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finding identity of interest exception inapplicable where "the first, second, and fourth Johnson factors militate[d] against applying" the exception
Summary of this case from Ruiz v. New Avon LLCOpinion
15-CV-4919 (VSB)
03-31-2017
MILEDYS AYALA, Plaintiff, v. U.S. POSTAL SERVICE, et al. Defendants
Appearances: Miledys Ayala Bronx, New York Pro Se Plaintiff Talia Kraemer Assistant United States Attorney New York, New York Counsel for Defendants U.S. Postal Service, and Megan J. Brennan, Postmaster General Peter D. DeChiara Rebecca A. Hayes Cohen, Weiss and Simon, LLP New York, New York Counsel for Defendant National Association of Letter Carriers, AFL-CIO
MEMORANDUM & OPINION Appearances: Miledys Ayala
Bronx, New York
Pro Se Plaintiff Talia Kraemer
Assistant United States Attorney
New York, New York
Counsel for Defendants U.S. Postal Service,
and Megan J. Brennan, Postmaster General Peter D. DeChiara
Rebecca A. Hayes
Cohen, Weiss and Simon, LLP
New York, New York
Counsel for Defendant National Association of Letter Carriers, AFL-CIO VERNON S. BRODERICK, United States District Judge:
Plaintiff Miledys Ayala brings this action pro se against Defendants United States Postal Service, Megan J. Brennan, Postmaster General (together with United States Postal Service, "USPS"), and the National Association of Letter Carriers, AFL-CIO ("NALC" and collectively with USPS, "Defendants"). Plaintiff alleges that she was subjected to discrimination based on her national origin and age and to unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). Plaintiff also alleges a claim for breach of the duty of fair representation ("DFR") against NALC. Before me are the motions of NALC and USPS to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 31, 33.) Because Plaintiff's claims are barred by the statute of limitations and fail to state causes of action, Defendants' motions to dismiss are GRANTED.
The following factual summary is drawn from the allegations of the amended complaint and documents attached to the amended complaint, which I assume to be true for purposes of these motions. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). My references to these allegations should not be construed as a finding as to their veracity, and I make no such findings.
Plaintiff was an employee of USPS from 1997 until the termination of her employment on April 8, 2013. (Am. Compl. 5.) Plaintiff entered "the letter carrier craft" in 2004. (Id.) Plaintiff was a member of NALC from 2007 until 2013, and during this time period she paid her membership dues. (Id. at 29.) Plaintiff's nation of origin is the Dominican Republic, and she was over the age of forty at the time she was terminated. (Id. at 26.)
"Am Compl." refers to the Amended Complaint for Employment Discrimination filed on November 9, 2015 and the documents attached to it ("Amended Complaint"). (Doc. 20.) The Amended Complaint does not contain sequential paragraph or page numbers, so in citing to the Amended Complaint I refer to the page numbers given to the document by the Court's electronic case filing system.
In January 2009, Plaintiff received a Letter of Warning from USPS, dated January 15, 2009, (Doc. 30-2 at 6), which stated that she failed to follow USPS instructions relating to her time entries on January 9, 2009. In response, Plaintiff wrote a letter to her union representative, dated January 23, 2009, stating that someone tampered with the time sheet in question or she made a mistake. (Id. at 9.) Plaintiff initiated a grievance against USPS relating to the Letter of Warning, and, as set forth in the USPS-NALC Joint Step A Grievance Form, dated February 5, 2009, Plaintiff and USPS "mutually agreed" to resolve the grievance by reducing the Letter of Warning to a discussion. (Id. at 8.)
In April 2009, Plaintiff wrote a letter to NALC Steward Mike Kelly, dated April 18, 2009, requesting a meeting with her USPS supervisors and NALC representative to discuss incidents she was experiencing with her USPS supervisor. (Doc. 31-1 at 35.) Specifically, Plaintiff stated that Ms. Camacho was rushing her to complete her assigned tasks and threatening her. (Id.) Plaintiff states that NALC responded to her request by explaining that "the union can do not much because [she] was a Transitional Employee." (Am. Compl. 6.)
