Jones v. Local 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-Cio

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RODNEY JONES, on behalf of himself

and all others similarly situated,

Plaintiff,

v. 4:20-cv-00585-CRK-CDL

LOCAL 798 OF THE UNITED ASSOCIATION

OF JOURNEYMEN AND APPRENTICES OF

THE PLUMBING AND PIPEFITTING

INDUSTRY OF THE UNITED STATES AND

CANADA, AFL-CIO,

Defendant.

OPINION AND ORDER

Before the Court is a motion to dismiss for failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6) by Defendant Local 798 of the United Association of

Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United

States and Canada, AFL-CIO (“Local 798”). Local 798 seeks to dismiss four racial-

discrimination claims brought against it by Plaintiff Rodney Jones under 42 U.S.C.

§ 1981, and 42 U.S.C. § 2000e (“Title VII”). For the following reasons, Local 798’s

motion to dismiss is granted, and Jones’ claims are dismissed without prejudice.

BACKGROUND1

Local 798 is a member organization of the United Association of Journeyman

and Apprentices of the Plumbing and Pipefitting Industry of the United States and

Canada, AFL-CIO. First Am. Class Action Compl. ¶ 2, May 18, 2021, ECF No. 19

(“Compl.”). Local 798’s members are classified as either “helpers” or “journeymen.”

Id. ¶ 26. The journeyman position is further divided into two roles: “journeyman

welder” and “journeyman spacer.” Id. ¶¶ 30–31. Jones joined Local 798 as a helper

in 2005 and is still a helper. Id. ¶¶ 39–41.

When a member of Local 798 is hired to work at a particular jobsite, Local 798

and signatory employer agree to operate under a collective bargaining agreement

known as the National Pipeline Agreement (“CBA”). Id. ¶ 17. The CBA contains a

non-discrimination provision, prohibiting Local 798 and signatory employers from

taking “any action or refus[ing] to take any action which shall discriminate against

any individual with respect to his compensation, conditions, or privileges of

employment because of the individual’s race, age, color, religion, sex, national origin

or disability.” Id. ¶ 18. Although the CBA now contains a non-discrimination

provision, Local 798 has a discriminatory history against blacks and other minority

groups. Id. ¶¶ 11–15, 18. For the first 40 years of its existence, Local 798 did not

1 The Court includes facts from the First Amended Class Action Complaint, see ECF

No. 19, and Jones’ Equal Opportunity Employment Commission (“EEOC”) Charge,

see ECF No. 37-1, which the Court assumes to be true for the purpose of this Opinion

and Order. The Court considers Jones’ EEOC Charge, which the Defendant filed as

an exhibit to its motion to dismiss, because the charge is central to Jones’ claim,

referenced in his complaint, and because Jones does not dispute its authenticity. See

GFF Corp. v. Assoc’d Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).

allow blacks into its organization. Id. ¶ 12. Although the Equal Employment

Opportunity Commission (“EEOC”) successfully sued Local 798 in the 1980s, that

ruling did not stop Local 798 from discriminating against minorities. Id. ¶¶ 15–16.

Throughout his membership with Local 798, other workers have directed racial

bigotry at Jones on the jobsite. Id. ¶ 42. In 2017, while working on a jobsite in

Detroit, a co-worker commented to Jones about black people being lazy and taking

handouts. Id. ¶ 43. Jones voiced his disapproval of such comments and reported this

event to Local 798’s steward. Id. A “steward” is the Local 798 on-site representative

who receives reports of grievances. Id. ¶ 20. The steward said he would “take care of

it,” but did nothing. Id. ¶ 43. In 2018, someone hung a noose at a jobsite on which

Jones worked. Id. ¶ 44. Jones reported this to union representative W. P.,2 but Local

798 took no meaningful action to investigate this event or hold anyone accountable.

Id. ¶ 44. In 2019, journeyman welder C. N. taunted Jones with racial slurs and told

him the union makes things tough on blacks. Id. ¶ 45. In 2019, a welder helper A.

G. used racial epithets while around Jones. Id. ¶ 47. Jones raised this behavior with

the steward, but the steward took no action. Id. White workers used racial epithets

loosely and comfortably on the job site without consequence. Id. ¶ 48. Journeyman

spacer C. S. habitually made black jokes of which the steward was aware and yet took

no action. Id. ¶ 49. No steward at any job site on which Jones worked ever imposed

consequences on a white employee for racial bigotry. Id. ¶ 51.

2 Jones identifies a number of individuals by name in his complaint. At this stage in

the litigation the Court references these individuals using their initials.

In March 2017, Jones decided he would try to become a journeyman welder.

Id. ¶ 53. However, when Jones attempted to obtain the requisite five letters of

recommendation, he received no response to his requests. Id. ¶¶ 54, 58. After Local

798’s Financial Secretary-Treasurer W. P. recommended that Jones attempt to

become a journeyman spacer, foremen denied Jones the work needed to complete the

required 500 qualifying hours. Id. ¶¶ 62–64. Instead, foremen gave Jones and the

few other black workers less-desirable jobs, including janitorial duties, picking up

metal shavings, and pre-heating welds. Id. ¶ 65.

