IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EVONNA MATHIS,

Plaintiff, Case No.: 2:10-cv-1093

JUDGE SMITH

v. Magistrate Judge Kemp

CWA LOCAL UNION 4320, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant Communication Workers of America Local

Union No. 4320's (“CWA”) Motion to Dismiss (Doc. 9). For the reasons that follow,

Defendant’s Motion to Dismiss is GRANTED. The Court will address a number of other

motions pending in this case in turn, including: Plaintiff’s motion for default judgment (Doc. 14);

Defendant’s motion to strike Plaintiff’s motions for default judgment (Docs. 21 and 39),

Plaintiff’s motion to order Defendants to serve all documents by certified mail (Doc. 24), and

Plaintiff’s motion to compel the court to have the Defendant’s respond to the Complaint (Doc.

36). 

I. BACKGROUND

In December 2010, Plaintiff Evonna Mathis commenced this action against Defendant

CWA, and six employees of CWA (collectively the “CWA Defendants”), for their alleged failure

to adequately represent her in a grievance filed against AT&T. In January 2011, Defendant CWA

filed a motion to dismiss Plaintiff Mathis’ claim pursuant to Rule 16(b)(6) of the Federal Rules of

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Civil Procedure. In March 2011, Plaintiff Mathis moved for default judgment against CWA based

on her belief that CWA never responded to her original complaint. Defendant CWA countered in

April 2011, with a motion to strike Plaintiff Mathis’ motion for default judgment.

This case arises out of Plaintiff Mathis’ belief that her civil rights were violated by AT&T

when they allegedly electronically tracked her computer and cell phone activity and physically

followed her while she was in her home or traveling. Plaintiff Mathis believes that AT&T’s

tracking, following, and harassing actions occurred because she is a black woman. Based on

these actions allegedly committed by AT&T, Plaintiff Mathis approached CWA, the local union

that represents her interests, for representation. The claims in the case at bar are based on

Plaintiff Mathis’ belief that the employees of CWA did not adequately represent her in her

grievance against AT&T.

Plaintiff Mathis, a former employee of AT&T who paid her union dues to CWA, believes

she was not represented according to the bargaining agreement between AT&T and CWA. 

Plaintiff Mathis contends that when she approached CWA with grievances against AT&T, she

was given erroneous advice which were outright lies. (Pl.’s Compl., Doc. 3). She also contends

that CWA did not follow the “steps of grievances... correctly, accurately, or efficiently.” Id. For

example, Plaintiff Mathis cites a grievance she filed in September 2010 that Defendant CWA, by

December 2010, had not yet ruled on or commenced discovery. Id. Additionally, Plaintiff Mathis

asserts that she did not receive any documentation when AT&T disciplined her, and that CWA

made no efforts to oppose that lack of documentation. Id. Plaintiff Mathis alleges that CWA did

not properly represent her, as evidenced by the complaints above, due to racial discrimination. Id.

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Defendant CWA argues that Plaintiff Mathis only presents conclusory allegations and fails

to allege any facts that support these allegations. (Doc. 9, 5-6). Therefore, the CWA Defendants

move for dismissal of Plaintiff’s claims against them based on Plaintiff’s failure to state a claim

upon which relief can be granted.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to state

a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed solely to

the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d

134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a

motion to dismiss for failure to state a claim. Consequently, a complaint will be dismissed

pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the facts alleged

are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to

relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). Rule 12(b)(6)

must be read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure, which

requires the complaint to contain a “short and plain statement of the claim showing that the

pleader is entitled to relief[.]”

A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the

light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations. 

Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the factual

allegations in the complaint are taken as true, a court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain

sufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570.

“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.” Iqbal, at

1950. While a complaint need not contain “detailed factual allegations,” its “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.” Twombly, at 555. “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged –

but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 1950 (quoting Fed. R.

Civ. P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific [and]

requires the reviewing court to draw on its judicial experience and common sense.” Id.

III. DISCUSSION

Plaintiff Mathis is proceeding pro se, and accordingly, this Court must construe Plaintiff’s

allegations liberally and apply a less stringent standard to those pleadings than to a complaint

drafted by counsel. Burrell v. Henderson, 483 F.Supp.2d 595, 599-600 (S.D. Ohio 2007). 

However, a court does not need to accept as true “legal conclusions or unwarranted factual

inferences.” Id. at 600.

