# Perry v. International Paper Company

> District Court, E.D. Louisiana · July 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11103160

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** July 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11103160

## How later opinions describe it (automated extraction)

- affirming dismissal of an emotional distress claim on the basis that the evidence did not show that the distress was “unendurable” where (i
- noting that the two claims are “inextricably interdependent”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DRACUS PERRY CIVIL ACTION

VERSUS NO. 25-359

INTERNATIONAL PAPER COMPANY, ET AL. SECTION “A” (5)

ORDER AND REASONS

Before the Court is a Motion to Dismiss Pursuant to Rule 12(B)(6) of the Federal Rules
of Civil Procedure (Rec. Doc. 7) filed by Defendants International Paper Company
(“International Paper”), Angus MacIntire, Scott Dinkel, and Laura Anderson (the “International
Paper Employees”) (collectively, the “International Paper Defendants”). Plaintiff Dracus Perry
opposes the motion. The motion, set for submission on July 9, 2025, is before the Court on the
briefs without oral argument.1 For the following reasons, the motion is granted.
I. Background
This employment dispute arises out of International Paper’s alleged wrongful termination
of Dracus Perry.
Mr. Perry began his employment with International Paper in February 2018.2 He was
originally hired as a 12-Boiler Operator and was later promoted to the position of Water Tender
Operator SO1.3 On June 28, 2024, he erroneously documented the results of a Millipore test—his

1 This motion was originally noticed for submission on May 28, 2025. The submission date was sua sponte continued
to June 18, 2025 by order of Magistrate Judge North. See Rec. Doc. 11. Upon receiving notice that one of the parties
to this case did not wish to proceed to trial before a Magistrate Judge under 28 U.S.C. § 636(c), the matter was returned
to the docket of this Court and the instant motion was reset for submission on July 9, 2025. See Rec. Doc. 12; Rec.
Doc. 16.
2 Rec. Doc. 1, Complaint, ¶ 9.
3 Rec. Doc. 1, ¶ 10.
first time ever making such a mistake.4 A week later, he was asked to report to Human Resources,
where he was questioned by Defendant Angus MacIntire (the Business Unit Manager) and others
in the department about the erroneous report.5 He explained that he mistakenly entered the wrong
values for the test result and was subsequently informed that he was suspended pending the
company’s final employment decision.6 It is Mr. Perry’s belief that “at least five (5) white

employees [committed] the same infraction,” and that none of the white employees were
terminated as a result of their actions.7
Mr. Perry’s employment was terminated on July 9, 2024.8 According to his complaint,
International Paper fired him for “falsifying documents”—an infraction that warranted immediate
termination pursuant to a “new policy change.”9 In accordance with the collective bargaining
agreement (“CBA”) between International Paper and Mr. Perry’s union, a grievance hearing on
his termination was scheduled on August 13, 2024.10 Mr. Perry intended to participate in the
hearing, but he alleges that it took place without him after he was provided with the incorrect start
time.11 He was, however, represented at the hearing by his union representative.12 After the

hearing, he was informed by Defendant Laura Anderson, a member of the HR department, that the

4 Rec. Doc. 1, ¶ 11.
5 Rec. Doc. 1, ¶ 12.
6 Rec. Doc. 1, ¶ 18, 20.
7 Rec. Doc. 1, ¶ 11. As it concerns the timeline of this case, the Court notes that it is unclear from the face of the
complaint whether this allegation was brought to the attention of International Paper prior to Mr. Perry’s termination.
8 Rec. Doc. 1, ¶ 22.
9 Rec. Doc. 1, ¶ 22.
10 Rec. Doc. 1, ¶ 31; see generally Rec. Doc. 7-2, Labor Agreement between Bogalusa Mill and Local 13-189 of the
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International
Union (hereafter “CBA”).
11 Rec. Doc. 1, ¶ 32.
12 Rec. Doc. 1, ¶ 32.
basis for his termination was the aforementioned “new policy,” which Perry alleges was not
formally enacted until after his termination.13
The instant lawsuit was filed on February 21, 2025, over seven months after his
employment was terminated at International Paper.14 Through it, Mr. Perry asserts the following
seven causes of action, each of which he contends falls under the purview of a Title VII claim:15

