This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1050

 

Nelson W. Womack,

Appellant,

 

vs.

 

Minneapolis Park and Recreation Board,

Respondent,

 

Minneapolis Professional Employees Association,

Respondent,

 

John Does 1-5,

Defendants.

 

Filed May 15, 2007

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 27-CV-05-016598

 

 

Jill Clark, Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427 (for appellant)

 

Karin E. Peterson, Ann E. Walther, Rice, Michels & Walther, LLP, 10 Second Street N.E., Suite 206, Minneapolis, MN 55413 (for respondent Minneapolis Park and Recreation Board)

 

Duane G. Johnson, Duane G. Johnson, P.A., 4318 Xerxes Avenue North, Minneapolis, MN 55412 (for respondent Minneapolis Professional Employees Association)

            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges the district court’s dismissal of his petition to vacate an arbitration award and his common-law fraud claim.  Appellant argues that the district court erred by finding that (1) he lacked standing to vacate the arbitration award, (2) he was required and failed to file a timely motion to vacate the award, (3) his petition to vacate the award does not state a claim upon which relief may be granted, and (4) his common-law fraud claim against the respondent Park Board fails to state a claim because it is an improper attempt to vacate the award.  Because appellant lacks standing to vacate the arbitration award and because he failed to state a claim of fraud against the Park Board, we affirm.

FACTS

            Appellant Nelson Womack worked for respondent Minneapolis Park and Recreation Board as a youth-program specialist.  His job required him to maintain a valid Minnesota driver’s license in order to drive Park Board vehicles.  Womack applied for and received a temporary driver’s license, but it was suspended in 2002, and he failed to inform the Park Board.

            In September 2002, Womack signed out a Park Board van, and it was involved in a hit-and-run accident.  The Park Board discharged Womack the following month.  Respondent Minneapolis Professional Employees Association (MPEA), Womack’s labor union, filed a grievance on his behalf under a collective-bargaining agreement (CBA) with the Park Board.

            The grievance proceeded to arbitration.  The CBA states that an arbitrator’s decision is “final and binding” and that “the grievance and arbitration procedures . . . are the sole and exclusive means of resolving all grievances arising under [the CBA].”  The arbitrator explained that Womack knowingly failed to maintain a valid driver’s license and that he bore some responsibility for the Park Board van involved in the hit-and-run accident.  The arbitrator dismissed Womack’s grievance, finding that Womack’s conduct amounted to “a level of negligence equivalent to misconduct . . . [] [that] constitutes just cause for discharge.”  MPEA informed Womack that it would not appeal.

            Over two years later Womack filed a “petition to vacate the arbitration award and complaint” in district court but never filed a motion to vacate.  Womack alleged that the Park Board intentionally removed two pages from a police report involving the hit-and-run accident with the Park Board van and that information in the missing pages would have affected the arbitrator’s decision.  Womack alleged that he discovered that the pages were missing in July 2005, and filed his petition within 90 days thereafter.  Womack claimed to assert a “hybrid” cause of action, alleging that MPEA breached its duty of fair representation by refusing to appeal and that the Park Board breached the CBA. 

            The MPEA and Park Board moved to dismiss Womack’s claims for failing to state a claim upon which relief may be granted.  Womack then served an amended petition and complaint that included a separate fraud claim against the Park Board seeking damages. 

            The district court granted the motions to dismiss.  The district court explained that Womack lacked standing, failed to file a motion to vacate, failed to state a claim upon which relief may be granted, and his fraud claim was an improper attempt to vacate an arbitration award.  This appeal followed. 

D E C I S I O N

1.         Standing

            Womack challenges the district court’s dismissal of his petition to vacate the arbitration award because he lacks standing since he was not a party to the arbitration.  We review the legal issue of standing de novo.  In re Petition for Improvement of County Ditch No. 86, 625 N.W.2d 813, 817 (Minn. 2001).

