Petition for Writ of Certiorari — Ron Morris, Petitioner v. Randall S. Knutson

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

llnffe~ $tafes ('1Liur d Appeafs

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 30, 2017

Decided August 31, 2017

Before

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

No. 17-1025

RON MORRIS,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

V.

No. 16C2889

RANDALL S. KNUTSON,

Defendant-Appellee.

Gary Feinerman,

Judge.

ORDER

Ron Morris was fired from his job as a conductor for Burlington Northern

Santa Fe Railway after an investigation revealed that he had failed to prevent a train

carrying hazardous cargo from violating speed restrictions. Morris's labor union

(the International Association of Sheet Metal, Air, Rail and Transportation Workers):

appealed his dismissal to an arbitration board, which upheld the railway's decision.

We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

*

No. 17-1025

Page 2

A year later he brought this suit against Randall Knutson, a union official he accuses of

ineptly representing him before the arbitration board. His complaint invokes 42 U.S.C.

§§ 1983, 1985, and 1986, but the district court construed it as asserting a claim that the

union, through Knutson, breached its duty of fair representation under the Railway

Labor Act (RLA), 45 U.S.C. §§ 151-65. The judge later granted a motion by Knutson to

dismiss the suit as barred by the six-month statute of limitations, and Morris appeals

that decision.

The RLA provides railroad employees an implied right of action against their

unions for breach of the collective-bargaining agreement. See Steffens v. Bhd. of Ry.,

Airline, & S. S. Clerks, 797 F.2d 442, 445 (7th Cir. 1986) (citing Steele v. Louisville &

Nashville R.R. Co., 323 U.S. 192 (1944)). Because the RLA does not, itself, provide a

limitations period, "we borrow the six-month statute of limitations from section 10(b) of

the National Labor Relations Act." United Air Lines, Inc. v. Air Line Pilots Ass "n, Intl,

563 F.3d 257, 269 (7th Cir. 2009); see West v. Conrail, 481 U.S. 35, 37-38 (1987).

And where, as here, a plaintiff alleges that the union breached its duty of fair

representation during arbitration proceedings, the six-month period begins to run

whenever the union notifies the plaintiff that his appeal has been denied and that it will

take no further action. See Beck v. Caterpillar, Inc., 50 F.3d 405, 407-08 (7th Cir. 1995).

Morris received a copy of the board's final decision on March 8, 2015, but he did not file

suit until March 7, 2016, which is why the district court dismissed the suit as untimely.

On appeal Morris contends that his claim did not accrue until October 5, 2015,

when he received a seemingly innocuous email from a union official responding to a

question he had asked about his prior disciplinary history. Morris somehow regards

this as proof that Knutson's "poor representation" during the arbitration was part of a

deliberate effort to block his reinstatement. Until he received the email, Morris says,

he could have presented only "a weak case with little evidence" to support a

fair-representation claim.

This explanation misses the mark because Morris acknowledges that he had some

evidence of Knutson's supposed wrongdoing by March 8, 2015, the date when he

received not only the board's decision but also copies of the written materials that

Knutson had submitted to the board on his behalf. By his own admission, those

materials contained "damaging and false" information about his disciplinary record

that "severely impaired" his chances of winning his appeal. So Morris knew (or should

have known) about Knutson's supposed misconduct no later than March 2015, and

there is no reason he needed to gather additional evidence before filing suit, see Bible v.

No. 17-1025

Page 3

United Student Aid Funds, Inc., 799 F.3d 633, 69 (7th Cir. 2015) (recognizing that district

court at pleading stage must treat allegations in complaint as true).

AFFIRMED.

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 1 of 7 PagelD #:281

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RON MORRIS,

Plaintiff,

16 C 2889

Judge Gary Feinerman

vs.

RANDALL S. KNUTSON,

Defendant.

