Olabopo v. 1199 Seiu

Full title: ESTHER OLABOPO, pro se, Plaintiff v. 1199 SEIU, Defendant

Court: United States District Court, E.D. New York

Date published: Mar 29, 2011

10-CV-1317 (DLI) (LB) (E.D.N.Y. Mar. 29, 2011)

Opinion

10-CV-1317 (DLI) (LB).

March 29, 2011

MEMORANDUM ORDER

DORA IRIZARRY, District Judge

Pro se ¹ plaintiff Esther Olabopo initiated this action against 1199 SEIU Homecare Employees Pension Fund ("Fund") pursuant to the Employee Retirement Income Security Act ("ERISA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). On May 27, 2010, Defendant moved for summary judgment on the ERISA claim and to dismiss the Title VII claims. For the reasons that follow: (1) Defendant's motion for summary judgment is granted as to Plaintiff's ERISA claim; (2) Defendant's motion to dismiss Plaintiff's Title VII claims is also granted, but the claims are dismissed without prejudice. The Clerk of the Court is directed to hold the closure of this case in abeyance for thirty days. Plaintiff has leave to file an amended complaint (as to the Title VII claims only) that is consistent with this Order by April 28, 2011. Plaintiff's failure to file an amended complaint by that date will result in a dismissal with prejudice.

1 Complaints by pro se parties will be accorded more deference than those filed by attorneys. Erickson v Pardus, 551 U.S. 89 (2007). As such, the court will "construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s]." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002).

BACKGROUND ²

2 Plaintiff has not responded to Defendant's Local Civil Rule 56.1 Statement. Therefore, the court deems admitted, where supported by evidence, the facts set forth in the 56.1 Statement. See Giannulo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (uncontroverted facts in a Rule 56.1 statement will be deemed admitted where supported by evidence).

The Fund is a defined benefit pension plan, administered to comply with the provisions of ERISA. (Def.'s 56.1 Stmt. ¶ 3.) The Fund provides pension and disability benefits to covered Union members in accordance with written Plan Documents. ( Id. ¶ 4.) Participating Union employers finance the benefits through contributions on behalf of their employees, pursuant to the terms of individual collective bargaining agreements. ( Id. ¶ 5.) Therefore, not all Union employers contribute to the Fund. ( Id. ¶ 5.) A Union member only earns credit toward a pension when work is performed for a contributing employer. ( See THE 1199 HOME CARE EMPLOYEES PENSION PLAN Ex. B1 § 1.06 [hereinafter "PENSION PLAN"].) Contributing employers submit monthly reports to the Fund regarding the number of hours each Union employee works, and the Fund then allocates pension credits to those employees. (Def.'s 56.1 Stmt. ¶ 7.) When an employee retires, the cumulative number of pension credits earned determines eligibility for benefits.

The Plan calculates credits as follows:

Employment between January 1, 1992 through December 31, 2001 Hours of covered employment during calendar year Pension Credit Employment between January 1, 2002 through the present Hours of covered employment during calendar year Pension Credit

1,500 or more hours 1.000 From 1,250 to 1,499 hours .750 From 1,000 to 1,249 .625 From 750 to 999 hours .500 Under 750 hours 0 1,000 or more hours 1.000 From 750 to 999 hours .750 From 500 to 749 hours .500 From 250 to 499 hours .250 Under 250 hours 0 Plaintiff is a Union member and Fund participant who worked for both contributing and non-contributing employers. (Def.'s 56.1 Stmt. ¶ 6.) To have qualified for pension benefits, Plaintiff must have earned 5 total years of pension credit, and at least one quarter (1/4) of a pension credit during the contribution period. ( Id. ¶ 9; PENSION PLAN Ex. B1. § 3.13.) According to Defendant, and the documents submitted to the court, Plaintiff's hours worked, credits earned, and years of credited services are as follows: Year Hours Worked Earned Credit Total 1.75 1999 549 0 2000 412 0 2001 0 0 2002 879 .75 2003 42 0 2004 0 0 2005 0 0 2006 0 0 2007 1284 1.00 2008 118 0 On April 11, 2008, Plaintiff applied for pension benefits based on her employment from 1999 to 2008. (Def.'s 56.1 Stmt. ¶ 8.) On September 28, 2008, Defendant denied Plaintiff's application, finding that she had not earned enough pension credits. ( Id. ¶ 9.) Plaintiff appealed that decision, which the Retirement Committee of the Fund denied on April 15, 2009. ( Id. ¶¶ 10-14.) Plaintiff initiated this action on March 18, 2010, contesting the denial of pension benefits, alleging employment discrimination against a non-party employer, and claiming that the Fund violated its duty of fair representation.

DISCUSSION

1. Defendant's Motion to Dismiss

The Fund moves to dismiss Plaintiff's claims arising under Title VII pursuant to Federal Rule of Civil Procedure 12(b)(6). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The pleading standard under Rule 8 does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). A plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Twombly, 550 U.S. at 555. On a Rule 12(b)(6) motion, the court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002).

