Stilwell, Jr. v. Caesars Entertainment

• Court: District Court, D. Nevada
• Decided: February 28, 2022
• Docket: 2:19-cv-01896
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 STANLEY E. STILWELL, JR., Case No. 2:19-cv-1896-KJD-VCF

8 Plaintiff, ORDER

9 v.

10 CAESARS ENTERTAINMENT CORPORATION and BARTENDERS’ UNION 11 LOCAL 165

12 Defendants.

13 Presently before the Court is Defendant Bartenders’ Union Local 165’s Motion to 14 Dismiss Amended Complaint (#44). Plaintiff filed a response in opposition (#45) to which 15 Defendant replied (#48). 16 I. Background 17 In his first Complaint (#1), Plaintiff, a terminated former Caesars’ employee in a 18 collective bargaining unit represented by the Union, brought a single claim against the Union for 19 breach of the duty of fair representation. The Court granted the Union’s motion to dismiss, 20 finding that Plaintiff’s allegations were “vague and conclusory regarding his claim that the 21 Union breached its duty of fair representation.” Order, Dkt. 40, at 2:20-21. The Court granted 22 Plaintiff leave to amend. 23 Plaintiff’s First Amended Complaint (#41) alleges that he was employed as a bartender 24 by Defendant Caesars Entertainment Corporation (“Caesars”) from 2014 until his termination on 25 or about November 2, 2018, “allegedly for willful off-duty misconduct and for sending an 26 alleged inappropriate text message” to one of Caesars’ employees. Am. Compl. ¶ 13. He alleges 27 that he was represented in all matters regarding the terms and conditions of employment by the 28 Bartenders’ Union Local 165 (“Union”) during his employment at Caesars. Id. ¶ 3-4, 13-14. 1 As in his first complaint, he alleges without specific facts that he “encountered disparate 2 treatment, wage scale disputes, seniority disputes and various CBA violations” while employed 3 by Caesars. Id. ¶ 15. He alleges that he “lodged a formal grievance on July 31, 2018 with his 4 union . . . the basis being that the CBA violations he and others experienced while employed by 5 Defendant Caesars must be corrected.” Id. ¶ 16. He alleges, “Defendants never rectified 6 Plaintiff’s verbal and written complaints regarding CBA violations.” Id. He alleges that he 7 “requested” a grievance in May 2018, was told that there would be a general grievance and that 8 an individual grievance would not be pursued and was “denied entrance to the general grievance 9 meeting” on August 30, 2018. Id. ¶ 17. 10 Again, just as in his first Complaint, Plaintiff alleges that “Defendants thereafter 11 sought pretextual, baseless and unjustified reasons to terminate Plaintiff.” Id. ¶ 19. Plaintiff 12 alleges that Plaintiff was “suspended pending investigation for an off-duty incident that occurred 13 the day before on October 3, 2018.” Id. “On this date, Defendants allege that Plaintiff committed 14 willful misconduct by refusing to leave another of Defendant Caesars’ properties when asked to 15 do so by Defendant Caesar’s Security Personnel, despite that there was video surveillance that 16 showed Plaintiff was not engaging in any misconduct. Defendants further alleged that Plaintiff 17 sent a threatening text message to one of Defendant Caesars’ employees as reason to justify 18 suspending Plaintiff.” Id.1 19 Plaintiff states, just as in the first Complaint: “On November 2, 2018 Defendant Caesars 20 then fired Plaintiff for the same baseless and unjustified reasons despite Defendants having 21 viewed video evidence to the contrary.” Id. ¶ 21. Plaintiff alleges that he filed a Nevada Equal 22 Rights Commission (NERC) charge “for retaliation and disability” on April 2, 2019, and that the 23 parties attended a mediation on April 23, 2019. Id. ¶¶ 21-22. Plaintiff acknowledges that he “was 24 represented by Defendant Local 165 and Mr. Michael Contorelli” at the mediation, and that he 25 requested that Local 165 pursue his “wrongful termination without cause through arbitration.” Id. 26 ¶ 22. 27 28 1 Underlined text in quoted Amended Complaint (#41) is new; other language was also in the original Complaint (#1). 1 He does not allege when this request took place, or whether he filed a written grievance.2 2 Plaintiff further alleges, just as in the first Complaint: “On May 6, 2019, Defendant Local 165 3 wrote Plaintiff informing him that Defendant Local 165 would not pursue redress through 4 arbitration and that the matter was closed.” (Id. ¶ 23.) He adds: “No reason was stated. Plaintiff 5 contends that Defendant Local 165 did not pursue arbitration not because Plaintiff’s termination 6 was not wrongful, but because Mr. Contorelli’s loyalties were with Defendant Caesars rather 7 than to union members such as Plaintiff.” Id. Plaintiff then alleges, just as in his original 8 complaint, “While Plaintiff timely requested a grievance and arbitration, Defendant Local 165 9 employees, members, representatives, agents and attorneys failed or otherwise refused to 10 represent him adequately. Plaintiff was therefore restrained and frustrated by his union and 11 Plaintiff was never allowed to pursue his right to work and get his job back. Plaintiff’s union 12 failed to represent him.” Id. ¶ 24. He adds to the Amended