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). This is the second motion to dismiss filed 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”), which

seeks to dismiss three racial-discrimination claims brought against it by Plaintiff

Rodney Jones under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e (“Title VII”). See [Local

798’s] Br. Supp. Mot. Dismiss at 14–16, Feb. 15, 2023, ECF No. 44 (“Def. Br.”). This

Court previously dismissed Jones’ first amended complaint for failure to state a claim,

and Local 798 now moves to dismiss Jones’ second amended complaint. For the

following reasons, Local 798’s motion is granted, and Jones’ claims are dismissed.

BACKGROUND

The Court presumes familiarity with the facts of this case from this Court’s

previous opinion in Jones v. Local 798 of the United Ass’n of Journeymen &

Apprentices of the Plumbing & Pipefitting Indus. of the United States & Can., 2022

WL 17417980 (N.D. Okla. Dec. 5, 2022), and now recounts only the facts relevant to

the Court’s review of Jones’ second amended complaint. In its prior opinion, the Court

dismissed Jones’ two claims under 42 U.S.C. § 1981 without prejudice, and also

dismissed Jones’ claim under Title VII for failure to enforce the National Pipeline

Agreement (“CBA”) without prejudice. Id. at 29–30. The Court dismissed Jones’

claim for discrimination in advancement under Title VII without leave to amend, as

this claim was not properly exhausted before the Equal Opportunity Employment

Commission (“EEOC”). See id. at 29. Jones’ second amended complaint re-alleges

his two claims under § 1981, as well as his failure to enforce claim under Title VII.1

See Second Amended Class Action Complaint, Jan. 4, 2023, ECF No. 41 (“Second Am.

Compl.”). The Court includes facts from Jones’ second amended complaint and EEOC

charge, which the Court assumes to be true for the purposes of this opinion and order.

1 Jones argues in his brief that he has also pled sufficient facts to sustain a “hostile

work environment” claim under both 42 U.S.C. § 1981 and § 2000e-2(a) of Title VII.

See Corrected Pl.’s Resp. Opp. Def.’s Mot. Dismiss at 26–29, Apr. 11, 2023, ECF No.

50 (“Pl. Br.”). Section 2000e-2(a) applies to employers, and Local 798 is not Jones’

employer. Moreover, Jones does not make this claim in his second amended

complaint, so the Court need not consider this argument.

Jones alleges the following new facts, which were not presented in his first

amended complaint. Labor unions in general have a history of discrimination.

Second Am. Compl. ¶¶ 11–19. In 1985, the Supreme Court of Alaska found that the

2.2 percent quota established by the Alaska State Commission for Human Rights for

black union membership in Local 798 was unreasonable. Id. ¶¶27–38. In 2013, a

Missouri member of Local 798 successfully sued Local 798 for violations of § 1981 and

Title VII. Id. ¶¶ 39–52. In 2008, a Minnesota helper in Local 798 sued the Union for

racial discrimination. Id. ¶¶ 53–60. All officers, business agents, dispatchers, and

organizers for Local 798 have always been white. Id. ¶ 62. From 2006 to 2018,

numerous black union members complained to union management about instances

of discrimination on jobsites, and the managers took no action. Id. ¶ 75–78.

Further, fellow members known to Jones made discriminatory remarks about

black people. Id. ¶¶ 84–87. Two named members who started with Local 798 at the

same time as Jones in 2006 have since been promoted past him. Id. ¶ 88. One of

these members is now a welder, and one is “not a Journeyman.” Id. Nearly all white

members who joined the Local 798 at the same time as Jones have been promoted

past him. Id. ¶ 89. When Jones contacted a job foreman about working a specific job

in 2010–2011, the foreman “in a very condescending manner” told Jones that he

would need a clean background for the job. Id. ¶ 92. Jones has a Transportation

Worker Identification Credential, which allows him to work jobs requiring higher

clearance. Id. ¶¶ 93–94. A union bidding agent known to Jones was surprised that

Jones had this credential. Id. ¶ 95.

Finally, in 2017 Jones wanted to learn to be a pipe inspector, and a union

steward told Jones that he could become an inspector with proper training. Id. ¶ 96.

Jones took time off of work to receive the training, for which Local 798 did not pay.

Id. ¶ 97. When Jones finished training, the same steward told Jones that he would

not be eligible to be an inspector, and would not be reimbursed for the cost of training.

Id. ¶ 98. Local 798 paid white members to go to the same training. 2 Id. ¶ 100.

