Opinion
04 Civ. 2688 (RWS).
September 13, 2004
ANDREW J. SCHATKIN, ESQ., Jericho, NY, Attorney for Plaintiff.
SEMEL, YOUNG NORUM, New York, NY, AMY S. YOUNG, ESQ., Of Counsel. Attorneys for Defendants CWA Local 1180 and Dorothy Harris.
OPINION
Defendants Local 1180 of the Communications Workers of America (sued herein as CWA 1180, "Local 1180") and Dorothy Harris ("Harris") (collectively, the "Union Defendants") have moved to dismiss the complaint of plaintiff Yvette Cabrera ("Cabrera") in its entirety pursuant to Rule 12 of the Federal Rules of Civil Procedure on the grounds that Cabrera's complaint fails to state a claim against either Local 1180 or Harris or, in the alternative, that Cabrera's federal claims lack the necessary administrative basis and that her remaining state claims against Local 1180 and Harris should be dismissed for lack of subject matter jurisdiction. For the reasons set forth below, the Union Defendants' motion is granted in part and denied in part.
Prior Proceedings
Cabrera commenced this action on April 8, 2004, against defendants New York City (the "City"), the New York City Health and Hospitals Corporation ("HHC"), Bellevue Hospital ("Bellevue"), Local 1180, Victor Infante ("Infante"), Harris, Sarah Rodriguez ("Rodriguez"), and Dena Rakower ("Rakower"). Cabrera alleges that all named defendants, acting together, purposefully discriminated against Cabrera by reason of her age and national origin in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296, and that Bellevue, Local 1180, the City and HHC knowingly and purposefully discriminated against her with regard to her compensation and in the terms, conditions and privileges of her employment because of her age and national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 12101. Cabrera further alleges that Local 1180 and Harris failed to represent her interests and act in good-faith representation of her, and that they did so for discriminatory reasons, motivated by her national origin and age. Finally, Cabrera alleges that, by reason of the treatment afforded her by all named defendants and their named managerial employees, she was subjected to extreme and severe emotional distress causing her, inter alia, depression, anxiety, and loss of sleep.
Cabrera's citation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., is anomalous, as the complaint is otherwise devoid of allegations concerning any disability or discrimination related thereto. To the extent Cabrera is seeking to assert claims under the ADA, her complaint fails in that regard pursuant to Rule 12 (b) (6), Fed.R.Civ.P. As her complaint alleges age discrimination, her claim will be addressed herein for the purposes of this motion as if brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621,et seq.
The Union Defendants moved to dismiss Cabrera's complaint on May 13, 2004. Following briefing by the parties, oral argument was heard on June 16, 2004, at which time the motion was deemed fully submitted. Background
The following facts are drawn from Cabrera's complaint and do not constitute findings of fact by the Court.
According to Cabrera's complaint, Cabrera is and was at all times relevant a citizen of the United States and a resident of the State of New York. (See Compl. at ¶ 3.) In 1984, she began working as an Office Associate at Bellevue with the duties of a secretary/clerk, and in 1985 she was promoted to the position of PAAI Principal Administrative Associate in the HIV Program Section. (See Compl. at ¶ 11.) Thereafter, she was promoted to the title of PAAII, in which position she remained until 1999. (See id.) In this position, Cabrera supervised a staff of three, typed meetings and set up grants, as well as doing a great deal of Spanish translation. (See id.)
In 1995 or 1996, the AIDS Department needed an Associate Director for the program, and Rakower took over the job, becoming Cabrera's supervisor. (See Compl. at ¶ 12.) Cabrera alleges that in 1996, Rakower, while on vacation leave, directed Cabrera, as the timekeeper of the department, to mark Rakower on the payroll. (See id.) Thereafter, an anonymous complaint was filed which, Cabrera alleges, Rakower attributed to Cabrera. (See id.) Cabrera was allegedly subjected to a campaign of petty harassment by Rakower, including through Cabrera's reassignment to the Urology clinic and a negative evaluation. (See id.)