Complaint that Local 165 “failed or 13 otherwise refused to represent him in arbitration without a stated reason constituting arbitrary, 14 discriminatory and bad faith acts toward Plaintiff due to Plaintiff’s filing of numerous 15 grievances.” Id. ¶ 24. He also adds that “Plaintiff’s union failed to represent him, and failed to 16 represent him because Plaintiff had filed numerous grievances and Defendant Local 165 was 17 begrudged [sic] and therefore did not care to fairly represent Plaintiff.” Id. 18 Just as in the first Complaint, Plaintiff finally alleges that he “timely requested that the 19 CBA violations he and others experienced be addressed and corrected and his termination be 20 aggrieved [sic] and arbitrated.” Am. Compl. ¶ 30. He does not say he filed a grievance regarding 21 his termination, or when he requested that “his termination be aggrieved.” Id. Again 22 acknowledging that the Union, in fact, did conduct an investigation, Plaintiff again complains 23 that the Union “refused Plaintiff to participate in or review evidence from Defendant Local 165’s 24 investigation.” Id. He alleges, just as in the first Complaint, but adding a conclusory label, that 25 “Defendant Local 165 union representatives deliberately and intentionally misled Plaintiff by 26 27 2 Unlike the “formal” grievance that Plaintiff alleges that he submitted on July 31, 2018, regarding “CBA violations,” Plaintiff does not actually allege that he submitted a formal grievance regarding his 28 termination, nor does he allege he actually filed a prior grievance on May 16, 2018, regarding “disparate wages.” See id. ¶¶ 16, 17, 18-24. 1 informing Plaintiff to essentially overlook the CBA violations since Defendant Local 165 and 2 Defendant Caesars exchanged favors for each other intimating, therefore, that such infractions 3 should be ignored, even if Defendant Local 165 had not failed to properly represent him, which 4 is arbitrary, discriminatory and in bad faith.” Am. Compl. ¶ 30. 5 After the Amended Complaint (#41) was filed the Union filed the present motion to 6 dismiss arguing that the additions to the complaint failed to correct the factual deficiencies in the 7 original complaint noted by the Court. 8 II. Standard for a Motion to Dismiss 9 In considering whether a complaint is sufficient to state a claim under Rule 12(b)(6), the 10 Court takes all material allegations as true and construes them in the light most favorable to the 11 plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, 12 is not required to accept as true allegations which are merely conclusory, unwarranted deductions 13 of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 14 (9th Cir.2001); Trustees of Nev. Resort Ass'n Int'l Alliance of Theatrical Stage Employees & 15 Moving Picture Mach. Operators of U.S. & Canada Local 720 Pension Trust v. Encore Prods., 16 Inc., 742 F. Supp.2d 1132, 1134 (D. Nev. 2010). To survive a motion to dismiss under Rule 17 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic 18 Corp. v. Twombly, 550 U.S. 544, 570 (2007). 19 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 20 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 21 Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). “Where a complaint pleads facts that are ‘merely 22 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 23 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557 (internal quotation 24 marks omitted). In such a case, the inference of liability is merely speculative. “[W]here the 25 well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, 26 the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 27 679 (quoting FED. R. CIV. P. 8(a)(2)) (emphasis added). “Threadbare recitals of the elements of 28 a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 1 678. 2 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 3 1202, 1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of 4 truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of 5 action, but must contain sufficient allegations of underlying facts to give fair notice and to enable 6 the opposing party to defend itself effectively. Second, the factual allegations that are taken as 7 true must plausibly suggest an entitlement to relief, such that it is not unfair to require the 8 opposing party to be subjected to the expense of discovery and continued litigation.” Id. 9 III. Analysis 10 A union breaches its duty of fair representation “only when [its] conduct toward a 11 member . . . is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 12 (1967). “An employee has no absolute right to have a grievance taken to arbitration.” Castelli v. 13 Douglas Aircraft Co., 752 F.2d 1480, 1482-83 (9th Cir. 1985). “Unions need not arbitrate every 14 case.” Johnson v. U.S. Postal Serv., 756 F.2d 1461, 1465 (9th Cir. 1985). Indeed, they “may 15 screen grievances and arbitrate only those they believe are meritorious.” Id. 16 A union’s conduct is discriminatory if there is “substantial evidence of discrimination 17 that is intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Ass’n of 18 St., Elec., Ry. & Motor Coach Emp. of Am. v. Lockridge, 403 U.S. 274, 301 (1971). Its conduct 19 is in bad faith if there is “substantial evidence of fraud, deceitful action or dishonest conduct.” Id. 20 A union’s conduct is arbitrary “only if, in light of the factual and legal landscape at the time of 21 the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ as to 22 be irrational.’” Pegany v. C & H Sugar Co., Inc., 201 F.3d 444 (9th Cir.1999) (quoting Air Line 23 Pilots Ass’n., Int’l v. O’Neill, 499 U.S. 65, 67 (1991)); see also Salinas v. Milne Truck Lines, 24 Inc., 846 F.2d 568, 569 (9th Cir. 1988) (“A union’s conduct may not be deemed arbitrary simply 25 because of an error in evaluating the merits of a grievance.”). 