Plaintiff received a Notice of Removal, dated March 19, 2012, stating that her employment with USPS would be terminated "no sooner than thirty (30) days from" receiving the notice unless (i) she filed a grievance challenging the charge that she failed to follow instructions and improperly packaged the mail, and (ii) the final outcome of the grievance was in her favor. (Id. at 6.) In response, Plaintiff wrote a letter dated April 6, 2012, in which she said the allegations contained in the Notice of Removal "do not contain a scintilla of truth" and are "a bunch of falsehoods and fabrications . . . in an attempt to remove [her] from [her] job." (Doc. 30-1 at 9.) Plaintiff further alleges that the "whole situation has the appearance of a well-orquestrated [sic] plot to fabricate a case against [her]." (Id.) Plaintiff also stated that her supervisors "have a vendetta against [her]" which could be motivated by an "intolerance towards [her] ethnicity." (Id. at 10.) According to the USPS-NALC Joint Step A Grievance Form, dated April 18, 2012, the March 2012 Notice of Removal was (i) rescinded and expunged by mutual agreement between USPS and Plaintiff, and (ii) replaced with a Letter of Warning. (Id. at 15.)
In July 2012, Plaintiff received a Notice of End of Appointment stating that her appointment with USPS as a Transitional City Carrier was being terminated and that she would not be rehired due to lack of work. (Am. Compl. 8.) Plaintiff drafted a letter to NALC, dated July 13, 2012, in which she informed NALC of the termination letter from USPS, and requested NALC represent her in connection with filing a grievance to challenge the termination. (Id. at 9.) Plaintiff stated that "as a union-due paying member [she felt] entitled to [NALC's] representation." (Id.)
In April 2013, Plaintiff received a Termination Notification from USPS, dated April 10, 2013, which stated that her "temporary appointment as a City Carrier Transitional Employee will end effective . . . Wednesday April 10, 2013." (Id. at 10.) The Termination Notification further stated that "[t]his change is due to the new USPS/[NALC] collective bargaining agreement, which was established January 10, 2013 by an interest arbitration award." (Id.) The Termination Notification went on to inform Plaintiff that she would not be authorized to work beyond April 10, 2013. (Id.) Onix Lugo, the manager at the USPS station where Plaintiff worked prior to her termination, informed Plaintiff that she was being terminated because she "didn't have a driver['s] license." (Id. at 5.) The stated basis for the termination is consistent with the terms of the collective bargaining agreement between NALC and USPS, effective January 2013, which phased out Plaintiff's position and replaced it with a position that required the USPS employee to possess a valid driver's license. (Id. at 16.)
Plaintiff asserts that her failure to obtain a driver's license was "only . . . a pretext to terminate [her] employment," (id. at 33), and that her termination constituted age discrimination, national origin discrimination, and unlawful retaliation for her prior protected activity. (Id. at 1-3, 33.) Plaintiff states that she was replaced by younger men and women who were not Hispanic, and that most or many of the individuals who replaced her were from Jamaica. (Id. at 26.) In addition, Plaintiff alleges that she was "discharge[d] by the employer; without 'just cause'; and the union was negligent and inept and under 13.1 Employee Claim against Union and/or employer." (Id. at 4.)
On May 3, 2013, Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor regarding the April 10, 2013 termination of her employment. (Id. at 28.) From May until September 2013, Plaintiff corresponded with the EEO counselor regarding the termination of her employment and her filing of a formal EEO complaint. (Id.) On September 6, 2013, Plaintiff filed a formal complaint with the EEO, alleging that she had been discriminated against based on her age and national origin and retaliated against for her prior protected activity in 2009. (Id.) USPS issued a Final Agency Decision concluding that the evidence did not support a finding of discrimination. (Id. at 28, 37.)
The Equal Employment Opportunity Commission ("EEOC") affirmed USPS's finding of no discrimination, and on October 22, 2014, Plaintiff requested reconsideration of the EEOC's decision. (Id. at 28-34.) On March 19, 2015, the EEOC issued its Decision on Request for Reconsideration denying Plaintiff's request for reconsideration, stating that its prior decision "remains the commission's decision," and informing Plaintiff that she had ninety days from receipt of the decision within which to file a civil action (the "Right to Sue Letter"). (Id. at 37-39.) The Right to Sue Letter further stated that "[t]his decision of the [EEOC] is final, and there is no further right of administrative appeal." (Id. at 38.) In addition, the Right to Sue Letter stated that Plaintiff "ha[d] the right to file a civil action . . .within ninety (90) calendar days from the date that [she] receive[d] this decision." (Id.)