MEMORANDUM OPINION AND ORDER

Ronald Morris brought this pro se suit against Randall Knutson, a former officer in the

International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation

Division ("SMART-TD"). Doc. 8. Morris drafted his complaint on this District's form for pro

se 42 U.S.C. § 1983 suits, but Knutson is not a state official and SMART-TD is not a state entity,

so Morris has no viable § 1983 claim. The narrative portion of the complaint alleges that

Knutson ineptly presented Morris's case to the arbitrator assigned to hear his challenge to BNSF

Railway's termination of his employment. As the court explained on the record at a status

hearing early in the case, Doc. 19, this means that Morris's claim actually is for violation of the

duty of fair representation that unions owe union members under the Railway Labor Act

("RLA"), 45 U.S.C. § 151 et seq. See Sweeney v. Pence, 767 F.3d 654, 672 (7th Cir. 2014).

Knutson moved to dismiss the suit under Federal Rule of Civil Procedure 12(b), arguing

that the union, not Knutson himself, is the proper defendant, and that Morris's fair representation

claim is time-barred in any event. Doc. 20. In an order issued days later, the court deemed

Morris's suit to have been brought against both Knutson and the.union, thus eliminating the first

ground for dismissal. Doc. 24. Dismissal is appropriate, however, on limitations grounds.

1

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 2 of 7 PagelD #:282

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative

complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N

Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider

"documents attached to the complaint, documents that are critical to the complaint and referred

to in it, and information that is subject to proper judicial notice," along with additional facts set

forth in Morris's brief opposing dismissal, so long as those additional facts "are consistent with

the pleadings." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The

facts are set forth as favorably to Morris as those materials allow. See Pierce v. Zoetis, 818 F.3d

274, 277 (7th Cir. 2016).

BNSF employed Morris until it terminated him on April 30, 2013 for violating a train

speed rule. Doc. 31 at 1, 7. During a discussion with Scott Anderson, a SMART-TD official,

about challenging the dismissal, Morris emphasized the importance of removing from his record

as many past infractions as possible prior to presenting his case to the Public Law Board

("PLB"), the body charged with arbitrating the challenge to his termination. Id. at 1; see 45

U.S.C. § 153 (establishing the arbitration process for railroad employees). Morris sent Anderson

a list of his past infractions, and Anderson confirmed receipt, stating that one of them was "due

to be removed from [his] disciplinary record." Doc. 31 at 1.

On November 29, 2014, the PLB denied Morris's appeal. Id. at 2. The PLB found that

termination was appropriate because: Morris "had the responsibility to notify the engineer of

speed restrictions and if the train was exceeding those restrictions to place the train into

emergency"; he "went through a 30 mile per hour Form A, operating up to 40 miles per hour";

"[t]he crew was operating a key train (86 cars of hazardous material), and as a result, were

2

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 3 of 7 PagelD #:283

required to slow to 10 miles per hour before entering the siding at Mored (MP 58.99)"; and

"[t]he train entered the siding at 22 miles per hour and traveled 1,200 feet before slowing to 10

mph." Doc. 21-2.

On November 30, 2014, Anderson emailed Morris a copy of BNSF's dismissal notice,

together with "the documents [that Morris] later discover[ed] were given [by the union] to the

arbitrator," but not the arbitrator's decision. Doc. 31 at 2. Morris reviewed "the first few pages

of the documents that [he] now knows[s] were provided to the arbitrator, and at the time [he] did

not think much of it because it was not from the arbitrator ...." Ibid. (The November 30, 2014

email and its attachment are reproduced at Doc. 21-3.) In March 2015, after numerous attempts,

Morris reached Anderson, who informed him that the appeal had been denied. Doc. 31 at 5.

Later that month, Anderson emailed Morris "[t]he award letter confirming the arbitrator[']s

decision," as well as "the documents [that the union] provided to the arbitrator." Ibid. At that

time, Morris did not read those documents because he "did not feel it would help and it definitely

wouldn't change the decision the arbitrator made." Ibid.

