Lora-Serrano v. CWA Local 1032

Filing 19

MEMORANDUM AND ORDER, In accord with the foregoing, deft's 9 Motion to Dismiss is granted and the amended complaint is dismissed in its entirety. As to pltff's state law claims, dismissal is without prejudice. As to all other claims, dismissal is with prejudice. The Clerk is ordered to enter judgment for deft in accordance with this Memorandum and Order and to close the case. (Ordered by Judge Eric N. Vitaliano on 2/1/2012) c/m Fwd. for Judgment. (Galeano, Sonia)

FILED
IN CLERK'S

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USOISTRICTGO!I~i~ i :

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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RHONDA D. LORA-SERRANO,

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FEB 0 ~ jC\1

BROOKLYH

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Plaintiff,
MEMORANDUM & ORDER
-against11-cv-1682 (ENV) (LB)
CWA LOCAL 1032,
Defendant.

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VITALIANO, D.J.
Plaintiff Rhonda D. Lora-Serrano ("Serrano") brings this action, pro se, against her
former union, CWA Local 1032 ("the union"). In her amended complaint, plaintiff alleges
violations of Title Vll of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. ("Title Vll"), the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"), the Americans with
Disabilities Act, 42 U.S.C. §§ 12111 et seq. ("ADA"), the First Amendment, the Union
Members' Bill of Rights of the Labor Management Reporting and Disclosure Act ("LMRDA"),
29 U.S.C. §§ 411-412, the New York State Human Rights Law, N.Y. Exec. Law§§ 290-296,
and the New York City Human Rights Law, N.Y.C. Admin. Code§ 8-107. The union now
moves to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim. For the
reasons stated below, defendant's motion is granted.
I.

BACKGROUND
The essential facts are drawn from Serrano's amended complaint; all reasonable

inferences are construed in her favor. See Gorman v. ConsoL Edison Coro., 488 F.3d 586, 59192 (2d Cir. 2007).

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Serrano is a 53 year-old African-American woman. For over 17 years plaintiff was
employed as a secretary by the Port Authority of New York & New Jersey ("the Port Authority")
and, during that time, was a member of the union. Serrano has also been diagnosed with
scleroderma, an autoimmune disease. Plaintiff alleges that on numerous occasions throughout
her career, the Port Authority subjected her to adverse working conditions, such as too much
work without adequate time to complete it, and transfers between departments and supervisors
without notice. Plaintiff avers that white employees were not generally subjected to such
conditions. She further alleges that, during her career at the Port Authority, she was often
supervised by white employees with less experience than she had.
While the complaint recounts woe occurring over almost the entirety of her tenure with
the Port Authority, Serrano does not name her employer as a defendant. Her complaint targets
only the union. 1 It contains several vague statements that, over the years, Serrano felt
"abandoned" and betrayed by the union with regard to her dissatisfaction at the Port Authority.
Even on the most liberal reading, however, the only nonconclusory, fact-based allegations
against the union pertain to plaintiffs suspension on September 18, 2008?
In that regard, Serrano alleges that on the afternoon of September 18, 2008, a Port
Authority manager, Jane Hegarty, came to plaintiffs workstation and asked her to come to a
meeting in a nearby conference room. Plaintiff declined to accompany Hegarty unless a union
representative was present. Hegarty allegedly threatened to publicly read from a piece of paper
she was holding if Serrano did not come to the conference room, but then left her workstation for
1

Serrano has sued the Port Authority separately in an action that is currently in discovery. (See
Lora-Serrano v. Port Authority of New York & New Jersey, No. 11-cv-2968 (ENV) (LB), filed
June 15, 2011.)
2

Though much of the complaint's narrative is disjointed and difficult to decipher, the Court is
sensitive to plaintiff's prose status and its duty to interpret the complaint to "raise the strongest
arguments" it suggests. Bertin v. U.S., 478 F.3d 489,491 (2d Cir. 2007) (quoting Burgos v.
Hopkins, 14 F.3d 787,790 (2d Cir. 1994)).