From May 1997 to January 1998, Cabrera was assigned to the Urology clinic. (See Compl. at ¶ 13.) In 1999, she was again transferred to the Dermatology clinic, where, as PAAII, she supervised four clerical staff and, for one year, supervised three clinics for a total of five people. (See Compl. at ¶ 14.) Cabrera's supervisor at the time of her transfer was Infante, Associate Director for Ambulatory clinics. (See Compl. at ¶ 15.) Cabrera alleges that she began experiencing difficulty with the clerical staff and in one instance was yelled at in front of patients and doctors. (See Compl. at ¶ 15.) According to her complaint, Cabrera reported these incidents to Infante and to Local 1180, by way of Harris, but no one did anything. (See id.) Local 1180 is alleged to be the union representing all clerical and administrative employees at Bellevue at all time relevant and Harris is alleged to be the Union Shop Steward at Bellevue for all times relevant. (See Compl. at ¶¶ 9-10.)
In December 2002, Infante is alleged to have called Cabrera to his office to let her know there might be a "PAA Pal" at the Central office HHC Human Resources, meaning that the persons who had passed the civil service test (the PAA test) were up for promotion and would replace the current Provisional PAAs. (Compl. at ¶ 16.) HHC is alleged to be a municipal division of the City. (See Compl. at ¶ 5.) Cabrera alleges that she asked Infante how this could be and what he could do to help, and that she might lose her job. (See Compl. at ¶ 16.) According to Cabrera, Infante had no answer, nor did Harris; Local 1180, through Harris, however, represented Cabrera in this matter and saved Cabrera's job. (See id.)
Again, in January 2003, Infante called Cabrera to his office and told her that they were having another PAA at HHC and that she might lose her job. (See Compl. at ¶ 17.) Cabrera alleges that she again went to Harris and that Harris stated she would not represent Cabrera at this meeting, and that Infante was going. (See id.) That same day, Infante informed Cabrera in the afternoon that her job was terminated. (See id.) Thereafter, on February 21, 2003, in a letter from Rodriguez, Cabrera was informed of her termination effective March 2003. (See id.)
In 1991, the City posted a civil service examination for the position of PAAII. (See Compl. at ¶ 18.) Cabrera and others took and passed the test, according to the complaint, but the test results were discarded on the basis that no one had passed the test. (See id.) Despite her desire to take any offered tests, Cabrera alleges that she was not informed of the opportunity to take tests or told when they were given. (See id.)
At the time of her termination, Cabrera was 53 years old and of Hispanic origin. (See Compl. at ¶ 19.) Cabrera alleges, upon information and belief, that she was terminated on the basis of her age and national origin, along with other Hispanics, and that less senior black employees were favored and not terminated. (See Compl. at ¶ 20.) She further alleges that, despite repeated requests to Infante and Harris, and despite many positions being open and her submission of applications, Cabrera was not offered another position. (See Compl. at ¶ 21.) As a result of the alleged harassment and unfair treatment due to her age and national origin, Cabrera claims that she suffers and continues to suffer from depression, anxiety and sleeplessness, as well as continuous panic attacks. (See Compl. at ¶ 22.)
Cabrera's complaint asserts that jurisdiction is proper in this Court pursuant to 42 U.S.C. § 2000e-5(f) (3), 29 U.S.C. § 623ff, and N.Y. Exec. Law § 296. The Court's pendant jurisdiction is invoked pursuant to 28 U.S.C. § 1367.
