UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) FREDERICK B. HOLLIE, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0561 (ESH) ) ANTHONY SMITH, et al. , ) ) Defendants. ) ) MEMORANDUM OPINION Frederick Hollie, proceeding pro se , has sued his former union, the International Brotherhood of Teamsters, Local Union 639 (“Uni on”), as well as his union representative, Anthony Smith, seeking damages resulting from gross negligence, breach of contract, and breach of the duty of fair representation. The Union ha s moved to dismiss Hollie’s claims, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the following reasons, the Union’s motion will be granted in part and denied in part. BACKGROUND 1 Hollie was employed by the United Parcel Service (“UPS”) and was a member of the Union. (Am. Compl. at 1.) On December 12, 2008, Hollie was discharged by UPS. ( Id. ) The Union successfully reversed the discharge, and Ho llie was allowed to return to work on January 12, 2009. ( Id. ) On January 15, Hollie’s manager told him that he needed to take a physical in order to continue working because his most recent physical was insufficient. ( Id. at 1-2.) On February 19, Hollie was fired for taking an unauthorized leave of absence. ( Id. at 2; see also

1 The dates given by Hollie in his complaint ar e confusing and frequently do not match the dates listed in his supplemental materials. The Court will use the dates that it believes are correct based on all of the materials submitted by Hollie.2 Compl. Ex. C, at 2.) On March 19, Hollie filed a grievance with the Union. (Compl., Chronology of Events (“Chronology”), at 3.) Hollie alleges that the Union never responded to the grievance he filed. (Am. Compl. at 2.) Hollie also alleges that on October 20, 2010, he attended a panel hearing of the Atlantic Area Parcel Grievance Committee, after which he was discharged for “not filing a timely grievance in response to the February 19” discharge. ( Id. ) Moreover, he alleges that the Union

“reversed” his reinstatement from his December 12, 2008, discharge on December 22, 2010. ( Id. ) Hollie filed suit against Smith and the Union in Superior Court on February 22, 2011. (Notice of Removal, Ex. A, at 1.) He alleged th at defendants failed to “i nvestigate grievances in January and February” 2009, that he had not received “back pay fo r wrongful terminations,” that he received “unfair representation” when he was not allowed to pr esent his case “verbally” at the 2010 “hearing panel,” that they failed to “return calls or contact” him about his grievances, and that they had failed to contact him. ( Id. at 5.) The Union removed the case on March 16, 2011, on the grounds that Hollie claimed a breach of the federal “duty of fair representation.” (Notice of Removal at 2-3.) The Union moved to dismiss HollieDefs.’’s claims on March 24, 2011. (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) at 11.) Hollie filed an am ended complaint on May 5,

2011. 2

2 The Union argues that Smith is no longer a party in this suit because the amended complaint does not include any claims against h im. (Defs.’ Reply at 1-2 n.1.) Although the filing of an amended complaint generally “renders the original complaint a nullity,” Affinity Healthcare Servs., Inc. v. Sebelius , 746 F. Supp. 2d 106, 111 n.7 (D.D.C. 2010), when a plaintiff is proceeding pro se , the Court must “read[] all of the plaintiffs filings together.” See Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999); see also Silvious v. Snapple Beverage Corp. , No. 11-630, 2011 WL 2530897, at *2 (D.D.C . June 27, 2011) (“in construing pro se filings liberally, courts should read all of the pro se party’s filings t ogether”). Thus, Hollie’s amended complaint supplements, rather than replaces his original complaint, and his claim against Smith survives.3 ANALYSIS I. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accep ted as true, to ‘state a claim to relief that is plausible on its face,’” such that a court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). In ruli ng on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the comp laint and integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc. , 722 F. Supp. 2d 20, 24-25 (D.D.C. 2010). II. HOLLIE’S COMPLAINT ONLY ALLEGE S BREACH OF THE DUTY OF FAIR REPRESENTATION Although Hollie has “attempt[ed] to bring a st ate law action,” the Union argues that his state law claims are pre-empted because his comp laint also alleges a breach of the Union’s duty of fair representation. (Defs.’ Mot. at 5.) Hol lie’s original complaint di d not cite any statutory basis for his action. Rather, it alleged that the Union and Smith failed to inve stigate Hollie’s grievances and failed to successfu lly win him his back pay, that he was unfairly represented at a recent hearing, and that the Union and Smith faile d to return his calls and to contact him. (Compl. at 1.) Hollie’s amended complaint alleges that the “Uni on never responded to grievances as agreed by Union Representative An thony Smith,” and that “a breach of an explicit or implied contract of employment or an empl oyer-union collective bargai ning agreement” led to his constructive discharge. (Am. Compl. at 2.) Moreover, Hollie alleges that damages were “increased by the Union’s gross negligence, brea ch of contract and its statutory duty of fair4 representation.” ( Id. ) Thus, Hollie now explicitly allege s that the Union and Smith breached their duty of fair representation. Even if Hollie had not specifically raised this claim, the Court would read his complaint to allege a breach of the duty of fair representa tion because he alleges that the Union and Smith failed to follow the grievance procedure detail ed in the collective ba rgaining agreement with

