1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 MONIQUE EPPERSON, Case No. 2:25-cv-02320-EJY
5 Plaintiff, ORDER 6 v.
7 WYNN LAS VEGAS, LLC and BARTENDERS LOCAL UNION 165, 8 Defendants. 9 10 Pending before the Court is Plaintiff’s Application to Proceed in forma pauperis (“IFP”) and 11 Complaint alleging various wrongs that appear, in large part, to relate to her rights under a collective 12 bargaining agreement (“CBA”) between Wynn Las Vegas and the Bartenders Union Local 165 (the 13 “Bartenders Union” or the “Union”). ECF No. 1-1. Plaintiff’s IFP application is granted below. 14 The Court proceeds with screening her Complaint. 15 I. Screening Standard 16 When screening a complaint, a court must identify cognizable claims and dismiss claims that 17 are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief 18 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to 19 state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal 20 Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 21 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state 22 a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 23 court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt 24 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 25 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 26 In considering whether the complaint is sufficient to state a claim, all allegations of material 27 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 1 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 2 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 4 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 5 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 6 States, 70 F.3d 1103, 1106 (9th Cir. 1995).
7 II. Plaintiff’s Counts I and II Alleging Breach of Collective Bargaining Agreement Against Wynn Las Vegas and Breach of the Duty of Fair Representation Against the Bartenders 8 Union. 9 Relevant to these claims, Plaintiff alleges she was employed by Wynn Las Vegas as a Union 10 represented employee. Plaintiff filed grievances with the Bartenders Union on three occasions 11 regarding her suspensions and termination. ECF No. 1-1 at 2. The Union is alleged to have failed 12 to advance these grievances to arbitration despite valid evidence and a duty to do so, as well as by 13 ignoring required time limits and possibly colluding with Wynn. Id. at 2-3. Plaintiff further alleges 14 she was denied contractual remedies including arbitration, reinstatement, and settlement 15 opportunities, and asserts the Union’s actions were arbitrary, discriminatory, and in bad faith. Id. at 16 3. 17 Where a breach of a CBA is alleged, a plaintiff may generally bring one of two types of 18 claims. Vaca v. Sipes, 386 U.S. 171 (1967). First, a plaintiff may bring what is often termed a 19 “straightforward” § 301 claim alleging a breach of the CBA against her employer without 20 accompanying allegations that a union breached its duty of fair representation. Greer v. Pac. Gas 21 & Elec. Co., 265 F. Supp. 3d 1053, 1068 (E.D. Cal. 2017) (citing Vaca, 386 U.S. 171 (explaining 22 the difference between a straightforward breach of contract suit claim asserted under § 301 of the 23 Labor Management Relations Act (29 U.S.C. § 185(a)) and a hybrid § 301/fair representation 24 claim)). A straightforward § 301 claim is brought “directly” against an employer and involves the 25 employee’s “uniquely personal rights” including “wages, hours, [o]vertime pay, and wrongful 26 discharge.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th Cir. 1978) (citing Hines 27 v. Anchor Motor Freight, Inc., 424 U.S. 554, 562 (1976)). However, before bringing such a claim, 1 collective bargaining agreement ...” and “[s]ubject to very limited judicial review, he will be bound 2 by the result according to the finality provisions of the agreement.” Vaca, 386 U.S. at 183-84. 3 Second, plaintiffs may bring a lawsuit alleging breach of a CBA, regardless of a final and 4 binding dispute resolution process in the CBA, if they also allege that the Union breached its duty 5 of fair representation. DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 164 (1983) 6 (“In Vaca and Hines … we recognized that … [exhaustion] works an unacceptable injustice when 7 the union representing the employee in the grievance/arbitration procedure acts in such a 8 discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair 9 representation. In such an instance, an employee may bring suit against both the employer and the 10 union, notwithstanding the outcome or finality of the grievance or arbitration proceeding”). This 11 type of claim is referred to as a “hybrid” § 301 claim. Id. at 165 (“The employee may, if he chooses, 12 sue one defendant and not the other; but the case he must prove is the same whether he sues one, the 13 other, or both. The suit is thus not a straightforward breach of contract suit under § 301, …, but a 14 hybrid § 301/fair representation claim.”). Unlike a straightforward § 301 claim, judicial review of a 15 hybrid § 301 claim is not precluded when an employee fails to exhaust the dispute resolution process 16 in the CBA. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th Cir. 2007). 17 “Unions have broad discretion to act in what they perceive to be their members’ best 18 interests.” Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988) (citing Ford Motor 19 Co. v. Huffman, 345 U.S. 330, 337-39 (1953)). However, a union may breach its duty of fair 20 representation to its members “when its conduct toward a member of the bargaining unit is arbitrary, 21 discriminatory, or in bad faith.” Demetris v. Transp. Workers Union of Am., AFL-CIO, 862 F.3d 22 799, 805 (9th Cir. 2017) (quoting Marquez v.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 MONIQUE EPPERSON, Case No. 2:25-cv-02320-EJY