The Applicable Legal Standards
"Normally, motions to dismiss for lack of [subject matter] jurisdiction pursuant to Rule 12(b) (1) must be decided before motions pursuant to other Federal Rules of Civil Procedure are considered. . . ." Liberty Ridge LLC v. RealTech Sys. Corp., 173 F. Supp. 2d 129, 134 (S.D.N.Y. 2001). Once subject matter jurisdiction is challenged, the burden of establishing jurisdiction rests with the party asserting that it exists. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The party asserting subject matter jurisdiction must prove that the court has such jurisdiction by a preponderance of the evidence. See APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003); Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
On a motion to dismiss for lack of subject matter jurisdiction, the court must accept the material factual allegations contained in the complaint. See Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). Nonetheless, the court may resolve disputed jurisdictional factual issues by reference to evidence outside the pleadings. See Flores v. S. Peru Copper Corp., 343 F.3d 140, 161 n. 30 (2d Cir. 2003);Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). The court may decide the matter on the basis of affidavits or other evidence, see Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998), but "argumentative inferences favorable to the party asserting jurisdiction should not be drawn." Atl. Mut. Ins., 968 F.2d at 198. In other words, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
In considering a motion to dismiss pursuant to Rule 12 (b) (6), Fed.R.Civ.P., the court should construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
Discussion I. Jurisdiction Is Lacking Over Cabrera's Federal Claim Against Local 1180
The Union Defendants argue that Cabrera's claims under Title VII and under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., must be dismissed as Cabrera never filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") naming either Local 1180 or Harris.
See supra note 1.
Although the Union Defendants initially argued that Cabrera's Title VII and ADEA claim should be dismissed as to both Local 1180 and Harris, Harris was not named in Cabrera's claim, nor, as the Union Defendants observe in their reply papers, may an individual properly be a defendant to such a claim. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (Title VII); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (Title VII); Tomka v. Seiler, 66 F.3d 1295, 1317 (2d Cir. 1995) (Title VII), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Boise v. Boufford, 127 F. Supp. 2d 467, 472 (S.D.N.Y. 2001) (Title VII and ADEA), vacated in part on other grounds, 42 Fed. Appx. 496 (2d Cir. 2002); Healy v. AIG Tech. Servs., Inc., No. 00 Civ. 3419 (GBD), 2001 WL 336976, at *1 (S.D.N.Y. Jan. 10, 2001) (ADEA); Parker v. Metro. Transp. Auth., 97 F. Supp. 2d 437, 452 (S.D.N.Y. 2000) (ADEA).
The filing of a timely charge with the EEOC is a statutory prerequisite to Title VII and ADEA claims. See 29 U.S.C. § 626(d); 42 U.S.C. §§ 2000e- 5 (e) 2000e-5(f) (1); see also 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.") (quoting Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)). In order to satisfy this requirement, a complainant must have filed a charge of discrimination with the EEOC (or the appropriate local agency) within 180 days of the complained of act or acts or within 300 days if the charge is also covered by state or local anti-discrimination law. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). In addition, the plaintiff must have received covered by state or local anti-discrimination law. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). In addition, the plaintiff must have received a right-to-sue letter. See 29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5 (f) (1); Sherlock v. Montefiore Med. Ctr., 84 F. 3d 522, 525 (2d Cir. 1996) ("In order to be timely, a claim under Title VII or the ADEA must be filed within 90 days of the claimant's receipt of a right-to-sue letter."). "As a general rule, a court lacks jurisdiction to hear a civil action against a party that was not already named in an EEOC charge." Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 389 (S.D.N.Y. 2002) (Title VII); see also Gagliardi v. Universal Outdoor Holdings, Inc., 137 F. Supp. 2d 374, 379 (S.D.N.Y. 2001) (ADEA); Campbell v. Int'l Bhd. of Teamsters, 69 F. Supp. 2d 380, 387 (E.D.N.Y. 1999) (Title VII); Nweke v. Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 214 (S.D.N.Y. 1998) (Title VII);Harrington v. Hudson Sheraton Corp., 2 F. Supp. 2d 475, 477 (S.D.N.Y. 1998) (Title VII).
