UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SUSAN TOCARCHICK, 

 Plaintiff, Civil Action No. 15-11329 

 Honorable Matthew F. Leitman 

 Magistrate Judge David R. Grand 

v. 

UAW REGION 1, UAW LOCAL 412, 

DUANE ANGER, GREG BAUER, 

and GUS, 

 Defendants. 

_________________________________/ 

REPORT AND RECOMMENDATION TO GRANT DEFENDANT UAW REGION 1’S 

MOTION TO DISMISS [4] AND TO DISMISS PLAINTIFF’S COMPLAINT 

Pro se Plaintiff Susan Tocarchick (“Tocarchick”) commenced this action against 

Defendants UAW Region 1 (“the UAW”), UAW Local 412, Duane Anger, Greg Bauer, and 

“Gus,” purporting to assert claims for “Fraudulent Misrepresentation, Gross Negligence, and 

Depraved Indifference.” [1 at 9-10]. She also makes a vague reference to a “civil rights” claim. 

[Id. at 9]. After removing the action to this Court [1], the UAW filed a motion to dismiss 

Tocarchick’s complaint. [4]. Tocarchick filed a response on May 12, 20151

 [7], to which the 

UAW filed a reply [8] and later an amended reply. [9]. An order of reference was entered on 

April 21, 2015, referring all pretrial matters to the undersigned pursuant to 28 U.S.C. § 

636(b)(1)(B). [5]. The Court dispenses with oral argument pursuant to E.D. Mich. L.R. 7.1(f). 

                                                            

1 At the end of her Response [7], Tocarchick included a separate one-page document explaining 

that she “need[s] a civil Rights attorney” to investigate her assertion that the UAW “file[d] a 

fraudulent claim (insurance) in my name.” [Id.]. The Court addresses this request in a separate 

order filed on today’s date.

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I. RECOMMENDATION 

 For the following reasons, the Court RECOMMENDS that the UAW’s motion [4] be 

GRANTED and Tocarchick’s claims be DISMISSED.2

II. REPORT 

A. The Allegations in Tocarchick’s Complaint 

On January 22, 2015, Tocarchick filed a complaint in Macomb County Circuit Court, 

which the UAW subsequently removed to this Court. [1]. Tocarchick’s complaint purports to 

principally state claims for “Fraudulent Misrepresentation, Gross Negligence, and Depraved 

Indifference,” but its allegations make clear that she is actually challenging the union’s 

representation of her husband, Joe Tocarchick, when he was alive. [1 at 9-10]. 

Tocarchick alleges that her husband was, before his death, an employee of Chrysler and a 

member of the UAW. [Id. at 9]. She alleges that on an unspecified date, her husband arrived at 

work intoxicated and was sent home by two UAW union stewards, Defendants Duane Anger and 

“Gus.” [Id.]. She alleges that Anger and Gus “misrepresented themselves by not following 

union rules” when they sent Joe home “sick” “instead of following proper protocol” as described 

to her by others. [Id.]. 

Apparently, Tocarchick’s husband passed away at some point thereafter, and Tocarchick 

alleges that if Anger and Gus had “followed the protocol and held him accountable,” her husband 

would still be alive “because [she] would have been able to get to the bottom of his problems” 

                                                            

2

 UAW Region 1 is the only Defendant who has been served in this case. [1 at 2]. However, the 

claims against UAW Region 1 include the entirety of all claims against UAW Local 412, Duane 

Anger, Greg Bauer, and “Gus.” Thus, since this Court finds that all claims against UAW Region 

1 lack merit, it also recommends that Tocarchick’s claims against the other four Defendants be 

dismissed.

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but “[t]heir cover prevented [her] from getting [her] husband help that would have saved his 

life.” [Id.]. She describes these Defendants’ conduct in this regard as “negligent.” [Id. at 10]. 