26 Here, even Plaintiff’s amended claims do little more than add conclusory language to the 27 complaint. His statement that the Union’s refusal to arbitrate his termination without providing a 28 reason was “arbitrary, discriminatory and in bad faith” is a legal conclusion. The Union 1 represented him at a mediation with Caesars regarding his termination. After Plaintiff requested 2 that the Union pursue arbitration on his behalf, the Union, being familiar with both parties’ 3 claims at the mediation, decided that Plaintiff’s claim was not substantive enough to pursue. 4 When a union exercises its judgment, its action “can be classified as arbitrary ‘only when it is 5 irrational, when it is without a rational basis or explanation.’ ” Beck v. United Food, 506 F.3d 6 874, 879 (9th Cir. 2007) (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46 (1998). 7 Indeed, under this “highly deferential” standard, union conduct will only be deemed arbitrary if it 8 is “so far outside [the] ‘wide range of reasonableness,’ Demetris v. Transport Workers Union of 9 Am., AFL-CIO, 862 F.3d 799, 805 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 10 (1953), that it is wholly ‘irrational.’ ” Air Line Pilots, 499 U.S. at 78 (1991) (partial citation 11 omitted). 12 Here, the only facts that Plaintiff alleges that show the Union’s conduct could be 13 discriminatory or in bad faith are the refusal to arbitrate his termination grievance, that it refused 14 to represent him because he had filed so many grievances, that the Union representative’s 15 “loyalties” were with Caesars and that the Union did not pursue grievances because Caesars did 16 favors for the Union. However, most of these arguments are circular or conclusory. Plaintiff’s 17 allegation -- that the Union’s decision to not pursue arbitration was arbitrary because it did not 18 pursue his grievance to arbitration -- is circular. Plaintiff must allege an underlying action that is 19 arbitrary, discriminatory or in bad faith. There must be more than a failure to pursue arbitration 20 on a claim the Union was intimately familiar with. 21 Similarly, other than failing to pursue arbitration of his grievance, Plaintiff did not 22 identify specific facts showing that “Mr. Contorelli’s loyalties were with Defendant Caesars 23 rather than to union members such as Plaintiff.” Further the allegation that the Union failed to 24 pursue arbitration on Plaintiff’s behalf “due to Plaintiff’s filing of numerous grievances” does 25 not comport with the rest of the factual allegations. The sum of grievances that Plaintiff’s 26 complaint alleges that Plaintiff actually filed appears to be one (1). If the Court were to read the 27 complaint liberally, which it is not required to do because Plaintiff is represented by counsel, 28 Plaintiff may have filed up to three (3) grievances. However, this does not reflect Plaintiff’s allegation that the Union failed to seek arbitration “because Plaintiff had filed numerous 2| grievances and Defendant Local 165 was begrudged and therefore did not care to fairly represent 3 | Plaintiff.” Three, at most, is not numerous.° 4 To state a claim against the Union, Plaintiff has the burden to demonstrate the Union 5 | breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570— 6 | 71 (1976). Whether to pursue a grievance is typically a decision in which unions “retain wide 7 | discretion to act in what they perceive to be their members’ best interests.” Peterson v. Kennedy, 8 | 771 F.2d 1244, 1253 (9th Cir. 1985). Plaintiffs first amended complaint does not allege enough specific facts to support a reasonable inference that the Union breached its duty of fair 10 | representation in handling his grievance, and mostly includes “threadbare recitals of a cause of 11 | action’s elements, supported by mere conclusory statements.” Therefore, having previously 12 | granted Plaintiff leave to amend, the Court grants Defendant Bartender’s Union Local 165’s 13 | motion to dismiss. IV. Conclusion 15 Accordingly, IT IS HEREBY ORDERED that Bartenders’ Union Local 165’s Motion to 16 | Dismiss Amended Complaint (#44) is GRANTED; 17 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for 18 | Defendant Bartenders’ Union Local 165 only and against Plaintiff. 19 | Dated this 28th day of February, 2022.

71 Kent J. Dawson 22 United States District Judge 23 24 25 26 27 28 > Numerous, Webster’s II New Riverside University Dictionary (1st Ed. 1988) (“Consisting of many persons or items”); Many, Id. (“a large indefinite number’’). -7-