As Cabrera acknowledges in her opposition papers, no charge of discrimination naming the Union Defendants was filed with the EEOC. Cabrera asserts, however, that she did receive a right-to-sue letter with regard to the "Institutional Hospital Defendants" and argues that where there is an identity of interests between a party named in an EEOC complaint and a party not so named, the unnamed party may nonetheless be sued in a subsequent Title VII action. Cabrera posits that the actions of the Union Defendants "are, or can be shown to be, in agency or identity, and the Complaint against them should not be dismissed." (Pl. Opp. Mem. at 3.)
Cabrera's opposition papers do not specify to which defendants the phrase "Institutional Hospital Defendants" refers, nor does her complaint define or employ this phrase.
Cabrera's failure to name either Local 1180 or Harris in the charge of discrimination she assertedly filed with the EEOC is not necessarily fatal to her claim against Local 1180. As the Court of Appeals for the Second Circuit has explained,
Because these charges generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements, we have taken a "flexible stance in interpreting Title VII's procedural provisions," Egelston v. State University College at Geneseo, 535 F.2d 752, 754, 755 (2d Cir. 1976), so as not to frustrate Title VII's remedial goals.Johnson, 931 F.2d at 209. In accordance with this "'flexible stance,'" the courts of this circuit "have recognized an exception — called the 'identity of interest' exception — to the general rule that a Title VII defendant must have been named in an EEOC charge." Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 216 (N.D.N.Y. 2004); see, e.g., Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999); Bland v. New York, 263 F. Supp. 2d 526, 547-48 (E.D.N.Y. 2003);Darden, 191 F. Supp. 2d at 389; Sharkey v. Lasmo (Aul Ltd.), 906 F. Supp. 949, 954 (S.D.N.Y. 1995); Smith v. Local Union 28 Sheet Metal Workers, 877 F. Supp. 165, 173 (S.D.N.Y. 1995), aff'd, 100 F.3d 943 (2d Cir. 1996) (unpublished). "This exception permits a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed party and a party named in the EEOC charge." Olvera-Morales, 322 F. Supp. 2d at 216. The exception set forth in Johnson with regard to Title VII claims applies with regard to claims asserted under the ADEA as well.See, e.g., Gagliardi, 137 F. Supp. 2d at 379.
In order to determine whether the identity-of-interest exception is applicable, a court weighs 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; [and] 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.Johnson, 931 F.2d at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F. 2d 880, 888 (3d Cir. 1977)). These factors are not to be applied mechanically, nor is any single factor determinative.See, e.g., Manzi v. DiCarlo, 62 F. Supp. 2d 780, 787 (E.D.N.Y. 1999); Dortz v. City of New York, 904 F. Supp. 127, 143 (S.D.N.Y. 1995).
At present, there is no information on the record concerning the EEOC charge that Cabrera asserts that she filed against the "Institutional Hospital Defendants," including the date of the charge, the parties named, and the allegations set forth therein. At oral argument, Cabrera's council stated that Cabrera was proceeding pro se when she filed the EEOC charge, eliminating one potential obstacle to her argument that the identity-of-interest exception applies here. See Olvera-Morales, 322 F. Supp. 2d at 216-17 (collecting cases on both sides of the debate as to whether the exception spelled out in Johnson applies only where a plaintiff was proceeding pro se when he or she filed a charge before the EEOC). Nonetheless, Cabrera has not shown that an identity of interest exists between the Union Defendants on the one hand and the City, Bellevue or HHC, the only other defendants named in Cabrera's complaint with regard to her Title VII and ADEA claims, on the other hand As the court in Wells v. Mount Vernon Hosp., No. 01 Civ. 9129 (RCC), 2002 WL 1561099 (S.D.N.Y. July 15, 2002), recently explained under circumstances akin to those present here,
[T]his case is closely analogous to that of Vital v. Interfaith Med. Ctr., 168 F.3d 615 (2d Cir. 1999), in which a terminated employee settled a grievance against the employer and subsequently sued both the employer and union in federal court under Title VII. The Second Circuit affirmed the lower court's dismissal of the Title VII claim as against the union because the plaintiff had named only his employer in the EEOC charge. The Second Circuit concluded that no identity of interest existed because (1) the plaintiff was fully aware of the union's role at the time the EEOC charge was filed; (2) the interests of the union and the employer were sufficiently dissimilar; and (3) there was no allegation that the union represented to the plaintiff that his relationship with the union should be through the employer. 168 F.3d at 620. 