Jones also re-alleges the following pertinent facts, which were present in his

first amended complaint. In 2017, while working on a jobsite in Detroit, a co-worker

commented to Jones about black people being lazy and taking handouts. Id. ¶ 126.

Jones voiced his disapproval of such comments and reported this event to Local 798’s

steward. Id. The steward said he would “take care of it,” but did nothing. Id. In

March 2017, Jones decided he would try to become a journeyman welder. Id. ¶ 136.

However, when Jones attempted to obtain the requisite five letters of

recommendation, he received no response to his requests. Id. ¶ 141. In July 2018,

Jones expressed his frustrations concerning his advancement by emailing a business

agent of the union. Id. ¶ 149. 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.

2 The preceding facts are in addition to the facts pled by Jones in his first amended

complaint, which are re-alleged in his second amended complaint.

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). 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 accepts 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.

DISCUSSION

Jones alleges three 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, and (3) failure to enforce the CBA under Title VII. For the

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

can be granted.

I. Failure to Enforce the CBA under 42 U.S.C. § 1981

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

sites, and that Local 798 has intentionally failed to enforce the terms of the CBA

because Jones is black. See Second Am. Compl. ¶¶ 175–184; see also Corrected Pl.’s

Resp. Opp. Def.’s Mot. Dismiss at 24–26, Apr. 11, 2023, ECF No. 50 (“Pl. Br.”). Local

798 counters that Jones has not asserted any specific facts which plausibly suggest

the union intended to discriminate, and in any case, Jones never filed a grievance

upon which it could act. See Def. Br. at 14–16; see also Reply to Pl.’s Resp. to [Local

798’s] Mot. Dismiss at 5, Apr. 24, 2023, ECF No. 53 (“Def. Reply”). Because Jones

again fails to plead sufficient facts to support his allegations, this claim is dismissed.

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 under § 1981(a), a plaintiff

must show intent to discriminate. Cruz v. Farmers Ins. Exch., 42 F.4th 1205, 1210

(10th Cir. 2022). Intent to discriminate can be shown through direct or indirect

evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).

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

specific facts to support his or her claim. See, e.g., Cruz, 42 F.4th at 1210–11

(supervisor’s comment that he didn’t want “some crazy brown man running around

with a gun” was specific fact suggesting discrimination).

On a motion to dismiss, a plaintiff must allege facts from which a court may

reasonably infer defendant’s liability. Frey v. Town of Jackson, Wyoming, 41 F.4th

1223, 1232 (10th Cir. 2022). Allegations which are “merely consistent with a

defendant’s liability” are insufficient. Id. Rather, a plaintiff must “nudge the claims

across the line from conceivable or speculative to plausible.” Id. at 1233 “[L]abels,

conclusions, formulaic recitations of elements, and naked assertions will not suffice.”

Id. An allegation is conclusory “if it states an inference without underlying facts or

if it lacks any factual enhancement,” and conclusory allegations are not entitled to an

assumption of truth. Id.

Jones second amended complaint supplies additional background information

concerning discrimination at Local 798 generally, but does not allege facts suggesting

the union refused to enforce the CBA because of Jones’ race. Jones alleges that unions

in general, and Local 798 specifically, have a history of discriminating against black

members. Second Am. Compl. ¶¶ 11–61. Jones also describes specific instances in

which black members were subject to bigotry by foremen and fellow members, and

Local 798 failed to act. Id. ¶¶ 75–78. Although disturbing, these new accounts do not

show that Local 798 intended to discriminate against Jones. In his first amended

complaint, Jones provided a list of specific instances of bigotry occurring on job sites

worked by Local 798 union members, which Local 798 allegedly did not address. First

Am. Class Action Compl. ¶¶ 22, 42–51, May 18, 2021, ECF No. 19 (“First Am.

Compl.”). Jones’ second amended complaint significantly expands on this list of

instances, detailing more historical instances of bigotry against black members of

Local 798, and discrimination in unions generally. Second Am. Compl. ¶¶ 11–61, 75–

78. However numerous, these general allegations relating to other members are

insufficient to show that Local 798 intended to discriminate against Jones. See

Khalik v. United Air Lines, 671 F.3d 1188, 1194 (10th Cir. 2012). In Khalik v. United

Air Lines, the Court of Appeals discussed the facts a plaintiff must plead in order to

survive a motion to dismiss a discrimination claim:

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.