Plaintiff Mathis argues that CWA, and six employees of CWA, has not adequately

represented her per a bargaining agreement between AT&T and CWA, and therefore brings a

claim based on “fair labor/management violations.” This Court interprets Plaintiff Mathis’ claims

as arising under Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §

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185 and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.A. §2000e. Plaintiff

Mathis is seeking compensation for the loss of her employment with AT&T based on CWA’s

alleged failure of representation.

The CWA Defendants argue that Plaintiff’s Complaint against the employees of CWA

must be dismissed because the LMRA does not provide a cause of action against individuals

working for a union. Therefore, Plaintiff Mathis has not stated a claim for which relief can be

granted against the employees of CWA. Regarding CWA itself, Defendant CWA argues that

Plaintiff Mathis has not stated a claim for which relief can be granted because her complaint only

alleges negligence or poor judgement, both of which are insufficient to state a claim for a breach

of the duty of fair representation under the LMRA. Additionally, CWA argues that Plaintiff

Mathis’ claim of racial bias does not allege any specific facts and is a conclusory allegation. 

Therefore, CWA contends that Plaintiff Mathis’ claim against CWA should be dismissed. The

court will address these claims in turn.

A. Plaintiff’s Claims Under the LMRA

Plaintiff Mathis has raised two claims under the LMRA. The first claim alleges a breach of

the duty of fair representation against individual employees of CWA. The second alleges a breach

of the duty of fair representation against CWA in its capacity as a union.

1. Plaintiff’s Claims Against Individual Defendants Under the LMRA

Plaintiff Mathis’ first cause of action is against six employees of CWA in their individual

capacity for an alleged breach of the duty of fair representation. This cause of action is governed

by Section 301 of the LMRA, 29 U.S.C.A. §185. Section 301(b) of the LMRA states:

Any labor organization which represents employees in an industry

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affecting commerce as defined in this chapter and any employer

whose activities affect commerce as defined in this chapter shall be

bound by the acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the employees whom it

represents in the courts of the United States. Any money judgment

against a labor organization in a district court of the United States

shall be enforceable only against the organization as an entity and

against its assets, and shall not be enforceable against any individual

member or his assets.

“It is well-settled case law that officers of labor unions cannot be held liable under § 301 of the

LMRA in their individual capacity.” Burrell, 483 F.Supp.2d at 599. In other words, § 301 only

provides for actions against a union and not individuals working on behalf of the union. Id. 

Therefore, insofar as Plaintiff’s claims are against the six employees of CWA in their individual

capacity, Plaintiff has failed to state a claim under §301 of the LMRA. 

Therefore, Plaintiff’s LMRA claims against the six employees of CWA in their individual

capacity are hereby DISMISSED.

2. Plaintiff’s Claims Against CWA Under the LMRA

In order for a plaintiff to survive a motion to dismiss for a breach of the duty of fair

representation, the plaintiff must show that the “union’s conduct towards a member of the

collective bargaining unit [was] arbitrary, discriminatory, or in bad faith.” United Steelworkers of

Am. v. Rawson, 495 U.S. 362, 372 (1990). The Sixth Circuit has stated that “[e]ach of these

wrongs is mutually independent, meaning, that the three named factors are three separate and

distinct possible routes by which a union may be found to have breached its duty.” Garrison v.

Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003) (internal quotations omitted). In

summarizing the duties of a union, the Supreme Court of the United States stated:

It is now well established that, as the exclusive bargaining

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representative of the employees, ... the Union [has] a statutory duty

fairly to represent all of those employees, both in its collective

bargaining ... and in its enforcement of the resulting collective

bargaining agreement. Under this doctrine, the exclusive agent's

statutory authority to represent all members of a designated unit

includes a statutory obligation to serve the interests of all members

without hostility or discrimination toward any, and to exercise its

discretion with complete good faith and honesty, and to avoid

arbitrary conduct. This duty of fair representation is of major

importance, but a breach occurs only when a union's conduct

toward a member of the collective bargaining unit is arbitrary,

discriminatory, or in bad faith.

United Steelworkers of Am., 495 U.S. at 372.