5 Plaintiff, ORDER 6 v.
7 WYNN LAS VEGAS, LLC and BARTENDERS LOCAL UNION 165, 8 Defendants. 9 10 Pending before the Court is Plaintiff’s Application to Proceed in forma pauperis (“IFP”) and 11 Complaint alleging various wrongs that appear, in large part, to relate to her rights under a collective 12 bargaining agreement (“CBA”) between Wynn Las Vegas and the Bartenders Union Local 165 (the 13 “Bartenders Union” or the “Union”). ECF No. 1-1. Plaintiff’s IFP application is granted below. 14 The Court proceeds with screening her Complaint. 15 I. Screening Standard 16 When screening a complaint, a court must identify cognizable claims and dismiss claims that 17 are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief 18 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to 19 state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal 20 Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 21 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state 22 a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 23 court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt 24 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 25 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 26 In considering whether the complaint is sufficient to state a claim, all allegations of material 27 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 1 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 2 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 4 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 5 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 6 States, 70 F.3d 1103, 1106 (9th Cir. 1995).
7 II. Plaintiff’s Counts I and II Alleging Breach of Collective Bargaining Agreement Against Wynn Las Vegas and Breach of the Duty of Fair Representation Against the Bartenders 8 Union. 9 Relevant to these claims, Plaintiff alleges she was employed by Wynn Las Vegas as a Union 10 represented employee. Plaintiff filed grievances with the Bartenders Union on three occasions 11 regarding her suspensions and termination. ECF No. 1-1 at 2. The Union is alleged to have failed 12 to advance these grievances to arbitration despite valid evidence and a duty to do so, as well as by 13 ignoring required time limits and possibly colluding with Wynn. Id. at 2-3. Plaintiff further alleges 14 she was denied contractual remedies including arbitration, reinstatement, and settlement 15 opportunities, and asserts the Union’s actions were arbitrary, discriminatory, and in bad faith. Id. at 16 3. 17 Where a breach of a CBA is alleged, a plaintiff may generally bring one of two types of 18 claims. Vaca v. Sipes, 386 U.S. 171 (1967). First, a plaintiff may bring what is often termed a 19 “straightforward” § 301 claim alleging a breach of the CBA against her employer without 20 accompanying allegations that a union breached its duty of fair representation. Greer v. Pac. Gas 21 & Elec. Co., 265 F. Supp. 3d 1053, 1068 (E.D. Cal. 2017) (citing Vaca, 386 U.S. 171 (explaining 22 the difference between a straightforward breach of contract suit claim asserted under § 301 of the 23 Labor Management Relations Act (29 U.S.C. § 185(a)) and a hybrid § 301/fair representation 24 claim)). A straightforward § 301 claim is brought “directly” against an employer and involves the 25 employee’s “uniquely personal rights” including “wages, hours, [o]vertime pay, and wrongful 26 discharge.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th Cir. 1978) (citing Hines 27 v. Anchor Motor Freight, Inc., 424 U.S. 554, 562 (1976)). However, before bringing such a claim, 1 collective bargaining agreement ...” and “[s]ubject to very limited judicial review, he will be bound 2 by the result according to the finality provisions of the agreement.” Vaca, 386 U.S. at 183-84. 3 Second, plaintiffs may bring a lawsuit alleging breach of a CBA, regardless of a final and 4 binding dispute resolution process in the CBA, if they also allege that the Union breached its duty 5 of fair representation. DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 164 (1983) 6 (“In Vaca and Hines … we recognized that … [exhaustion] works an unacceptable injustice when 7 the union representing the employee in the grievance/arbitration procedure acts in such a 8 discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair 9 representation. In such an instance, an employee may bring suit against both the employer and the 10 union, notwithstanding the outcome or finality of the grievance or arbitration proceeding”). This 11 type of claim is referred to as a “hybrid” § 301 claim. Id. at 165 (“The employee may, if he chooses, 12 sue one defendant and not the other; but the case he must prove is the same whether he sues one, the 13 other, or both. The suit is thus not a straightforward breach of contract suit under § 301, …, but a 14 hybrid § 301/fair representation claim.”). Unlike a straightforward § 301 claim, judicial review of a 15 hybrid § 301 claim is not precluded when an employee fails to exhaust the dispute resolution process 16 in the CBA. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th Cir. 2007). 17 “Unions have broad discretion to act in what they perceive to be their members’ best 18 interests.” Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988) (citing Ford Motor 19 Co. v. Huffman, 345 U.S. 330, 337-39 (1953)). However, a union may breach its duty of fair 20 representation to its members “when its conduct toward a member of the bargaining unit is arbitrary, 21 discriminatory, or in bad faith.” Demetris v. Transp. Workers Union of Am., AFL-CIO, 862 F.3d 22 799, 805 (9th Cir. 2017) (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998). 23 Plaintiffs bear the burden of proving that a union breached such duty. Id. (citing Beck v. United 24 Food & Commercial Workers Union, 506 F.3d 874, 879 (9th Cir. 2007)). “[A] union’s conduct 25 generally is not arbitrary when the union exercises its judgment.” Id. (citing Beck, 506 F.3d at 879; 26 Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985)). McNealy v. Caterpillar, Inc., 139 F.3d 27 1113, 1124 (7th Cir. 1998) (“When an employee seeks to bring a § 301 suit against his employer, he 1 must allege a hybrid cause of action—first a claim of breach of fair representation against the union 2 and then a § 301 cause of action against the employer.”). 3 Here, it appears Plaintiff is seeking to bring a hybrid § 301 claim as the breach of contract 4 claim against the Wynn is based on or directly tied to the Union’s alleged failure to fulfill its duty 5 of fair representation. On its face, the Court finds Plaintiff alleges just enough facts to state her 6 claim. ECF No. 1-1 ¶¶ 10-12, 15-18. Accordingly, this claim may proceed. 7 III. Plaintiff’s Retaliation and Interference with Protected Rights Claim. 8 A. Plaintiff’s Claims Fail to the Extent She Alleges Violations of Title VII. 9 To the extent Plaintiff is asserting an interference or retaliation claim for engaging in 10 protected activity under Title VII of the1964 Civil Rights Act against Wynn Las Vegas, see ECF 11 No. 1-1 ¶¶ 13, 14, and 29, her instant claim duplicates claims that are proceeding in Epperson v. 12 Wynn Las Vegas, Case No. 25-cv-02169-APG-EJY. Plaintiff may not maintain a claim involving 13 the same subject matter, against the same defendant, in the same court in two different cases. Adams 14 v. Cal. Dept. of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other grounds by 15 Taylor v. Sturgell, 553 U.S. 880 (2008), (cleaned up) (quoting Walton v. Eaton Corp., 563 F.2d 66, 16 70 (3d Cir. 1977)) (“Plaintiffs generally have no right to maintain two separate actions involving the 17 same subject matter at the same time in the same court and against the same defendant.”); Almaznai 18 v. S-L Distr. Co., Case No. 20-cv-08487-JST, 2021 WL 4457025, at *5 n.5 (N.D. Cal. June 21, 2021) 19 (“Two actions are in the ‘same court’ within the meaning of the claim-splitting doctrine when both 20 were filed in federal court.”). Thus, Plaintiff’s attempt to bring claims against Wynn Las Vegas 21 under Title VII are dismissed with prejudice. 22 Claims against the Bartenders Union arising from an alleged violation of Title VII based on 23 Plaintiff’s supposed protected activity under this statutory scheme fails because Plaintiff does not 24 allege facts showing she exhausted her administrative remedies. Plaintiff’s failure to demonstrate 25 she exhausted administrative remedies before the EEOC precludes this claim from proceeding in 26 federal court. Austin v. City of Oakland, Case No. 17-cv-03284 YGR, 2018 WL 2427679, at *4 27 (N.D. Cal. May 30, 2018). 1 Separately, Plaintiff states no facts in support of her conclusion that she was retaliated against 2 by the Union for filing an EEOC charge or otherwise engaging in Title VII protected activity. 3 Instead, Plaintiff states retaliation as a conclusion untethered to her claim that the Bartenders Union 4 failed to process grievances. Union activity is not within the scope of Title VII’s protected activity. 