See Id.. at 1194. Jones argues that his new examples show a “pattern of practice and

conduct” occurring at Local 798 job sites. Second Am. Compl. ¶ 75. Jones asks the

Court to infer that Local 798 deliberately discriminated against Jones because it

generally discriminates against black members. The Court cannot infer from this

general assertion what Twombly requires Jones to plead, i.e., facts suggesting that

Local 798 intended to discriminate against him, personally. See Twombly, 550 U.S.

at 570; see also Frey, 41 F.4th at 1232 (allegations lacking factual enhancement are

conclusory); Hampton v. Bakery Confectionary, Inc., 2022 WL 4361782, *8–*9 (10th

Cir. 2021) (conclusory allegations that union failed to pursue employee’s rights

because of race insufficient withstand a motion to dismiss); Perry v. Woodward, 199

F.3d 1126, 1134 (10th Cir. 1999) (general allegations of bigotry fail to show intent

towards plaintiff).3 Therefore, Jones’ additional background information does not

move his claim “from conceivable or speculative to plausible.” Frey, 41 F.4th at 1233.

In his second amended complaint, Jones also provides additional allegations

about his personal interactions with Local 798. See Second Am. Compl. ¶¶ 79–100.

Some of these allegations are conclusory, amounting to bare speculation about Local

798’s policies and motivations. See Second Am. Compl. ¶¶ 79–83, 89, 91. For

instance, Jones asserts that “[b]lack [m]embers have little to no chance of every [sic]

successfully prosecuting a grievance because leadership will not allow it to happen

and leadership must prosecute the grievance.” Id.. ¶ 81. Jones also states that:

Every time [he] complained about the conduct that he was subjected to

he was at risk of losing his job, having someone use violence or force

against him for challenging the discrimination, having his personal

protective equipment altered or tampered with, and other such

ramifications and leadership knew this and took no action to protect him

and other black members or to stop the discrimination and harassment.

3 The evidence introduced by Perry consists of isolated, disparaging

comments made by Woodward to and about Hispanics . . . . Perry

acknowledged during her deposition that none of the derogatory

comments made by Woodward were directed toward her. . . . Perry has

failed to demonstrate a causal nexus between Woodward’s racist

comments and her discharge.

Perry v. Woodward, 199 F.3d 1126, 1134 (10th Cir. 1999).

Id.. ¶ 82. These statements lack underlying factual support, and are therefore not

entitled to the assumption of truth. See Frey, 41 F.4th at 1232; Khalik, 671 F.3d at

1193. Separately, some of Jones’ allegations are not conclusory, but do not support

his claim that Local 798 failed to enforce the CBA. Jones gives specific examples of

how two white members of the union made derogatory remarks towards him based

on race. Second Am. Compl. ¶¶ 84–87. However, Jones does not allege that either

member was a union representative, that Local 798 controlled the conduct of the

members, or indicate that he pursued a grievance over these incidents. See Id..

Construing these additional examples broadly, Jones appears to be asserting that

Local 798 should have taken action to prevent such instances of bigotry on its jobsites.

However, Jones fails to identify any authority supporting this proposition. 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). Thus, 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.

Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987). If Jones had filed a grievance

based on either incident, and Local 798 failed to press Jones’ grievances without

adequate explanation, these incidents would push Jones’ claim toward “plausible.”

However, Jones does not allege that he filed a grievance, and Local 798 has no

responsibility for the acts of individual members towards one another. See Anspach

v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1514 (D. Kan. 1993), aff’d sub nom.

Anspach v. Sheet Metal Workers’ Int’l Ass’n Loc. No. 2, 51 F.3d 285 (10th Cir. 1995).

Therefore, construing Jones’ new allegations in his favor, Local 798’s failure to act

under these circumstances does not give rise to an inference of intentional

discrimination.

II. Failure to Advance under 42 U.S.C. § 1981

Jones alleges that Local 798 intentionally institutes requirements to prevent

non-white helpers from advancing to journeymen in violation of 42 U.S.C. § 1981.

Second Am. Compl. ¶¶ 185–204. Local 798 argues that Jones has not pled any facts

showing that it intentionally prevented Jones from advancing, and that the union

was not responsible for Jones’ failure to obtain the requisite work hours or letters of

recommendation, over which it has no control. Def. Br. at 16–18. Because Jones

again fails to plead sufficient facts to support his allegations, this claim is dismissed.

