United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION
FOR SUMMARY JUDGMENT DKT. ## 22, 31, 60
B. Leighton United States District Judge.
MATTER is before the Court on Defendant American Federation
of State County and Municipal Employees'
(“AFSCME”) Motion to Dismiss (Dkt # 22).
Plaintiff Bounchanh filed his Complaint against his previous
employer, numerous state agencies, AFSCME, and several AFSCME
employees. Bounchanh argues that AFSCME failed to
assist and protect him from alleged discrimination and abuse
that he experienced during his employment at the Washington
State Healthcare Authority (“HCA”). He asserts
claims under the Americans with Disabilities Act of 1990
(“ADA”), Title VII of the Civil Rights Act of
1964, ADA Amendments Act of 2008, the Health Insurance
Portability and Accountability Act of 1996, and the Family
and Medical Leave Act of 1993. Bounchanh also cites Title 29,
Title 42, and Title 49 of the Code of Federal Regulations,
but it is unclear how they provide a basis for his claims.
argues that Bounchanh's claim that AFSCME breached its
duty of fair representation is barred by the statute of
limitations. It also contends that Bounchanh's employment
discrimination claim must fail because he was never an
employee of AFSCME. Rather than addressing AFSCME's
arguments, Bounchanh's response argues that he is
entitled to immediate relief for a variety of other reasons.
Motion to Dismiss (Dkt. #22) is GRANTED. Bounchanh's
Motion for Summary Judgment (Dkt # 31) with respect to his
claim against AFSCME and AFSCME employees is DENIED.
alleges that he was a member of AFSCME from August 9, 1991,
to June 30, 2013. He was no longer a dues-paying member after
he began working for HCA in July of 2013. He claims to have
requested assistance from AFSCME in June of 2015 regarding
his employment at HCA. AFSCME allegedly declined to assist
argues that he should have received assistance and protection
from AFSCME even though he was no longer a member. He claims
that he was experiencing difficulty at work and needed
assistance from AFSCME because he shared a work space with
someone he had fired during a previous employment. Bounchanh
feels he was entitled to AFSCME's assistance because he
was still a member of AFSCME when he fired the individual. He
argues that AFSCME discriminated against him, alleging that
AFSCME had no issue assisting another union member in the
same protected class as himself. Bounchanh does not state
whether this individual was still a member when AFSCME
under Fed.R.Civ.P. 12(b)(6) may be based on either 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). A plaintiff's complaint must allege facts to
state a claim for relief that is plausible on its face.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has “facial plausibility” when the party
seeking relief “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Although the court must accept as true the Complaint's
well-pled facts, conclusory allegations of law and
unwarranted inferences will not defeat an otherwise proper
12(b)(6) motion to dismiss. Vazquez v. Los Angeles
Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing id.).
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, the court may deny
leave to amend. Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
AFSCME's Duty to Fairly Represent Bounchanh
former union member, Bounchanh alleges that AFSCME failed to
assist and protect him and discriminated against him due to
his age, sexual orientation, and disability status. Under the
Labor Management Relations Act, a union's duty of fair
representation towards its member prohibits arbitrary,
discriminatory, bad faith, or perfunctory conduct. 29 U.S.C.
§ 141. Bounchanh does not state that AFSCME breached its
duty of fair representation. However, even if his allegation
could be interpreted as such a claim, this claim would be
time-barred. The statute of limitation for a union's
alleged breach of duty of fair representation is six months.
DelCostello v. Int'l Bhd. of Teamsters, 462 U.S.
151 (1983) (holding that the six-month limitations period in
the National Labor Relations Act for filing unfair labor
practice charges is the federal statute of limitations
applicable to claims for a union's alleged breach of the
duty of fair representation). It has been almost four years
since AFSCME allegedly declined to assist Bounchanh, which is
well past the six-month statute of limitation.
even without the statute of limitation issue, Bounchanh has
not alleged facts supporting a claim that AFSCME breached its
duty. Unions generally owe a duty of fair representation to
their members, and this duty is breached when a union's
conduct towards members is arbitrary, discriminatory, or in
bad faith. Demetris v. Transport Workers Union of
America, AFL-CIO, 862 F.3d at 805 (9th. Cir. 2017)
(citations omitted). Here, ...