In July 2018, Jones expressed his frustrations concerning his advancement by

emailing a business agent of the union, C. Y. Id. ¶ 66. In October 2019, Jones

executed a charge against Local 798 with the EEOC, alleging Title VII racial

discrimination. Id. ¶ 72. Under the heading “Personal Harm,” his charge stated: “I

was subjected to racially hostile and discriminatory work environment.” EEOC

Charge at 3, Aug. 6, 2021, ECF No. 37-1. Jones then specified the basis of his charge

as follows:

Beginning in May 2019, I experienced a hostile and discriminatory work

environment due to my race. [C. N.], a welder, has used racial slurs and

taunted me, and stated that the Union used to not allow blacks as

members. And on August 8, 2019, he stated that he no longer wanted to

work with me. Also, a welder helper, [A. G.] used [a racial epithet] with

no consequence even after I brought it to the attention of the Job

Steward [M. G.]. His response was “we are not going to have that.”

However, there have been no consequences for Members of Local 798

who have made racially charged verbal attacks.

Id. The EEOC mailed a Suit Rights letter on August 17, 2020. Compl. ¶ 73.

On November 16, 2020, Jones filed a class action race discrimination suit

under 42 U.S.C. § 1981 against Local 798 in the United States District Court for the

Northern District of Oklahoma. See ECF No. 2. On April 23, 2021, Local 798 filed a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), alleging that Jones’ complaint

failed to state a claim upon which relief can be granted. See ECF No. 15. On May

14, 2021, Jones filed an amended complaint, adding three additional claims. See ECF

No. 16.3 In response to Jones’ amended complaint, Local 798 refiled its motion to

dismiss on June 21, 2021, and this motion is currently before the Court. See Def.’s

Mot. & Br. Sup. Mot. Dismiss, June 21, 2021, ECF No. 26 (“Def.’s Br.”).

JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1331,

and reviews Defendant’s motion to dismiss for failure to state a claim under Fed. R.

Civ. P. 12(b)(6).4 “The court’s function on a Rule 12(b)(6) motion is . . . to assess

whether the plaintiff’s . . . complaint alone is legally sufficient to state a claim for

which relief may be granted.” Broker’s Choice of Am., Inc. v. NBC Universal, Inc.,

3 Jones filed a corrected amended complaint on May 18, 2021. See ECF Nos. 17–19.

4 The Court need not, and does not, convert Local 798’s motion under Rule 12(b)(6)

into a motion for summary judgment under Rule 56. Generally, when a party

presents matters outside of the pleadings, the Court must either exclude the material

or treat the motion as one for summary judgment. Alexander v. Oklahoma, 382 F.3d

1206, 1214 (10th Cir. 2004). However, the Court may consider materials which are

central to the plaintiff’s claim when the parties do not dispute their authenticity.

GFF Corp. v. Assoc’d Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).

Here, both parties submit exhibits together with their briefs, these materials are

referenced in the complaint, and with one exception, their authenticity is not

disputed. Contra Decl. of D. H., June 21, 2021, ECF No. 26-3. Accordingly, the

Court takes notice of the undisputed exhibits, and proceeds under Rule 12(b)(6).

757 F.3d 1125, 1135–36 (10th Cir. 2014) (internal citations omitted). A complaint is

legally sufficient if it contains factual allegations such that it states a plausible claim

for relief on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Although a complaint need not contain detailed factual allegations, it nevertheless

requires “more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do . . . .” Id. at 555 (internal citation omitted).

A claim is facially plausible when the plaintiff pleads factual content allowing

the court to draw reasonable inferences that the defendant is liable for the alleged

misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept all

well-pleaded factual allegations of the complaint as true and must construe the

allegations in the light most favorable to the plaintiff. Twombly, 550 U.S. at 555–56.

However, “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. When deciding

a motion to dismiss, the Court considers the complaint in its entirety, as well as

“documents incorporated into the complaint by reference, and matters of which a

court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007) (internal citation omitted).

DISCUSSION

Jones alleges four causes of action against Local 798: (1) failure to enforce the

CBA under 42 U.S.C. § 1981, (2) imposing discriminatory advancement requirements

under 42 U.S.C. § 1981, (3) failure to enforce the CBA under Title VII, and (4)

imposing discriminatory advancement requirements under Title VII. For the reasons

that follow, Jones fails to state a claim against Local 798 under which relief can be

granted.

I. Claims under 42 U.S.C. § 1981

Jones claims that Local 798 discriminated against him by intentionally failing

to enforce the anti-discrimination provisions of the CBA, and intentionally imposing

advancement requirements which it knew blacks would not be able to meet. Compl.

¶¶ 90–114. Defendant responds Jones fails to plead intentional discrimination, as

required under § 1981. Def.’s Br. at 23–25. Defendant also argues that Jones’ failure

to enforce claim must be dismissed because Jones fails to allege that he sought

enforcement of the CBA. Def.’s Br. at 25–27. For the reasons that follow, Jones fails

to plead sufficient factual content to support a claim against Local 798 under § 1981.

A. Failure to Enforce the CBA

Jones alleges that (1) he has been subject to racial discrimination on Local 798

job sites, (2) Local 798 has been aware of the discrimination, (3) and Local 798 has

intentionally failed to file grievances, or otherwise enforce the CBA because of his

race in violation of 42 U.S.C. § 1981. Jones has adequately pled membership in a

protected class; however, his claim that Local 798 intentionally choose not to protect

his rights under the CBA because he is black is not supported by sufficient factual

allegations to withstand a motion to dismiss.