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a short time. Plaintiff, concerned about what might happen in the conference room, attempted to
contact the union shop steward, JoAnn Hilton, to ask her to accompany her to the meeting.
Thereafter, Hegarty returned and informed plaintiff that Hilton had been contacted and would be
present at the meeting. Serrano then followed Hegarty to a conference room where Hegarty
allegedly told her that she was immediately suspended without pay and must leave the premises.
According to plaintiff, just under one year later, on October 16, 2009, the Port Authority advised
her that she was terminated effective immediately.
Between her suspension and termination, plaintiff states that a hearing took place on
October 24,2008 to appeal her suspension. Plaintiff was, she says, represented by a designee of
the union. As plaintifftells it, during its representation of her, the union "acted in collusion and
conspiracy" against her, all at the direction of the Port Authority. Plaintiff claims the union
signed a memorandum-without plaintiffs consent-which effectuated the suspension. Plaintiff
further alleges that the union acted in concert v..rith the Port Authority to prevent her from
attending her appeal hearing and, indeed, acted "as a witness against" her in the proceeding.
Plaintiff makes clear that she believes the union "engaged in and been party to [sic] the
falsification of alleged official testimonies and legal documents" and "colluded and conspired"
against her, falsifying records of plaintiff's presence at the October 2008 hearing. The complaint
is silent as to when the results of the October 24, 2008 hearing were released. More critically,
the complaint alleges no facts indicating that the union had any role in representing her in any
way in relation to her termination in 2009, much less misrepresenting her.
Plaintiff filed a charge of discrimination with the New York State Division of Human
Rights ("NYSDHR") on October 27, 2009. She received a Right to Sue letter from the federal
Equal Employment Opportunity Commission ("EEOC") on January 4, 2011. The filing of her
original complaint in this action followed on April4, 2011. The amended complaint was filed on
May 6, 2011.

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II.

STANDARD OF REVIEW
To withstand 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, I 29 S. Ct. I 937, I 949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). "A clalm has 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." Iqbal, 129 S. Ct. at 1949. For purposes of Rule
12(b)(6), while a court must presume the truth of all factual allegations in the complaint, the
court is not OOund to accept the truth of legal conclusions couched as factual allegations.

Papasan v. Allain, 478 U.S. 265,286, 106 S. Ct. 2932 (1986). Indeed, it is the plaintiffs factual
allegations that are the heart of his pleading, as "a complaint need not pin plaintiff's claim for
relief to a precise legal theory," nor does it need to provide "an exposition of his legal
argument." Skinner v. Switzer, 131 S. Ct. 1289, 1296 (20 11). Plaintiffs pleading must "give
[the defendant] fair notice of what [plaintiffs] claims are and the grounds upon which they rest."
Swierkiewicz v. Sorema N.A., 534 U.S. 506,514, 122 S. Ct. 992 (2002). In analyzing well-pled
facts, a court must draw all reasonable inferences in favor of the plaintiff. See Gorman, 488 F.3d
at 591-92.
These standards apply with special force where, as here, a plaintiff is proceeding pro se.
This Court must apply a standard more flexible than that used to evaluate pleadings submitted by
counsel. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007). Plaintiffs submissions
must thus be construed to "raise the strongest arguments they suggest." Bertin, 478 F.3d at 491.
III.

DISCUSSION

A. Statutes of Limitations: Title VII, ADEA, and ADA
Defendant does not contest its status as a "labor organization" for purposes of being
subject to liability under Title VII, see 42 U.S.C. § 2000e-2(c), ADEA, ~ 29 U.S. C.§ 623(c),

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and ADA, see 42 U.S.C. §§ 12111, 12112. Plaintiff, however, "cannot assert claims against [the
union] under these statutes unless [she] filed a complaint naming [the union] with the Equal
Employment Opportunity Commission within 300 days of [the] alleged discrimination against
[her]." Maldonando v. Local803I.B. ofT. Health and Welfare Fund, No. 09-cv-3598, 2010 WL
2787841, at *3 (E.D.N.Y. July 12, 2010); see also VanZant v. KLM Royal Dutch Airlines, 80
F.3d 708,712 (2d Cir. 1996).
Reading the complaint in the light most favorable to plaintiff, she alleges the union
discriminatorily breached its duty of fair representation to her on October 24, 2008, the day of
the arbitration hearing. Correspondingly, only a charge of discrimination filed on or before
August 20, 2009 would be timely. Serrano, however, filed her charge of discrimination with
NYSDHR on October 27, 2009 at the earliest, making her administrative complaint over two
months late. 3 Plaintiff alleges no facts to suggest the 300 day limitations period should run from
a later date or that it should be tolled for any reason.
To be sure, plaintiff does allege she was terminated by the Port Authority on October 16,
2009. She does not, however, allege any facts from which one could infer the union had any
involvement in representing her at any time after the adverse arbitration hearing that cascaded
into employment termination. Since plaintiff names only the union as defendant in this action,
the only relevant contentions would be those related to the union's alleged breach of duty within
the limitations period, that is, with respect to its post-suspension hearing acts or omissions. All
of her allegations, though, antedate that period. As a result, plaintiffs causes of action under
Title VII, ADEA, and ADA are dismissed as untimely.

