United States District Court, D. Massachusetts
RAYMOND R. MASON, Sr. Plaintiff,
CENTRAL MASS TRANSIT MANAGEMENT/WORCESTER REGIONAL TRANSIT AUTHORITY; DAVID TRABUCCO, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY; JONATHAN CHURCH, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY; AMALGAMATED TRANSIT UNION LOCAL 22; KENNETH KEPHART, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DISMISS AMENDED COMPLAINT (DOCKET NO. 16)
TIMOTHY S. HILLMAN DISTRICT JUDGE
R. Mason, Sr. (“Plaintiff”) brings this action
against several parties. For the purposes of this order, the
relevant parties are Plaintiff's union, Amalgamated
Transit Union Local 22 (“the Union”), and
Business Agent for the Union, Kenneth Kephart (“Mr.
Kephart”) (collectively “Defendants”). In
his Amended Complaint, Plaintiff alleges claims for breach of
the duty of fair representation, violations of Title VII, the
Fifth, Sixth, and Fourteenth Amendment, 18 U.S.C. § 241,
and Mass. Gen. Laws ch. 12 § 11I. Defendants have filed
a motion to dismiss all counts against them. (Docket No. 16).
For the reasons stated below, Defendants' motion is
following facts are taken from Plaintiff's First Amended
Complaint (Docket No. 14) and are assumed to be true for the
purposes of this motion.
5, 2003, Plaintiff began working for Worcester Regional
Transit Authority (“WRTA”)/Central Mass. Transit
Management, Inc (“CMTM”) as a part-time van
driver. On December 23, 2015, CMTM and the Union entered into
a Supplemental Agreement that stated, “if [an] employee
is found to be using a personal electronic device and the
employee is in front of the yellow line in a fixed route bus
or in front of the curb side door well stanchion in a lift
equipped van, the consequence will be immediate termination
of employment by the Company.” (Docket No. 14-1, at 6).
This agreement also stated that, “an employee cannot
challenge the discipline imposed for an employee's use of
a personal electronic device while on duty.”
Id. Neither the Union nor CMTM circulated this
agreement to their employees.
April 3, 2017, Plaintiff returned to work after a medical
emergency at his home. At 2:23 p.m., as he was leaving the
parking lot of WRTA in his van, he received a call on his
cell phone from Ms. Jandrow, Transportation Coordinator for
CMTM. Unsure if the call was related to the previous
emergency, Plaintiff answered the call and Ms. Jandrow
offered him a night-time position at the WRTA Van Division.
next day, David Trabucco (“Mr. Trabucco”),
Assistant General Manager for CMTM, notified Plaintiff that
CMTM was investigating Plaintiff's improper cell phone
use while on duty. Mr. Trabucco spoke with Business Agent
Kephart and scheduled a disciplinary hearing for that day.
Mr. Kephart told Mr. Trabucco that Plaintiff refused to be
present at the hearing. As a result, Mr. Kephart attended the
hearing on Plaintiff's behalf. See Docket No.
14, at 10. However, Plaintiff claims that, “there is
absolutely no truth to Mr. Trabuco's account that
‘Plaintiff refused to attend or be present at a
hearing.'” (Docket No. 14, at 11). After the
hearing, Mr. Kephart called Plaintiff and asked him to report
to the company building, where they met in the lobby. At this
meeting, Mr. Kephart told Plaintiff, “you have two
choices, either to resign or be fired and lose
everything.” Id. at 12. Mr. Kephart alluded to
a video that would show Plaintiff using his phone while on
duty, but would not allow Plaintiff to view this
the meeting, Plaintiff and Mr. Trabucco went to the office of
Jo-Ann Clougherty, from Human Resources, where Plaintiff was
instructed by Mr. Trabucco to sign the Notice of Termination.
Plaintiff signed the notice and was terminated from his
position. Plaintiff believes the word
“resignation” was added to the notice after he
he was terminated, and before filing this claim, Plaintiff
filed claims with the National Labor Relations Board
(“NLRB”). Plaintiff provided the Court with a
response letter from the NLRB dated July 26, 2018. This
letter references a March 9th, 2018 letter from
Plaintiff to the NLRB, “requesting, for a second time,
reconsideration of [the NLRB's] decision denying
[Plaintiff's] appeal in the captioned cases.”
(Docket No. 14-1, at 18). The heading of the July 26, 2018
letter references two cases against CMTM/WRTA and one against
also claims that Mr. Kephart represented two other employees
who were caught using their cell phones while driving. Unlike
Plaintiff, those employees did not lose their job.
defendant may move to dismiss, based solely on the complaint,
for the plaintiff's “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege “a plausible entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127
S.Ct. 1955 (2007). Although detailed factual allegations are
not necessary to survive a motion to dismiss, the standard
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. at 555, 127 S.Ct. 1955.
“The relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the
court to draw from the facts alleged in the complaint.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13
(1st Cir. 2011).
evaluating a motion to dismiss, the court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. American Airlines, Inc., 199 F.3d 68,
68 (1st Cir. 2000). It is a “context-specific
task” to determine “whether a complaint states a
plausible claim for relief, ” one that “requires
the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show[n]'-that
the pleader is entitled to relief.” Id.
(quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court
may not disregard properly pled factual allegations,
“even if it strikes a savvy judge that actual proof of
those facts is improbable.” Twombly, 550 U.S.
at 556, 127 S.Ct. 1955.
Plaintiff appears pro se, we construe his pleadings more
favorably than we would those drafted by an attorney. See
Erickson v. Pardus,551 U.S. 89, 94, 127 S.Ct. 2197
(2007). Nevertheless, Plaintiff's pro-se status does not
excuse him from complying with procedural and ...