Tocarchick’s complaint also addresses an alleged incident in which her husband was 

accused of stealing computers at work and detained, that the UAW refused to represent him, and, 

that as a result, he was blackmailed by a detective and ended up pleading guilty. [Id. at 9]. 

Tocarchick alleges that the foregoing circumstances caused her significant harm beyond 

her husband’s death, including the loss of her home, her car, her health insurance, and an 

opportunity to adopt two children. [Id. at 10]. She seeks $30,000,000 in damages, as well as 

other forms of monetary and non-monetary relief. 

B. Legal Standard 

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests a complaint’s legal 

sufficiency. “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 

has facial plausibility 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 plausibility standard “does not impose a probability 

requirement at the pleading stage; it simply calls for enough facts to raise a reasonable 

expectation that discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556. 

Put another way, the complaint’s allegations “must do more than create speculation or suspicion 

of a legally cognizable cause of action; they must show entitlement to relief.” League of United 

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing 

Twombly, 550 U.S. at 555–56). 

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In deciding whether a plaintiff has set forth a “plausible” claim, a reviewing court must 

accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus, 551 U.S. 

89, 94 (2007). This tenet, however, “is inapplicable to legal conclusions. Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not suffice,” to 

prevent a complaint from being dismissed on grounds that it fails to sufficiently comport with 

basic pleading requirements. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555; 

Howard v. City of Girard, Ohio, 346 F. App’x 49, 51 (6th Cir. 2009). Furthermore, a court is not 

required to “create a claim which [a plaintiff] has not spelled out in his pleading.” Clark v. Nat’l 

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). Ultimately, “[d]etermining whether 

a complaint states a plausible claim for relief will ... be a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 

Pleadings filed by pro se litigants are entitled to a more liberal reading than would be 

afforded to formal pleadings drafted by lawyers. See Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 

2007). Nonetheless, “[t]he leniency granted to pro se [litigants] ... is not boundless,” Martin v. 

Overton, 391 F.3d 710, 714 (6th Cir. 2004), and “such complaints still must plead sufficient facts 

to show a redressable legal wrong has been committed.” Baker v. Salvation Army, 2011 WL 

1233200, at *3 (E.D. Mich. Mar. 30, 2011). 

C. Analysis 

i. Despite their Labels, Tocarchick’s Principal Claims Are for Breach of the 

Duty of Fair Representation and Are Governed by Federal Labor Law 

Tocarchick labels her complaint as being “for Fraudulent Misrepresentation, Gross 

Negligence, and Depraved Indifference.” [1 at 9]. However, the complaint’s allegations make 

clear that Tocarchick is actually pleading a breach of the duty of fair representation by the 

Defendants. See Marcus v. Dolan, 2008 WL 3822353, at *2 (D. N.J. Aug. 12, 2008) (“a court 

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may construe state law claims that are, in substance, claims of a breach of the duty of fair 

representation as a claim arising under the [federal labor laws].”). For example, Tocarchick 

alleges that UAW “did nothing to protect Joe from being blackmailed” during the police 

investigation because he was not given representation as per union protocol, [1 at 9-10], and that 

the union stewards, “instead of following proper protocol” and “union rules” to report her 

husband’s drinking problem, “sent him home sick.” [Id. at 9; see also id. at 10 (“Both Duane and 

Gus were representing the union as Joe’s union steward [when they sent] him home sick when it 

was believed he was drinking.”)]. 