UPS. See Price v. Union Local 25 , No. 10-1865, 2011 WL 2144564, at *2-*3 (D.D.C. June 1, 2011) (where plaintiff made no “s pecific legal claim,” the court construed his complaint as asserting a duty of fair representation claim because it alleged that his union “arbitrarily ignore[d] a meritorious grieva nce or process[ed] it in pe rfunctory fashion”) (quoting Vaca v. Sipes , 386 U.S. 171, 191 (1967)). Moreover, “[t]o the extent th at the Union had a duty to [Hollie], that duty is defined . . . by a collective bargaining agreement . . . as well as applicable federal statutes,” and is, ther efore, governed by § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Ramey v. Int’l Bhd. of Elec. Workers , 580 F. Supp. 2d 44, 47-48 (D.D.C. 2008) (construing claim of conspiracy against union as one for breach of the duty of fair representation). Thus, no matter how Hollie has labeled his claims, the Court would construe them as claims brought pursu ant to § 301 of the LMRA. Id. at 48 (quoting Taylor v. Giant Food,

Inc. , 438 F. Supp. 2d 576, 581 (D. Md. 2006)). To the extent Hollie alleges that the same conduct also gives rise to claims under state law, these claims are preempted because they do not “arise wholly outside the ambit of those obligations circumscribed by a union’s duty of fa ir representation under the collective bargaining agreement.” Condon v. Local 2944, United Steelworkers of Am., AFL-CIO , 683 F.2d 590, 595 (1st Cir. 1982); see also May v. Shuttle, Inc. , 129 F.3d 165, 179 (D.C. Cir. 1997) (agreeing that “the federal duty of fair representation preempts identical state law claims”); Price , 2011 WL5 2144564, at *4 n.3 (“identical state law claims based on the same conduct” are “preempted by the federal” duty of fair representation claim”). To the extent Hollie states claims other than a breach of the duty of fair representation, these claims will be dismissed. III. HOLLIE’S CLAIM AGAINST THE UNION

A. Failure to Exhaust Internal Remedies The Union argues that Hollie’s claim that it breached its duty of fair representation

should be dismissed because he failed to exhaust hi s internal union remedies. (Defs.’ Mot. at 9.) The Union argues that “ordinarily, . . . an em ployee is required to at tempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement.” Majewski v.

B’Nai B’Rith Int’l , 721 F.2d 823, 824 n.6 (D.C. Cir. 1983) (quoting DelCostello v. Int’l Bhd. of

Teamsters , 462 U.S. 151, 163 (1983)). This requirem ent, however, applies to suits brought against an employer by an employee, not to suits against the union itself. See id. at 824;

DelCostello , 462 U.S. at 163. Because Hollie sued his union under the LMRA, the Court “ha[s] the discretion to decide whether to require exhaustion of intern al union procedures.” 3 Clayton v. Int’l Union, United Auto., Aerospace, and Agric. Implement Workers of Am. , 451 U.S. 679, 689 (1981); see also O’Hara v. Dist. No. 1-PCD , 56 F.3d 1514, 1522 (D.C. Cir. 1995) (courts “may enforce” union constitution’s “requirement of exha ustion of internal union remedies . . . under appropriate conditions”). When exercising this discretion:

at least three factors should be relevant: first, whet her union officials are so hostile to the employee that he could not hope to obtain a fa ir hearing on his claim; second, whether the internal union appeals procedures w ould be inadequate either to reactivate the employee's grieva nce or to award him the full relief he seeks under § 301; and third, whether exhaus tion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim. If any of these f actors are found to exist, the court may properly excuse the employee's failure to exhaust.