The Sixth Circuit has held that “the duty of fair representation is implicated only when an

individual or group is treated differently by a union-either through discrimination, bad faith or

arbitrary conduct-than another individual, group, or collective.” Chapman v. United Steelworkers

of Am., Int’l Union, 861 F.2d 719 (table), 1988 WL 118043 (6th Cir. 1988). Specifically

regarding discrimination, a plaintiff’s claim of a breach of the duty of fair representation will

survive a motion to dismiss only if the alleged discrimination is “intentional, severe, and unrelated

to legitimate union objectives.” Trail v. Int’l Bhd.. of Teamsters, Chauffeurs Warehouseman and

Helpers of Am., 542 F.2d 961, 968 (6th Cir. 1976). Racial discrimination is not a legitimate union

objective.

However, without additional information, alleging that a union did not sufficiently pursue

a grievance is “legally insufficient to support a claim for breach of the duty of fair representation.”

Dobrski v. Ford Motor Co. 698 F.Supp.2d 966, 991 (N.D. Ohio 2010). While a union may not

“arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion,” an employee

does not have an absolute right to have his grievance taken to arbitration. Dobrski, 698 F.Supp.2d

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at 991 (citing Vaca v. Sipes, 386 U.S. 171, 191 (1967)). 

In the case at bar, Plaintiff Mathis alleges that Defendant CWA has given her “erroneous

advice – lies.” (Doc. 1, 6). Plaintiff Mathis also alleges that CWA intentionally failed to pursue

her complaint against AT&T due to racial discrimination. (Doc. 1, 6). However, the above

statements by Plaintiff Mathis are conclusory allegations and are insufficient under the heightened

pleading standards from Twombly/Iqbal. 

Plaintiff Mathis more specifically alleges that CWA took no action by December 2010 on

a grievance she filed in September of 2010, and that the delay was unwarranted. However, this

allegation does not suggest that Defendant CWA breached its duty of fair representation by

engaging in actions that are arbitrary, discriminatory, or in bad faith. There are numerous reasons

why a union may decide not to move forward with a grievance for a period of three months.

Additionally, based on Dobrsk, simply alleging that a union did not sufficiently pursue a

grievance, without more, is “legally insufficient to support a claim for breach of the duty of fair

representation.” 698 F.Supp.2d at 991. 

Plaintiff Mathis also claims that CWA did not require any documentation from AT&T

when it disciplined her. Similar to Plaintiff Mathis’ allegation regarding the timeliness of CWA’s

actions regarding her grievance, this allegation does not present evidence that CWA’s actions are

arbitrary, discriminatory, or in bad faith. Additionally, as required by Chapman, Plaintiff Mathis

has failed to allege facts that would show Defendant CWA treated her differently than an

individual from another group based on a discriminatory, arbitrary, or bad faith motive. 

Therefore, Plaintiff Mathis’ claims are insufficient under Dobrsk and Chapman. Accordingly,

Plaintiff’s claims against Defendant CWA are hereby dismissed without prejudice.

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B. The Plaintiff’s Claims Based on Title VII of the Civil Rights Act of 1964

The Court interprets Plaintiff Mathis’ claims against the six employees of CWA to include

a discrimination claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). See 42

U.S.C.A. §2000e. Plaintiff alleges that CWA discriminated against her by failing to adequately

represent her based on her race. Title VII makes it unlawful for a labor organization “to exclude

or to expel from its membership, or otherwise to discriminate against, any individual because of

his race, color, religion, sex, or national origin[.]” 42 U.S.C. 2000e-2(c).

The Sixth Circuit, following a majority of other courts, has held that Congress “did not

intend individual employees to he held liable under the definition of ‘employer’ under Title VII.”

Burrell, 483 F.Supp.2d at 600. Title VII defines an employer as “a person engaged in an industry

affecting commerce who has fifteen employees or more employees or . . . any agent of such

person.” 42 U.S.C. 2000e(b). The majority of courts addressing the individual liability issue have

concluded that “the obvious purpose of the agent provision was to incorporate respondeat

superior liability into the statute.” Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.

1997). The Court also noted that the purpose of limiting liability under Title VII to employers

with greater than fifteen employees was because “Congress did not want to burden small entities

with the costs associated with litigating discrimination claims.” Id. at 406. “It is inconceivable

that a Congress concerned with protecting small employers would simultaneously allow civil

liability to run against individual employees.” Id. The legislative history of Title VII indicates that

agent liability was not discussed during Senate floor debates, “implying that Congress did not

contemplate agent liability under Title VII.” Id. Additionally, a successful Title VII plaintiff is

limited to reinstatement and back pay, remedies that are only available from an employer. Id. As

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the statute contains no provision for damages to be paid by individuals, this is further evidence of

a lack of Congressional intent to hold individuals liable. Id.