Properly characterizing Tocarchick’s claims is important because, as discussed below, 

claims for breach of the duty of fair representation are governed by federal labor laws under 

Section 9(a) of the National Labor Relations Act (“NLRA”), 9 U.S.C. § 159(a), and Section 301 

of the Labor Management Relations Act (“Section 301”), 29 U.S.C. § 185 et seq., rather than by 

state law which would otherwise apply. As another district court has explained, “[s]tate law 

claims are preempted if they attempt to impose obligations on a union that are subsumed by [the 

duty of fair representation].” Fenn v. Verizon Communications, Inc., 2010 WL 908918, at *6 

(S.D.N.Y. Mar. 15, 2010). See also, Reiss v. Bhd. of Ry. & Airline Clerks, 629 F.Supp. 1029, 

1030 (E.D. Pa. 1986) (state law claims arising from a union's conduct in its capacity as a 

collective bargaining representative were displaced by federal law); Mohr v. Ass’n of Flight 

Attendants, Local Council 66, 2012 WL 2361729, at *2 (D. Ariz. Jun. 20, 2012) (“The Ninth 

Circuit, along with other circuit courts, holds that state law breach of contract and tort claims are 

subsumed in the duty of fair representation if they arise out of conduct that forms the basis for a 

breach of fair representation claim.”). In Maynard v. Revere Copper Products, Inc., 773 F.2d 

733, 735 (6th Cir. 1985), the Sixth Circuit made clear that “[t]he duty of fair representation 

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relates to an area of labor law which has been so fully occupied by Congress as to foreclose state 

regulation.” Thus, the Sixth Circuit has held that state-law tort claims arising out of an alleged 

breach of a collective bargaining agreement are preempted by Section 301 unless they are 

“‘independent’ of the [collective bargaining agreement].” Mattis v. Massman, 355 F.3d 902, 905 

(6th Cir. 2004) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10 (1989)). 

In order for a state-law claim to be “independent” enough to avoid preemption, it must neither 

“require interpretation of the terms of the collective bargaining agreement” nor encompass rights 

“created by the collective bargaining agreement.” Mattis, 355 F.3d at 906 (citing DeCoe v. 

General Motors Corp., 32 F.3d 212, 216-17 (6th Cir. 1994)). 

Here, because Tocarchick asserts that all of her claims arise out of the Defendants’ 

alleged violation of their union duties owed to her late husband due to his union membership, she 

has actually plead a claim for breach of the duty of fair representation by Defendants. Properly 

construed as such, the Court now turns to Defendants’ argument as to why Tocarchick’s claims 

are ripe for dismissal under applicable federal labor laws. 

ii. Tocarchick’s Breach of the Duty of Fair Representation Claims are 

Barred by the Applicable Statute of Limitations 

As discussed above, Defendants correctly argue that Tocarchick’s complaints about the 

UAW not representing her husband during the police investigation and mishandling the reporting 

of his drinking problem are properly characterized as invoking a claim for breach of the duty of 

fair representation. These claims fail because they are governed by a six month statute of 

limitations. 

The statute of limitations for claims alleging a breach of the duty of fair representation is 

six months. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169 (1983); Moore v. Int’l 

Bhd. of Elec. Workers Local 8, 51 F. App’x 486, 487-88 (6th Cir. 2002); Adkins v. Int’l Union of 

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Elec., Radio & Mach. Workers, 769 F.2d 330, 335 (6th Cir. 1985). “‘The statute of limitations 

begins to run when the claimant knows or should have known of the union’s alleged breach of its 

duty of fair representation.”’ Moore, 51 F. App’x at 488 (quoting Schoonover v. Consol. 

Freightways Corp., 49 F.3d 219, 221 (6th Cir. 1995)). Here, both breaches alleged by 

Tocarchick – the failure to provide representation to her husband during the police investigation, 

and the decision to send him home sick rather than follow some unspecified internal union 

“protocol” – occurred in 2008. Her complaint, however, was not filed until January 22, 2015. 

[1 at 1]. 