Plaintiff received the Right to Sue Letter on March 23, 2015, and filed this action on June 23, 2015. (Id. 4, 27.) Plaintiff initially stated that "[she] believe[d] it was timely file[d] because it didn't go pas[t] the 90 days." (Id. 4.)
II. Procedural History
Plaintiff commenced this action by filing her initial complaint on June 23, 2015. (Doc. 2.) On June 29, 2015, Chief Judge Loretta A. Preska granted Plaintiff's request to proceed in forma pauperis. (Doc. 5.) Plaintiff filed her Amended Complaint on November 9, 2015. (Doc. 20.) NALC submitted a pre-motion letter regarding its anticipated motion to dismiss on November 19, 2015. (Doc. 23.) I granted USPS an extension of time to respond to the Amended Complaint, (see Doc. 25), and USPS submitted a pre-motion letter regarding its anticipated motion to dismiss on December 18, 2015, (Doc. 27).
This case was initially assigned to Chief Judge Loretta A. Preska and was reassigned to me on July 1, 2015. (See ECF Dkt. Entry July 1, 2015.)
On January 8, 2016, I held a pre-motion conference regarding the anticipated motions, and set a schedule for Plaintiff's submission of additional documents to be considered as attachments to the Amended Complaint and briefing on Defendants' motions to dismiss. (Doc. 29.) Pursuant to the briefing schedule set during the January 8 conference, on January 22, 2016, Plaintiff submitted additional documents in support of the allegations in her Amended Complaint. (Doc. 30.) On March 1, 2016, NALC and USPS each filed a motion to dismiss, (Docs. 31, 33), and a memorandum of law in support of their respective motion, (Docs. 32, 34). On April 1, 2016, Plaintiff filed her Opposition to Defendants' Motions to Dismiss the Amended Complaint. (Doc. 36.) NALC filed its reply memorandum of law in support of its motion to dismiss on April 4, 2016, (Doc. 37), and USPS filed its reply memorandum of law in support of its motion to dismiss on April 15, 2016, (Doc. 38).
Hereinafter, "NALC Mem." shall refer to the Memorandum of Defendant National Association of Letter Carriers, AFL-CIO in Support of its Motion to Dismiss, dated March 1, 2016. (Doc. 32.) "USPS Mem." refers to the Memorandum of Law of Defendants Megan J. Brennan, Postmaster General, And The United States Postal Service in Support of Their Motion to Dismiss The Amended Complaint. (Doc. 34.)
III. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard demands "more than a sheer possibility that a defendant has acted unlawfully." Id. "Plausibility . . . depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiff's favor. Kassner, 496 F.3d at 237. A complaint need not make "detailed factual allegations," but it must contain more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id. A complaint is "deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted).
Even after Twombly and Iqbal, a "document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted). Further, pleadings of a pro se party should be read "to raise the strongest arguments that they suggest." Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (quotation marks omitted). Nevertheless, dismissal of a pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). In other words, the "duty to liberally construe a plaintiff's complaint is not the equivalent of a duty to re-write it." Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (alteration and internal quotation marks omitted).
IV. Discussion
A. Exhaustion of Administrative Remedies
NALC argues that Plaintiff's Title VII and ADEA claims asserted against NALC must be dismissed because Plaintiff failed to exhaust her administrative remedies by not naming NALC in her EEOC charge. (NALC Mem. 6-8.)
NALC cites several cases from outside this Circuit in support of the proposition that NALC is not subject to suit under Title VII because it does not fall within the Title VII definition of "labor organization." (Doc. 32 at 5-6.) The Second Circuit has not decided this issue, and the cases NALC cites are not binding on me. In addition, I find the analysis in Jones v. Am. Postal Workers Union, 192 F.3d 417 (4th Cir. 1999), more persuasive and thus decline to dismiss Plaintiff's Title VII claims against NALC on the basis that NALC does not fall within the Title VII definition of "labor organization."