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

contracts. To prevail under § 1981(a), a plaintiff must show intent to discriminate by

pointing to specific facts to support his or her claim. Cruz, 42 F.4th at 1210 (10th Cir.

2022). On a motion to dismiss, a plaintiff must allege sufficient facts to show that a

claim is plausible, not merely speculative. Frey, 41 F.4th at 1232.

In his second amended complaint, Jones provides additional details about his

efforts to advance in Local 798. As with his failure-to-enforce claim, some of Jones’

allegations are simply conclusory. See, e.g., Second Am. Compl. ¶¶ 89, 91, 100 (“This

failure to assist Plaintiff was not about Plaintiff as an individual or the qualifty [sic]

of Plaintiff’s work but was because Plaintiff was a Black male and the Union does not

support the advancement of Black men in the Union beyond Welder’s Helper”). The

Court disregards these allegations. Frey, 41 F.4th at 1233. Leaving aside his

conclusory statements, Jones does provide some specific information which he claims

supports an inference of intent. For example, Jones claims that “[i]n 2006 when

Plaintiff started with the Union [D.W.] and [J.C.] were both helpers with the Union.

Both have promoted up past Plaintiff. [D.W.] is not a Journeyman and [J.C.] is a

Welder.” Second Am. Compl. ¶ 88. Jones also notes that a foreman was “very

condescending” towards him when he asked about working a particular job requiring

a “clean background.” Id.. ¶ 92. Finally, Jones recounts that a union steward told

him that he could become a pipe inspector if he obtained training, but then told Jones

that he was not eligible and would not be reimbursed for training. Id.. ¶¶ 96–99.

Although this new information is not conclusory, Jones must do more than

identify two individuals who have been promoted ahead of him to show intentional

discrimination. Even a generous reading of ¶ 88, which assumes that the two named

members are white, and that “not a Journeyman” is superior to “helper,” does not

suggest intent. Jones must give more information about the two helpers and their

situation relative to himself. See, e.g., Brown v. McDonough, 2022 WL 4773569 at *4

(W.D. Okla. Sept. 30, 2022) (allegation that two other white police officers were

promoted ahead of plaintiff failed to show discriminatory intent); Jemaneh v. Univ.

of Wyoming, 82 F. Supp. 3d 1281, 1304 (D. Colo.), aff’d, 622 F. App’x 765 (10th Cir.

2015) (plaintiff’s allegation that 2–3 white classmates received passing grades while

plaintiff student did not was insufficient to show discriminatory intent). Similarly,

Jones provides no context behind the union steward’s apparently contradictory advice

about how to become a pipe inspector. Jones implies that the steward denied his

request for reimbursement and told him he could no longer be an inspector because

of his race. See Second Am. Compl. ¶¶ 96–99. However, Jones pleads no facts

suggesting a discriminatory motive, as opposed to other possible reasons for these

actions. Jones asserts that “[t]he Union paid for white members to go to the same

training and paid white members to attend training.” Second Am. Compl. ¶ 100.

Jones fails to supply facts which would make this allegation helpful to his claim. He

fails to allege any facts about specific white members whose training was paid for by

Local 798, and general allegations that ‘something happened to somebody’ are

insufficient under Twombly and Khalik. See Twombly, 550 U.S. at 570; Khalik, 671

F.3d at 1193. At the pleadings stage, Jones only needs specific facts to support his

claim, based on personal knowledge.4 Finally, it is not clear how the condescending

attitude of a job foreman, who in any case is not alleged to be a member of Local 798,

relates to Jones’ claims in general. See Second Am. Compl. ¶ 92. Thus, because he

has failed allege sufficient facts supporting an inference of intentional discrimination,

Jones’ claim for discrimination in advancement is dismissed.

4 For example, if Jones had alleged based on his personal knowledge that some white

members with similar backgrounds and qualifications had taken the same training

at the same time and been compensated, these allegations could suggest a

discriminatory motive for the steward’s actions. See, e.g., Phillips v. Orleans Cnty.,

2019 WL 3088051 at *13 (W.D.N.Y. July 15, 2019) (employer’s failure to discharge

similarly situated younger employee for same infraction gave rise to inference of age

discrimination).

III. Failure to Enforce the CBA under Title VII

Jones claims Local 798 has failed to enforce the terms of the CBA because

Jones is black, in violation of Title VII. See Second Am. Compl. ¶¶ 205–216. Local

798 argues that Jones has not pled intent to discriminate, and that he does not assert

disparate impact. Def. Br. at 19–23.5 Because Jones again fails to plead sufficient

facts to support his allegations, this claim is dismissed.