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.Wells, 2002 WL 1561099 at *3 (dismissing Title VII and ADEA claims against the defendant union) (citing Schaefer v. Erie County Dep't of Soc. Servs., 82 F. Supp. 2d 114, 116-117 (W.D.N.Y. 2000) (finding no identity of interest between an employer and a defendant union, and explaining that the union's "primary function is to represent . . . employees in negotiating the terms and conditions of their employment, and in the administration of employee grievances against the employer" and that "[i]t is an entity completely separate from and independent of [the employer], and would in no way be bound by the [employer's] voluntary conciliation in the EEOC proceeding");Hussein v. Waldorf Astoria Hotel, Restaurant Club Employees Bartenders Local # 6, No. 99 Civ. 1652 (DC), 2000 WL 16928, at *5 (S.D.N.Y. Jan 11, 2000) (concluding that the defendant union shared no identity of interest with the allegedly discriminating employer); Johnson v. Dist. Council of Carpenters, No. 91 Civ. 7961 (LAP), 1995 WL 567426, at *2-3 (S.D.N.Y. Sept. 25, 1995) (same)); see also Bright v. Le Moyne College, 306 F. Supp. 2d 244, 257 (N.D.N.Y. 2004) (same).
Cabrera's unsupported argument that the actions of the Union Defendants are or can be shown to be in agency or identity this case from Vital, Wells, or other similar cases, nor does a review of the Johnson factors require a different result. Cabrera was aware that the Union Defendants were separate and independent from Bellevue and HHC, as is evident from her allegations that she complained to Harris, whom she recognized as a union representative, about workplace problems prior to December 2002. (See Compl. at ¶ 15.) The complaint is devoid, however, of any allegations that would provide grounds to conclude that the interests of the "Institutional Hospital Defendants" are so similar to those of either of the Union Defendants so as to satisfy the second factor identified by the Second Circuit in Johnson, that the Union Defendants had actual notice of the EEOC charge, or that the Union Defendants ever represented to Cabrera that their relationship with her was to be through the "Institutional Hospital Defendants." Finally, as neither the discrimination charge nor the right-to-sue letter have been submitted, it is not possible on this record to ascertain the extent of prejudice, if any, to the interests of the Union Defendants, although the Union Defendants argue that Local 1180 was excluded from any investigation related to the charge and suffered the prejudice any party suffers from such exclusion. Accordingly, the identity-of-interest exception does not apply and Cabrera's claim pursuant to Title VII and the ADEA must be dismissed as against Local 1180. II. Cabrera's Duty of Fair Representation Claim Against the Union Defendants Must Be Dismissed For Lack of Jurisdiction
The cases cited by Cabrera are readily distinguishable from the situation described herein and provide no support for her claim of agency and identity between the Union Defendants and the "Institutional Hospital Defendants." In Romain v. Kurek, 772 F.2d 281 (6th Cir. 1985), for instance, the Court of Appeals for the Sixth Circuit concluded that summary judgment was not warranted due to a genuine issue of material fact as to whether an identity of interest existed between a business named in an EEOC charge and a defendant not so named where the defendant had purchased interest in the named business. No such factual premise has been alleged here. In Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990), the Court of Appeals for the Ninth Circuit did not employ the Glus test adopted in this circuit by Johnson in reversing the district court's dismissal of claims against individual defendants not named in the EEOC charge, instead electing a different analytical approach. Sosa has no precedential weight in this circuit and Cabrera has offered no suggestion as to what, if any, relevance the approach adopted by the Ninth Circuit may have to these proceedings. The remaining cases cited by Cabrera are similarly inapposite. See Bapat v. Conn. Dep't of Health Servs., 815 F. Supp. 525 (D. Conn. 1992) (applying the Glus factors and holding that individuals not named in the EEOC charge may be named in the federal complaint where they had actual notice of the charge when it was filed and were senior officials of the party named in the charge);Brewster v. Shockley, 554 F. Supp. 365 (W.D. Va. 1983) (applying the Glus factors and concluding that state and local government agencies were substantially identical); Williams v. S. Bell Tel. Tel. Co., 464 F. Supp. 367 (S.D. Fla. 1979) (dismissing the defendant union from the action without prejudice where the plaintiffs had failed to oppose the union's motion to dismiss, but permitting the plaintiffs to file an amended complaint naming the union as a defendant provided that the amended complaint contains factual allegations sufficient to satisfy the Glus criteria).