Title VII and ADEA require a plaintiff to exhaust her administrative remedies as a precondition to filing her claims in federal court. 42 U.S.C. § 2000e-5(e)-(f); see Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) ("Exhaustion of administrative remedies through the EEOC is 'an essential element' of the Title VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in federal court."); see also Kilkenny v. Greenberg Traurig LLP, No. 05 Civ. 6578 (NRB), 2006 WL 1096830, at *3 (S.D.N.Y. April 26, 2006) ("Exhaustion of administrative remedies through the EEOC is an 'essential element' of the Title VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in federal court."). This requirement, however, is "merely a precondition to suit" and not a jurisdictional bar. Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015). "The purpose of this exhaustion requirement is to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Id. (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)). In Fowlkes the Second Circuit went on to "underscore that the failure of a Title VII plaintiff to exhaust administrative remedies raises no jurisdictional bar to the claim proceeding in federal court" and further explained that the mandatory but non-jurisdictional prerequisite to file a charge with the EEOC before bringing a Title VII claim may be subject to equitable defenses, including whether the non-exhausted claims are "reasonably related" to earlier, exhausted claims. Id. at 385-86.
In addition, in connection with a plaintiff's exhaustion requirement, courts in this Circuit "have recognized an exception to the general rule that a defendant must be named in the EEOC complaint." Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). "This exception, termed the 'identity of interest' exception, permits a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge." Id. (citations omitted). When analyzing whether or not the identity of interest exception applies, courts consider four factors:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.Id. at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977) (alteration omitted). "In addition to these four factors, numerous courts have found that the Second Circuit in Johnson had also implied that another consideration is relevant to the identity-of-interest inquiry—whether, although not named as a respondent in the caption, the defendant is named in the body of the charges as having played a role in the discrimination." Daniel v. T & M Protection Res., Inc., 992 F. Supp. 2d 302, 311 (S.D.N.Y. 2014) (citation omitted) (collecting cases).
Plaintiff did not name NALC in her EEOC charge, (Am. Compl. 37), and the Right to Sue Letter does not reference NALC, (id. at 37-39). Plaintiff "mentioned" NALC in her EEO and EEOC submissions, (Am. Compl. 5), but does not state that NALC "played a role in the discrimination." Daniel, 992 F. Supp 2d at 311. Therefore, the first, second, and fourth Johnson factors militate against applying the identity of interest exception, and thus I find that it does not apply here. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d. Cir. 1999) (affirming dismissal of pro se plaintiff's Title VII claim against union where plaintiff named only his employer in the EEOC charge); Pajooh v. Dep't of Sanitation N.Y.C., No. 11 Civ. 3116 (LTS)(MHD), 2012 WL 4465370, at *5 (S.D.N.Y. Sept. 27, 2012) (dismissing plaintiff's Title VII claim where he failed to name union in EEOC charge and right to sue letter did not identify union as a respondent) aff'd, 547 F. App'x 73 (2d Cir. 2013); Sales v. N.Y.C. Transit Auth., No. 08 Civ. 3420(LAP), 2010 WL 87758, at *2-3 (S.D.N.Y. Jan. 7, 2010) (same); Wells v. Mount Vernon Hosp., No. 01 Civ. 9129(RCC), 2002 WL 1561099, at *3 (S.D.N.Y. July 15, 2002) ("Following Vital, courts in this circuit consistently have held that unions and employers lack the 'clear identity of interest' required to waive the Title VII and ADEA filing requirements." (collecting cases)). In addition, Plaintiff does not raise, and there does not appear to be, any equitable defense to excuse her failure to exhaust her administrative remedies.
NALC did not argue that it has suffered actual prejudice so this factor does not weigh into my decision.
Accordingly, Plaintiff's Title VII and ADEA claims against NALC must be dismissed for failure to exhaust her administrative remedies.