(1) wrongful discharge; (2) intentional infliction of emotional distress; (3) right to be informed;
(4) disparate treatment (race discrimination); (5) breach of grievance rights under the CBA; (6)
violation of Weingarten right; and (7) vicarious liability.16
II. Pending Motion
The present motion organizes Perry’s claims into three categories and argues that only the
third category, which contains a single claim limited to Defendant International Paper, is not
subject to Rule 12 dismissal.17 The first category comprises all causes of action asserted against
the International Paper Employees.18 The second category comprises the so-called “Labor
Claims”—i.e., Counts One, Two, Three, Five, and Six.19 And the third category comprises Perry’s
Disparate Treatment claim (Count Four), which Defendants describe as “the ‘Title VII Claim.’”20

The motion explains that International Paper will address the third category’s “deficiencies . . . in
due course,” but does not seek dismissal at the present moment.21

13 Rec. Doc. 1, ¶ 34, 36.
14 Rec. Doc. 1.
15 As explained infra, Perry’s contention that each claim asserted falls under the purview of Title VII is erroneous.
16 See generally Rec. Doc. 1.
17 See Rec. Doc. 7-1, at 1.
18 Rec. Doc. 7-1, at 1.
19 Rec. Doc. 7-1, at 1.
20 Rec. Doc. 7-1, at 1.
21 Rec. Doc. 7-1, at 1.
Defendants argue that the claims in the first category fail substantively, as well as on their
face.22 They fail on their face, according to the motion, because they lack the requisite specificity
articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), as well as by the Federal Rules of Civil Procedure.23 The motion

further argues that they are substantively deficient because “[i]t is well settled that Title VII does
not impose liability on individual employees.”24 In response, Perry concedes that Title VII liability
rests with employers, but argues that the International Paper Employees’ conduct “rises to the level
of intentional infliction of emotional distress under Louisiana law,” which he further contends may
be imputed on to International Paper by way of vicarious liability.25
As it concerns the Labor Claims, the motion posits that they should be dismissed as to all
Defendants for three reasons: first, Mr. Perry failed to exhaust the CBA’s grievance procedures;
second, the International Paper Employees cannot be construed as Mr. Perry’s employer for the
purpose of the relief he seeks; and third, the law supporting a claim for a violation of Weingarten
rights does not afford a private right of action.26 In response, Perry argues that his claims relative

to the CBA are not preempted because the process was “deliberately sabotaged” and as such, the
equitable tolling doctrine applies;27 but he does not oppose Defendants’ argument as it concerns
his Weingarten rights claim.28

22 See Rec. Doc. 7-1, at 13–15.
23 Rec. Doc. 7-1, at 14.
24 Rec. Doc. 7-1, at 13 (citing Grant v. Lone Star Co., 21 F.3d 649, 651, 653 (5th Cir. 1994)).
25 Rec. Doc. 14, at 13–14.
26 Rec. Doc. 7-1, at 7.
27 Rec. Doc. 14, at 15–18.
28 Perry’s arguments related to the International Paper employees are summarized in the preceding paragraph.
III. Relevant Law
a. Rule 12(b)(6) Standard
In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, district courts
employ the two-pronged approach utilized in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A court “can choose to begin by identifying pleadings that, because they are no more than

[unsupported] conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). But “[w]hen there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
“‘[The] task, then, is to determine whether the plaintiff has stated a legally cognizable claim that
is plausible, not to evaluate the plaintiff's likelihood of success.’” Body by Cook, Inc. v. State Farm
Mut. Auto. Ins., 869 F.3d 381, 385 (5th Cir. 2017) (quoting Doe ex rel. Magee v. Covington Cty.
Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012)).
A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays

Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498–99 (5th Cir. 2000)). A court may also take judicial notice of certain matters,
including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540 F.3d
333, 338 (5th Cir. 2008); see also Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir.
2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the allegations
found in the complaint, but courts may also consider “documents incorporated into the complaint
by reference or integral to the claim, items subject to judicial notice, matters of public record,
orders, items appearing in the record of the case, and exhibits attached to the complaint whose
authenticity is unquestioned.” Meyers v. Textron, Inc., 540 F. App'x 408, 409 (5th Cir. 2013)
(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, (2007)).
b. Collective Bargaining Agreements
Collective bargaining is the negotiation process between an employer and a union to create
an agreement that will govern the terms and conditions of the workers' employment. Collective

bargaining agreements (and the disputes that arise out of them) are governed by the Labor
Management Relations Act of 1947 (“LMRA”). See generally 29 U.S.C. § 141.
Section 301 of the LMRA, codified at 29 U.S.C. § 185, has been recognized by the
Supreme Court as a “potent source of federal labor law.” United Steelworkers of Am., AFL-CIO-
CLC v. Rawson, 495 U.S. 362, 368 (1990). It provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce as defined in this Act, or between any such labor
organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the
parties.