3 Hollie does not argue that he exha usted his internal remedies. ( See Pl.’s Reply at 2-4.)6 Clayton , 451 U.S. at 689. Thus, the Court must fi rst determine whether Hollie has shown that the Union’s internal procedures cannot reactiv ate his grievance or “grant [him] full relief.” 4 Id.

at 696. If the Union’s internal procedures are inadequate, Hollie will not be “required to expend time and resources seeking a necessarily incomple te resolution of his claim prior to pursuing judicial relief.” 5 Id. Hollie argues that the Court should excuse hi s failure to exhaust because the Union’s internal procedures are inadequate to reactivate his grievance and re instate him. (Pl.’s Reply at 3.) As proof, Hollie attaches the decision from the October 2010 hearing panel, which clearly states that a decision by the panel is “final, conclu sive and binding with no appeal.” (Pl.’s Reply, Ex. J, at 3.) Moreover, after the panel issued its decision, Smith informed Hollie that his “claim [was] untimely and would fail at any attempt to adjudicate it.” ( Id. , Ex. J. at 1.) Finally, although the Union suggests that Hollie can pursu e disciplinary action ag ainst union officers, it does not argue that his grievance could be reactivat ed. (Defs.’ Mot. at 9.) Therefore, the Court concludes that the Union’s internal proce dures cannot reactivate Hollie’s grievance. Requiring Hollie to seek money damages throug h the Union’s internal grievance process

would also be futile. Clayton , 451 U.S. at 689 (internal remedies must be unable “either to

4 Hollie carries the burden of establishing that exhausting his internal remedies would be futile. Although there is no post- Clayton precedent in this Circ uit, the Court held in Winter , a pre- Clayton case, that a plaintiff was required to ma ke a “clear and positive showing of futility” before the Court could excuse a failure to exhaust internal union remedies. Winter v. Local Union No. 639, Affiliated with Int’l Bhd. of Teamsters , 569 F.2d 146, 149 (D.C. Cir. 1977); see also Pierce v. Bahr , No. 96-0680, 1996 WL 33675196, at *4 n.9 (D.D.C. May 9, 1996) (burden on plaintiffs to “prove the futility of exhausting their union remedies”).

5 The Union suggests that Ruzicka v. General Motors Corp. , 523 F.2d 306, 311 (6th Cir. 1975), counsels that the Court should stay its hand until the Union has “had at least some opportunity to resolve disputes concerning its own internal affairs.” (Defs.’ Mot. at 10.) However, Ruzicka was decided before Clayton , which explicitly rejected any general internal exhaustion requirement. See Clayton , 451 U.S. at 696.7 reactivate the employee's grieva nce or to award him the full relief he seeks under § 301”). Although the Union argues that its Constitution provides “a damages and injunctive remedy,” (Defs.’ Mot. at 9 (citing Tinsley v. United Parcel Serv. , 665 F.2d 778, 779-80 (7th Cir. 1981)),

Article XIX of the Union’s Constitution does not appear to provide fo r an award of money damages to an individual union member. 6 (Defs.’ Mot., Ex. A, at 89-90 (“[i]f a fine is assessed against a Local Union by a Joint Council, the pa yment shall be to the treasury of the Joint Council”).) Moreover, the Court of Appeals has read the Union’s constitution to prevent a plaintiff from “obtain[ing] money damages through union disciplinary channels.” Winter , 569 F.2d at 149 (plaintiff “probably c ould not” obtain money damages); see also Beyene v. Coleman Sec. Servs., Inc. 854 F.2d 1179, 1181 (9th Cir. 1988) (“[o]n its face,” Teamsters Constitution “does not authorize the payment of money damage s to a union member who successfully asserts an internal charge against a Local Union.”). Thus, because the Union’s internal procedures cannot provide Hollie the full relief he seeks, it would be futile to require him to exhaust his

internal remedies. Clayton , 451 U.S. at 696. B. Statute of Limitations In its Reply brief, the Union argues that Hollie ’s claims are also barred by the statute of

limitations. 7 (Defs.’ Reply at 2-5.) A six-month statut e of limitations applies to claims against a

6 Although Hollie does not cite to the Union’ s Constitution in his complaints, it is a verifiable public document and, therefore, may be considered by the Court without converting the Union’s motion to dismiss into a motion for summary judgment. Cf. Sears v. Magnolia Plumbing, Inc. , 778 F. Supp. 2d 80, n.6 (D.D.C 2011) (tak ing judicial notice of corporate resolutions made publicly available through Maryland government website).