First, Plaintiff claims that United Healthcare, her former employer, discriminated against her on the basis of her race and/or national origin. This claim is dismissed because United Healthcare is not a party to this action. Second, Plaintiff claims that, after reporting to the Union that Stella Orten and Personal Touch terminated her, the Union "did not do anything about it." In order to state a Title VII claim against the Union for breaching its duty of fair representation, Plaintiff must allege, inter alia, that discriminatory animus motivated the Union's action (or inaction). See Carrion v. Local 32B-32J Serv. Employees Intern. Union, AFL-CIO, 2005 WL 659321, at *6 (S.D.N.Y. 2005) ("To establish a prima facie Title VII claim against a union for a breach of its duty of fair representation, a plaintiff must show that (1) the employer violated the collective bargaining agreement with respect to the plaintiff, (2) the union permitted the violation to go unrepaired, thereby breaching the union's duty of fair representation, and (3) there was some indication that the union's actions were motivated by discriminatory animus."). Plaintiff's allegations fall short of the standard required to state a cause of action under Title VII. Accordingly, the court grants Defendant's motion to dismiss Plaintiff's Title VII claims without prejudice and grants Plaintiff leave to file an amended complaint.

2. Defendant's Motion for Summary Judgment a. Standard of Review

Generally, summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In the context of ERISA benefit claims, however, the court must first determine the standard of review governing plaintiff's denial of disability benefits under the Plan. See Firestone Tire and Rubber Co. v Bruch, 489 U.S. 101, 115 (1989) (holding that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan."). Where the Plan reserves discretionary authority to its administrator or fiduciary, denials are subject to the more deferential arbitrary and capricious standard, and may be overturned only if the decision is "without reason, unsupported by substantial evidence or erroneous as a matter of law." Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995) (citation and internal quotation marks omitted). Under this standard, "a motion for summary judgment is merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply." Anderson v. Sotheby's, Inc., 2006 WL 1722576, at *14 (S.D.N.Y. June 22, 2006) (citing Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999)).

Defendant bears the burden of proving that the arbitrary and capricious standard of review applies, since "the party claiming deferential review should prove the predicate that justifies it." Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir. 1995). Thus, the critical issue is whether the Plan's language reserves discretionary authority to the Fund, thereby invoking the arbitrary and capricious standard of review. See Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 251 (2d Cir. 1999). Section 7.05 of the governing Plan Documents grants the Trustees, "exclusive authority and discretion" to, inter alia, determine whether individuals are eligible for any benefits under the Plan, find facts relevant to any claim for benefits, and interpret all provisions of the Plan. (PENSION PLAN Ex. B1 § 7.05.) Moreover, § 7.05 also states that the Fund's decision as to a member's eligibility for benefits "may not be overturned or set aside by any arbitrator or court of law unless . . . found to be arbitrary or capricious, or made in bad faith." ( Id.) This clear and unambiguous language entitles the Fund to a deferential standard of review. See Kinstler, 181 F.3d at 251. b. Merits of Plaintiff's Claim

Having determined the appropriate standard of review to be applied, the court now turns to the merits of Plaintiff's claim that she was improperly denied pension benefits under the Plan. Because the Fund applied the plain letter reading of the Plan Documents, its decision is not arbitrary or capricious. See Pesca v. Bd. of Trs. Mason Tenders' Dist. Council Pension Fund, 879 F. Supp. 23, 25 (S.D.N.Y. 1995). Plaintiff received the appropriate credit, pursuant to the Plan Documents, for the amount of hours reported to the Fund by her employers. ( See A.R. 2-3.) Additionally, Plan administrators contacted Plaintiff prior to her appeal and encouraged her to submit additional documentation if she felt that her hours were misreported. ( Id. at 23-24.) Plaintiff only submitted one additional paystub, dated after the relevant time period, which, in any event, would not have given her enough credit to vest in the Plan. (Compl. 10.) Thus, the Fund's determination is consistent with the terms of the Plan Documents and is supported by substantial evidence. See Pagan, 52 F.3d at 442. Under the deferential arbitrary and capricious standard, the court cannot substitute its own judgment for that of the Fund administrators. Fuller v. J.P. Morgan Chase Co., 423 F.3d 104, 107 (2d Cir. 2005). Accordingly, Plaintiff's request is denied and summary judgment is granted.

CONCLUSION

For the reasons set forth above: (1) Defendant's motion for summary judgment is granted as to Plaintiff's ERISA claim; (2) Defendant's motion to dismiss Plaintiff's Title VII claims is also granted, but the claims are dismissed without prejudice. The Clerk of the Court is directed to hold the closure of this case in abeyance for thirty days. Plaintiff has leave to file an amended complaint (as to the Title VII claims only) that is consistent with this Order by April 28, 2011. Plaintiff's failure to file an amended complaint by that date will result in a dismissal with prejudice. For the convenience of pro se plaintiff, instructions on how to amend a complaint are attached. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith and, therefore, in forma pauperis status is denied for appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK PRO SE OFFICE U.S. COURTHOUSE 225 CADMAN PLAZA EASTBROOKLYN, NEW YORK 11201 HOW TO AMEND YOUR COMPLAINT

If you have forgotten to state an important matter in your complaint, you discover something new after you filed your complaint, you want to add a defendant, or you want to insert the true name of a "John Doe" defendant, you may be able to file an amended complaint. An amended complaint does notjust add to the first complaint. Once you file an amended complaint it entirely replaces your original complaint.

