LLanos v. The Brookdale University Hospital and Medical Center et al
ORDER granting 31 Motion to Dismiss; granting 33 Motion to Dismiss; granting 34 Motion to Dismiss -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, defendants' motions to dismiss are granted in their entirety. Accordingly, the amended complaint and original complaint are dismissed with prejudice without leave to replead. The Clerk of the Court is directed to enter judgment on behalf of defendants and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/11/2012. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THE BROOKDALE UNIVERSITY HOSPITAL AND :
MEDICAL CENTER, SODEXHO MARRIOT
HEALTH CARE SERVICES, and SERVICE
EMPLOYEES INTERNATIONAL UNION LOCAL
DORA L. IRIZARRY, United States District Judge:
MEMORANDUM AND ORDER
Plaintiff Ricardo Llanos filed this action against the Brookdale University Hospital and
Medical Center (“Brookdale”), Sodexho Marriot Health Care Services (“Sodexho”), and Service
Employees International Union Local 1199 AFL-CIO (the “Local 1199”). Plaintiff alleged that,
pursuant to Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §185,
Brookdale wrongfully terminated him in violation of the Collective Bargaining Agreement
(“CBA”), and that the Union breached the duty of fair representation in its representation of
plaintiff during grievance proceedings.
Plaintiff further alleged an unspecified civil rights
violation. Brookdale, Sodexho, and Local 1199 moved to dismiss this action, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. This Court dismissed the complaint with leave
to replead in a March 2, 2011 Memorandum and Order. (See 3/2/11 Memo. & Or., Doc. Entry
No. 29.) Plaintiff filed an amended complaint (See Am. Compl., Doc. Entry No. 30), which is
the subject of the current round of motions to dismiss, filed by defendants Brookdale, Sodexho,
and Local 1199. For the reasons set forth below, defendants’ motions to dismiss are granted.
Plaintiff worked as a “floating housekeeper” in the housekeeping department at
Brookdale. (Am. Compl. ¶ 3.) Plaintiff alleges that Brookdale hired Sodexho as an independent
contractor to perform and oversee cleaning services. (Am. Compl. ¶¶ 2, 25.) Plaintiff alleges
that Brookdale delegated its duty to supervise Brookdale housekeeping employees to Sodexho,
and that plaintiff reported to Peter Ortiz, a Sodexho employee. (Am. Compl. ¶¶ 2, 17, 26.)
On April 7, 2009, Ortiz observed plaintiff urinating on a hospital wall near the trash area.
(Am. Compl. ¶¶ 34-37.) Plaintiff denied this allegation (Am. Compl. ¶ 38), but Ortiz suspended
plaintiff (Am. Compl. ¶ 39). Plaintiff alleges that Ortiz notified Lloyd Bailey, another Sodexho
employee, of the incident, and that Bailey directed Ortiz to terminate plaintiff. (Am. Compl. ¶
41.) Ortiz terminated plaintiff on April 27, 2009, in a letter drafted on Brookdale letterhead.
(Am. Compl. ¶ 42.) The “cc” line of the letter directs a copy to be sent to Brenda Lee, the
Director of Human Resources for Brookdale. (Am. Compl. ¶ 43.) According to plaintiff, Lee
did not respond to his requests to discuss his termination and Brookdale rejected his requests to
rescind the termination. (Am. Compl. ¶¶ 44-47.) Plaintiff contends that Brookdale knew that
Ortiz was not a Brookdale employee, and that by permitting him to terminate plaintiff, and
rejecting plaintiff’s requests for reinstatement, Brookdale breached Article XXIX(1) of the
Collective Bargaining Agreement (“CBA”) between Brookdale and plaintiff’s union, Local 1199
(See CBA, Ex. A, Am. Compl.). (Am. Compl. ¶¶ 47-57.)
Plaintiff appealed his termination through the grievance process established between
Brookdale and Local 1199.
With respect to the grievance proceedings, plaintiff describes
The facts of this case are familiar to the parties and are set forth in detail in this Court’s March 2, 2011
Memorandum and Order. The Court will further elaborate on the facts of this case, in particular, the revised
allegations in the amended complaint, to the extent necessary to resolve defendants’ motions to dismiss.
interactions he had with an individual named “Ofiri” but the relationship between plaintiff and
Ofiri is unclear. Plaintiff alleges that he attended the grievance with a union representative and
that Ofiri was present. (Am. Compl. ¶ 67.) Plaintiff alleges that the hearing panel did not permit
plaintiff or his representative to speak and that the panel ruled unanimously against him. (Id.)