5 Ting v. Adams & Assocs., Inc., Case No. 2:16-cv-01309-TLN-KJN, 2017 WL 4422508, at *4 (E.D. 6 Cal. Oct. 5, 2017) (dismissing retaliation claim based on plaintiff’s union membership, finding Title 7 VII does not protect such membership or activities). Otherwise, all Plaintiff states in her Complaint 8 is that the Wynn Las Vegas and Bartenders Union “retaliated” against her “in violation of federal 9 law.” ECF No. 1-1 at 4. This statement is insufficient to state a colorable claim decipherable by the 10 Court. Labels and conclusions, lacking factual enhancement are insufficient to state a claim. Iqbal, 11 556 U.S. at 664. A complaint must contain a “short and plain statement of the claim showing that 12 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must provide a defendant with 13 “fair notice” of the claims against it and the grounds for relief. Twombly, 550 U.S. at 555 (quotations 14 and citation omitted). Plaintiff’s factual allegations must be “enough to raise a right to relief above 15 the speculative level.” Id. Plaintiff’s failure to demonstrate she exhausted her claims and bald 16 conclusory statement regarding interference and retaliation by the Bartenders Union lead the Court 17 to dismiss these allegations without prejudice and with leave to amend. 18 Finally, if Plaintiff is contending the Wynn Las Vegas and Bartenders Union refused to 19 proceed with grievances and arbitration in violation of her rights arising under the Labor 20 Management Relations Act, she restates her § 301 hybrid claim, which the Court allows to proceed 21 above. 22 IV. Order 23 Accordingly, and based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s 24 Application to Proceed in forma pauperis (ECF No. 1) is GRANTED. 25 IT IS FURTHER ORDERED that the Clerk of Court must file Plaintiff’s Complaint (ECF 26 No. 1-1) on the docket. 27 1 IT IS FURTHER ORDERED that Plaintiff’s Complaint alleging a hybrid § 301 claim against 2 Wynn Las Vegas and the Bartenders Union (collectively, Count I asserted as Breach of Collective 3 Bargaining Agreement and Count II asserted as Breach of Duty of Fair Representation) may proceed. 4 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff two USM-285 5 forms, which she must complete, to the best of her ability to do so, and return no later than March 6 27, 2026 to the following address:
7 Gary G. Schofield U.S. Marshal, District of Nevada 8 Lloyd D. George Federal Courthouse 333 Las Vegas Blvd. S., Suite 2058 9 Las Vegas, Nevada 89101 10 Plaintiff is advised to check the Nevada Secretary of State Business Entity Search website for Wynn 11 Las Vegas’s registered agent upon whom service must be made. Plaintiff is also advised to 12 investigate on whom her Complaint against the Bartenders Union may be properly served. 13 IT IS FURTHER ORDERED that the Clerk of Court must issue Summonses for Wynn Las 14 Vegas and Bartenders Union Local 165 a/w UNITE HERE and deliver the same to the U.S. Marshal 15 Service together with two copies of Plaintiff’s Complaint (ECF No. 1-1) and two copies of this 16 Order. 17 IT IS FURTHER ORDERED that the U.S. Marshal Service must attempt service of the 18 Complaint, the Summons, and a copy of this Order on Wynn Las Vegas within twenty-one (21) days 19 of receipt of Plaintiff’s completed USM-285 forms. 20 IT IS FURTHER ORDERED that Plaintiff’s claims in Count III asserted under Title VII 21 against Wynn Las Vegas are dismissed with prejudice as duplicative of claims already pending 22 before this Court in Case No. 25-cv-02169-APG-EJY. 23 IT IS FURTHER ORDERED that Plaintiff’s Count III interference and retaliation claim 24 asserted against Wynn Las Vegas and the Bartenders Union is dismissed with prejudice to the extent 25 it restates her hybrid § 301 claim. 26 IT IS FURTHER ORDERED that Plaintiff’s claim asserting interference and retaliation 27 against the Bartenders Union under Title VII is dismissed without prejudice and with leave to amend. 1 IT IS FURTHER ORDERED that Plaintiff’s interference and retaliation claim against the 2 Bartenders Union otherwise under “federal law” is dismissed without prejudice and with leave to 3 amend. 4 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, she must 5 do so no later than March 27, 2026. The amended complaint must be titled “FIRST AMENDED 6 COMPLAINT” and must include all claims Plaintiff seeks to assert except those dismissed with 7 prejudice (that is, the claims against Wynn Las Vegas arising under Title VII). If Plaintiff fails to 8 include a claim, even one that is currently allowed to proceed in her first amended complaint, that 9 claim will no longer exist because the first amended complaint supersedes—supplants—Plaintiff’s 10 original Complaint as if the original Complaint never existed. 11 Plaintiff may choose not to file a first amended complaint. If Plaintiff does not file a first 12 amended complaint, the original Complaint will be the operative Complaint and her case will 13 proceed against Wynn Las Vegas and the Bartenders Union on her Hybrid Section 301 claim. 14 Dated this 3rd day of March, 2026. 15
16 ELAYNA J. YOUCHAH 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27