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Smokowicz v. Graphic Packaging International, Inc.

United States District Court, E.D. Pennsylvania

February 27, 2017



          O'NEILL, J.

         Plaintiff, former employee Michael D. Smokowicz, brings a hybrid claim for breach of a Collective Bargaining Agreement and violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 et seq., against his former employer, defendant Graphic Packaging International, Inc., (Count I), and defendant AFL-CIO, CLC Local Union # 807[1] (Count II), for failure to allow plaintiff to grieve his May 11, 2016 termination. He also brings a separate claim against Graphic Packaging for breach of his Last Chance Agreement (Count III).

         Graphic Packaging filed a motion to dismiss Counts I and III against it, Dkt. No. 10, plaintiff responded, Dkt. No. 16, and Graphic Packaging replied, Dkt. No. 17. Defendant Union also filed a motion to dismiss the claim against it (Count II), Dkt. No. 15, to which plaintiff did not file a separate response. Under Local Rule 7.1(c), I am empowered to grant the Union's motion as uncontested.[2] However, because plaintiff's response to Graphic Packaging's motion addresses the legal issues discussed in the Union's brief, I will consider the merits of both motions.

         After considering the parties' arguments, I will grant defendants' motions and dismiss the complaint. With respect to plaintiff's hybrid claims in Counts I and II, he has not pleaded sufficient facts showing that the Union breached its duty of fair representation as required to state a claim against either defendant. With respect to Count III, he has not stated a claim for breach of the Last Chance Agreement because he has not alleged facts showing that the agreement, on its own, gives him a right to continued employment.


         On May 11, 2016, Graphic Packaging fired plaintiff “on the ostensible basis that he erred in shipping a pallet of Hershey Reese PB King Size packages” that were mislabeled “with SAP batch tags identifying it as a 8oz Kraft Cream Cheese.” Compl. ¶ 9. Plaintiff petitioned the Union to protect his rights under the collective bargaining agreement (CBA), but the Union refused to do so, advising him that he did not have the right to grieve Graphic Packaging's action under the terms of a “Last Chance Agreement” plaintiff had entered into in March 2013. Compl. ¶¶ 11, 18.

         The Last Chance Agreement arose from an incident in which Graphic Packaging fired plaintiff for throwing a coating dolly at a co-worker. Compl. Ex. B. Plaintiff subsequently entered into the Last Chance Agreement with the Union and Graphic Packaging pursuant to which he returned to his job under certain conditions, including no back pay, loss of seniority and completion of a mandated counseling program. Compl. Ex. B. The Last Chance Agreement also provided that plaintiff “will be terminated for his first failure to meet the any of terms [sic] or conditions outlined below” and that “[t]his agreement and any subsequent termination resulting from it will be non-grievable.” Id. Finally, the agreement stated:

Upon reinstatement, and for the remainder of his employment at the Valley Forge Plant, Mr. Smokowicz must perform all aspects of his job satisfactorily and meet all established standards of conduct. Unsatisfactory job performance includes but is not limited to non-compliance with company plant rules, policies or procedures, lack of productivity, unsafe acts, insubordination, negligent reckless behavior, misconduct, etc.
This Last Chance Agreement, establishing terms and conditions to reinstate and continue Mr. Smokowicz's employment, will not be viewed now, or in the future, as having compromised the Valley Forge plant rules in any way, or any other policy or procedure. This Last Chance Agreement is non-precedent setting, will not be referenced in future discussion between the Parties, and is non-grievable.

Compl. Ex. B (emphasis in original).


         Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for “failure to state a claim upon which relief can be granted.” Typically, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” though plaintiff's obligation to state the grounds of entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all of the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). A well-pleaded complaint may not be dismissed simply because “it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556. However, a complaint must provide “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of” the necessary element. Id. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 556 U.S. 662 (2009), “conclusory or ‘bare-bones' allegations will no longer survive a motion to dismiss: ‘threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out ‘sufficient factual matter' to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 556 U.S. at 678. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal:

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient ...

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