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Rogers v. Jewel Food Stores, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 30, 2014



SARA L. ELLIS, District Judge.

Plaintiff Quintina Rogers, a former employee of Jewel Food Stores, Inc. ("Jewel") and a former member of the United Food and Commercial Workers International Union Local 881 (the "Union"), was terminated from her job at Jewel for allegedly discounting a bottle of vodka. She originally filed a pro se complaint against Jewel. With the assistance of counsel, Rogers filed an amended complaint alleging that Jewel breached the terms of its collective bargaining agreement with the Union (a hybrid Section 301/fair representation claim under the Labor Management Relations Act, 29 U.S.C. § 185 et seq. ) and violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Before the Court is Jewel's motion to dismiss the hybrid Section 301/fair representation claim [38]. The motion to dismiss is granted. While the Court finds that the claim relates back to Rogers' initial complaint, which was filed within six months of the Union's final decision on Rogers' grievance, the Court additionally finds that Rogers has failed to sufficiently allege that the Union breached its duty to fairly represent her; thus, Rogers cannot proceed on her breach of contract claim against Jewel.


Rogers began working at Jewel as a service clerk on October 27, 2007, regularly working more than 16 hours per week overseeing self-checkout lines and acting as a cashier. A dedicated employee who took pride in her work, Rogers received good performance reviews and maintained an excellent disciplinary record, earning commendations from customers and Jewel management staff. Prior to November 14, 2012, Rogers had never been accused of any form of theft, misappropriation, or inadvertent mishandling of cash, nor had she ever been cited by Jewel management for improper discounting or voiding of transactions.

On November 14, 2012, Senior Security and Loss Prevention Manager Marty Oppenhauser accused Rogers of stealing coins and cash from her register, as well as improperly discounting and voiding a transaction involving a bottle of vodka. All of the alleged incidents were unsubstantiated by reasonable or reliable evidence, as Jewel staff, including Oppenhauser, knew at the time of the November 14, 2012 meeting. Shortly after that meeting concluded, Oppenhauser and Assistant Store Manager Donna Rogers (no relation to Plaintiff) conferred and advised Rogers that she was suspended effective immediately.

Rogers immediately contacted the Union and, on November 15, 2012, filed a Grievance Investigation Report. On November 21, 2012, a meeting about the alleged incidents took place with Oppenhauser's superior, Mary Junger, Jewel's District Manager for Loss Prevention. Rogers' Union representative, Marcella Robinson, and her supervisor, Cozetta Alcorn, were also present. At this meeting, Rogers expressed her desire to see the video of the incidents in question but was told the video was the property of Jewel's Loss Prevention Program.

On December 1, 2012, Alcorn advised Rogers that she was terminated for improperly discounting a bottle of vodka. Rogers, concerned about the injustice of her termination, attempted to contact Robinson, her Union representative, throughout the month of December 2012 to check on the status of her grievance. Robinson finally responded at the end of the month and advised Rogers not to worry.

On January 23, 2013, the Union notified Rogers by letter that it had decided not to pursue her grievance to arbitration, citing the facts uncovered in its investigation of Rogers' conduct and unfavorable precedent in arbitration of similar cases with Jewel. Rogers formally appealed the Union's decision on February 1, 2013. The Union confirmed receipt of Rogers' letter and request for appeal in a second letter on February 6, 2013, informing Rogers that a final decision would be made by the Executive Board at its next meeting on April 9, 2013. In a subsequent letter dated April 10, 2013, the Union notified Rogers that her appeal had been denied, that the Executive Board had determined that her grievance lacked merit, and that the Union considered the matter closed. Rogers continued to request a copy of her grievance file and other materials related to her termination, including the video, but the Union informed her that the documents were Union property in a May 8, 2013 letter.


A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Iqbal, 556 U.S. at 678.


I. Statute of Limitations

Jewel first argues that Rogers' hybrid claim is barred by the statute of limitations because it was filed over a year after Rogers learned that the Union would not pursue her grievance. The statute of limitations is an affirmative defense that need not be anticipated in the complaint in order to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). But that is not the case where "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations." Id.; see also Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (considering statute of limitations defense on motion to dismiss where relevant dates were set forth in the complaint). Here, the Amended Complaint sets forth the allegations necessary to address the statute of limitations issue and so the Court will consider Jewel's argument.

The applicable statute of limitations for hybrid Section 301/fair representation claims is six months from the time the plaintiff discovers or in the exercise of reasonable diligence should have discovered the alleged violation. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169-72, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 914 (7th Cir. 1999). This typically occurs "from the time a final decision on a plaintiff's grievance has been made or from the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, that no further action would be taken on his grievance." Chapple v. Nat'l Starch & Chem. Co. & Oil, 178 F.3d 501, 505 (7th Cir. 1999) (quoting Richards v. Local 134, Int'l Bhd. of Elec. Workers, 790 F.2d 633, 636 (7th Cir. 1986)). The statute of limitations is tolled, however, during the pendency of "internal union procedures that possibly may provide [the plaintiff] with a remedy, " even "where those remedies are ultimately determined to have been futile." Frandsen v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Emps., 782 F.2d 674, 681 (7th Cir. 1986); Truhlar v. John Grace Branch #825 of Nat'l Ass'n of ...

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