The dismissal is without prejudice. See Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 122 (2d Cir. 1999) (holding that "where federal subject matter jurisdiction does not exist, federal courts do not have the power to dismiss with prejudice, even as a procedural sanction") (footnote omitted); see also Seaweed, Inc. v. DMA Product Design Marketing LLC, 219 F. Supp. 2d 551, 554 (S.D.N.Y. 2002) (stating that "[a] dismissal for lack of jurisdiction does not operate on the merits and therefore should not issue with prejudice").
The Union Defendants initially argued that Cabrera's claim that they breached a duty of fair representation with regard to Cabrera must be dismissed as it does not sound in federal law or, in the alternative, is barred by the statute of limitations under either the Labor Management Relations Act, 29 U.S.C. § 141et seq., or the Taylor Law, N.Y. Civ. Serv. Law § 200 et seq. Cabrera's complaint identifies no statutory basis for her claim. (See Compl. at ¶¶ 24-25.) Nonetheless, Cabrera argues in her opposition papers that the claim sounds in federal law, as it is brought under 42 U.S.C. § 2000e-2(c). This provision, according to Cabrera, "has been interpreted to include the breach of the duty of fair representation based on discrimination which is what is alleged here." (Pl. Opp. Mem. at 4.) In response, the Union Defendants argue that the claim must be dismissed for the same reasons invoked in the context of Cabrera's Title VII and ADEA claim.
In her opposition papers, Cabrera cites to "42 USC 2000(e)-(c) Labor Organization Practices." (Pl. Opp. Mem. at 4.) No such provision exists, although it is inferred here that Cabrera intends to refer to 42 U.S.C. § 2000e-2(c), which provision relates to unlawful employment practices by labor organizations.
The provision in question states in its entirety:
It shall be an unlawful employment practice for a labor organization —
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.42 U.S.C. § 2000e-2(c).
As Cabrera suggests, where a union has breached the duty of fair representation and there is evidence that discriminatory animus motivated the breach, such conduct may be actionable under 42 U.S.C. § 2000e-2(c). See, e.g., Young v. New York City Bd. of Educ., Dist. Council 37, No. 01 Civ. 6726 (FBLB), 2004 WL 1418386, at *5 (E.D.N.Y. June 25, 2004); Agosto v. Corr. Officers Benevolent Ass'n, 107 F. Supp. 2d 294, 303 (S.D.N.Y. 2000). As the cited provision is part of Title VII, however, even had the complaint invoked that provision in conjunction with Cabrera's duty-of-fair-representation claim against the Union Defendants, the claim nonetheless would have to be dismissed as to Local 1180 as Cabrera has not satisfied the jurisdictional prerequisites with regard to Local 1180 for the reasons set forth above, and likewise dismissed as to Harris in view of the controlling law of this circuit precluding individual liability on Title VII claims. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam); Tomka v. Seiler, 66 F.3d 1295, 1317 (2d Cir. 1995) (Title VII), abrogated on other grounds by, Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); see also Hussein v. Hotel Employees Restaurant Union Local 6, No. 98 Civ. 9017 (SAS), 1999 WL 767429, at *4 (S.D.N.Y. Sept. 28, 1999) (applying the Tomka bar on individual liability under Title VII to union officials); Rahim v. Teamsters Local #237, No. 95 Civ. 10072 (DAB), 1998 WL 151025, at *6 n. 5 (S.D.N.Y. Mar. 31, 1998) (same); Israel v. Laborers' Int'l Union of N. Am. Local 731, No. 96 Civ. 435 (AGS), 1997 WL 639252, at *2 (S.D.N.Y. Oct. 15, 1997) (same).
