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Jorgenson v. Qwest Corp.: US District Court : LABOR - settlement negotiated per collective bargaining agreement subject to collective bargaining agreement, SoL

1The facts as stated in this Opinion are based solely on the
complaint or documents referenced in the complaint. See Parnes v.
Gateway 2000, Inc., 122 F.3d 539, 546 n.9 (8th Cir. 1997). These
facts are accepted as true, and all reasonable inferences are drawn
in plaintiffs favor. Maki v. Allete, Inc., 383 F.3d 740, 742 (8th
Cir. 2004).
Timothy J. Jorgenson )
v. ) ORDER
Qwest Corp. )
Plaintiff, Timothy J. Jorgenson, claims defendant, Qwest
Corporation, engaged in age discrimination, retaliation, and breach
of contract when it terminated his employment. Plaintiff further
claims Qwest breached a grievance settlement between him and his
Union. Qwest moves to dismiss the complaint claiming plaintiff
released his claims for age discrimination and retaliation in the
course of the grievance settlement. Qwest further argues
plaintiffs breach of contract claim is preempted by 301 of the
Labor Management Relations Act, or, alternatively, is barred by the
statute of limitations. Qwests motion to dismiss is granted.
I. Background1
Plaintiff was employed by Qwest as a network technician until
his termination on October 27, 2005. He was 49 years old at the
time. According to plaintiff, in 2003, his supervisor began
treating him differently from younger employees. He claims his
supervisor monitored his performance more closely than that of
younger co-workers, and told him he was not as fast as the younger
guys; that he was getting too old and needed help from the younger
guys; and that he was getting bald and going gray. (Compl.
11.) Plaintiff further claims Qwest required network technicians
to complete an artificially high number of jobs each day, forcing
employees to work overtime without compensation, which plaintiff
refused to do.
When plaintiff received notice of his termination, he filed
a grievance with the Communication Workers of America Union, which
had a collective bargaining agreement (CBA) with Qwest. The
grievance procedure worked, and the grievance was resolved when
plaintiff, Qwest, and the Union signed a Settlement Agreement,
Release, and Waiver. As part of the settlement, the parties agreed
Qwest would reinstate plaintiff to the position of load specialist
upon successful completion of the Multipath Core Battery Test and
the Network Behavioral Interview. In exchange, plaintiff agreed to
the following release:
Grievant [plaintiff], as a free and voluntary act, hereby
forever releases and discharges Qwest from, and covenants
not to sue Qwest for, any claims which grievant might
have or assert against Qwest by reason of grievants
employment with Qwest through the effective date of this
agreement. . . . With respect to any charges filed with
any federal, state or local agency, pending or otherwise,
arising from or related to grievants employment or
termination of employment with Qwest, grievant
acknowledges that grievant knowingly and voluntarily
waives his right to seek individual relief on his own
(Agreement III(C).)
Another provision of the Agreement specifically states:
[t]his release means, in part, that grievant gives up all rights
to damages and/or money based upon any claims against Qwest of age
discrimination that arise through the date this agreement is
signed. (Agreement IV(E).) The Agreement was signed by
plaintiff on August 1, 2006; by the Union representative on August
2, 2006; and by Qwests labor relations manager on August 7, 2006.
Thereafter, plaintiff took the Multipath Core Battery Test.
On his first attempt, he claimed the computers did not function
properly. The test was rescheduled. The second time, plaintiff
again claimed the computers malfunctioned. He then contacted his
Union representative who told him Qwest would not permit a third
attempt, and would not, therefore, reinstate his employment.
Plaintiff filed his discrimination charge with the Minnesota
Department of Human Rights (MDHR) on October 19, 2006. He
received his right to sue notice from the MDHR on July 2, 2007, and
filed this action in Hennepin County District Court on August 15,
2007. He claims age discrimination in Count I, in violation of the
Age Discrimination in Employment Act (ADEA), the Minnesota Human
Rights Act (MHRA), and Minn. Stat. 181.81; retaliation in Count
II, in violation of the Fair Labor Standards Act and Minnesota state
law equivalents; and breach of contract in Count III. Qwest timely
removed the case to federal court, and now seeks dismissal.