29 U.S.C. § 185(a). In other words, it provides an individual employee with a federal cause of
action against his employer for breach of the collective bargaining agreement between the
employer and the employee’s union. See Bache v. Am. Tel. & Tel., 840 F.2d 283, 287 (5th Cir.
1988) (citations omitted).
Nested within the LMRA is the National Labor Relations Act of 1935 (“NLRA,” codified
at 29 U.S.C. § 151, et seq.) “which authorizes unions to engage in collective bargaining on behalf
of their members [and] imposes a corresponding duty of fair representation upon them.” Jackson
v. Teamsters Loc. Union 922, 991 F. Supp. 2d 71, 83 (D.D.C. 2014) (citing Vaca v. Sipes, 386 U.S.
171, 177 (1967)). And “[t]hat duty requires each union ‘to serve the interests of all members
without hostility or discrimination toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct.’” Id. (quoting Vaca, 386 U.S. at 177). Accordingly,
it is well settled that an employee has an implied right under the statute to assert a cause of action
against his union for breach of the duty of fair representation. Bache, 840 F.2d at 287.
IV. Analysis

a. Perry has failed to state a Title VII claim against the International Paper Employees,
and his Emotional Distress claim is insufficient as to all Defendants.
Defendants’ motion is granted as to Perry’s Title VII claim (Count Four) against the
International Paper employees and his Emotional Distress (Count Two) against all Defendants for
the following reasons:29
First, as conceded in his opposition, “Title VII liability rests with employers,” not
employees.30 See also Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trs., 709 F. App’x 243, 247
(5th Cir. 2017) (“Individuals are not liable under Title VII in either their individual or official
capacities.”) (quoting Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003)). As
such, his disparate treatment claim (Count Four) is dismissed as it concerns the International Paper
Employees.
Second, Perry’s claim for intentional infliction of emotional distress (Count Two) is
inadequate on its face.31 The elements of a claim of intentional infliction of emotional distress

29 Mr. Perry’s failure to state a claim for emotional distress also forecloses his vicarious liability claim (Count Seven).
30 See Rec. Doc. 14, at 8.
31 Mr. Perry’s tort claims may be preempted by Title VII and/or Section 301 of the Labor Management Relations Act.
Regarding Title VII,
In the non-federal employer context, some courts have recognized that state law
claims arising out of the same conduct that constitutes the Title VII violation are
preempted by Title VII. See Goins v. Hitchcock Indep. Sch. Dist., 191 F. Supp. 2d
860, 871–72 (S.D. Tex. 2002). Other courts disagree. See Johnson v. Blue
Cross/Blue Shield of Tex., 375 F. Supp. 2d 545, 548 (N.D. Tex. 2005). The Court
need not weigh in on that dispute, as the plaintiff's failure to identify a cause of
action and his failure to brief any cause of action is sufficient to warrant dismissal
of the state law claims.
were delineated by the Louisiana Supreme Court in White v. Monsanto Co., 585 So.2d 1205, 1209
(La. 1991). To prevail, a plaintiff must prove: 1) that the conduct of the defendant was extreme
and outrageous; 2) that the emotional distress of the plaintiff was severe; and 3) that the defendant
desired to inflict severe emotional distress or knew that severe emotional distress would be certain

or substantially certain to result from his conduct. Id. at 1209. The Louisiana Supreme Court
further explained that “Recognition of a cause of action for intentional infliction of emotional
distress in a workplace environment has usually been limited to cases involving a pattern of
deliberate, repeated harassment over a period of time.” Id. at 1210. In light of this, the Court finds
that Perry’s emotional distress claims are insufficient for at least three reasons: (i) they do not
establish repeated harassment over a period of time, see id.; (ii) they are conclusory, see Ashcroft,
556 U.S. at 678; and (iii) the facts do not otherwise rise to the level of distress that would be
required to support such a claim.32 See Smith v. Amedisys Inc., 298 F.3d 434, 450 (5th Cir. 2002)
(affirming dismissal of an emotional distress claim on the basis that the evidence did not show that
the distress was “unendurable” where (i) the plaintiff was on the receiving end of sexual and racial

