Appellate Case: 21-3218 Document: 010110742353 Date Filed: 09/21/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 21, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ANTHONY J. HAMPTON,
Plaintiff - Appellant,
v. No. 21-3218
(D.C. No. 2:21-CV-02010-TC-TJJ)
BAKERY, CONFECTIONERY & (D. Kan.)
TOBACCO WORKERS AND GRAIN
MILLERS INTERNATIONAL UNION
OF AMERICA, LOCAL 218, AFL-CIO,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
_________________________________
Anthony J. Hampton was formerly employed by Frito-Lay, Inc. After he was
terminated he filed a complaint against Bakery, Confectionery & Tobacco Workers
and Grain Millers International Union of America, Local 218, AFL-CIO (the Union),
which represents employees of Frito-Lay in collective bargaining. The complaint
asserts claims for breach of the duty of fair representation (DFR) and for race
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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discrimination in violation of 42 U.S.C. § 1981. The district court granted the
Union’s motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim and entered judgment for the Union. Mr. Hampton appeals. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Because we are reviewing a dismissal for failure to state a claim, we assume
the truth of the following facts taken from Mr. Hampton’s complaint. See Brooks v.
Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir.), cert. denied, 142 S. Ct. 477
(2021). Mr. Hampton, who is African-American, worked in Frito-Lay’s receiving
department. Beginning in 2018 a coworker, George Kistler, frequently visited the
receiving department for purposes unrelated to work and expressed offensive and
inflammatory comments and opinions to Mr. Hampton or in his presence, including
about race. The comments “created a racially intimidating, hostile, and offensive
work environment for Mr. Hampton.” Aplt. App. at 8. On a visit in October 2018,
Mr. Hampton asked Mr. Kistler to leave the receiving department. When Mr. Kistler
asked if Mr. Hampton was going to “rat [him] out,” Mr. Hampton said that Mr.
Kistler’s managers already knew about his “unwelcome visits.” Id. at 9 (internal
quotation marks omitted). At the end of his shift Mr. Hampton told his manager
about the incident with Mr. Kistler. The next day, he gave his manager and the
Human Resources Director a written statement describing the incident and the history
of Mr. Kistler’s visits to the receiving department. He denied threatening or striking
Mr. Kistler.
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About a week later, Frito-Lay suspended Mr. Hampton from his employment
without pay pending an investigation of the incident. During the investigation
Mr. Kistler told the investigator that Mr. Hampton had “used profanity toward him”
and had “made physical contact with him.” Id. at 11. Two other employees who
witnessed the incident signed written statements that “confirmed there was physical
contact inflicted on [Mr.] Kistler by [Mr.] Hampton in the workplace.” Id. at 12
(internal quotation marks omitted). Frito-Lay decided to terminate Mr. Hampton’s
employment based on its “zero-tolerance policy” concerning workplace violence, and
to offer him a confidential severance agreement whereby he would not return to work
but would remain eligible for benefits for nine months, when he would have access to
his pension. Id. (internal quotation marks omitted). Frito-Lay, through the Union,
offered Mr. Hampton the severance agreement.
Meanwhile, Mr. Hampton filed a grievance concerning his suspension. The
Union requested information from Frito-Lay about his suspension, including copies
of all statements it obtained during the investigation. The materials Frito-Lay
provided in response to the request included the coworkers’ statements corroborating
Mr. Kistler’s claim that Mr. Hampton had used profanity and made physical contact
with him. The Union did not give Mr. Hampton the statements and did not tell him
about them.
Unaware of the statements, Mr. Hampton rejected the severance agreement. A
Frito-Lay manager then sent Mr. Hampton a letter informing him that he was being
terminated because the investigation established that he “used profanity toward . . .
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and used [his] person to physically contact” another employee in violation of the
company’s work rules. Id. at 14 (internal quotation marks omitted).
Mr. Hampton then filed a grievance concerning his termination. At a meeting
with his Union representative and the manager to discuss the grievance, Mr. Hampton
denied having physical contact with Mr. Kistler. About a month later, the manager
denied the grievance, concluding that “there were no subsequent findings to overturn
the termination.” Id. at 15 (internal quotation marks omitted).