B. Statute of Limitations —Title VII and ADEA Claims
USPS argues that Plaintiff's Title VII and ADEA claims should be dismissed as time-barred because Plaintiff did not file suit within ninety days of receiving her Right to Sue Letter. (UPS Mem. 6-9); see 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 626(e); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). If a claim's untimeliness is clear from the face of the complaint, the claim may be dismissed under Rule 12(b)(6). Smith v. Sebelius, No. 10 Civ. 6356(JSR)(DF), 2011 WL 7427733, at *4 (S.D.N.Y. Dec. 28, 2011), report and recommendation adopted, No. 10 Civ. 6356 (JSR)(DF), 2012 WL 627237, at *1 (S.D.N.Y. Feb. 27, 2012).
Here, Plaintiff states that she received her Right to Sue Letter on March 23, 2015. (Am. Compl. 4, 27.) The ninetieth day after March 23, 2015 was Sunday, June 21, 2015. Thus, Plaintiff had until Monday, June 22, 2015 to file her complaint. Therefore, her filing on June 23, 2015 was one day late and untimely. Courts in this Circuit construe the ninety-day deadline strictly, even where a pro se plaintiff files the complaint one or two days past the deadline. See, e.g., Glover v. Fed'n of Multicultural Programs, No. 14-CV-4006 (KAM)(LB), 2015 WL 4600645, at *5-6 (E.D.N.Y. July 29, 2015) (pro se complaint filed one day late); Finch v. New York, No. 10 Civ. 9691(VB), 2012 WL 2866253, at *9 (S.D.N.Y. May 30, 2012) (two days late); Pryor v. Nat'l Grid, No. 10 Civ. 6507 (PAC)(THK), 2011 WL 3251571, at *2 (S.D.N.Y. July 28, 2011) (two days late); George v. DHL, No. 04-CV-0342 NGGLB, 2005 WL 1139906, at *3 (E.D.N.Y. May 13, 2005) (two days late); Toolan v. Bd. of Educ. of N.Y.C., Nos. 02 Civ. 6989 (DC), 03 civ. 576 (DC), 2003 WL 22015437, at *2 (S.D.N.Y. Aug. 25, 2003) (one day late).
The Right to Sue Letter states that "[f]or timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed." (Am. Compl. 39.) The Right to Sue Letter was mailed on March 19, 2015. Id. Even if I assumed that Plaintiff received the letter on March 24, 2015, Plaintiff still had until June 22, 2015 to file this action, but she filed her initial complaint one day later.
The ninety-day deadline is subject to equitable tolling; however, "equitable tolling is only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights." Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal citations and alterations omitted). Plaintiff has not alleged any facts, let alone exceptional circumstances, for her untimely filing that would justify equitable tolling in this case. Instead, Plaintiff states that she believes her initial complaint was filed within the ninety-day period. (Am. Compl. 4 ("I believe it was timely file[d] because it didn't go pass[ed] the 90 days.").) In her opposition to Defendants' motions to dismiss, Plaintiff appears to concede the possibility that her filing was late stating that she "had been going through many emotional and fanatical difficulty and for some reasons [she] didn't coordinated [sic] the right time, [but she] didn't [do] it intentionally or with any other purpose." (Pl.'s Opp. 4.) In addition, Plaintiff appears to indicate that she came to the court-house and attempted to file on June 22, but did not because she discovered errors in the complaint. (Id.) Specifically, she states that she "tried to submit[ ] it before that day . . . on June 22 [when she] came to the court, but the document where [sic] incorrect, [and she] needed to go back home fixed [sic] and come back next day." (Id.)
"Pl.'s Opp." refers to Plaintiff's Opposition to Defendants' Motions to Dismiss the Amended Complaint, dated April 1, 2016. (Doc. 36.)
