any civil cause of action”) (quoting Marshall v.

Johnson, No. Civ. A. 3:05CV2615, 2005 WL 1214254, at *5 (W.D.Ky. May 19, 2005)).

Only state or federal prosecutors may bring a complaint under these statutes. Id. As

such, Count III does not state a plausible claim for relief.

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V. Conclusion

In the end, the record is clear that the Union diligently pursued Pruitt’s claim in

arbitration. The Arbitrator made a factual determination and legal conclusion

unfavorable to Pruitt. No reasonable juror would debate whether the Union or any of

the individual defendants violated any of Pruitt’s federal rights. Defendants’ motion for

summary judgment is GRANTED. Pruitt’s motion to amend is DENIED.

Counts I and III are DISMISSED WITH PREJUDICE. Count III is DISMISSED

WITHOUT PREJUDICE. This case is CLOSED.

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: December 16, 2014

Detroit, Michigan

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, December 16, 2014, by electronic and/or ordinary mail.

S/Sakne Chami 

Case Manager, (313) 234-5160

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