Amendments to a complaint are governed by Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) provides that:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

This means that if the defendant has not yet filed an answer to your complaint, you can file one amended complaint without permission of the Court. If the defendant has filed a motion to dismiss but has not filed an answer, you are still entitled to file one amended complaint without permission. (You are only permitted to file one amended complaint before defendant files an answer; if you wish to file a second amended complaint before defendant files an answer, you must obtain defendant's consent or you must obtain permission from the Court). However, if the defendant has already filed his answer to your complaint, you must get written consent from the defendant or permission of the Court before amending your complaint. If the defendant agrees in writing that you can file an amended complaint, you must ask the judge to write "So Ordered" on the written consent, indicating that the judge has approved the consent. If the defendant does not give you written consent, you can ask permission from the Court by filing a motion to amend the complaint and including a copy of the proposed amended complaint with your motion papers. Instructions for preparing a motion are attached and are available separately.

If you file an amended complaint. It must be captioned as an " Amended Complaint."

FILING AND SERVING THE AMENDED COMPLAINT SERVICE OF THE AMENDED COMPLAINT BEFORE THE ORIGINAL COMPLAINT HAS BEEN SERVED

If you decide to amend your complaint before defendant has been served with your original complaint and summons, you should serve the amended complaint on defendant and file the original amended complaint with the Pro Se Office as follows:

1. Make copies of your amended complaint.

2. Keep one copy for your own records.

3. File the original of your amended complaint with the Pro Se Office.

4. If you have not added new defendants in your amended complaint, use the summons that was originally issued by the Court.

5. Have a copy of the summons and a copy of the amended complaint served on each defendant by someone who is over eighteen and is not a party to the action. The original summons with the seal of the court embossed on it must be returned to the Court, so do not serve the original summons on any defendant.

6. Have the person who serves the summons and amended complaint on each defendant complete an affidavit or affirmation of service of process form.

7. Make a copy of the affidavit or affirmation of service of process and keep it for your own records.

8. Attach the original affidavit or affirmation of service to the original summons.

9. File the original summons and the affidavit or affirmation of service of process with the Pro Se Office.

SERVICE OF THE AMENDED COMPLAINT AFTER THE ORIGINAL COMPLAINT HAS BEEN SERVED ON ALL DEFENDANTS

If you decide to amend your complaint after the defendant has been properly served with your original complaint and summons (and you have not added any new defendants in your amended complaint), you should take the following steps:

1. Make copies of your amended complaint.

2. Keep one copy for your own records.

3. Send a copy of your amended complaint to the attorney for each defendant by ordinary first-class mail.

4. Complete an affidavit or affirmation of service of process form stating that the amended complaint was mailed to each defendant.

5. Make a copy of the affidavit or affirmation of service of process and keep it for your own records.

6. File the original amended complaint and your original affidavit or affirmation of service of process with the Pro Se Office.

DELIVERY OF THE AMENDED COMPLAINT AFTER THE ORIGINAL COMPLAINT HAS BEEN SERVED ON SOME DEFENDANTS BUT NOT ON OTHERS

If you decide to amend your complaint after some defendants have been served with your original complaint and summons but before other defendants have been served (or you have added new defendants in your amended complaint), you should take the following steps:

1. Make copies of your amended complaint.

2. Keep one copy for your own records.

3. Send a copy of your amended complaint by ordinary first-class mail to each defendant who has already been served.

4. Complete an affidavit or affirmation of service of process form stating that the amended complaint and summons was mailed to each defendant.

5. Make a copy of the affidavit or affirmation of service of process and keep it for your own records.

6. File the original amended complaint and original affidavit or affirmation of service of process with the Pro Se Office.

7. If you have not added new defendants in your amended complaint, you must serve the amended complaint on the defendant who has not yet been properly served. If you have added new defendants, the Court will issue an amended summons which must be served with the amended complaint. If you are adding defendants, you must bring this to the attention of the Pro Se Writ Clerk.

8. Have a copy of the amended summons and a copy of the amended complaint served pursuant to Rule 4 of the Federal Rules on any defendant who was not previously served with the original complaint.

9. Have the person who served the amended summons and the amended complaint to each of the new defendants complete an affidavit or affirmation of service of process form.

10. Make a copy of the affidavit or affirmation of service of process.

11. Attach the affidavit or affirmation of service of process to the amended summons.

12. File the original amended summons and the original affidavit or affirmation of service of process with the Pro Se Office.

If you have questions regarding any of the procedures listed above, please contact the Pro Se Office at 718-613-2665.

Tara D. Hunter-Hicks and Ralph Vega, Jr. Pro Se Writ Clerks Attn : Pro Se Office United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 8:30AM — 5:00PM (718) 613-2665