A pro se litigant's mistake about the correct way to calculate the ninety-day period does not warrant equitable tolling. See Glover, 2015 WL 4600645, at *6 (concluding that a pro se plaintiff's incorrect belief about the end date of the ninety-day period did not warrant tolling); Smith, 2011 WL 7427733, at *2, 6 (where pro se plaintiff assumed that "90 days" meant three months, tolling was not warranted by "the mere fact that [the] plaintiff relie[d] on a faulty assumption in making the time calculation"); Allah-El v. Long Island Coll. Hosp., 577 F. Supp. 2d 664, 665 (S.D.N.Y. 2008) (ruling that pro se plaintiff's belief that holidays and weekends are excluded when calculating the ninety-day period did not justify tolling). In addition, the conclusory statement that she was having emotional difficulties cannot be characterized as an exceptional circumstance that supports equitable tolling. See Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000) (finding that equitable tolling was not warranted where plaintiff's statement "that she suffers from 'paranoia, panic attacks, and depression'" was "conclusory and vague," and also lacked "a particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights"); Ganley v. City of New York, No. 15-CV-8077 (KMK), 2016 WL 6496265, at *7 (S.D.N.Y. Nov. 1, 2016) (granting motion to dismiss complaint and declining to apply equitable tolling where pro se plaintiff failed to "allege or allude to any facts showing that his condition 'adversely affected his capacity to function generally or in relationship to the pursuit of his rights.'" (citation and alterations omitted)) (collecting cases). Moreover, Plaintiff indicates that she would have filed her complaint on time but for deciding to return home to correct certain errors in her documents. Thus, Plaintiff's emotional difficulties did not affect her capacity to pursue her claims and there is no basis to apply equitable tolling. See Boos, 201 F.3d at 185.
In light of the fact that Plaintiff (i) acknowledges she calculated the ninety-day period incorrectly, (ii) has not offered any facts that could justify equitable tolling, and (iii) states facts that demonstrate her mental difficulties did not affect her capacity to pursue her claims, I find that Plaintiff's Title VII and ADEA claims against USPS are time barred and must be dismissed. Assuming that Plaintiff's EEO and EEOC submissions exhausted her administrative remedies with respect to NALC such that her Right to Sue Letter can be construed to include the right to sue NALC, Plaintiff's Title VII and ADEA claims against NALC are also time barred and must be dismissed for the same reasons her Title VII and ADEA claims against USPS are time barred.
Even assuming Plaintiff exhausted her administrative remedies and filed timely Title VII and ADEA claims against NALC, Plaintiff's allegations in the Amended Complaint do not support discrimination claims against NALC. Plaintiff's allegations against NALC relate exclusively to her DFR claim. (Am. Compl. 3, 4; see infra Section IV.C.) Nowhere in the Amended Complaint does Plaintiff allege that NALC had any involvement with the alleged discrimination or acted with discriminatory animus towards Plaintiff based on her national origin or age. --------
C. Breach of Duty of Fair Representation
"The 'duty of fair representation is implied from § 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a),' and 'marks the outer boundary of a union's broad discretion to represent members of a bargaining unit.'" Bejjani v. Manhattan Sheraton Corp., No. 12 Civ. 6618(JPO), 2013 WL 3237845, at *6 (S.D.N.Y. June 27, 2013) (internal citations omitted), aff'd, 567 F. App'x 60 (2d Cir. 2014). "[A] union 'has a duty to represent fairly all employees subject to the collective bargaining agreement.'" Id. (quoting Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir. 1998)).
"[A] union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith." White v. White Rose Food, 237 F.3d 174, 179 (2d Cir. 2001) (citations omitted). To be arbitrary, the union's actions must be "so far outside a wide range of reasonableness as to be irrational;" negligence is not sufficient. Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010). "A union's acts are discriminatory when 'substantial evidence' indicates that it engaged in discrimination that was 'intentional, severe, and unrelated to legitimate union objectives.'" Id. (quoting Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971)). Bad faith requires allegations that the union's actions involved "fraud, dishonesty, [or] other intentionally misleading conduct" with "an improper intent, purpose or motive." Id. at 709-10 (internal quotation marks omitted); see also Sim v. N.Y. Mailers' Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999). Review of an alleged breach of the duty of fair representation is "highly deferential, recognizing the wide latitude that [unions] need for the effective performance of their bargaining responsibilities." Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 78 (1991). Finally, to plausibly plead breach of the duty of fair representation, plaintiffs must also allege a "causal connection between the union's wrongful conduct and their injuries." Vaughn, 604 F.3d at 709.