7 The Court generally will not consider arguments raised for the first time in a defendant’s reply. See Jones v. Mukasey , 565 F. Supp. 2d 68, 81 (D.D.C. 2008) (citing Am. Wildlands v. Kempthorne , 530 F.3d 991, 1001 (D.C. Cir. 2008)). However, Hollie filed an amended complaint after the Union’s initial motion to dismiss, but before its reply. Moreover, Hollie has responded to the arguments made in the Union’s reply. ( See Pl.’s Reply Brief in Opp’n of Defs.’ Mot. to Dismiss (Dkt. No. 8).) Thus, because th e Union’s reply responded to new issues raised8 union for breach of the duty of fair representation. George v. Local Union No. 639, Int’l Bhd. of Teamsters, Chauffeurs, Warehous emen & Helpers of Am., AFL-CIO , 100 F.3d 1008, 1014 (D.C. Cir. 1996). The six months begin to run when the claimant “disc overs, or in the exercise of reasonable diligence should discover, the acts that form the basis of his claim.” McConnell v. Air Line Pilots’ Ass’n, Int’l , 763 F. Supp. 2d 37, 41 (D.D.C. 2011). When a series of actions allegedly violated the duty of fair representa tion, the “timeliness of the action is generally measured from . . . when the employee knows or should have known of the last action taken by the union which constituted the alleged breach of its duty of fair representation.” Watkins v. Commc’ns Workers of Am., Local 2336 , 736 F. Supp. 1156, 1159 (D.D.C. 1990); see also Plain v. AT&T Corp. , 424 F. Supp. 2d 11, 21 (D.D.C. 2006) (quoting Watkins , 736 F. Supp. at 1159). Thus, Hollie’s cause of action did not accrue as lo ng as he “reasonably thought that the grievance process had not reached a final breakdown.” Watkins , 736 F. Supp. at 1160. Hollie’s claim is not untimely because the st atute of limitations period did not begin to run until October 2010. The Union argues that Hollie’s claim can be “traced back” to his discharge on February 19, 2009, beca use Hollie alleges that it failed to investigate the grievances he filed on January 22, 2009, and February 6, 2009. (Defs.’ Reply at 5.) Hollie replies that the “primary basis” for his complaint was the pa nel hearing held on Oct ober 20, 2010, and that his lawsuit was filed on February 18, 2011, well within the six-month statute of limitations. (Pl.’s Reply at 2.) Hollie alleges that he was “unfai r[ly] represent[ed] at recent hearing panel where [he] was never allowed to present [his] case verball y,” (Compl. at 1) and th at this hearing related to his February 2009 discharge. (Am. Compl. at 2.) Construing Hollie’s complaint liberally, and assuming that all of the f acts he alleges are true, Toolasprashad v. Bureau of Prisons , 286 F.3d

in Hollie’s amended complaint, and because Hollie has had the opportunity to brief these issues, the Court will consider the Union’s argument on the statute of limitations.9 576, 583 (D.C. Cir. 2002), Hollie has alleged that he reasonably thought that the grievance process had not reached a final breakdown pr ior to the October 2010 hearing. Thus, because

Hollie’s cause of action had not accrued until October 2010, the Court will deny the Union’s

motion to dismiss on the basis of the statute of limitations. IV. HOLLIE’S CLAIM AGAINST SMITH The Union also argues that Hollie’s claim ag ainst Smith should be dismissed because he cannot bring a claim for breach of the duty of fair representation against an individual. (Defs.’ Mot. at 8.) The LMRA provides that “[a]ny money judgment” following an alleged breach of the duty of fair representation “shall not be enforceable agai nst any individual member” of a union “or his assets.” 29 U.S.C. § 185(b). Thus, a money judgment “cannot be sought or enforced against a union representative when the union violated its duty of fair representation.” McMickle v. Aragon , 736 F. Supp. 2d 129, 130 (D.D.C. 2010) (dismissing claim against union representative); see also Atkinson v. Sinclair Refining Co. , 370 U.S. 238, 247-48 (1962) (“when Congress passed” 29 U.S.C. § 185, “it declared its view that only the uni on was to be made to respond for union wrongs, and that the union memb ers were not to be subject to levy”); Price , 2011 WL 2144564, at *2-*3 (courts in this Circ uit have “uniformly dismissed” fair representation claims for damages “brought agai nst individual union agents or officers”). Hollie’s claim against Smith is solely based on Smith’s failure to adequately communicate with him during the grievance process. (Compl. at 1 (a lleging “failure to return calls or contact me regarding my grievances”); Am. Compl. at 2 (“ The Union never responded to grievances as agreed by Union Representative Anthony Smith”).) Because Hollie cannot bring a claim against an individual union officer, his claim against Smith must be dismissed. Price , 2011 WL 2144564, at *3.10 CONCLUSION For the foregoing reasons, the Union’s Motion to Dismiss (Dkt. No. 2) will be granted in part and denied in part. The Union’s motion to dismiss Hollie’s state law claims and Hollie’s claims against Anthony Smith will be granted. The Union’s motion to dismiss Hollie’s claim against it for breach of the duty of fair repr esentation will be denied. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: September 28, 2011