Section 1981(a) guarantees all persons the same right “to make and enforce

contracts” and “to the full and equal benefit of all laws and proceedings . . . as is

enjoyed by white citizens.” 42 U.S.C. § 1981(a). To prevail on the merits of a § 1981

discrimination claim, a plaintiff must demonstrate membership in a protected class,

and show a defendant intentionally discriminated on the basis of race. Cruz v.

Farmers Ins. Exch., 42 F.4th 1205, 1210 (10th Cir. 2022) (citing Hampton v. Dillard

Dep’t Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001)).5 It is well-established

that a union must act to prevent employer discrimination against its members in

certain circumstances. Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989)

(unions are obligated to represent members in disputes “that run from the employer

to the employee”). Where an employee has filed a grievance with the union, the

union’s failure to pursue that grievance because of race violates § 1981 and Title VII.

See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987) (union was liable

under § 1981 when it refused to “file proffered grievances”).

Intentional discrimination requires motive. A Plaintiff must allege the

defendant interfered with the plaintiff’s contractual rights because of a plaintiff’s

protected trait. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773

(2015); see also Ricci v. DeStefano, 557 U.S. 557, 577 (2009). A plaintiff can allege

intent by identifying either direct evidence or circumstantial evidence. See Kendrick

5 The protection afforded under 42 U.S.C. § 1981 extends to the employment

relationship. Johnson v. Ry. Express Agency, Inc., 421 U.S. 454 (1975); Hampton v.

Bakery Confectionary, Inc., 2022 WL 4361782, *12–*13 (10th Cir. 2021) (plaintiff

needed to show union’s interference with plaintiff-employer contract during

grievance procedure). Thus, a union may be found liable for intentionally refusing to

pursue employee grievances. See Goodman v. Lukens Steel Co., 482 U.S. 656, 669

(1987) (holding union liable when it “intentionally avoid[ed] asserting claims” of

discrimination against its members); see also Patterson v. McLean Credit Union, 491

U.S. 164, at 177 (1989) (workplace harassment claim not cognizable under § 1981

without contractual impairment).

v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)).6

Whether using direct or circumstantial evidence of intent, a plaintiff must

point to specific facts to support his claim. Thus, in Cruz, 42 F.4th at 1210, the Court

of Appeals relied upon a supervisor’s comment that a Hispanic employee was

terminated because employer did not want “some crazy brown man running around

with a gun” as direct evidence of discrimination. Conversely, in Perry v. Woodward,

199 F.3d 1126, 1134 (10th Cir. 1999), the Court of Appeals found evidence of a

supervisor’s generally disparaging comments about minorities and advocacy of a

discriminatory hiring policy were insufficient to support an inference of intent with

respect to a terminated employee. Plaintiff may also allege indirect evidence to

support an inference of discrimination. Compare Bekkem v. Wilkie, 915 F.3d 1258,

1267 (10th Cir. 2019) (plaintiff supported claim of pay discrimination by alleging

supervisor failed to recommend review or increase of her salary) with Hampton v.

Bakery Confectionary, Inc., 2022 WL 4361782, *8–*9 (10th Cir. 2021) (conclusory

6 The McDonnell Douglas standard is “an evidentiary standard, not a pleading

requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). “The

standards for employment discrimination set forth in McDonnell Douglas simply do

not ‘apply to the pleading standard that plaintiffs must satisfy in order to survive a

motion to dismiss.’” Morman v. Campbell Cnty. Mem’l Hosp., 632 F. App’x 927, 933

(10th Cir. 2015) (quoting Swierkiewicz, 534 U.S. at 511). Nonetheless, “Twombly and

Iqbal require that a plaintiff allege a plausible claim” and the Court evaluates

“plausibility only by considering the prima facie case of discrimination” a plaintiff

would need to prove in court. Id. The plaintiff “must allege facts that make such a

claim at least plausible.” Id.

allegations that union failed to pursue employee’s rights because of race insufficient

withstand a motion to dismiss).

General allegations without factual content are insufficient to survive a motion

to dismiss. See Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). In

Khalik, a former employee claimed discrimination in connection with her termination

and retaliation under Title VII. Id. at 1189. Plaintiff alleged that she was Arab-

American, Muslim and that “she was targeted because of her race, religion, national

origin and ethnic heritage.” Id. at 1190. She alleged that she had been employed for

a period of years, she performed her job well at all times, she had attained a job title

of Business Services Representative, that she had been grabbed by the arm “after

being subjected to a false investigation and false criticism of her work.” Id. She

further alleged the “reasons given for [her] termination and other mistreatment . . .

were false, giving rise to a presumption of discrimination, retaliation and wrongful

termination.” Id. The Court of Appeals affirmed the district court’s dismissal in

accordance with Iqbal, explaining “[w]hile ‘specific facts are not necessary’ some facts

are.” Id. at 1193. Accordingly, the Court of Appeals identified and struck allegations

that were conclusory, leaving the complaint without any facts to demonstrate

discrimination or retaliation. Id. at 1193–94. Missing from plaintiff’s allegations

were facts necessary to demonstrate plausibility:

While we do not mandate the pleading of any specific facts in particular,

there are certain details the Plaintiff should know and could properly

plead to satisfy the plausibility requirement. For instance, Plaintiff

should know when she requested FMLA leave and for what purpose. She

should know who she requested leave from and who denied her. She

should know generally when she complained about not receiving leave

and when she was terminated. She should know details about how

Defendant treated her compared to other non-Arabic or non-Muslim

employees. She should know the reasons Defendant gave her for

termination and why in her belief those reasons were pretextual. She

should know who grabbed her by the arm, what the context for that

action was, and when it occurred. She should know why she believed

that action was connected with discriminatory animus. She should know

who she complained to about the discrimination, when she complained,

and what the response was. She should know who criticized her work,

what that criticism was, and how she responded. But in fact, Plaintiff

offers none of this detail. To be sure, we are not suggesting a court

necessarily require each of the above facts. But a plaintiff must include

some further detail for a claim to be plausible. Plaintiff's claims are

based solely on the fact that she is Muslim and Arab–American, that she

complained about discrimination, that she complained about the denial

of FMLA leave, and that Defendant terminated her. Without more, her

claims are not plausible under the Twombly/Iqbal standard.

Id. at 1194. See also, e.g., Grays v. Kittredge Co. Partners, LLC, 2021 WL 1300601,

*3 (D. Colo. Feb. 17, 2021) (section 1981 claim against property manager dismissed

when intent was only supported by statistics and bald assertions of racism); Jemaneh

v. Univ. of Wyoming, 82 F. Supp. 3d 1281, 1302–04 (D. Colo.), aff'd, 622 F. App’x 765

(10th Cir. 2015) (discrimination claim against university dismissed when plaintiff

only alleged 2–3 similarly-situated white classmates received passing grades while

he did not); Aliyev v. Fedex Ground Package Sys., Inc., 2014 WL 1338583, *6 (D. Utah

Apr. 3, 2014) (plaintiff who alleged that company summarily fired him after three-

week delay did not provide factual content leading to inference that termination was

motivated by animus).

Here, although Jones pleads membership of a protected class, Compl. ¶¶ 1, 39,

91, 102, 116, 128, he does not adequately allege that Local 798 intentionally failed to

enforce the CBA, and therefore his complaint must be dismissed. At this stage, the

Court must accept all well-pleaded facts as true, and view them in the light most

favorable to plaintiff. Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th

Cir. 2021). However, like other claims challenged under R. 12(b)(6), “general

assertions of discrimination” without supporting details are insufficient, and the

Court “disregard[s] conclusory statements and look[s] only to whether the remaining,

factual allegations plausibly suggest the defendant is liable.” Khalik, 671 F.3d at

1193.

Here, Jones provides “a list of examples of racist conduct occurring on job sites

worked by Local 798 union members, of which the union steward or representative

was aware or should have been aware yet did nothing to address or otherwise act to

enforce the collective bargaining agreement.” Compl. ¶¶ 22, 42–51. Jones alleges

that he reported racist conduct or that the stewards were otherwise aware of the

conduct. Id. ¶¶ 42–51. Jones states in a conclusory manner that “[p]laintiff’s race . .

. is the reason Local 798’s Union Stewards’ [sic] fail to enforce the terms of the

collective bargaining agreement.” Id. ¶ 94. He alleges that Local 798 “fail[ed] to

enforce the terms of the collective bargaining agreement,” specifically referring to the

anti-discrimination provision of the agreement, which states: “Employer and Union

agree that neither of them shall take any action or refuse to take any action which

shall discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment because of such individual’s race.” Id. ¶¶ 6,

23; Def.’s Br., Ex. 1, June 21, 2022, ECF No. 26-1 at 4 (National Pipeline Agreement).

Stripping out Jones’ conclusory language, all that is left is an assertion that

the union has a history of racism, and that its stewards did not act on Jones’

complaints. Taking these allegations as true, they do not add up to a plausible claim

that Local 798 intentionally discriminated against Jones based on his race. Absent

more of a complete description of the circumstances of these allegations, the Court

cannot infer that Local 798’s failure to pursue Jones’ grievance under the CBA

stemmed from an intent to discriminate. See Hampton, 2022 WL 4361782 at *7–*8

(dismissing plaintiff’s § 1981 claim that the union discriminated against him because

of his race by failing to reasonably advise him because he failed to plead facts from

which the court could infer that the union was motivated by animus). See also York

v. American Tel. & Tel. Co., 95 F.3d 948, 956–57 (10th Cir.1996) (holding in a Title

VII claim that “a union cannot acquiesce in a company’s prohibited employment

discrimination . . . . However, mere inaction does not constitute acquiescence.”)

B. Unfair Advancement Requirements

Jones argues that Local 798 intentionally instituted requirements to prevent

non-white helpers from advancing to journeymen, and that the union suspends these

rules to allow white helpers to advance, in violation of 42 U.S.C. § 1981.7 Defendant

7 Specifically, Jones refers to the 5,000 hours over 3 years in covered employment, 5

letters of recommendation from welders or journeyman, certification tests, fees, and

application to the Local 798 Training Center Downhill Welding School required for

advancement to Journeyman Welder. Compl. ¶ 30. He also complains about the

requirements to advance to Journeyman Spacer, which include 3,000 Helper hours

over 10 years, 5 letters of recommendation from Journeyman, 500 Journeyman hours

in a “pipe gang” over 2 years, and approval from Local 798 for a change in

classification, among other requirements. Compl. ¶ 31.

argues that it took no purposeful actions against Jones to prevent him from

advancing. Def.’s Br. at 23. On the contrary, Defendant asserts that Local 798 gave

Jones support and encouragement in his quest to advance, and that it is not

responsible for Jones’ failure to obtain the requisite work hours or letters of

recommendation, over which it has no control. Id. at 23–24.