Plaintiff alleges similar treatment at his “Citywide” appeal. (Am. Compl. ¶ 71.) According to
plaintiff, Ofiri advised plaintiff that his claim lacked merit and that Ofiri, in some unspecified
manner, prevented plaintiff from challenging his termination on the basis of Brookdale’s breach
of the CBA. (Am. Compl. ¶¶ 72-73.) Plaintiff also asserts that Ofiri pressured plaintiff to
apologize for urinating, which plaintiff refused. (Am. Compl. ¶¶ 77-78.) Plaintiff asserts that
Local 1199’s refusal to challenge plaintiff’s termination on the basis of Brookdale’s breach of
the CBA constitutes a breach of Local 1199’s duty of fair representation to plaintiff. (Am.
Compl. ¶¶ 79-85.)
In the amended complaint, plaintiff indicates that he is a “Latino male, age 49.” (Am.
Compl. ¶ 24.) Plaintiff asserts an unspecified “civil rights” claim against the defendants.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” 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). The court may only consider the pleading
itself, documents that are referenced in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession or that the plaintiff knew of when
bringing suit, and matters of which judicial notice may be taken. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002); Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62
F.3d 69, 72 (2d Cir. 1995).
Claims Premised on Brookdale’s Alleged Breach of the CBA
The amended complaint fails to establish that Brookdale breached the CBA. Under
Article XXIX of the CBA, “The Employer shall have the right to discharge, suspend or
discipline any Employee for cause.” (Am. Compl., Ex. A at 2.) The excerpted portions of the
CBA attached to the amended complaint contain no limitations as to Brookdale’s ability to
delegate any portion of its authority under Article XXIX to third parties. Plaintiff concedes, in
his memorandum of law, that the CBA does not contain any such limitation; rather, plaintiff
argues that Brookdale should be prohibited, as a matter of law, from delegating any of its
authority. Plaintiff fails to provide any legal support for this argument. Nor could the Court
Moreover, plaintiff concedes that his notification of termination was drafted on
Brookdale’s letter head and that it directed a copy to be sent to Lee, Brookdale’s Director of
Plaintiff concedes that he fought his termination through a grievance
procedure against Brookdale and that had his grievance proceeded to arbitration, he would have
arbitrated against Brookdale. To the extent that it can be argued that Brookdale was not involved
with his termination because Ortiz, a Sodexho employee came to the initial conclusion that
termination was justified, it cannot be argued that Brookdale somehow delegated its authority or
responsibility with respect to the decision to terminate plaintiff. On the facts of the amended
complaint, Brookdale participated in the termination at every stage, except discovery of
plaintiff’s violation and the initial action to set plaintiff’s termination in motion. Again, plaintiff
failed to provide any legal authority for the proposition that a termination under these
circumstances constitutes a breach of the CBA. Nor has the Court located any. Accordingly,
plaintiff’s claim against Brookdale for breach of the CBA is dismissed.
Plaintiff also alleges a “hybrid” claim under Section 301 against both Brookdale and
Sodexho. “To establish a hybrid § 301 claim, a plaintiff must prove both (1) that the employer
breached a collective bargaining agreement and (2) that the union breached its duty of fair
representation vis-a-vis the union members.” White v. White Rose Food, 237 F.3d 174, 178 (2d
Cir. 2001). “The plaintiff may sue the union or the employer, or both, but must allege violations
on the part of both.” Id. As set forth above, the amended complaint fails to establish that
Brookdale breached the CBA by delegating initial termination actions to Sodexho. Accordingly,
plaintiff’s hybrid claim is dismissed against Brookdale and Local 1199.
Plaintiff’s Civil Rights Claim
As discussed in the March 2, 2011 Memorandum and Order, plaintiff failed to establish
claims under 28 U.S.C. § 1343, a statute that simply grants courts original jurisdiction over civil
rights actions, and 42 U.S.C. § 1985, a statute conferring a cause of action for conspiracy to
deprive an individual of civil rights. The amended complaint fails to remedy the infirmities
discussed in this Court’s original dismissal order.
In particular, there are no assertions
whatsoever that the actions of any employees of Sodexho or Brookdale, or members of Local
1199 were motivated by discriminatory animus. Plaintiff’s statement that he is a “Latino male,
age 49” is insufficient to establish motivations on the part of any of the employees of the
defendants discussed in the amended complaint.
In his opposition to defendants’ motions, plaintiff quotes Title VII, hinting at a claim of
wrongful discharge on the basis of race or national origin. To establish a claim under Title VII, a
plaintiff must establish that “(1) he was a member of a protected class; (2) he was qualified for
his job; (3) he suffered an adverse employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination. Collins v. N.Y. City Trans. Auth.,
305 F.3d 113, 118 (2d Cir. 2002).
As discussed above, there is nothing in the amended
complaint that can be construed as allegations of discriminatory animus on the part of the
employees of Sodexho and Brookdale or the members of Local 1199. Accordingly, plaintiff’s
civil rights claim against the defendants is dismissed.
For the reasons set forth above, the motions to dismiss are GRANTED. The amended
complaint is dismissed with prejudice without leave to replead.
Dated: Brooklyn, New York
March 11, 2012
DORA L. IRIZARRY
United States District Judge
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