Ekaidi v. Bd. of Supervisors, No. 16-7523, 2017 WL 699821, at *8 n.8 (E.D. La. Feb. 22, 2017) (Africk, J.).
Regarding Section 301,
A state law claim is completely preempted by section 301 when it is “substantially
dependent upon analysis of the terms of an agreement made between the parties
in a labor contract.” Conversely, a state law claim is not preempted where it
“do[es] not depend on interpretation of the CBA.” Moreover, a claim is
“automatically preempted” where the claim is one for breach of a CBA.
Williams v. AT&T Comm’cns of Tex., LLC, No. 3:18-CV-3248, 2019 WL 1793012, at *2 (N.D. Tex. April 4, 2019)
(citations omitted).
The Court need not weigh in on either of these disputes for two reasons. First, Perry has plainly failed to state a claim
for emotional distress. Second, it is unclear to the Court at this stage of the litigation whether Perry’s state law claims
are substantially dependent upon an analysis of the CBA, and those claims fail for other reasons discussed infra.
32 The Complaint is silent as to which employees are responsible for his alleged emotional distress and does not assert
that any employee intended to inflict such emotional distress. See Rec. Doc. 1, ¶¶ 41–42. It is likewise insufficiently
vague and conclusory as it concerns Defendant International Paper. See id.
comments she perceived as “repulsive,” “horrible,” and “very offending,” that (ii) caused her to
suffer from depression, headaches, and loss of appetite.).
b. Perry’s claims based on violations of the CBA are foreclosed on their face and/or by
his failure to comply with dispute resolution procedures set forth in the CBA.
Mr. Perry asserts claims based on alleged violations of the CBA in Counts One (wrongful
termination), Three (right to be informed), and Five (breach of grievance rights).
As a threshold matter, the allegations in Count Three are inadequately plead. They state:
The defendants were being secretive and deceitful when Perry asked
what the nature of his meeting and allegations were. Perry was kept
in the dark as to the reasons for his termination and was not given
the correct time for his grievance hearing. By doing so this act
prevented Perry from having a fair disciplinary process so that he
could adequately prepare a defense for my allegations.

(Rec. Doc. 1, ¶ 43). These allegations—that “[t]he defendants were being secretive and deceitful”
and that “Perry was kept in the dark”—do not survive Defendants’ motion to dismiss because they
are not “enough to raise a right to relief above the speculative level.” Bell Atl. Corp., 550 U.S. at
555.
But even if they were adequately plead, they would suffer the same fate as Counts One and
Five. Each of these claims are foreclosed based on Perry’s failure to comply with the dispute
resolution procedures in the CBA.33 As articulated in Defendants’ brief, Supreme Court precedent

33 The CBA was not attached to Perry’s complaint, but it is integral to his claims and was attached to International
Paper’s motion to dismiss. See, e.g., Rec. Doc. 1, ¶ 43 (referencing disciplinary procedures), 45 (referencing grievance
rights), 47 – 49 (referencing Weingarten rights); see also Meyers, 540 F. App'x at 409.
Mr. Perry has not contested the validity of the agreement attached to International Paper’s motion, nor its authenticity.
But the Court notes, out of an abundance of caution, that the title page of the CBA attached to International Paper’s
motion lists an effective period of the agreement (2018-2021) that does not include the date of Mr. Perry’s grievance
(July 9, 2024). Rec. Doc. 7-2, at ECF p. 2. As explained in Section 39, however,
This Agreement will be in effect from August 1, 2018 to July 3, 2021.
Either party desiring any change at the expiration of the term of this Agreement
shall give to the other party written notice by certified mail sixty (60) days prior
to the expiration date hereof, . . . otherwise this Agreement shall remain in force
and effect for another year, and from year to year thereafter.
is clear that “federal labor policy requires that individual employees wishing to assert contract
grievances must attempt use of the contract grievance procedure agreed upon by employer and
union as the mode of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). And
Fifth Circuit precedent is likewise clear that “federal courts lack subject matter jurisdiction ‘to

decide cases alleging violations of a collective bargaining agreement . . . by an employee against
his employer unless the employee has exhausted contractual procedures for redress.’” Nat’l
Football League Players Ass’n v. Nat’l Football League, 874 F.3d 222, 226 (5th Cir. 2017)
(quoting Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 402 (5th Cir. 2000)).
Here, Section IV34 of the CBA outlines the exclusive authority of International Paper to
manage the paper mill, Section V sets forth the procedure for resolving disputes between an
aggrieved employee and his employer (including the arbitration requirement), and Section VI
establishes the arbitration protocol.35 As explained in Section V, “[s]hould any complaint or
dispute arise between . . . the Company and any employee, . . . an earnest effort shall be made to
settle such grievance immediately.”36 The settlement process in the CBA comprises three steps:

Id. § XXXIX (emphasis added).
34 Section IV expressly notes:
[T]he Company shall have the exclusive right to manage the mill and direct the
working force. Management of the mill and direction of the working force
includes the right to . . . demote, discipline, suspend or discharge employees for
proper cause; to relieve employees from duty . . . [for] any other legitimate reasons
. . . .
[A]ny claim that the Company has exercised these rights contrary to other
provisions of this Agreement or in a manner which will result in discrimination
or injustice to employees may be submitted as a grievance[.]
Rec. Doc. 7-2, CBA, § IV.
35 See Rec. Doc. 7-2, CBA, §§ IV–VI.
36 Rec. Doc. 7-2, CBA, § V.
Step 1. Between the aggrieved employee and or a Union
representative and the supervisor. Within three (3) working days
after the discussion of such grievance a verbal answer will be given
by the supervisor.

Step 2. If the verbal answer to the grievance is not satisfactory, the
aggrieved employee may present a written grievance to the
department head within three (3) working days of from the date of
the supervisor’s verbal answer. The department head of a designated
representative will meet with the Union grievance committee within
five (5) working days after the grievance is referred to Step 2. Within
six (6) working days following this meeting the Company’s
designated representative will give written answer to the Union
grievance committee.

Step 3. If no settlement is reached in Step 2, the grievance may be
referred by the Union grievance committee within five (5) working
days from receiving the Company’s designated representative’s
written answer. The International Union Representative and the
Grievance Committee and the Mill’s General Manager and/or a
designated representative will meet within ten (10) working days
after the grievance is referred to Step 3. A written answer to the
grievance will be given within ten (10) working days of this
meeting. If the grievance has not been resolved, or no request for an
extension of the time limits has been made within (10) working days
after the date of the answer, either party may recourse to the
procedure as set forth in Section VI – ARBITRATION.

If a grievance has not been carried forward to the next higher step
within the time limits specified in this Section, it shall be considered
to have been settled.

The time limits specified in this Section may be extended by mutual
agreement provided such request for extension is made in writing
prior to the expiration of the specified time periods.

A grievance which has not ben presented within five (5) working
days after cause for it has been known to the aggrieved employee or
employees, shall be considered to have been settled.

(Rec. Doc. 7-2, CBA, § V).
It is unclear to the Court whether Mr. Perry exhausted each step of the grievance procedure
set forth in Section V of the CBA;37 it is clear, however, that the matter was not arbitrated after the

37 Mr. Perry was given verbal notice of his termination on July 9, 2024. Rec. Doc. 1, ¶ 22. Pursuant to the CBA, this
triggered Perry’s standing to submit a grievance claim. Rec. Doc. 7-2, § IV. It appears that, rather than proceeding
August 13, 2024 grievance hearing.38 As such, he failed to exhaust the “contractual procedures for
redress” and this Court lacks subject matter jurisdiction over his CBA claims.39 Nat’l Football
League Players Ass’n, 874 F.3d at 226.
In opposition to Defendants’ motion, Perry argues for the first time that equitable tolling
applies to his claim because “Defendants and the Union caused the delay.”40 As it concerns his

union, Perry’s opposition notes that steps were taken to facilitate an arbitration between the parties
but his union representative “ultimately withdrew arbitration after Plaintiff filed an EEOC charge
and lawsuit—evidence of retaliatory intent.”41 The veracity of this allegation and the merits of his
equitable tolling argument ultimately have no bearing on the Court’s decision because the quality
of his union representation is not at issue in this case. See Miranda v. Nat’l Postal Mail, 219 F.
App’x 340, 345 (5th Cir. 2007) (explaining that a claim such as the one Perry makes against his
union for the first time here, is “properly characterized as a duty of fair representation claim, as he
is [claiming] his union [failed] to represent him faithfully in its dealings with [International
Paper]”).42