As previously stated, § 1981 guarantees an equal right to make and enforce

contracts. 42 U.S.C. § 1981(a). To prevail on a § 1981 discrimination claim, a plaintiff

must show (1) membership in a protected class, (2) intent to discriminate on the basis

of race, and (3) the interference with a protected contractual right. Cruz, 42 F.4th at

1210 (citing Hampton, 247 F.3d at 1101–02).

Here too, Jones pleads no facts which support his claim that the Local 798

intentionally imposes requirements to bar minorities from advancing to journeyman,

that those requirements are not applied to whites, or that those requirements

interfered with Jones’ employment relationship. The Local 798 Handbook requires

completing a certain number of work hours, obtaining letters of recommendation from

fellow members, and applying to the local welding school to pass a practical test.

Def.’s Br., Ex. 2, Apr. 23, 2021, ECF No. 15-2 (Local 798 Handbook) at 37. Jones

alleges that these requirements are intentionally discriminatory. Compl. ¶ 101.

Specifically, Jones pleads the following with respect to Local 798’s advancement

requirements:

Indeed, Local 798 has imposed job advancement requirements that it

knows minority union members will not be able to meet and further does

not hold white union members to those same standards prior to

advancing them up the ranks.

Compl. ¶ 25.

In addition to intentionally imposing advancement requirements that

minority union members would find exceedingly difficult to meet, Local

798 loosens these requirements for white union members, further

helping the “cream” rise to the top.

Compl. ¶ 35.

White union members with less experience and seniority than

minorities union members, or even no seniority, can join Defendant

Local 798 and promptly become Journeymen.

Compl. ¶ 36.

Moreover, to Mr. Jones’ frustration, the advancement requirements are

disparately applied to white union workers. As expressed in Mr. Jones

2018 email to Local 798’s Business Agent Charles Yates, Mr. Jones has

witnessed white workers with less knowledge and experience advance

to the role of Journeyman without having to meet the same

requirements he has been held to.

Compl. ¶ 70.

Finally he alleges: “[w]ith full knowledge of its racist history and racist members,

Local 798 included advancement requirements that it knew would generally be

unobtainable for black union members.”8 Compl. ¶ 101. Each of these statements

alleges conclusions unsupported by factual content—in particular, factual content

which could support an inference of intent as required by § 1981.

Determining whether a complaint states a plausible claim “requires the

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

8 Defendant argues that to the extent that Jones is arguing a disparate impact claim,

such a claim cannot be made under § 1981. Def.’s Reply at 2–3 (citing Drake v. City

of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991)). The Court understands Jones’

claim as asserting that uneven treatment based upon race supports the inference of

an intent to discriminate.

U.S. at 679. Common sense dictates that Jones give the facts surrounding the

examples of which he is aware. Without more factual content the Court cannot say

that Jones has stated a plausible claim. There may be facts that would support this

conclusion, but unless Jones alleges them, his complaint cannot withstand a motion

to dismiss. See Khalik, 671 F.3d at 1194 (plaintiff should have identified specific

people, acts, timing, and reasons to overcome motion to dismiss a discrimination

claim); see also Grays, 2021 WL 1300601 at *3; Jemaneh, 82 F. Supp. 3d at 1302–04;

Aliyev, 2014 WL 1338583 at *6. Plaintiff must provide facts about the actions of

union representatives in specific instances, such that it would be possible to infer that

Local 798 intended to discriminate.

II. Claims under Title VII

Jones argues that Local 798 violated Title VII by failing to enforce the CBA,

and by imposing and suspending promotion requirements so that only white members

can advance to journeyman. Compl. ¶¶ 26–29. Defendant responds that Jones has

brought a duty to represent claim under the National Labor relations Act, 29 U.S.C.

§ 158(b) which is time barred.9 Def.’s Br. at 30. Further, Defendant argues that Jones

9 Defendant’s argument is misplaced. Both the NRLA and Title VII allow for claims

for breach of a duty of representation. Indeed, the duty of fair representation under

the NRLA and Title VII overlap. See e.g., Agosto v. Corr. Officers Benev. Ass’n, 107

F. Supp. 2d 294, 304 (S.D.N.Y. 2000) (collecting cases). The Tenth Circuit includes a

breach of the duty of representation as an element of a Title VII claim against a union.

Cummings v. Am. Postal Workers Union, Loc. 7, AFL-CIO, 2021 WL 864763, at *2

(E.D. Okla. Mar. 8, 2021), aff’d sub nom. Cummings v. Am. Postal Worker’s Union,

Loc. 7, AFL-CIO, 2022 WL 2188008 (10th Cir. June 17, 2022). See also Wells v.