Title VII recognizes two types of claims: disparate treatment and disparate

impact. Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006). For a

disparate treatment claim plaintiff must allege intent to discriminate. EEOC v.

Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015). Disparate treatment

under Title VII requires the same elements as disparate treatment under 42 U.S.C.

§ 1981. See Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991) (“in

racial discrimination suits, the elements of a plaintiff’s case are the same . . . whether

that case is brought under §§ 1981 or 1983 or Title VII”). For a disparate impact

claim, plaintiff must allege that defendant’s policy resulted in disparities between the

protected class and the unprotected class. Santana v. City of Denver, 488 F.3d 860,

866 (10th Cir. 2007). Specifically, a plaintiff must demonstrate that a defendant “uses

a particular employment practice that causes a disparate impact on the basis of race,

5 Local 798 also argues that Jones has failed to exhaust administrative remedies for

most of his claims under Title VII. Specifically, Local 798 argues that Jones only filed

an EEOC charge with respect to discrimination occurring at one union jobsite in

Indiana in 2019, and therefore his claims of conduct in 2017 and 2018 have not been

exhausted. Def. Br. at 22–23. Because Jones’ claims are dismissed, the Court need

not and does not address this argument.

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 of a disparate impact claim).

At the pleadings stage, a plaintiff must identify a policy responsible for “observed

statistical disparities.” Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005). “A

plaintiff who fails to allege facts at the pleading stage or produce statistical evidence

demonstrating a causal connection cannot make out a prima facie case of disparate

impact.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576

U.S. 519, 543 (2015).

As an initial matter, the Court has already found that Jones fails to plead

discriminatory intent with respect to his § 1981 claim. The pleading requirements

for a disparate treatment claim are the same under both Title VII and § 1981. See

Drake, 927 F.2d at 1162. Therefore, because Jones fails to plead sufficient facts to

show intent to discriminate under § 1981, he also fails to show intent under Title VII,

which is required for a disparate treatment claim.

Concerning Jones’ claim of disparate impact under Title VII, it appears from

Jones’ brief and the second amended complaint that Jones has elected not to provide

additional support for this claim.6 This Court previously explained that Jones failed

6 As Local 798 notes in its motion dismiss, Jones has removed the word “disparate”

before the word “impact” in his second amended complaint. Def. Br. at 21; compare

First Am. Compl. ¶ 120 with Second Am. Compl. ¶ 211. This deletion, and lack of

any other positive indication, suggests that Jones is no longer pursuing a disparate

to adequately allege both statistical disparity and the specific policy responsible for

such disparity. See Jones, 2022 WL 17417980 at *26. In his second amended

complaint, Jones adds only more conclusory statements. See, e.g., Second Am. Compl.

¶ 130 (“the union chose not to do anything to enforce the CBA”), ¶ 131 (referencing

lack of “any efforts by the union to enforce the CBA”), ¶ 132 (“the Steward . . . did

nothing to correct the behavior or otherwise enforce the CBA”), ¶ 133 (“Stewards

consistently refuse to enforce the CBA”), ¶ 134 (saying stewards do not “tak[e] action

to enforce the CBA’s non-discrimination provisions”). These statements are

conclusory, because they lack factual support. See Frey, 41 F.4th at 1233. Moreover,

Jones has not attempted to identify any statistical disparity resulting from Local

798’s discriminatory policy, which is required for a disparate impact claim. See

Smith, 544 U.S. at 241; Tex. Dep’t of Hous., 576 U.S. at 543; Santana, 488 F.3d at

866. Therefore, Jones has failed to state a claim under Title VII.

CONCLUSION

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);7 and it is further

impact theory under Title VII. Nevertheless, the Court considers whether Jones has

stated a claim under this theory in his second amended complaint.

7 Dismissal under Fed. R. Civ. Pro. 12(b)(6) is generally without prejudice, unless

granting leave to amend would be futile. See Wright & Miller, Fed. Practice and Pro.,

§ 1357 (3d ed.); see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th

Cir. 2006). Although Jones’ second amended complaint fails to address the

ORDERED that Plaintiff’s Title VII claim is 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 third 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: May 25, 2023

New York, New York

deficiencies identified by the Court in its previous opinion, the Court is not prepared

to say amendment would be futile and thus grants Jones leave to amend his

complaint for a second time.

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

designation.