III. Pendent Party Jurisdiction Shall Be Exercised With Respect to the Remaining State Law Claims Against the Union Defendants
The Union Defendants have moved to dismiss Cabrera's claim against them brought pursuant to N.Y. Exec. Law § 296 on the grounds that Cabrera's claim is time-barred and that she fails to state a claim. As the only remaining claims against the Union Defendants sound in state law, the Court must first determine whether an exercise of supplemental jurisdiction over these claims is warranted.
"In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well." Marcus v. AT T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994); Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir. 1988)). Notwithstanding this general rule, pursuant to 28 U.S.C. § 1367(a) and subject to that section's stated exceptions, "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367 (a);see also Lyndonville Sav. Bank Trust Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000) (explaining that whether "the state and federal claims comprise one case under Article III (may be] tested by whether they share a 'common nucleus of operative fact,' such that the plaintiff 'would ordinarily be expected to try them all in one judicial-proceeding'") (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).
Although the federal claims against the Union Defendants have been dismissed for want of subject matter jurisdiction, the doctrine of supplemental or pendent jurisdiction codified at 28 U.S.C. § 1367(a) permits this Court to exercise jurisdiction over the state claims against the Union Defendants in light of the remaining federal claim against the City, Bellevue, and HHC.See Kirschner v. Klemons, 225 F.3d 227, 239 (2d Cir. 2000) (stating that "pendent party jurisdiction [is] possible where the claim in question arises out of the same set of facts that give rise to anchoring federal question claim against another party"). The remaining state law claims against the Union Defendants have been brought against all defendants; accordingly, the inclusion of the Union Defendants appears unlikely to place any legal issue before the court not otherwise there. The state law claims against all defendants and the federal claim against the City, Bellevue, and HHC also appear to share a common nucleus of operative fact involving a complaint by Cabrera concerning an incident at work (see Compl. at ¶ 15) and the circumstances under which Cabrera's employment was terminated. (See Compl. at ¶ 17). That the federal claim against the City, Bellevue, and HHC may depend on additional facts does not detract from this commonality. Finally, at present it appears that trying these claims together would promote judicial efficiency and economy. Accordingly, this Court will retain pendent party jurisdiction over the two remaining state law claims against the Union Defendants. See Gagliardi, 137 F. Supp. 2d at 380.
IV. The Motion of the Union Defendants to Dismiss Cabrera's Claim Under N.Y. Exec. Law § 296 Is Denied
The Union Defendants argue that Cabrera's claim against them brought pursuant to N.Y. Exec. Law § 296 is at least partially time-barred, as a claim under Section 296 must be brought within three years of the alleged discriminatory act or acts. See N.Y.C.P.L.R. § 214 (2); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). They further argue that, to the extent Cabrera's claim is not time-barred, she fails to state a claim because the termination of her employment was not something Local 1180 or Harris could address. In opposition, Cabrera argues that her claims against the Union Defendants, as set forth in Paragraphs 15 and 16 of her complaint, were brought well within the three-year statute-of-limitations period.