II. Analysis
When considering a Rule 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, under the Federal
Rules of Civil Procedure, the Court construes the complaint in the
light most favorable to the non-moving party. Burton v. Richmond,
276 F.3d 973, 975 (8th Cir. 2002). A complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. Stodghill v. Wellston
School Dist., 512 F.3d 472, 476 (8th Cir. 2008) (citations omitted).
The complaint must set forth factual allegations sufficient to
raise a right to relief above the speculative level. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007).
Rule 12(b)(6) permits dismissal for failure to state a claim
based on the statute of limitations if it appears from the face of
the complaint that the statute of limitations has run. Varner v.
Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004).
A. Discrimination and Retaliation Claims
Qwest contends plaintiff surrendered his right to sue
for age discrimination and retaliation as part of the
Settlement Agreement. Plaintiff responds that, because Qwest
breached the Agreement by refusing to accommodate his test2
Plaintiff now acknowledges the statute of limitations has
passed on his ADEA age discrimination claim, and that he has failed
to exhaust his administrative remedies with the Equal Employment
Opportunity Commission. (Pl.s Opp. Mem. 4 n. 1.) He persists,
however, in his age discrimination claim brought pursuant to the
Minnesota Human Rights Act.
3The settlement agreement specifies that the terms of the
contract are be interpreted pursuant to Colorado law. (Agreement
taking,2 he is not bound by the Agreements release. Plaintiff
offers no law in support of this assertion.
In general, courts look favorably upon settlements and presume
a release of claims is valid. See Davis v. Flatiron Materials Co.,
511 P.2d 28, 32 (Colo. 1973).3 The validity of a settlement
agreement is determined as a matter of law using general rules of
contract construction. See Bumbal v. Smith, 165 P.3d 844, 845
(Colo. App. 2007); Rocky Mountain Assn of Credit Management v.
Hessler Mfg. Co., 553 P.2d 840, 842 (Colo. App. 1976). When a
written contract is unambiguous, the parties intent must be
determined by looking at the contract itself and the terms enforced
as written. Montemayor v. Jacor Communications, Inc., 64 P.3d 916,
920 (Colo. App. 2002). Breach of contract alone does not render the
contract void; something more is needed that calls into question the
parties consent to the agreement at the time it was made. See Lake
Durango Water Co., Inc. v. Public Utilities Commn of Colo., 67 P.3d
12, 20 (Colo. 2003). For example, a court may find a contract void
where there is undue influence, mutual mistake, fraud, or duress,
all circumstances which are not present here. Id.
The Court finds this Agreements release clause is straightforward
and unambiguous. The language clearly manifests the
parties intent; plaintiff explicitly agrees to release his right
to pursue claims related to his employment and termination,
including the claims for age discrimination and retaliation made
here, in exchange for the possibility of reinstatement.
Under the terms of the Agreement, plaintiffs release was
complete and binding upon execution of the contract; there is no
language or evidence that the Agreement was conditioned on future
performance by either party. Plaintiff is not entitled to
rescission of the Agreement even if, as he claims, Qwest breached
its obligation to afford him an opportunity to take the test. To
rescind the Agreement or restore the parties to the status quo,
plaintiff would have to show that there was a substantial breach
of contract, that the injury caused by the breach is irreparable,
or that damages would be inadequate, difficult, or impossible to
assess. Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339
(Colo. App. 1985). The Court considers that any harm plaintiff
claims by virtue of Qwests alleged failure to allow him to complete
the Multipath Core Battery Test can be remedied by monetary damages.
Thus, the Agreement may not be subject to rescission, even if Qwest
is found in breach thereof.
In sum, the Court finds the Agreement valid. Plaintiff is
therefore bound by his release and barred from pursuing claims for
age discrimination and retaliation.
B. Breach of Contract Claim
Qwest asks the Court to dismiss plaintiffs breach of contract
claim for three reasons: (1) plaintiffs state law claim is
preempted by 301 of the Labor Management Relations Act (LMRA),
29 U.S.C. 141 et seq.; (2) plaintiff is bound by the resolution
of his grievance unless he brings a hybrid claim, pursuant to
301, alleging both breach of contract and inadequate representation
by his Union; and (3) even if plaintiff adequately pled a 301
claim, such claim is barred by the six-month statute of limitations.
Plaintiff, again citing no law, opposes dismissal. He simply
denies his claim is subject to federal labor law, contending the
Agreement was a private contract he made with his employer. He
ultimately asks the Court to ignore the fact that the Agreement was
created pursuant to a CBA, and blind its eye to the fact that his
Union was a party to the contract. Plaintiff cannot prevail.