Mr. Hampton sued Frito-Lay and Mr. Kistler. During discovery in that case he
learned for the first time about the coworkers’ statements that supported Mr. Kistler’s
allegations. The parties settled that lawsuit, and the case was dismissed.
Mr. Hampton then filed this lawsuit against the Union. For his DFR claim
Mr. Hampton alleged that the Union represented him in the grievance procedure “in
an arbitrary and racially discriminatory manner, and in bad faith” by failing to show
him the coworkers’ statements and by failing to tell him that they supported
Mr. Kistler’s allegations regarding Mr. Hampton’s use of profanity and physical
contact against him. Aplt. App. at 16. For his racial-discrimination claim
Mr. Hampton alleged that the Union discriminated against him “because of his race
by . . . failing to reasonably advise him that the [coworkers’] statements . . .
supported Mr. Kistler’s allegation,” thus “impairing his right to make and enforce”
the severance agreement. Id. at 17.
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The Union moved to dismiss both claims for failure to state a claim.1 The
district court granted the motion and dismissed the complaint.
II. Standard of Review
Because the legal sufficiency of a complaint is a question of law, we review
de novo a dismissal under Rule 12(b)(6) for failure to state a claim, applying the
same standards that should have been applied in the district court. See Cnty. of Santa
Fe v. Pub. Serv. Co., 311 F.3d 1031, 1034 (10th Cir. 2002). To avoid dismissal,
“a complaint must contain enough allegations of fact, taken as true, to state a claim to
relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190
(10th Cir. 2012) (internal quotation marks omitted). In conducting our review, we
accept all well-pleaded facts as true, view them in the light most favorable to
Mr. Hampton, and draw all reasonable inferences in his favor. See Brooks, 985 F.3d
at 1281. We “disregard conclusory statements and look only to whether the
remaining, factual allegations plausibly suggest the defendant is liable.” Khalik,
671 F.3d at 1191. Our duty is to “determine whether the complaint sufficiently
alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149,
1160 (10th Cir. 2007).
1
The Union also sought dismissal of the DFR claim on statute-of-limitations
grounds, but the district court did not address that alternative basis for dismissal.
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III. Discussion
A. Dismissal of § 1981 Claim
As pertinent here, 42 U.S.C. § 1981 prohibits discriminatory interference with
an individual’s right to make and enforce contracts. To state a prima facie claim
under § 1981, Mr. Hampton was required to show that (1) he is a member of a
protected class, (2) the Union intended to discriminate against him on the basis of his
membership in the protected class, and (3) the alleged discrimination interfered with
his right to enter into and enforce the severance agreement with Frito-Lay. See
Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001). He
alleged that he is African-American, that the Union “discriminated against [him] by
failing to reasonably advise him [about] the [coworkers’] statements,” and that this
allegedly discriminatory conduct “caused [him] to decline to sign” the severance
agreement. Aplt. App. at 17. The district court held that his claim failed to satisfy
the second and third elements. We agree that Mr. Hampton pleaded insufficient facts
to show that the Union intended to discriminate against him (the second element), so
we need not address whether its conduct interfered with his ability to enter into the
severance agreement (the third element).
The complaint alleged that Mr. Kistler made inflammatory race-related
comments to Mr. Hampton, that Mr. Hampton complained to Frito-Lay management
about Mr. Kistler, and that “his discharge from employment was racially
discriminatory.” Aplt. App. at 15. But Mr. Hampton did not allege any facts
showing that the Union or any agent of the Union was involved in any alleged race
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discrimination by Mr. Kistler or Frito-Lay, that any aspect of the Union’s handling of
his grievance was motivated by racial animus, or that the Union treated similarly
situated employees differently. He made conclusory allegations that the Union’s
failure to tell him about the coworkers’ statements was discriminatory, but without
supporting facts those allegations are insufficient to state a plausible discrimination
claim. See Khalik, 671 F.3d at 1193-94.