Chrysler Group LLC, 559 Fed. App’x. 512, 514–15 (6th Cir. 2014). Nonetheless the

cause of action under Title VII is distinct from that available under the NRLA.

fails to plead that the union’s conduct towards him was arbitrary, discriminatory or

in bad faith. Def.’s Reply to Pl.’s Resp., 4–6 Aug. 27, 2021, ECF No. 38 (“Def.’s Reply”).

Defendant also argues Jones has failed to exhaust administrative remedies with

respect to his advancement claim, and in any event this claim is time-barred.10

A. Failure to Enforce the CBA

Jones claims that Local 798 has refused to enforce the CBA because he is black,

specifically by failing to file grievances in response to his complaints of bigotry, and

that this failure has had a disparate impact on minorities. Pl.’s Br. at 16–18.

Defendant counters that Jones fails to allege that he filed a grievance and thus he

cannot allege the breach of the duty for fair representation necessary to sustain a

Title VII claim. Def.’s Br. at 26–27; Def’s Reply at 1, 4, 6. Jones’ allegations are

insufficient to survive Defendant’s motion to dismiss.

Under Title VII:

It shall be an unlawful employment practice for a labor

organization--

(1) 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;

(2) to limit, segregate, or classify its membership or applicants for

membership, or to classify or fail or refuse to refer for employment any

individual, in any way which would deprive or tend to deprive any

individual of employment opportunities, or would limit such

employment opportunities or otherwise adversely affect his status as an

employee or as an applicant for employment, because of such

individual's race, color, religion, sex, or national origin; or

10 Defendant argues that Jones’ claim for discriminatory job advancement under Title

VII is untimely because Jones allegedly gave up trying to advance to journeyman

welder sometime before July 2017. Def.’s Br. at 30. Jones contends that his claims

are timely. Pl.’s Br. at 26. Because Jones’ Title VII claims are dismissed, the Court

need not and does not reach this issue.

(3) to cause or attempt to cause an employer to discriminate

against an individual in violation of this section.

42 U.S.C. § 2000e-2. Thus, a union may be held liable if it breaches its duty of

representation because of race. See Cummings, 2021 WL 864763 at *2. Title VII

recognizes two types of claims: disparate treatment and disparate impact. As the

Court of Appeals explained in Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir.

2006):

“Disparate treatment” . . . is the most easily understood type of

discrimination. The employer simply treats some people less favorably

than others because of their race, color, religion, sex, or national origin.

Proof of discriminatory motive is critical, although it can in some

situations be inferred from the mere fact of differences in treatment.

Claims of disparate treatment may be distinguished from claims that

stress “disparate impact.” The latter involve employment practices that

are facially neutral in their treatment of different groups but that in fact

fall more harshly on one group than another and cannot be justified by

business necessity.

(quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)).

For a disparate treatment claim plaintiff must allege intent, i.e., that defendant

treated a plaintiff differently because of a plaintiff’s protected trait. Abercrombie &

Fitch, 575 U.S. at 773; see also Ricci, 557 U.S. at 577. On a motion to dismiss under

Rule 12(b)(6), plaintiff’s burden is not to establish a prima facie case of

discrimination, but only to set forth plausible fact-based claims. Khalik, 671 F.3d at

1193.

For a disparate impact claim the plaintiff need not plead intent, only that the

treatment resulted in disparities between the protected class and the unprotected

class. Santana v. City of Denver, 488 F.3d 860, 866 (10th Cir. 2007). A plaintiff must

demonstrate that a defendant “uses a particular employment practice that causes a

disparate impact on the basis of race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e–2(k)(1)(A)(i). A plaintiff must allege that “a specific identifiable

employment practice or policy caused a significant disparate impact on a protected

group.” See Carpenter, 456 F.3d at 1193 (discussing elements needed to succeed on

the merits).11 The plaintiff must identify a device or employment practice being

challenged. Compare Griggs v. Duke Power Co., 401 U.S. 424, 433 (1974) (requiring

employees to have a high school diploma) with Wards Cove Packing v. Antonio, 490

U.S. 642, 657 (1989) (failing to identify a device being challenged); see also 42 U.S.C.

§ 2000e-2(k)(1)(A)(i), (B)(i).

At the motion to dismiss stage “it is not enough to simply allege that there is a

disparate impact on workers, or point to a generalized policy that leads to such an

impact.” Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005). A plaintiff must

identify an employment practice responsible for “observed statistical disparities.” Id.

As with other claims, the court disregards conclusory statements asserting a

discrimination claim, and considers only whether the remaining, factual allegations

plausibly suggest liability. See id.; Iqbal, 556 U.S. at 680–81. If the pleaded facts

11 The burden then shifts to the defendant to show a business-related reason for its

practice. McDonnell Douglas Corp., 411 U.S. at 802.

show no more than the “mere possibility of misconduct,” the complaint must be

dismissed. Iqbal, 556 U.S. at 679.

Here, Jones alleges:

78. Defendant Local 798’s conduct, even if facially neutral or

unintentionally discriminatory, has had a disparate impact upon

Plaintiff and the putative class members, by denying members of a

protected class (based on race and national origin) equal opportunities

for advancement and protection under the Collective Bargaining

Agreement, in violation of Title VII.

116. Plaintiff is Black.

117. While working on job sites governed by Local 798’s collective

bargaining agreements, Plaintiff, and other members similarly situated

to him, has been subjected to severe, pervasive, and objectively racist

conduct.