An employees breach of contract claim, for a contract arising
from circumstances that were or could have been grieved under a
collective bargaining agreement, may only be brought pursuant to
301 of the LMRA. See DelCostello v. Intl Brotherhood of Teamsters,
462 U.S. 151, 164-65 (1983); Jones v. General Motors Corp., 939 F.2d
380, 382 (6th Cir. 1991). 301 states:
Suits for violation of contracts between an employer and
a labor organization representing employees in an
industry affecting commerce . . . may be brought in any
district court of the United States having jurisdiction
of the parties, without respect to the amount in
controversy or without regard to the citizenship of the
29 U.S.C. 185(a). State breach of contract claims are preempted
by 301 when the state claim is inextricably intertwined with
consideration of the terms of the labor contract, Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 231 (1985), or, in other words, where
the resolution of the state claim substantially depends on the
interpretation of terms or provisions of a collective bargaining
agreement. Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d
1046, 1051 (8th Cir. 2006) (quotations omitted).
Here, plaintiff sought remedy for his claim of wrongful
termination by filing a grievance with his Union pursuant to the
CBA. Qwest, plaintiff, and the Union resolved the grievance in
accord with the CBA. Plaintiffs breach of contract claim rests
squarely on the Settlement Agreement, Release, and Waiver.
The Sixth Circuit, analyzing a claim similar to plaintiffs for
breach of a settlement agreement stated: The resolution of this
claim will not involve the direct interpretation of a precise term
of the CBA, but it will require a court to address relationships
that have been created through the collective bargaining process and
to mediate a dispute founded upon rights created by a CBA. Jones
v. General Motors, 939 F.2d at 382-83. The Court finds that the
dispute before it is premised on an Agreement entered into and
executed pursuant to the CBA. As such, the Court finds any
resolution of plaintiffs claim requires interpretation of the CBA.
See id. at 383. Plaintiffs state law claim is therefore preempted
by 301.
The Court next asks whether plaintiffs breach of contract
claim may be construed as a 301 claim. A union employee is
ordinarily required to first exhaust all available remedies through
his union before bringing suit against an employer. DelCostello,
462 U.S. at 163. The employee is then bound by the result of his
unions efforts to resolve his complaint. Id. at 164. An exception
to this rule will arise if the union breaches its duty of fair
representation to the employee. Id. at 165. In such a case, an
employee may bring a hybrid claim against either the union or the
employer, or both, pursuant to 301 of the LMRA.
One essential element of a hybrid claim is an allegation that
the union breached its duty of fair representation to the employee,
regardless of whether the union is named as a defendant. Id. at
165. Qwest argues plaintiff makes no such allegation in his
complaint, and plaintiff therefore fails to state a claim under
301. A review of the complaint reveals plaintiffs allegation that
his Union failed to secure an adjustment to these matters (Compl.
18), referring to plaintiffs request to have a third opportunity
to take the Multipath Core Battery test. Drawing all inferences in
the light most favorable to plaintiff, the Court finds this
allegation sufficient to satisfy plaintiffs obligation to plead
inadequate representation.
This finding does not save plaintiff, however, as his 301
claim is clearly barred by the six-month statute of limitations.
See Delcostello, 462 U.S. at 169, 170-72 (finding the six-month
statute of limitations set forth in 10(b) of the LMRA applicable
to a 301 hybrid claim). Plaintiff filed a charge of
discrimination with the MDHR on October 19, 2006. He admits he
knew, prior to that date, that Qwest would not allow him a third
opportunity to take the Multipath Core Battery Test. Using October
19, 2006, as the date the statute of limitations began to run, he
would have needed to file his breach of contract/inadequate
representation claim no later than April 19, 2007. Plaintiffs
claim was on August 15, 2007, well past the six-month deadline.
Accordingly, even if the Court construes plaintiffs breach of
contract claim as an adequately-pled, 301 hybrid claim, the claim
must still be dismissed for failure to comply with the statute of
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that:
1. Defendants motion to dismiss [Docket No. 4] is granted.
2. Plaintiffs complaint is dismissed with prejudice.
Dated: May 16th, 2008
s/ James M. Rosenbaum
United States Chief District Judge


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