Tocarchick does not claim that she was unaware of either of those incidents at the time 

that they happened. And, Tocarchick’s argument that at least some of her claims are timely 

because the grievance filed by UAW was “still in place as of September 2010” is immaterial 

because, as just discussed, the statute of limitations that applies to her instant claims is six 

months, not six years, as she seems to presume. [7 at 18-19].3

In sum, Tocarchick’s claims against the UAW for breach of its duty of fair representation 

are barred by the applicable six-month statute of limitations and should be dismissed.4

                                                            

3 Tocarchick is correct that under Michigan law, the general limitations period for tort claims is 

six years. See MCL § 600.5813. Again, however, since her claims actually allege a breach of 

the duty of fair representation, the six-year statute of limitations is inapplicable. Her argument 

that “there is no statute of limitation for murder” [7 at 19] is inapposite for numerous reasons, 

including that she has not alleged any facts describing the manner in which her husband passed 

away, let alone which would constitute a “murder,” and that she has no standing to bring a 

criminal action. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (private citizen lacks 

standing to initiate criminal proceedings); Laues v. Roberts, 2015 WL 1412631, at *3 (E.D. 

Mich. Mar. 25, 2015). 

4 The UAW also argues that Tocarchick fails to state a viable claim for breach of the duty of fair 

representation. [4 at 22-24]. A union only breaches that duty when its “conduct toward a 

member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” Marquez v. Screen 

Actors Guild Inc., 525 U.S. 33, 34 (1988) (citing Vaca v. Sipes, 386 U.S. 171, 190 (1967)). 

Furthermore, the UAW argues that Tocarchick lacks standing to bring this claim because she is 

not a bargaining unit employee. [4 at 20-21]. Although Tocarchick does not seem to allege any 

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iii. Tocarchick Fails to State a Valid “Civil Rights” Claim 

 In her Complaint, Tocarchick alleges that her husband was “detained for 45 minutes” 

during the police investigation, which she claims “violat[ed] his civil rights.” [1 at 9]. She also 

alleges in her response that the UAW violated her husband’s “civil rights” because “these people 

are covering something up,” [7 at 34] and “it took 22 months to return my husband’s 

belongings.” [Id. at 30]. These allegations fail to state a claim for relief against the UAW or the 

individual defendants. 

First, while it appears Tocarchick is claiming that it was the police who unlawfully 

detained her husband, her instant complaint is brought only against the UAW and the individual 

defendants identified above. Second, her conclusory assertion of a “civil rights” claim fails to 

provide the “facial plausibility” necessary to survive a motion to dismiss. Iqbal, 556 U.S. at 678. 

For example, whereas civil rights claims may only be asserted against “state actors,” Tocarchick 

does not allege that any of the Defendants in this case are state actors. See Tahfs v. Proctor, 316 

F.3d 584, 590 (6th Cir. 2003) (noting that a plaintiff bringing a civil rights action “must satisfy 

two elements: (1) the deprivation of a right secured by the Constitution or laws of the United 

States and (2) the deprivation was caused by a person acting under color of state law. A plaintiff 

may not proceed under § 1983 against a private party no matter how discriminatory or wrongful 

the party's conduct.”); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (noting 

that generally, “the conduct of private parties lies beyond the Constitution's scope ....”). 

Second, Tocarchick’s allegation about the Defendants “covering something up” amounts 

to nothing more than the type of pure “speculation or suspicion” that is insufficient to state a 

                                                                                                                                                                                               

facts that would indicate the UAW acted in a way that was “arbitrary, discriminatory, or in bad 

faith,” since this Court is recommending dismissal due to the expiration of the applicable statute 

of limitations, it declines to address either of these issues. 

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claim for relief. Bredesen, 500 F.3d at 527. Thus, as to any “civil rights” claim, Tocarchick fails 

to state a claim upon which relief can be granted, and any such claim should be dismissed. Fed. 

R. Civ. P. 12(b)(6). 

III. CONCLUSION 

 For the foregoing reasons, the Court RECOMMENDS that the UAW’s motion to 

dismiss Tocarchick’s complaint [4] be GRANTED, and that her BREACH OF THE DUTY 

OF FAIR REPRESENATION CLAIMS and her “CIVIL RIGHTS” CLAIM against the 

UAW and other Defendants be DISMISSED WITH PREJUDICE. 

Dated: July 30, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

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Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on July 30, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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