118. Local 798’s Union Stewards on these job sites knew or should have

known of the racist conduct affecting Plaintiff, and other members

similarly situated to him.

119. Nonetheless, Local 798’s Union Stewards consistently failed to

enforce the terms of the collective bargaining agreements to stem this

racist conduct.

120. Local 798’s failure to enforce the anti-discrimination clause of the

Collective Bargaining Agreement disparately impacted Plaintiff and

members of a protected class based on race.

121. As a direct and proximate result of Defendant Local 798’s conduct

and failure to enforce, Plaintiff, and other members similarly situated

to him, has suffered through untenable racist conduct on job-sites

governed by the collective bargaining agreement and denied the benefits

of that Agreement.

122. As a direct and proximate result of Defendant Local 798’s conduct

and failure to enforce, Plaintiff, and other members similarly situated

to him, has suffered economic and non-economic injuries including pain,

suffering, and emotional distress.

123. As a direct and proximate result of Defendant Local 798’s conduct

and failure to enforce, Plaintiff, and other members similarly situated

to him, is entitled to all available damages pursuant to 42 USC § 2000e.

124. Defendant Local 798’s actions were willful, wanton, malicious, and

in gross disregard of Plaintiff’s, and other members similarly situated to

him, rights entitling Plaintiff and the putative class members to

punitive damages.

Compl. ¶¶ 78, 116–124 (emphasis in the original).

Jones fails to plead that the Local 798 treated him differently because of his

race or intended to do so. Jones offers no facts from which the Court could infer that

Local 798 failed to pursue rights under the CBA because Jones is black.12 Jones

alleges that he has been subject to racial discrimination on Local 798 job sites, that

Local 798 is aware of the discrimination, and that Local 798 has intentionally failed

to enforce the CBA because he is black, in violation of Title VII. Compl. ¶¶ 116–20.

The allegations identify discriminatory acts by individuals other than Local 798 of

which the union was aware, and are actionable under the CBA. But Jones does not

12 Local 798 argues repeatedly that Jones cannot bring his claim without having first

filed a grievance. Whether inaction on behalf of the union in the absence of a filed

grievance could ever lead to a plausible claim is a matter of debate. The Seventh

Circuit addressed this debate in E.E.O.C. v. Pipefitters Ass'n Loc. Union 597, 334

F.3d 656, 660 (7th Cir. 2003) (concluding that “inaction, unless invidious, is not

discrimination in any accepted sense of the term.”) See also Thorn v. Amalgamated

Transit Union, 305 F.3d 826, 832–33 (8th Cir.2002). But see Woods v. Graphic

Communications, 925 F.2d 1195, 1201 (9th Cir.1991); Howard v. International

Molders & Allied Workers Union, 779 F.2d 1546, 1553 (11th Cir.1986). The Court

need not address whether Jones’ failure to file a grievance with Local 798 precludes

his ability to state a claim under Title VII because Jones has not pled facts sufficient

to state a claim under either theory, regardless of whether he was required to file a

grievance.

allege that these are the acts of Local 798 for the purposes of disparate treatment

under Title VII.

Rather, Jones claims that the Local 798’s disparate treatment stems from its

failure to enforce his rights under the CBA to protect him from these acts. Compl. ¶¶

120–123. His claim is that the union should have pressed his rights under the CBA.

The failure of a union to press grievances can give rise to a breach of a duty of fair

representation claim. Cummings, 2021 WL 864763 at *3–*5; York, 95 F.3d at 956–

57. However, Jones fails to allege facts from which the court could infer that “there

was some indication that the union’s actions were motivated by discriminatory

animus.” Cummings, 2021 WL 864763, *3–*5, citing York, 95 F.3d at 957.

Construing his claim liberally, it is possible that Jones is claiming that Local

798 failed to pursue his rights under the CBA, while pursuing the rights of other

workers under the CBA. However, again Jones has failed to provide the Court with

the requisite factual content. He alleges no facts from which the Court can infer

intent and he alleges no facts that Local 798 pursued the claims of other workers

while ignoring his claims.

Likewise, Jones offers no facts to support a claim of disparate impact.

Although he pleads that he is a member of a protected class, Compl. ¶ 116, he fails to

identify a specific practice or device employed by the union which causes a disparate

impact. Jones pleads that union stewards did not act on his claims, Compl. ¶ 119,

but he does not plead that Local 798 had a practice or policy of not pursuing the rights

of minorities under the CBA. Jones also does not plead facts from which one could

infer that the failure to press claims under the CBA has led to a disparate impact.

Jones concludes that the Local 798’s failure to enforce his rights has had a disparate

impact, Compl. ¶¶ 117, 120, but he alleges no facts in support of that conclusion.

B. Unfair Advancement Requirements

Jones claims that Local 798 has instituted requirements to prevent non-white

helpers from advancing to journeymen, that Local 798 suspends these rules to allow

white helpers to advance, and that these policies violate Title VII. Compl. ¶¶ 126–

40. Local 798 argues that the Court cannot consider Jones’ advancement claim

because, under Title VII, Jones failed to exhaust administrative remedies by filing a

charge with the EEOC. Def.’s Br. at 29. Specifically, Local 798 argues Jones only

alleged hostile workplace to the EEOC, but not discrimination in advancement. Id.