We are not persuaded otherwise by Mr. Hampton’s argument that his claim
was based on “indirect evidence” of racial discrimination, Aplt. Br. at 27, and that he
stated a plausible claim because “the timing or sequence of events leading” to the
Union’s failure to tell him about the coworkers’ statements “give rise to an inference
of unlawful discrimination,” id. at 29-30 (internal quotation marks omitted). Nor are
we persuaded by his related argument that he “established a prima facie case of race
discrimination” under the three-step burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), because the Union
failed to “provide[] any explanation for why it” did not tell him about the statements.
Aplt. App. at 29-30.
True, indirect evidence, including the timing or sequence of events leading to
an adverse action, can give rise to an inference of discrimination. See Barlow v. C.R.
England, Inc., 703 F.3d 497, 505 (10th Cir. 2012); see also Hampton, 247 F.3d at
1108-09. But any indirect evidence of race discrimination described in the complaint
involved Mr. Kistler and Frito-Lay, not the Union. Mr. Hampton pointed to no
evidence—direct or indirect—suggesting that any conduct by the Union was racially
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motivated. He thus failed to meet his initial burden of establishing a prima facie
case. See Khalik, 671 F.3d at 1193-94. Accordingly “his entire case fail[ed],”
Barlow 703 F.3d at 505, so the Union was not required to offer an explanation, see
id. at 506.
B. Dismissal of DFR Claim
A union has a duty of fair representation when representing its members in a
grievance or arbitration procedure. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.
151, 164 (1983). The Supreme Court has described this duty as an implied “statutory
obligation to serve the interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith and honesty, and to
avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967).2
To prevail on a DFR claim, the plaintiff must prove (1) the union breached its
duty of fair representation; (2) the breach affected the integrity of the grievance
process, and (3) the employer’s discharge of the employee violated the collective-
bargaining agreement between the employer and the union. See Webb v. ABF Freight
Sys., Inc., 155 F.3d 1230, 1239 (10th Cir. 1998). The district court concluded that
Mr. Hampton’s allegations as to the first and third elements were insufficient to state
a plausible claim. Because we agree that Mr. Hampton failed to plausibly plead that
2
The duty of fair representation was first “developed . . . in a series of cases . .
. under the Railway Labor Act” and later was “extended to unions certified under the
[National Labor Relations Act].” Vaca, 386 U.S. at 177. Therefore, DFR cases
apply interchangeably to claims arising under either statutory scheme. See, e.g., Air
Line Pilots Ass’n, Int’l v. O'Neill, 499 U.S. 65, 75-77 (1991).
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the Union’s failure to tell him about the coworkers’ statements breached its duty of
fair representation, we need not address whether he alleged sufficient facts showing
that Frito-Lay’s termination of his employment violated its collective bargaining
agreement with the Union.
A union’s duty to its members is “akin to the duty owed by other fiduciaries to
their beneficiaries” in that unions, like fiduciaries that “owe their beneficiaries a duty
of care as well as a duty of loyalty, . . . owe[] employees a duty to represent them
adequately as well as honestly and in good faith.” Air Line Pilots Ass’n, Int’l v.
O’Neill, 499 U.S. 65, 74 (1991). But a DFR claim is not a breach-of-fiduciary-duty
claim. And DFR claims are not governed by general fiduciary-duty principles—they
are governed by claim-specific standards established by the Supreme Court. See
Webb, 155 F.3d at 1238-39 (discussing Supreme Court cases establishing DFR
standards).
Under those standards, “[m]ere negligence on the part of a union does not rise
to the level of a breach of the duty of fair representation.” Le’Mon v. N.L.R.B.,
952 F.2d 1203, 1205 (10th Cir. 1991) (internal quotation marks omitted). Instead, a
union breaches the duty of fair representation only when its actions are (1) arbitrary,
(2) discriminatory, or (3) in bad faith. O’Neill, 499 U.S. at 67. In Webb we
recognized that perfunctory grievance processing is a specific kind of misconduct
covered under this tripartite standard. See 155 F.3d at 1240. We agree with the
district court that Mr. Hampton failed to allege sufficient facts to state a plausible
claim under any prong of the fair-representation analysis.