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Since New York is a so-called "deferral" state, the 300 day limitations period for filing a charge
of discrimination runs back from plaintiffs filing with NYSDHR. Tewksbury v. Ottaway
Newspapers, 192 F.3d 322,325, 328 (2d Cir. 1999)

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B. Breach of Duty of Fair Representation

The complaint can also be read to assen an independent claim for breach of the duty of
fair representation. See Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703,709 (2d Cir.
2010). 4 Such a claim, however, "must be filed within six months of the time when [the
complainant union member] 'know[s] or reasonably should know that a breach of that duty has
occurred."' Heller v. Consol. Rail. Com., 331 F. App'x 766, 768 (2d Cir. 2009) (citing Eatz v.
DME Unit of Local Union No.3, 794 F.2d 29,33 (2d Cir. 1986)). Plainly, Serrano alleges no
facts suggesting she knew of the union's alleged breach any later than October 24, 2008. This
required her to file suit on or before April24, 2009. Indeed, Serrano was terminated on October
16, 2009, well over a year before filing this action. Any putative breach of duty claim is,
accordingly, dismissed as time-barred. 5

C. Claim under the LMRDA
Serrano also purports to bring a claim for violation ofLMRDA's "Union Members' Bill
of Rights," 29 U.S.C. § 411. Section 411 guarantees that members of a union will have rights to
equal participation in union activities, freedom of speech and assembly with respect to union
events and issues, and protections relating to union dues and improper disciplinary action taken
by the union against one of its members. Additionally, LMRDA creates a private cause of action
4

"To establish that a union has breached its duty of fair representation, a union member must
show: (1) that the union's actions or inactions are either arbitrary, discriminatory, or in bad faith;
and (2) a causal connection between the union's wrongful conduct and their injuries." Vaughn,
604 F .3d at 709.
5

There is another ground supporting dismissal of the breach of duty claim. It is "well-settled
that this Court lacks subject matter jurisdiction over duty of fair representation claims brought
by" public employees. Gear v. Dept. of Education, No. 07 Civ. 11102,2010 WL 5297850, at *3
(S.D.N.Y. Dec. 21, 2010); see also Ford v. D.C. 37 Union Local1549, 579 F.3d 187, 188 (2d
Cir. 2009). This conclusion turns on the fact that the Labor Management Relations Act and the
National Labor Relations Act-the statutes giving rise to duty of fair representation claimsboth exclude "political subdivisions," their employees, and labor unions representing those
employees, from statutory coverage. Gear, 2010 WL 5297850, at *3.

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to vindicate these rights. See 28 U.S.C. § 412. The "Bill of Rights is addressed to the internal
affairs of the union, insuring to members equal rights and freedom of speech in the conduct of
union affairs". Gilmore v. Local295. Int'l Brotherhood of Teamsters, 798 F. Supp. 1030, 1040
(S.D.N.Y. 1992) (citing Abrams v. Carrier Corp., 434 F.2d 1234, 1250 (2d Cir. 1970)).
Plaintiff contends that the union violated her rights under the LMRDA by breaching its
duty to represent her at the hearing following her suspension. "While LMRDA requires that a
union member be afforded due process in union disciplinary proceedings, it does not provide
protection against the union's breach of its duty to represent a member in arbitration hearings
with the employer." Gilmore, 798 F. Supp. at 1042 (citing cases). Here, plaintiffs allegations
are in the nature of a labor relations malpractice claim. They focus exclusively on the union's
allegedly inadequate or corrupt representation during disciplinary proceedings commenced by
plaintiff's employer. Under these circumstances, LMRDA does not provide plaintiff a cause of
action. Jourdain v. Service Employees Int'l Union Local1199, No. 09 Civ. 1942,2010 WL
3069965, at 'II (S.D.N.Y. July 28, 2010). Her federal remedy, if any, would lie in a timely
breach of duty to represent claim. That remedy, of course, is foreclosed here. (See supra, Part
II.B.)