In order to satisfy the statute of limitations for N.Y. Exec. Law § 296, the act or acts of discrimination alleged by Cabrera as against the Union Defendants must have taken place within three years of the filing of the complaint in this action on April 8, 2004: in other words, on or after April 8, 2001. Although the events alleged in Paragraph 15 of the complaint may be inferred to have taken place in or after 1999 (see Compl. at ¶ 14), there are no allegations in the complaint sufficient to demonstrate that the incidents described or the reports made took place within three years of the filing of this action. Nonetheless, Cabrera's failure to specify the dates relevant to the allegations contained in Paragraph 15 in either her complaint or her opposition papers does not require dismissal of her Section 296 claim with respect to the allegations of Paragraph 15 of her complaint. As all inferences must be drawn in the plaintiff's favor on a motion to dismiss under Rule 12(b) (6), Fed.R.Civ.P., this Court may not conclude that Cabrera's claim with respect to incidents reported to Harris in or after 1999 is time-barred as a matter of law. See, e.g., Briggs v. New York State Dep't of Transp., 233 F. Supp. 2d 367, 374-75 (N.D.N.Y. 2002) (explaining that the complaint was too vague concerning the timing of events to determine if they were timebarred and noting that "[t]he precise timing of these discrete events likely can be ascertained through discovery and the untimely ones weeded out through a motion for summary judgment"); Campbell v. Grayline Air Shuttle Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996) (declining to dismiss claims as a matter of law for want of allegations concerning specific dates, but dismissing the claims with leave to replead the dates on which the acts occurred).
Unlike the allegations contained in Paragraph 15, the allegations contained in Paragraphs 16, 17, and 21 of Cabrera's complaint relate to events that purportedly transpired in December 2002, January 2003, and thereafter. These allegations are not susceptible to a statute-of-limitations defense. The Union Defendants argue, however, that at least with respect to the circumstances set forth in Paragraphs 16 and 17 dismissal is proper, as the replacement of provisional employees such as Cabrera by permanent employees is an act mandated by New York State law, see N.Y. Civ. Serv. Law § 65, and, thus, "not an act that any union could address." (Union Defs. Mem. at 4.) As Cabrera has alleged that the Union Defendants successfully represented her and "saved [her] job" when, in December 2002, Infante informed her that persons who had passed the civil service test were up for promotion and would replace the current provisional PAAs (Compl. at ¶ 16) and such allegations must be accepted as true on a motion to dismiss, the Union Defendants' argument that there was nothing they could do to address a seemingly similar situation in January 2003 (see Compl. at ¶ 17) does not warrant dismissal of Cabrera's claim as a matter of law. Furthermore, the Union Defendants have not suggested a basis for dismissal of Cabrera's Section 296 claim insofar as it relates to Cabrera's allegations that she was not offered another position despite many positions being open and repeated requests to Infante and Harris (see Compl. at ¶ 21). The motion of the Union Defendants to dismiss Cabrera's claim pursuant to N.Y. Exec. Law § 296 is denied. Conclusion
In asserting a claim under N.Y. Exec. Law § 296, Cabrera has alleged that "[a]ll defendants, acting together, purposefully discriminated against the plaintiff by reason of age and national origin. . . ." (Compl. at ¶ 32.) The Union Defendants argue in their moving papers that, to the extent Cabrera is seeking to plead a conspiracy among the defendants, she has failed to do so with the particularity required. See, e.g., Nweke v. Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 219 (S.D.N.Y. 1998). As Cabrera has not alleged any facts from which a conspiracy might be inferred or indicated in her opposition to the Union Defendants' motion that a claim for conspiracy was being asserted, her pleading will not be read to assert — and, in any case, lacks adequate particularity to sustain — a claim of conspiracy with regard to her Section 296 allegations.
For the reasons set forth above, the motion of the Union Defendants is granted insofar as the first and second claims for relief in Cabrera's complaint are dismissed without prejudice as to the Union Defendants, and is otherwise denied.
It is so ordered.