Because Jones did not file an EEOC charge with respect to his advancement claim,

this claim is dismissed.

It is well-settled that a plaintiff must exhaust administrative remedies by

filing a charge with the EEOC before bringing suit under Title VII. See, e.g.,

Aramburu v. Boeing Co., 112 F.3d 1398, 1409–10 (10th Cir. 1997) (dismissed

uncharged hostile work environment suit because conduct underlying that suit

differed from conduct underlying the charge of wrongful discharge). Unless a plaintiff

files an EEOC charge prior to filing a civil action, pursuant to 42 U.S.C. § 2000e-

5(f)(1), federal courts lack jurisdiction over Title VII claims. Seymour v. Shawver &

Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997), abrogated on other grounds by Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Moreover, each discriminatory

action is considered a separate unlawful practice for which administrative remedies

must be exhausted. Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003). In

Martinez, the court explained that for the purposes of EEOC exhaustion “[d]iscrete

acts such as termination, failure to promote, denial of transfer, or refusal to hire are

easy to identify. Each incident of discrimination and each retaliatory adverse

employment decision constitutes a separate actionable ‘unlawful employment

practice.’” Id. (quoting Morgan, 536 U.S. at 114) (postal employee failed to exhaust

retaliation-through-termination claim when EEOC charge only contained retaliation

claims leading up to termination).

Here, Jones filed an intake form with the EEOC on December 30, 2019. EEOC

Charge at 2, Aug. 6, 2021, ECF No. 37-1. On the form, Jones claims he was “subjected

to a racially hostile and discriminatory work environment,” and lists two instances

when union members used racial epithets in his presence. Id. at 3. This situation is

comparable to that of the plaintiff in Duncan v. Manager, Dep’t of Safety, City & Cty.

of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005), whose retaliation claim was dismissed

when he only charged hostile work environment in EEOC complaint. Jones did not

charge that Local 798 discriminated against him when he sought advancement to

journeyman, or assert that these claims are the same. See Semsroth v. City of

Wichita, 304 F. App’x 707, 718 (10th Cir. 2008) (claims which were only “reasonably

related” to EEOC charge dismissed). This omission is fatal to Jones’ claim. Jones’

allegations of a hostile work environment on the EEOC form does not exhaust

administrative remedies for his discrimination in advancement claim. See, e.g.,

Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir. 2004) (retaliation claim not

exhausted when plaintiff failed to charge prerequisite adverse employment action).

Jones argues that the Court should consider administrative remedies

exhausted for all of his claims, citing Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (2007),

for the proposition that the Court should construe EEOC charges liberally. Pl.’s Br.

at 21. But the facts of Jones are distinguishable, as in that case the plaintiff alleged

all the facts required to show discrimination on the basis of disability—he simply

failed to check the correct box on the EEOC form. Jones, 502 F.3d at 1186–87. Here,

Jones does not state any facts on his EEOC form which suggest discrimination in

advancement; he gives two examples of workplace harassment, and states that the

union failed to act on these incidents. EEOC Charge at 3. Thus, he has failed to

exhaust administrative remedies for his discrimination in advancement claim under

Title VII.13

13 Jones argues that Local 798 improperly challenges whether his proposed classes

can sustain their claims on a motion to dismiss. Pl.’s Br. at 14–15. Pointing to the

fact that he has not moved to certify the proposed classes under Fed. R. Civ. P. 23,

Jones argues that any consideration of classes is premature, citing Marso v.

Safespeed, 2020 WL 4464410, *15 (D. Kan. Aug. 4, 2020) (“Consideration of whether

plaintiff’s class action allegations are sufficient under Rule 23, Fed. R. Civ. P., is not

appropriate at the motion to dismiss stage. . . . The Court will make such

determination at the class certification phase”). Jones is correct in asserting that

only his individual claims are considered at this stage. See Robey v. Shapiro,

Marianos & Cejda, LLC, 434 F.3d 1208, 1213 (10th Cir. 2006). However, Local 798

only argues the Court should consider Jones’ claims, noting the Tenth Circuit upheld

dismissal of a class-action suit “when the named plaintiff failed to state a claim on

his own behalf,” Def.’s Reply at 9, and this issue is therefore not in contention.

CONCLUSION

Jones first, second and third claims fail because he has not adequately plead

intent; his fourth claim fails because he did not exhaust administrative remedies.

Therefore, for the foregoing reasons, it is

ORDERED that Defendant’s Motion to Dismiss is GRANTED; and it is

further

ORDERED that Plaintiff’s claims under 42 U.S.C. § 1981 are DISMISSED

without prejudice pursuant to Fed. R. Civ. P. 12(b)(6); and it is further

ORDERED that Plaintiff’s Title VII claims are DISMISSED without prejudice

pursuant to Fed. R. Civ. P. 12(b)(6); and it is further

ORDERED that Plaintiff is granted leave to file an amended complaint within

thirty days from the date of this order to cure the deficiencies of his Title VII and 42

U.S.C. § 1981 claims. Should Plaintiff fail to file a second amended complaint the

court will issue a judgment dismissing Plaintiff's claims in accordance with this

Order.

/s/ Claire R. Kelly

Claire R. Kelly, Judge*

Dated: December 5, 2022

New York, New York

* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by

designation.