D. First Amendment Claim
Plaintiff also purports to bring a claim under the First Amendment. The Court construes
this claim as a First Amendment retaliation claim brought under 42 U.S.C. § 1983. However,
only state actors, not private parties such as a union (even one which represents public
employees), are subject to suit under§ 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49-50, 119 S. Ct. 977 (1999); see also Gorman-Bakos v. Cornell Co-op Extension of
Schenectady Cnty., 252 F.3d 545,551-52 (2d Cir. 2001) (holding that First Amendment
retaliation claims under § 1983 are available only against state actors). "As defendant is a private

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union, not a state actor, plaintiffs First Amendment claim [is] dismissed." Burke v. CWA Local
1109, No. 07-cv-3595, 2009 WL 380 5517, at *5 (E.D.N.Y. Nov. 12, 2009).
E. State Law Claims

Plaintiffs final set of claims seeks relief under the New York state and municipal human
rights laws. Having already dismissed all of plaintiff's federal claims, the Court declines to
exercise supplemental jurisdiction over any state law claim Serrano might arguably have alleged.
28 U.S.C. § 1367(c)(3); see also Marcus v. AT & T Com., 138 F.3d 46, 57 (2d Cir. 1998) ("In
general, where the federal claims are dismissed before trial, the state claims should be dismissed
as well."); Edwards v. City of New York, No. 10-cv-01047, 2011 WL 5024721, at '6 (E.D.N.Y.
Oct. 18, 2011).
F. Leave to Amend Denied

Facially, the only claims plaintiff might be able to amend would be those brought under
Title VII, ADA, or AD EA. While "leave [to amend] shall be freely given when justice so
requires," Fed. R Civ. P. 15(a), "where amendment would be futile, denial of leave ... is
proper." In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187,220 (2d Cir. 2006). Since leave
to amend these claims would fail on exhaustion grounds, such futility is present here.
"Exhaustion of administrative remedies ... is a requirement under Title VII, the ADA,
and the ADEA, and claims that were not raised in the administrative proceeding ... are barred."
Morales v. City of New York Dept. of Juvenile Justice, No. 10 Civ. 829,2012 WL 180879, at *3
(S.D.N.Y. Jan. 23, 2012); see McPherson v. New York City Dept. ofEduc., 457 F.3d 211,21314 (2d Cir. 2006) (Title Vll); Terrv v. Ashcroft, 336 F.3d 128, !51 (2d Cir. 2003) (ADEA); J.C.
v. Reg'! Sch. Dist. 10, Bd. ofEduc., 278 F.3d 119, 124 (2d Cir. 2002) (ADA). Comparing
Serrano's administrative charge-which is attached to her complaint and properly before the
Court on this motion, see Nechis v. Oxford Health Plans. Inc., 421 F.3d 96, 100 (2d Cir. 2005);
Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991}--with the amended complaint, it

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is clear that the already-determined defective allegations are congruent with the sum total of the
administrative claims Serrano filed against the union. The administrative charge contains no
allegations whatsoever of wrongdoing by the union which took place on or after December 31,
2008, the earliest date on which acts of discrimination would fall within the 300-day statutory
time period preceding the charge. VanZant, 80 F.3d at 712. Simply, any attempt to amend
would be futile since any timely occurring acts, having not been included in the administrative
charge she actually filed, are unexhausted and barred.

IV,

CONCLUSION
In accord with the foregoing, defendant's motion to dismiss is granted and the amended

complaint is dismissed in its entirety. As to plaintiffs state law claims, dismissal is without
prejudice. As to all other claims, dismissal is with prejudice.
The Clerk is ordered to enter judgment for defendant in accordance with this
Memorandum and Order and to close the case.

SO ORDERED
Dated: Brooklyn, New York
February I, 2012

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ERICN, VITALAO

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United States District Judge

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