In April 2015, shortly after he filed a discrimination suit against BNSF, see Morris v.

BNSFRy., 15 C 2923 (N.D. Ill.) (Gottschall, J.), other former and current BNSF employees told

Morris that he "should seriously consider including the union in the lawsuit [he] had against the

company." Doe. 31 at 6. In August 2015, Morris provided the attorney handling his

discrimination suit all documents that the union had sent to him concerning the arbitration. Id. at

7. The attorney told Morris that the documents included a statement admitting Morris's guilt for

the train speed violation that predicated his termination. Ibid. Morris maintains that he never

admitted his guilt for that offense and that he in fact was not guilty. Id. at 8.

3

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 4 of 7 PagelD #:284

In September 2015, Morris asked the union whether his prior disciplinary reprimands had

been appealed or otherwise removed from his personnel record. Id. at 11. On October 5, 2015,

Anderson emailed Morris to say that his office had never received a request to appeal a

September 2011 formal reprimand, which concerned Morris's failure to report to work. Doc. 312 at 2, 4-5. Morris maintains that had the union successfully appealed his prior infractions, the

appeal of his April 2013 termination would have succeeded. Doc. 31-3

Discussion

Morris filed this suit on March 7, 2016. Doc. 1. The complaint alleges that Knutson

represented him during the arbitration challenging his termination. Doc. 8 at 4. The complaint

further alleges: "Prior to the Arbitration [Morris] presented [Knutson's] office with a lot of

documentation that supported [his] defense against the company, [but] those documents were not

considered[,] which was very evident in the submissions given to the Arbitrator, which gave him

a reason to side with the company

.. .."

Ibid. The complaint continues: "During this time I had

been misled, information was withheld from me, I received [the union's] submission letter only

after [the] decision by [the] Arbitrator was made, approx 9/15 and other information late last year

of 2015." Ibid. The gist of the suit is that the union (through Knutson) did not include with its

submission to the arbitrator all materials that should have been included.

Knutson argues that Morris's fair representation claim is barred by the statute of

limitations. Doc. 21 at 4-6. A Rule 12(c) motion might have been a more appropriate vehicle

for this argument. See Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 n. 1 (7th

Cir. 2012) ("Though district courts have granted Rule 12(b)(6) motipns on the basis of

affirmative defenses and this court has affirmed those dismissals, we have repeatedly cautioned

that the proper heading for such motions is Rule 12(c), since an affirmative defense is external to

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 5 of 7 PagelD #:285

the complaint."). Still, no rule categorically prohibits suits from being dismissed on limitations

grounds under Rule 12(b)(6). As the Seventh Circuit has repeatedly held, "if it is plain from the

complaint that the defense is indeed a bar to the suit[,] dismissal is proper without further

pleading." Jay E. Hayden Found., 610 F.3d at 383; see also Hyson USA, Inc. v. Hyson 2U, Ltd.,

821 F.3d 935, 939 (7th Cir. 2016) ("[D]ismissal is appropriate [under Rule 12(b)(6)] only when

the factual allegations in the complaint unambiguously establish all the elements of the

defense."); Chi. Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613-14 (7th Cir.

2014) ("[A] motion to dismiss based on failure to comply with the statute of limitations should

be granted only where the allegations of the complaint itself set forth everything necessary to

satisfy the affirmative defense.") (internal quotation marks omitted); Indep. Trust Corp. v.

Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) ("[W]hen a plaintiff's complaint

nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6)

is appropriate.")

The statute of limitations for an RLA fair representation claim is six months. See

DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 172 (1983); Dozier v. Trans World

Airlines, Inc., 760 F.2d 849, 851 (7th Cir. 1985). Morris filed this suit on March 7, 2016, so the

suit is timely only if his fair representation claim accrued on or after September 8, 2015.

A fair representation claim accrues when "the claimant discovers, or in the exercise of

reasonable diligence should have discovered, the acts constituting the alleged breach of duty."

