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Tarantino v. Riddell

United States District Court, S.D. Florida

April 27, 2018

DANNY M. TARANTINO, Plaintiff,
v.
JEFFERY RIDDELL, et al. Defendants.

          ORDER ON MOTION TO DISMISS SECOND AMENDED COMPLAINT

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court upon the Motion to Dismiss Amended Complaint filed by Defendants Jeffery Riddell and Sandra Munoz (together, “Defendants”) on January 2, 2018, ECF No. [56] (“Motion”). The Court has carefully reviewed the Motion, all opposing and supporting materials, the record in this case and the applicable law, and is otherwise fully advised.

         I. PROCEDURAL BACKGROUND

         Plaintiff initially filed his Complaint, ECF No. [13], pursuant to Section 501(b) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501, et seq. (“LMRDA”) on July 24, 2017. On November 20, 2017, the Court granted Defendants Jeffery Riddell and Sandra Munoz and then-Defendant Gail Thompson's motion to dismiss with the following instructions:

In light of the Eleventh Circuit's policy of construing pro se complaints liberally and permitting amendments to facilitate adjudication of claims on the merits, Toenniges v. Warden, 672 Fed.Appx. 889, 891 (11th Cir. 2016), the Court will afford Plaintiff an opportunity to amend his Complaint. Plaintiff is instructed to allege facts that will allow the Court to understand his claims and to, in particular, explain what provisions of the Union protocols or rules were violated and describe the conduct that caused those alleged violations. Plaintiff is reminded that all facts he wishes the Court to consider must be pled in his amended complaint or attached as exhibits to the amended complaint. Facts asserted for the first time in any other document-such as an opposition to a motion to dismiss-will not be considered by the Court in analyzing the sufficiency of the pleadings.

ECF No. [42] at 16. Heeding to the Court's admonitions, Plaintiff filed his Amended Complaint, ECF No. [48] (“Amended Complaint”) on December 5, 2017, substantially revising factual allegations, defendants, and causes of action. The Amended Complaint alleges two causes of action, one against Defendant Jeffery Riddell and one against Defendant Sandra Munoz, [1] for violations of Section 501(a) of the LMRDA. ECF No. [48] ¶ 1.

         II. FACTUAL BACKGROUND

         Plaintiff is an employee of the United States Postal Service (“USPS”) and a member of the Broward County Area Local-1201 of the American Postal Workers Union (“Local Union”). Id. ¶ 4. Defendants Riddell and Munoz serve as the General President and Vice President, respectively, of the Local Union. Id. ¶ 5-6. The Local Union pays their full time, annual salary. Id.; see also ECF No. [56-2] Article X, Section 1. In addition to their full time work as General President and Vice President, Defendants also occasionally perform hourly work for the national union, which Plaintiff refers to as “International, ” for which they are paid an hourly rate. ECF No. [48] ¶¶ 17-18, 28-29. Plaintiff alleges that International and Local Union policy requires Defendants to be on a leave status, such as leave without pay (“LWOP”) or annual leave, while performing this hourly work for International. Id. ¶¶ 20-23; 31-34; see also ECF No. [48-1] and [56-3] § 7.02). In the Amended Complaint, Plaintiff states that Defendants “double dipped” in violation of Section 501(a) when they received hourly pay from International for work as a designated representative (“Advocate”) and/or for other national assignments, while simultaneously receiving compensation as full time, salaried officers of the Local Union. Id. ¶¶ 14-15, 18-19; 25-26, 29.

         In support of these allegations, Plaintiff attaches several documents to his Amended Complaint: (1) the Local Union's Profit and Loss Statements which reflect Defendants' salaries from February 2015 to September 2016, ECF No. [48-1] at 2-21; (2) International's Travel and Expense Reimbursement Policy for Designated Representatives and Committee Members dated October 29, 2015, id. at 22-34;[2] (3) an email from John Gearhard forwarding an email from Val Singleton, entitled “APWU Advocate Forms Needed for Reimbursement” dated September 29, 2016, id. at 35; (4) a portion of what appears to be the Local Union's Constitution, dated January 2016, [3] id. at 36-39; and an affidavit of Plaintiff, id. at 40-42.

         Of these documents, the Reimbursement Policy is central to the allegations in the Amended Complaint. Article I, Section 1.02 of the Reimbursement Policy entitled “Arbitration Advocates Payment Policy” specifies several policies for reimbursement for Advocates. The first line of Section 1.02 states “Refer to President Mark Dimondstein's letter dated January 2, 2014 (attached).” ECF Nos. [48-1] and [56-3] § 1.02. This letter, attached to Defendants' version of the Reimbursement Policy, cf. ECF Nos. [48-1] and [56-3], states: “All reimbursements for advocate services performed will be reimbursed eight hours for preparation time and eight hours for the hearing. Advocate requests for reimbursement for preparation or hearing will not require proof of leave (Form 3971) for payment, but will require the notation of case number, arbitration and date of hearing and certification that a full hearing was conducted for payment of eight hours for the hearing.” ECF No. [56-3] at 14.

         Article VII - Compensation of the Reimbursement Policy contains Section 7.02 Hours (Salary) - For Fulltime Local/State Officers. See ECF No. [48-1] at 34; [56-3] at 13. Section 7.02 states:

To be paid by the national union, a fulltime local or state officer on a national APWU assignment (field or headquarters) must submit a letter from their local or state secretary/treasurer that they are or were in a LWOP or annual leave status from their local or state position, while on such assignment. No. fulltime local or state officer will be paid for work on behalf of the national union without submission of said letter or while on sick leave.

See ECF No. [48-1] at 34; [56-3] at 13. Based on these facts, Plaintiff alleges that Defendants violated Section 501(a) when they were paid by International for time while not on leave in violation of the Reimbursement Policy.

         Defendants move to dismiss on two grounds. ECF No. [56]. First, Defendants argue that the Local Union policy allows them to collect a full time salary while simultaneously receiving hourly pay from International since “the[Reimbursement Policy] does not require that they take leave without pay from their positions with the [Local Union] in order to receive compensation.” Id. at 5-7. Thus, Defendants argue, because their conduct is sanctioned by the Local Union, there can be no Section 501(a) violation. Id. Second, Defendants argue that the exception which allows for Court review of a union official's conduct-even when consistent with union policies-does not apply ...


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