United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge
30, 2017, pro se Plaintiff Michael Anthony Lonigro filed a
complaint against his former employer Defendant United Parcel
Service Corporation (“UPS”), claiming violations
of federal labor and employment laws. (Doc. 1.) UPS has moved
to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (Doc. 12.) Having
considered the parties' filings and viewed the
allegations in the light most favorable to Lonigro, for the
reasons that follow, the Court finds that the complaint fails
to state a claim that is plausible on its face, and will
dismiss this action. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); Moss v. United
States Secret Service, 675 F.3d 1213, 1228 (9th Cir.
2012); Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1990).
complaint, Lonigro alleges that he was granted permission to
return to work for UPS on May 20, 2015, after taking non-paid
medical leave. He alleges that on May 21, 2015 however,
his manager “changed his mind, ” and terminated
him without just cause. Lonigro claims that as a result of
his wrongful termination, he will be unable to receive all of
his pension benefits, and asks that he be awarded his full 30
year pension. (Docs. 1, 24.)
Lonigro cites to Section 301 of the Labor Management
Relations Act, 29 U.S.C. § 185 (“LMRA”) as
the basis for his claims. (Docs. 1, 17.) Section 301 extends
to “suits for violation of contracts between an
employer and a labor organization... or between any such
labor organizations.” 29 U.S.C. § 185(a). Although
Lonigro outlines in his response various types of claims that
can be brought under § 301 (see Doc. 17 at 1),
he does not in fact allege any of those claims. For example,
he does not claim that UPS breached a collective bargaining
agreement, nor does he allege that his union breached its
duty of fair representation. See DelCostello v.
In''l Bhd. of Teamsters, 462 U.S. 151, 164-65
(1983); Bliesner v. Commc'n Workers of Am., 464
F.3d 910, 913-14 (9th Cir. 2006). Further, as argued by UPS,
were Lonigro to allege a fair representation claim against
the union, it would be untimely. See Galindo v. Stoody
Co., 793 F.2d 1502, 1508-09 (9th Cir. 1986). Therefore,
he has failed to state a plausible, cognizable claim under
Lonigro cites to the Family and Medical Leave Act, 29 U.S.C.
§ 2614 (“FMLA”) as the basis for his claims.
(See Doc. 17 at 1.) Under the FMLA, a covered
employee has two interrelated rights: the right to use up to
twelve weeks of leave per year for protected reasons, 29
U.S.C. § 2612(a)(1), and the right to return to the same
job or an equivalent job after using protected leave, 29
U.S.C. § 2614(a). Coleman v. Court of Appeals of
Maryland, 566 U.S. 30, 34 (2012); Bachelder v.
America West Airlines, Inc., 259 F.3d 1112, 1122 (9th
Cir. 2001). Lonigro fails to allege sufficient facts to state
a plausible claim that UPS interfered with his rights under
§ 2614. See Bachelder, 259 F.3d at 1124
(a plaintiff alleging she was subject to an adverse
employment action for taking leave brings a claim for
FMLA-interference). Lonigro does not allege that prior to
being terminated he requested or took leave that was
protected under the FMLA, nor does he advance any allegations
or arguments to suggest that the topic of FMLA protected
leave played a factor in UPS's decision to terminate him.
See Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 (9th
Cir. 2003). Therefore, Lonigro fails to state a plausible
claim for relief under the FMLA.
Lonigro characterizes his pleading as an “employment
discrimination complaint.” (Doc. 1 at 2.) To pursue a
civil action for discrimination under Title VII, the ADA, or
the ADEA, a plaintiff must first file a timely charge with
the Equal Employment Opportunity Commission
(“EEOC”). See 42 U.S.C. § 2000e-5;
42 U.S.C. §§ 12203, 12117; 29 U.S.C. § 626(d);
Surrell v. Cal. Water Svc. Co., 518 F.3d 1097, 1104
(9th Cir. 2008); Walsh v. Nevada Dept. of Human
Resources, 471 F.3d 1033, 1038 (9th Cir. 2006);
Leong v. Potter, 347 F.3d 1117 (9th Cir. 2003)
(“substantial compliance with the exhaustion
requirement is a jurisdictional pre-requisite”);
Jasch v. Potter, 302 F.3d 1092, 1094 (9th Cir.
2002); Albano v. Schering-Plough Corp., 912 F.2d
384, 386 (9th Cir. 1990). Here, Lonigro specifically states
in his complaint that he has not filed a charge with the EEOC
and has not received a notice of right to sue. (Doc. 1 at 4.)
Therefore, he has failed to sufficiently state a plausible
claim of employment discrimination that would entitle him to
Court finds that Lonigro has failed to state a claim for
relief, and the deficiencies in the complaint cannot be cured
by the addition of known or discoverable facts that are
consistent with the present allegations. It therefore
concludes that further development of the record is not
warranted and will dismiss the amended complaint without
leave to amend. See U.S. v. Corinthian Colleges, 655
F.3d 984, 995 (9th Cir. 2011); Ventress v. Japan
Airlines, 603 F.3d 676, 680 (9th Cir. 2010); Lira v.
Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005); Lopez
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Accordingly, IT IS ORDERED:
the Motion to Dismiss (Doc. 12) is granted;
2. That the complaint and this case are
dismissed; 3. That the Motion for Settlement
(Doc. 23) is denied as moot; and 4. That the
Clerk of Court shall terminate this action
and enter judgment accordingly.
 UPS alleges that Lonigro had not
worked for UPS since 2010, which Lonigro does not respond to
or otherwise appears to dispute. (See e.g., Docs.
 Lonigro has filed a document entitled
“Pleading Amendment” in which he appears to offer
additional allegations in support of his claims. (Doc. 24.)
While as a general matter an amended pleading supersedes the
original, rather than supplements it, as a matter of
discretion and judicial economy, the Court has considered the
allegations in both filings. See Lacey v. Maricopa
County, 693 F.3d 896, 927 (9th Cir. 2012) (“an
amended complaint supersedes the original complaint and
renders it without legal effect”).
 The FMLA and its implementing
regulations set out three categories of claims to protect
these rights: (1) under 29 U.S.C. § 2615(a)(1),
interference or entitlement claims asserting that an employer
has denied, interfered with or restrained the exercise or the
attempt to exercise any right protected by the FMLA; (2)
under 29 U.S.C. § 2615(a)(2), discrimination or
retaliation claims asserting that an employer has taken
adverse action against an employee for opposing a practice
made unlawful under the FMLA; and (3) under 29 U.S.C. §
2615(b), discrimination or retaliation claims asserting that
an employer has taken adverse action against an employee for
instituting or ...