            It is well settled that “an individual employee may not appeal an unfavorable award where the union expressly determines not to appeal.”  Eisen v. State, Dep’t of Pub. Welfare, 352 N.W.2d 731, 736 (Minn. 1984).Womack was a member of MPEA, a labor union with a CBA with the Park Board.  The CBA established a grievance and arbitration procedure by which the MPEA must bring grievances against the Park Board on behalf of member-employees.  The CBA expressly states that an arbitrator’s decision in a grievance proceeding is “final and binding.”  Womack was not a party to the arbitration between MPEA and the Park Board under the CBA.  Therefore the supreme court’s holding in Eisen, restricting a union-represented employee’s ability to appeal an arbitration award applies here, and the district court properly held that Womack lacks standing to challenge the award.

            Womack contends that he should be able to petition to vacate the award because he claimed that MPEA breached its duty of fair representation.  He argues that MPEA breached its duty by refusing to petition the district court on his behalf, and therefore he has individual standing to challenge the arbitration award.

            A labor union breaches its duty of fair representation when the representation is “arbitrary, discriminatory, or in bad faith which is substantially evidenced by fraud, deceitful action or dishonest conduct by the union.”  Allen v. Hennepin County, 680 N.W.2d 560, 566 (Minn. App. 2004) (quotations omitted), review denied (Minn. Aug. 17, 2004).  Although Womack’s petition and complaint allege that MPEA refused to petition the district court, he does not point to any fraud, deceit, or dishonest conduct by MPEA.  He acknowledges that he does not know if MPEA was aware of the Park Board’s alleged fraud.  And his vague allegations that the Park Board and MPEA communicated after the arbitration and that MPEA is now “siding” with the Park Board does not demonstrate fraud, deceit, or dishonest conduct.  Therefore, Womack failed to assert a claim against his union for unfair representation, and he lacks standing to vacate the arbitration award.

            Because Womack lacks standing to challenge the arbitration award, we do not address the alternative reasons the district court cited for dismissing his claim.

2.         Fraud

Womack also challenges the district court’s dismissal of his fraud claim against the Park Board, arguing that his complaint adequately alleges fraud.

The district court dismissed Womack’s claim pursuant to Minn. R. Civ. P. 12.02(e) for failing to state a claim upon which relief may be granted, and we review rule 12.02(e) dismissals de novo.  Leonard v. Nw. Airlines, 605 N.W.2d 425, 428 (Minn. App. 2000), review denied (Minn. Apr. 18, 2000).  The question before this court is “whether the complaint sets forth a legally sufficient claim for relief.”  Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quotation omitted).  For purposes of a rule 12 motion, the district court is to assume that the facts pleaded in the complaint are true.  Alexander v. Minn. Vikings Football Club LLC, 649 N.W.2d 464, 466 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002).

The district court dismissed Womack’s claim as an impermissible attempt to vacate the arbitration award.  But the petition and complaint set forth the fraud claim as a separate count from the claims seeking to vacate the award, and Womack sought relief in the form of money damages.  Therefore, Womack’s fraud claim against the Park Board was separate and distinct from his attempt to vacate the award, and the district court provided an improper basis for dismissing the claim.

But we “will not reverse a correct decision simply because it is based on incorrect reasons.”  Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987).  We find that Womack’s fraud claim fails to state a claim upon which relief may be granted because his claim rests solely on “conclusory allegations, wholly unsupported by fact.”  In re Milk Indirect Purchaser, 588 N.W.2d 772, 775 (Minn. App. 1999).  And these allegations are insufficient to meet the particularized pleading requirements for fraud.  Minn. R. Civ. P. 9.02.

Although Womack’s complaint sets forth his theories about the Park Board’s potential motive behind the alleged nondisclosure, he fails to adequately allege particular facts about who removed the information and when or where it occurred.  Moreover, Womack admits that he does not know who committed the alleged fraud and only relies on “information and belief” in setting forth his theories.  These allegations are insufficient to meet the specific pleading requirements for fraud, and Womack’s complaint was properly dismissed.

            Affirmed.