Dozier, 760 F.2d at 851 (alteration omitted). When a union member claims that the union

violated its duty in connection with representing him in a labor arbitration, accrual generally

occurs when the arbitral body makes its final decision. See Martin v. Youngstown Sheet & Tube

Co., 911 F.2d 1239, 1247 n.13 (7th Cir. 1990) ("[A]n arbitrator's award is considered final

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 6 of 7 PagelD #:286

and

...

the statute of limitations period [for a fair representation claim] begins on the date of the

award."); Freeman v. Local Union No. 135, 746 F.2d 1316, 1319 (7th Cir. 1984) (noting that

"[p]laintiff's cause of action [for an alleged violation of the fair representation duty] accrued

when the arbitrator reached a final, binding decision"). However, if the facts underlying the

alleged breach are unknown to the plaintiff, the limitations period does not commence until the

plaintiff learns those facts or could have discovered them through reasonable diligence. See

Pisut v. United Transp. Union, 2014 WL 714405, *2.3 (N.D. Ill. Feb. 25, 2014) (holding that the

limitations period did not begin to run where the plaintiff, a railway employee, repeatedly asked

the union, without success, for information on the status of the appeal of his termination).

Here, the PLB issued its final decision on November 29, 2014. That did not start the

limitations period, however, because Morris's fair representation claim alleges that the union did

not submit the proper materials to the PLB, and Morris asserts that he was unaware for some

time as to which materials the union had submitted. Doc. 31 at 2; Doc. 31-2 at 1. Knutson

counters that Morris was "well-aware of what was submitted and argued" at the arbitration and

that on November 30, 2014, Morris was emailed a copy of the union's arbitral submission. Doc.

21 at 5. It is true that Morris acknowledges in his opposition brief that he received those

documents on November 30, 2014. Doc. 31 at 2. It also is true that a plaintiff's factual

statements in an opposition brief are fair game on a Rule 12(b)(6) motion. See Phillips, 714 F.3d

at 1020. However, Morris asserts that he was not informed on November 30, 2014 that his

appeal had been denied, so he arguably had no reason to know at that point that the union had

allegedly breached its fair representation duty; after all, if the appeal had succeeded, Morris

would have had no viable fair representation claim.

Case: 1:16-cv-02889 Document #: 42 Filed: 12/05/16 Page 7 of 7 PagelD #:287

The point is immaterial, however, because Morris also acknowledges that in March 2015,

Anderson told him that the arbitrator had denied his appeal and emailed him both the arbitrator's

decision and a copy of "the documents provided [by the union] to the arbitrator." Doe. 31 at 5.

(Again, this statement from Morris's opposition brief is fair game on a Rule 12(b)(6) motion.

See Phillips, 714 F.3d at 1020.) Morris thus had all the information he needed in order to know

what the union had submitted to the arbitrator—including the union's admission that Morris was

guilty of the train speed violation, and the union's failure to address or challenge his prior

reprimands. That Morris chose not to read those documents at that time because "[he] really did

not feel it would help and it definitely wouldn't change the decision the arbitrator made," Doe.

31 at 5, does not alter the fact that in March 2015, Morris had before him all of the materials

necessary to reasonably put him on notice of "the acts constituting the alleged breach of

[Knutson's and the union's fair representation] duty." Dozier, 760 F.2d at 851.

With his claim having accrued in March 2015, Morris had until September 2015 to bring

suit. By the time he filed this suit in March 2016, the limitations period had long since passed.

Accordingly, the suit is barred by the statute of limitations.

Conclusion

Knutson's motion to dismiss is granted. Because a dismissal on limitations grounds

cannot be cured by repleading, the dismissal is with prejudice. See Conover v. Lein, 87 F.3d

905, 908 (7th Cir. 1996). Judgment will be entered in favor of Knutson and against Morris'.

6 7-c~December 5, 2016

United States District Judge

7