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Showing arbitrariness requires more than pleading “mere errors in judgment,”
Young v. United Auto. Workers-Lab. Emp. & Training Corp., 95 F.3d 992, 997
(10th Cir. 1996) (internal quotation marks omitted). “[C]arelessness or honest
mistakes are not sufficient . . .” Webb, 155 F.3d at 1240. A union acts arbitrarily
only when its conduct “is so far outside a wide range of reasonableness as to be
irrational.” O’Neill, 499 U.S. at 67 (citation and internal quotation marks omitted).
Mr. Hampton contends that the union’s failure to tell him about the coworkers’
statements corroborating Mr. Kistler’s story was arbitrary because providing “no
advice” about the statements “or the consequent advisability of signing the”
severance agreement was “as unreasonable as giving irrational advice.” Aplt. Br.
at 20. We are not persuaded. Initially, we note that Mr. Hampton’s complaint,
although alleging that the Union failed to tell him about the damaging statements, did
not allege that he sought counsel from the Union on the advisability of signing the
agreement. Absent a more complete description of the circumstances surrounding the
Union’s representation of Mr. Hampton in the grievance proceedings, one cannot
plausibly infer that the reason for the failure to inform him of the interviews of his
fellow employees was the result of anything more than an oversight or negligence.
He cites no authority—and we are aware of none—supporting a claim of arbitrariness
in similar circumstances. “The grievance processes cannot be expected to be error-
free,” and a union’s mere negligence during a grievance proceeding does “not state a
claim for breach of the duty of fair representation.” Young, 95 F.3d at 997 (internal
quotation marks omitted). Mr. Hampton’s allegations were thus insufficient to
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plausibly plead that the Union’s failure to tell him about the statements was arbitrary.
See Le’Mon, 952 F.2d at 1205 (“negligent behavior is not arbitrary”).
Nor did Mr. Hampton plausibly plead a claim under the discrimination prong
of the fair-representation analysis. “Only invidious discrimination breaches the duty
of fair representation.” Schwartz v. Bhd. of Maint. of Way Emps., 264 F.3d 1181,
1186 (10th Cir. 2001) (internal quotation marks omitted). As pertinent here,
discrimination is invidious if it is based on race “or arises from prejudice or animus.”
Id. (internal quotation marks omitted). As we explained in concluding that Mr.
Hampton failed to plausibly plead discrimination for his § 1981 claim, he alleged no
facts suggesting that the Union’s motivation for not telling him about the coworkers’
statements was that he is African-American. See id. (affirming judgment for union
where plaintiffs did not show “why [they] were treated differently—the crucial
question for a duty of fair representation discrimination claim”). And he alleged no
facts suggesting that the Union was motivated by some other prejudice or animus
against him.
The bad-faith prong of the DFR analysis requires a plaintiff to plead facts
reasonably showing that the union’s conduct (or omission) was fraudulent, deceitful,
or dishonest. See id. Mr. Hampton asserted no facts that even come close to
satisfying that standard, and he does not meaningfully contend otherwise.
Finally, Mr. Hampton did not plausibly plead a claim that the Union’s
handling of his grievance was so perfunctory as to breach its duty. To show that its
processing of his grievance was perfunctory, he needed to plead facts demonstrating
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that the Union “ignore[d] a meritorious grievance,” Webb, 155 F.3d at 1239, or
handled his grievance in an “apathetic, indifferent, and cursory way,” id. at 1240.
But according to the complaint the Union investigated Mr. Hampton’s suspension,
promptly requested information from Frito-Lay, and represented him at the meeting
with management to discuss his grievance. Again, while the Union’s failure to tell
Mr. Hampton about the coworkers’ statements may have been negligent, negligence
is not enough to establish a breach of the duty of fair representation, and aside from
that transgression, he alleged no facts suggesting that the Union handled his
grievance perfunctorily. See Nelson v. Holmes Freight Lines, Inc., 37 F.3d 591, 595
n.4 (10th Cir. 1994) (union’s processing of the plaintiff’s grievance was not
perfunctory where the union’s agent made “a prompt and diligent effort . . . to have
[the] grievance heard and decided”).
IV. Conclusion
The order dismissing Mr. Hampton’s complaint for failure to state a claim is
affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
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Hampton v. Bakery, Confectionery & Tobacco Workers and Grain
Combined Opinion