through the steps outlined above, a grievance hearing was scheduled on August 13, 2024. Rec. Doc. 1, ¶ 31. After the
grievance hearing, Mr. Perry sought relief by filing a Charge of Discrimination with the Equal Employment
Opportunity Commission and, subsequently, the instant lawsuit. Rec. Doc. 14, at 18.
38 Rec. Doc. 7-2, § V.
39 The Court also notes that Perry’s claims might also be foreclosed on the basis that, under the CBA, they are deemed
settled. See Rec. Doc. 7-2, § V (“If a grievance has not been carried forward to the next higher step . . . it shall be
considered to have settled.”).
40 Rec. Doc. 14, at 17.
41 Rec. Doc. 14, at 18.
42 Reading Perry’s complaint together with his opposition establishes that this matter is best characterized as a “hybrid”
Section 301 lawsuit. The Supreme Court has defined such a lawsuit as follows:
[H]ybrid suits formally comprise two causes of action. First, the employee alleges
that the employer violated [section 301] by breaching the collective-bargaining
agreement. Second, the employee claims that the union breached its duty of fair
representation, which the Court has implied from the scheme of the NLRA, by
mishandling the ensuing grievance-and-arbitration proceedings.
Reed v. United Transp. Union, 488 U.S. 319, 328 (1989).
As such, Perry’s CBA claims, including his newly urged argument in support of equitable
tolling, fail for three reasons. First (and foremost), “the arbitration-and-grievance proceeding is the
exclusive remedy for breach of the CBA,” and an arbitration never occurred.43 Id. Second, Perry
did not plead a fair representation claim (i.e., the “indispensable predicate” to a lawsuit such as

this, Daigle, 794 F.2d at 977) against his union in this lawsuit, nor has he done so in a separate
lawsuit. And third, any effort to assert such a claim would now be futile as that recourse is time-
barred under the CBA and Perry has not otherwise demonstrated good cause.44 See Miranda, 219
F. App’x at 345 (explaining that there is a 6-month statute of limitations on a “hybrid § 301/fair
representation claim” imposed by 29 U.S.C. § 160(b) and that the same limitations period applies

This case only concerns the first cause of action noted above, but the absence of an allegation against the union in the
complaint is not always improper. See DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164 (1983) (noting
that the two claims are “inextricably interdependent”). As the Fifth Circuit explained in Daigle v. Gulf States Utilities
Company, Local Union Number 2286,
The interdependency arises from the nature of the collective bargaining
agreement. If the arbitration and grievance procedure is the exclusive and final
remedy for breach of the collective bargaining agreement, the employee may not
sue his employer under § 301 until he has exhausted the procedure. Further, he is
bound by the procedure's result unless he proves the union breached its duty of
fair representation. Thus, the “indispensable predicate” for a § 301 action in this
situation is a fair representation claim against the union.
794 F.2d 974, 977 (5th Cir. 1986), cert. denied, 479 U.S. 1008 (1986) (citations omitted). In other words, Perry was
theoretically entitled to sue International Paper separate from his union under this framework because “the case to be
proved is the same whether one or both are sued.” Thomas v. LTV Corp., 39 F.3d 611, 621 (5th Cir. 1994). But his
claims are nonetheless foreclosed by his failure to exhaust the CBA’s dispute resolution procedure.
43 See Rec. Doc. 7-2, § V (“If the grievance has not been resolved . . . either party may have recourse to the procedure
as set forth in Section VI – ARBITRATION.”).
44 “Equitable tolling is most commonly merited where the plaintiff has been misled about her rights or has been
prevented in some extraordinary way from exercising those rights.” O’Hara v. Donahoe, 595 F. App’x 367, 371 (5th
Cir. 2014) (citing United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000)). Mr. Perry alleges in his response that
(i) International Paper failed to provide him with certain documents after his termination, and (ii) his union
representatives gave him “conflicting and unclear responses and ultimately withdrew arbitration after [he] filed an
EEOC charge and lawsuit,” but he does not explain why this prevented him from exhausting the procedures set forth
in the CBA within 6 months of his termination. See Rec. Doc. 14, at 17–18. Nor does it explain his failure to assert a
claim against his union representative. This is bolstered by the fact that there is no evidence that Perry made a good
faith attempt to revive the arbitration after learning that it was allegedly withdrawn due to his EEOC charge and this
lawsuit. See Lee v. Cytec Indus., Inc., 460 F.3d 673, 676 (5th Cir. 2006).
even if the duty of fair representation claim is brought independent of the Section 301 claim).
Accordingly, his CBA claims are dismissed.
c. This Court lacks jurisdiction to preside over Perry’s Weingarten claim.
Citing to the Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975), Perry asserts in Count Six that International Paper violated the NLRA when it “proceed[ed]