While it is clear that an employee cannot be held liable under Title VII, that same

determination did not originally apply to union officials. However, the Sixth Circuit later held that

“individual union officials cannot be held liable under Title VII[.]” Creusere v. Southwest Ohio

Reg’l Council of Carpenters, No. C-1-01-0021, 2002 U.S. Dist. LEXIS 5217, at *12 (S.D. Ohio

Mar. 28, 2002). This decision is based in part on Congressional intent to not hold individual

employees liable under Title VII as discussed above. Id. at *14. Additionally, Title VII’s

definition of a “labor organization” includes an agent provision identical to the agent provision

included in the definition of an employer. Id. at *15. “The court can find no reason why the labor

organization agent provision should be interpreted differently that the employer agent provision.”

Id. “Therefore, . . . the Court concludes that the purpose of the agent provision in the labor

organization definition is to incorporate respondeat superior liability into the statutes, rather than

to impose agent liability on union officials.” Id. Therefore, based the identical agent provision for

labor organizations and employment organizations and evidence of Congressional intent not to

hold an individual liable under Title VII, a union official is not liable in his individual capacity for

discrimination under a Title VII claim. 

Therefore, Plaintiff Mathis’ Title VII claim against the six employees of CWA is hereby

DISMISSED.

C. Default Judgment and Motion to Strike

Pursuant to Federal Rule of Civil Procedure 55, a default judgement must be entered if a

party has “failed to plead or otherwise defend” a case and that failure is shown by “affidavit or

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otherwise.” In the case at bar, Plaintiff Mathis filed her original complaint on December 14, 2010

and CWA responded with a motion to dismiss on January 18, 2011. CWA’s motion to dismiss is

a sufficient act showing an intent to defend the case, and therefore the requirements of Rule 55(a)

of the Federal Rules of Civil Procedure are not met. Plaintiff Mathis’ motions for default

judgment are DENIED. Similarly, Plaintiff has moved to compel Defendants to respond to her

Complaint. Defendants have responded in the form of a Motion to Dismiss. Accordingly,

Plaintiff’s Motion to Compel is DENIED. 

Based on the Court’s decision to deny Plaintiff Mathis’ motions for default judgment,

CWA’s motion to strike is MOOT.

D. Motion to Serve Court’s Documents by Certified Mail

In the Sixth Circuit, when a plaintiff’s privacy is at stake, there is precedent requiring a

defendant to send documentation to the plaintiff via certified mail, instead of regular first-class

U.S. mail. For example, in Aslani v. Sparrow Health Systems, the court held that the plaintiff’s

health records should be returned via certified mail because the cost of certified mail, when

viewed in the context of the cost of the entire litigation, is reasonable when compared to the

plaintiff’s interest in maintaining the privacy of her medical history. No. 1:08-cv-298, 2010 WL

623673, at *7 (W.D. Mich. 2010).

This Court concludes that employment information, while usually not as sensitive as

medical records, may contain information a plaintiff wishes to keep private. In the case at bar, the

increased costs of sending documentation to Plaintiff Mathis via certified mail is relatively

insubstantial when viewed in light of the total cost of litigation. Therefore, this Court would

normally grant Plaintiff Mathis’ motion requiring the Defendant CWA to send future

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communications via certified mail. However, because the CWA Defendant’s motion to dismiss is

granted, Plaintiff Mathis’ motion “to Service all Court Pleadings, Documents and Orders

(Motions) by Certified Mail” is now MOOT.

IV. CONCLUSION

Based on the foregoing, the CWA Defendant’s motion to dismiss (Doc. 9) Plaintiff

Mathis’ claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTED.

Additionally, Plaintiff Mathis’ motions for a default judgment (Doc. 14 and 39) and motion to

compel (Doc. 36) are DENIED. Defendants’ motion to strike Plaintiff Mathis’ motion for

default judgment (Doc. 21) is MOOT. Finally, because the CWA Defendant’s motion to dismiss

is granted, Plaintiff Mathis’ motion to have all court pleadings sent to her by certified mail (Doc.

24) is MOOT.

The Clerk of Courts is ordered to removed Documents 9, 14, 21, 24, 36, and 39 from the

Court’s pending motions list.

The Clerk is further instructed to remove this case from the Court’s pending cases list. 

This action is dismissed without prejudice.

IT IS SO ORDERED.

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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