DFR claims against a union are subject to a six-month statute of limitations. Kalyanaram v. Am. Ass'n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 46 (2d Cir. 2014). In the Second Circuit, "it is well settled that 'the cause of action [for DFR] accrue[s] no later than the time when plaintiffs knew or reasonably should have known that such a breach . . . had occurred, even if some possibility of nonjudicial enforcement remained.'" Cohen v. Flushing Hosp. & Med. Ctr., 68 F.3d 64, 67 (2d Cir. 1995) (quoting Santos v. Dist. Council, 619 F.2d 963, 969 (2d Cir. 1980)). Thus, "[o]nce a plaintiff learns of his union's breach of its duty of fair representation, the union's subsequent failure to actually represent the plaintiffs 'cannot be treated as a continuing violation that preclude[s] the running of the limitations period.'" Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995) (citation omitted) (alteration in original).
Plaintiff filed her initial complaint on June 23, 2015, (Doc. 2); however, Plaintiff asserted her DFR claim for the first time in her Amended Complaint, which was filed on November 9, 2015. (Doc. 20.) Even if I were to assume that Plaintiff's DFR claim relates back to her initial complaint, her DFR claim would nevertheless be time barred unless it accrued in the six months prior to June 23, 2015, i.e. after December 23, 2014. It is clear from Plaintiff's allegations that her DFR claim is untimely.
First, construing Plaintiff's DFR claim to raise the strongest arguments that it suggests, Brownell, 446 F.3d at 310, Plaintiff appears to be claiming that NALC breached its duty to represent her with respect to her termination from USPS on April 12, 2013. Under the heading entitled "Amendment to add new charges," Plaintiff states that she was "discharge[d] by the employer; without just 'just cause'; and the union was negligent and inept." (Am. Compl. 4.) Under the same heading, Plaintiff states that NALC had a "duty to fairly represent [her] interest as a member of the union," and NALC also "had the obligation to represent [her]." (Am. Compl. 4, 5.) Based on these allegations, Plaintiff was aware of her DFR claim at the time of her termination on April 12, 2013, more than two years prior to filing this action.
Plaintiff was an NALC member until 2013, (id. at 29), meaning the very latest NALC could have breached its duty was December 31, 2013. Accordingly, Plaintiff would have had until June 30, 2014 to file a timely DFR claim. See Mahamadou v. 1199 SEIU United Healthcare Workers E., No. 15-cv-7439 (PKC), 2016 WL 3566235, at *3 (S.D.N.Y. June 24, 2016) (dismissing DFR claim as time barred where plaintiff's termination and union membership were coterminous and occurred more than six months prior to filing the DFR claim); Coureau v. Granfield, 942 F. Supp. 2d 315, 320 (E.D.N.Y. 2013) (dismissing DFR claim as time barred and holding that plaintiff "must have been aware" of alleged breaches prior to May 2012 in light of fact that plaintiff had not been union member since July 2010). Plaintiff's complaint was filed over a year after the limitations period would have run.
In light of these facts as alleged in the Amended Complaint, it is clear that Plaintiff was aware of her DFR claim prior to December 2014. Accordingly, I find that Plaintiff's claim for breach of the duty of fair representation is time barred and must be dismissed.
Even if Plaintiff's DFR claim were timely—which it is not—the allegations in the Amended Complaint are insufficient. Plaintiff claims that the NALC was "negligent and inept" in the handling of her alleged grievances. Such actions are clearly insufficient to support a DFR claim. See Vaughn, 604 F.3d at 709 ("Tactical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach." (quoting Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989)).
V. Conclusion
For the foregoing reasons, Defendants' motions to dismiss are GRANTED, and Plaintiff's claims are dismissed. Based upon the allegations in the Amended Complaint and the relevant case law discussed above, I find that any attempt by Plaintiff to further amend her complaint to assert causes of action under Title VII, the ADEA, and the DFR would be futile. Therefore, Plaintiff's claims are dismissed with prejudice.
The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Opinion to the pro se Plaintiff, terminate the open motions at Documents 31 and 33, and close the case.
SO ORDERED. Dated: March 31, 2017
New York, New York
/s/_________
Vernon S. Broderick
United States District Judge