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Tortorice v. Barnes

United States District Court, E.D. Pennsylvania

November 6, 2017

MICHAEL BARNES, et al., Defendants.



         Anthony Tortorice, Sr. has been a member of the International Alliance of Theatrical Stage Employees Local 8 since 1984, serving as the Union's Vice President under Michael Barnes for nine years. For more than twenty years, Tortorice was the Head Carpenter and Steward at the Merriam Theater, which the Kimmel Center, Inc. acquired in 2009. In addition to his role at the Merriam, Tortorice worked for Elliott-Lewis Corporation as a Steward in the Pennsylvania Convention Center, having been appointed to that position by Barnes in 2008. A collective bargaining agreement between the Kimmel Center and the Union established the terms and conditions of Tortorice's employment at the Merriam and a separate CBA between the Union and Elliott-Lewis governed his employment at the Convention Center.

         Last year, Tortorice was suspended from working at the Convention Center by Elliott-Lewis and terminated from his position at the Merriam by the Kimmel Center. Tortorice filed this lawsuit asserting hybrid claims under Section 301 of the Labor Management Relations Act against the Union for breaches of the duty of fair representation and the Kimmel Center and Elliott-Lewis for breaches of the CBAs. Pursuant to the Labor Management Reporting and Disclosure Act, Tortorice also alleges that Barnes, along with the Union, retaliated against him for criticizing Barnes' leadership as Union President.

         The Union, Kimmel Center and Elliott-Lewis moved to dismiss the Section 301 claims on the ground that they were not brought within the applicable six-month statute of limitations. The Court denies the motions because it cannot determine at this early stage when that limitations period began to run.


         On June 29, 2016, Union member David Kenney accused Tortorice of fraudulently submitting duplicate billing for the same hours on the same days to the Convention Center and Merriam, and of engaging in conduct to conceal his behavior. (ECF No. 1, Ex. E.) The next day, the Union's Executive Board approved the charges against Tortorice. (ECF No. 1, Ex. F.) On July 6, Elliott-Lewis suspended Tortorice from working at the Convention Center to investigate his time and attendance records. (ECF No. 1, Ex. G.) On July 15, Tortorice was informed by Barnes that the Kimmel Center was also suspending him pending an internal investigation, (ECF No. 1, Ex. H.), which ultimately resulted in his termination on August 25, (ECF No. 1). In the July 15 email, Barnes told Tortorice that “[t]he [U]nion will be representing your interest as outlined in the contract between the parties.” (ECF No. 1, Ex. H.) However, at no point did the Union file grievances on Tortorice's behalf against either employer. (ECF No. 1.)

         Later in the day on July 15, Tortorice learned of the Union's June 30 charges against him. (ECF No. 1, Ex. I.) The Union held a trial on the charges on July 26, after which Tortorice was found guilty and expelled from the Union for ten years. (ECF No. 1, Ex. K.) On September 10, he appealed the July 26 decision to the Union's International President, Matthew Loeb, who affirmed the decision on January 6, 2017. (ECF No. 10, Ex. 1; ECF No. 1, Ex. J.) On February 3, Tortorice appealed Loeb's decision to the General Executive Board. (ECF No. 1, Ex. K.) On May 11, the Board denied his appeal, exhausting the internal appeals process, (ECF No. 1, Ex. L), and Tortorice filed this lawsuit on June 12, (ECF No. 1).

         The Union, Elliott-Lewis and the Kimmel Center contend that the applicable six-month statute of limitations bars Tortorice's claims because he knew, or should have known at the latest by September 21, 2016, that the Union would not represent him in grievance proceedings against his employers. (ECF Nos. 10 & 12.) Tortorice argues that his appeals of the Union's finding against him tolled the limitations period until he received the final decision on those appeals. He asserts that it was only at that time that he should have known further union appeals were futile. Tortorice further claims that the determination of when the limitations period began to run is a fact-intensive inquiry more appropriately addressed at summary judgment. (ECF Nos. 14 & 16).


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the sufficiency of the allegations contained in the complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). To survive a Rule 12(b)(6) motion, the factual allegations in the complaint must “be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations [] are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The Court is required to accept all allegations in the complaint as true and to draw all reasonable inferences therefrom in the light most favorable to the plaintiff. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 (3d Cir. 1994).

         Defendants can invoke a statute of limitations defense in a 12(b)(6) motion. However, “[o]nly where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law.” Schmidt v. Skolas, 770 F.3d 241, 251 (3d Cir. 2014) (emphasis in original) (citation omitted); see also Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (“A complaint is subject to dismissal for failure to state a claim on statute of limitations grounds only when the statute of limitations defense is apparent on the face of the complaint.”) (citing id. at 249).


         Hybrid Section 301 cases are those in which employees bring claims against their employer for breaching the CBA and their union for violating the duty of fair representation. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983). Such claims are permitted “when the union representing the employee . . . acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation” and effectively prohibit relief under the CBA's grievance procedures. Id. at 164. The “‘claims are inextricably interdependent. “To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.”'” Id. (modifications in original) (quoting United Parcel Serv., Inc., v. Mitchell, 451 U.S. 56, 66-67 (1981) (Stewart, J., concurring in the judgment) (quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976))).

         Hybrid Section 301 claims ordinarily must be filed within six months of the date the claims accrued. Vadino v. A. Valey Eng'rs, 903 F.2d 253, 260 (3d Cir. 1990) (“The six-month period commences ‘when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.'”) (quoting Hersh v. Allen Prods. Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986) (quotation omitted)). The commencement of the statutory period on claims against employers is tolled, however, until the claims against the unions accrue because the union's breach of its duty is a necessary precondition to the claim against the employer. See id. at 261; see also Albright v. Virtue, 273 F.3d 564, 567 (3d Cir. 2001). Thus, the statute of limitations applicable to Section 301 claims begins to run when (1) “the plaintiff receives notice that the union will proceed no further with the grievance, ” Vadino, 903 F.2d at 260 (quoting Hersh, 789 F.2d at 232) (quotations omitted)), or ...

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