United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on a motion to dismiss by defendant United Food and Commercial Workers Union, Local 367 (the "Union"). Dkt. # 8. Pro se plaintiff Siu Man Wu appears to allege the following causes of action: (1) Violation of the National Labor Relations Act ("NLRA"); (2) Violation of the Washington Law Against Discrimination ("WLAD"), RCW 49.60 et seq.; and (3) racial discrimination or conspiracy to violate civil rights under 42 U.S.C. §§ 1981, 1983, & 1985. Dkt. # 3.
As a preliminary matter, Mr. Wu cannot bring claims on behalf of someone else in his pro se capacity. See Johns v. Cnty of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ( pro se party "has no authority to appear as an attorney for others than himself."). Mr. Wu also concedes that Wing Kai Tse and Sing Cho Ng are not parties in this lawsuit. Dkt. # 20 (Opp'n) ¶ 3b. Accordingly, the court GRANTS defendant's motion with respect to any purported claims brought on behalf of anybody other than Mr. Wu.
The court notes that this appears to be the last case in a string of related case brought by Mr. Wu, Mr. Tse, and Mr. Ng against the National Labor Relations Board ("NLRB"), their former employer, or the Union alleging similar claims for discrimination, retaliation, constructive discharge and/or violation of the NLRA with respect to uniform laundering and/or heavy lifting and arduous tasks. See Case No. C08-1160JCC ( Ng. v. Haggen ) (dismissed for failure to timely serve defendants); Case No. C09-965RAJ ( Wu v. Haggen ) (dismissed for failure to prosecute); Case No. C10-372JCC ( Ng. v. Haggen ) (dismissed for failure to prosecute); Case No. C10-898MJP ( Ng v. Union ) (dismissed voluntarily); Case No. C10-899TSZ ( Wu v. Union ) (dismissed voluntarily); Case No. C10-900RSL ( Tse v. Union ) (dismissed voluntarily); Case No. C11-860RSL ( Wu v. NLRB ) (dismissed for lack of jurisdiction and failure to state a claim); Case No. C12-398RAJ ( Tse v. NLRB ) (dismissed for lack of jurisdiction and failure to state a claim); Case No. C13-746RAJ ( Tse v. Union ) (dismissed for failure to state a claim; pending appeal).
Having considered the pleadings, briefing, exhibits, and the record herein, the court GRANTS defendant's motion to dismiss.
Plaintiff, an individual of Chinese national origin, worked for a grocery store owned by Haggen Inc. from April 2001 until October 2008. Dkt. # 3 (Compl.) ¶¶ 4-5, 30. As an employee of Haggen, plaintiff was a member of the Union. Id. ¶ 7. The Collective Bargaining Agreement ("CBA") required that the employer provide laundering of the required uniforms for the employees and not require employees to work overtime without compensation. Id. ¶ 24a & b. However, when plaintiff began work in April 2001, he was required to sign an agreement in which he agreed to launder his uniform. Id. ¶ 31a. Plaintiff alleges that every employee was required to sign a similar agreement, but that Haggen laundered the uniform of other workers in the meat and bakery department and head cook, but continued to refuse to launder the uniforms of the Chinese cooks. Id. ¶¶ 32, 35a. Plaintiff also alleges that beginning in June 2006, Haggen mandated the Chinese cooks at his store to do arduous and excessive amounts of heavy lifting, moving, transporting, and stocking of weighty items, which caused plaintiff serious injury in 2006, 2007 and 2008. Id. ¶¶ 36a.
Around May or June 2008, plaintiff initiated an EEOC complaint against Haggen regarding the uniform and arduous task issue. Id. ¶ 38a. From August 2008 to approximately November 2008, the Union appears to have taken action with respect to plaintiff's complaints. Id. ¶¶ 40-41a, 42d-43, 49. Plaintiff alleges that the Union's period of inaction began in November 2008 and continued through its filing of an unfair labor practice charge against Haggen in February 2009. Id. ¶¶ 49d, 56, 58a. Plaintiff alleges that Haggen issued unjustified disciplinary action against him on November 15, 2008, and that he quit thereafter, which he contends was constructive discharge. Id. ¶¶ 49o, 50, 53. Plaintiff alleges that he sought union representation on the uniform issue, the arduous-task issue, the constructive discharge issue, and the discrimination and retaliation issue. Id. ¶ 56. The Union led plaintiff to believe that it would press the arduous-task discrimination and retaliation charges and a retaliation and hostile work environmentrelated constructive discharge against Haggen. Id. ¶ 58d.
The Union filed the unfair practices labor charge in February 2009. Id. ¶ 58a. In April 2009, the Union sent plaintiff a letter regarding the arduous-task issue. Id. ¶ 60a. Plaintiff alleges that the Union never sent him information about the unfair practices labor charge after the April 2009 letter. Id. ¶ 63a-b. In June 2009, the Union sent plaintiff another letter about another scheduled meeting with the employer together with certain merchandise, but plaintiff did not attend that meeting. Id. ¶ 61. In July 2009, the Union sent plaintiff a letter that it was closing plaintiff's file with the Union. Id. ¶62. In April 2010, plaintiff sent a letter to the Union inquiring about the status of the unfair practices labor charge, but he did not receive a response. Id. ¶ 64a-c. In May 2010, plaintiff sent a letter to Region 19 of the National Labor Relations Board ("NLRB"), inquiring about the status of the charge. Id. ¶ 65a. On May 6, 2010, Region 19 responded to plaintiff that Haggen had reached a private agreement with the Union in April or May 2009, so the Union withdrew the charge. Id. ¶ 66a. Plaintiff alleges that May 6, 2010, is the date he discovered that the union withdrew the labor charge. Id. Plaintiff filed this action on April 29, 2013. Dkt. # 1.
When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "the court is to take all well-pleaded factual allegations as true and to draw all reasonable inferences therefrom in favor of the plaintiff." Wyler Summit P'ship v. Turner Broadcasting Sys., Inc., 135 F.3d 658, 663 (9th Cir. 1998). However, the complaint must indicate more than mere speculation of a right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).
Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). This court holds the pleadings of pro se complainants to less stringent standards than those of licensed attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, every complainant must demonstrate some claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
The court generally may not consider material beyond the pleadings in ruling on a motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, where documents are referenced extensively in the complaint, form the basis of plaintiffs' claim, or are subject to judicial notice, the court may consider those documents in the ...