with an investigatory interview and disallowed Perry the option of choosing his own Union
representative.”45 Through its motion, International Paper contends that Perry’s Weingarten claim
fails as a matter of law because (i) private rights of action are not afforded in the context of a
Weingarten claim, and (ii) jurisdiction over such a claim is vested exclusively in the National
Labor Relations Board (“NLRB”).46 The Court agrees that it lacks jurisdiction over International
Paper’s Weingarten claim, so it need not address the private right of action argument.
In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242–45 (1959), the
Supreme Court considered whether the NLRB possessed exclusive jurisdiction to consider claims
against an employer based upon sections seven and eight of the NLRA. The Court explained that
“[w]hen an activity is arguably subject to [section] 7 or [section] 8 of the Act, the States as well as

the federal courts must defer to the exclusive competence of the National Labor Relations Board
if the danger of state interference with national policy is to be averted.” Id. at 245 (emphasis
added). As noted in International Paper’s brief, the issue before the Garmon Court is distinct from
the present issue as it concerned whether a state court possessed jurisdiction to award damages

45 Rec. Doc. 1, ¶ 49. In Weingarten, the Court affirmed the NLRB’s conclusion that it would be a “serious violation
of the employee's individual right to engage in concerted activity by seeking the assistance of his statutory
representative if the employer denies the employee's request and compels the employee to appear unassisted at an
interview which may put his job security in jeopardy.” 420 U.S. at 257. In other words, an employee's Weingarten
right is infringed when an employer compels him to appear at an interview that may put his job security in jeopardy
but denies him union representation.
46 Rec. Doc. 7-1, at 12.
under the NLRA; not whether a federal district court must yield jurisdiction to the NLRB when
faced with “an activity [that] is arguably subject to [section] 7 or [section] 8.” Id.47
The present issue was more clearly addressed, however, in Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33 (1998). There, the Supreme Court considered whether a federal district court (as

opposed to a state court like in Garmon) may exercise jurisdiction over an action subject to section
7 or 8 of the NLRA, and determined that, unless the action is one for breach of the duty of fair
representation, the district court was devoid of jurisdiction.48 Id. at 49 (“When a plaintiff
challenges an action that is ‘arguably subject to § 7 or § 8 of the [NLRA],’ this challenge is within
the primary jurisdiction of the NLRB.”) (quoting Garmon, 359 U.S. at 245)). The Court further
explained that “[t]hese claims are within the primary jurisdiction of the NLRB in part to promote
the uniform interpretation of the NLRA.” Id.
Perry’s Weingarten claim is expressly premised on “the rights protected by Section 7 [of
the NLRA],”49 and his complaint does not assert a breach of the duty of fair representation against
his union.50 As such, his Weingarten claim is dismissed.

Accordingly;
IT IS ORDERED that Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure (Rec. Doc. 7) is GRANTED. The following claims are
DISMISSED WITH PREJUDICE as to all defendants: Wrongful Termination (Count 1);
Intentional Infliction of Emotional Distress (Count 2); Violation of the Right to be Informed

47 See Rec. Doc. 7-1, at 12 n.9.
48 See Marquez, 525 U.S. at 49 (“But when a plaintiff alleges a breach of the duty of fair representation, this claim is
cognizable in the first instance in federal court.”) (citing Vaca, 386 U.S. at 177–83)).
49 Rec. Doc. 1, ¶ 47.
50 Nor could he seek leave to assert such a claim, as that recourse is time-barred.
(Count 3); Breach of Grievance Rights (Count 5); Breach of Weingarten Rights (Count 6); and
Respondeat Superior and Vicarious Liability (Count 7).
IT IS FURTHER ORDERED that Plaintiff's Disparate Treatment claim (Count 4) is
DISMISSED WITH PREJUDICE as to Defendants Scott Dinkel, Angus MacIntire, and Laura
Anderson. The only claim that remains active in this lawsuit is Plaintiff's Disparate Treatment
claim (Count 4) asserted against Defendant International Paper.
July 16, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11103160. Public record. Not legal advice.