Jouthe v. Hoyt Transportation Corp. et al
ORDER granting 11 Motion for Judgment on the Pleadings; granting 14 Motion to Dismiss for Failure to State a Claim. The Clerk is directed to enter judgment, dismissing the complaint. Ordered by Judge Brian M. Cogan on 12/27/2016. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: MEMORANDUM DECISION AND
: 16-cv-6230 (BMC)
HOYT TRANSPORTATION CORP., and
AMALGAMATED TRANSIT UNION
COGAN, District Judge.
Plaintiff commenced this action in state court against his employer and his Union. He
alleged that his employer fired him in violation of the New York “whistleblower” statute, Labor
Law § 740(2)(c), after he had reported an unsafe condition on the school bus that he drove, and
that his Union, by refusing to represent him in the grievance hearing that sustained his
termination, was “in cahoots” with his employer.
The Union timely removed the action to this Court on the ground that plaintiff’s claim is
completely preempted by federal labor law, specifically § 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185, et seq., since the Union and the employer are parties
to a collective bargaining agreement and plaintiff’s termination was pursuant to the terms of that
agreement. Plaintiff did not challenge the removal and failed to appear at the initial status
conference before this Court. I entered an Order advising plaintiff that he either had to seek
remand on the ground that the case was not properly removed because his New York Labor Law
claim is not preempted, or file an amended complaint dropping the “whistleblower” claim and
alleging a hybrid claim for improper termination against his employer under the collective
bargaining agreement and breach of the duty of fair representation against his Union. Plaintiff
The Union has moved for judgment on the pleadings on the ground that plaintiff’s
complaint has to be construed, as against the Union, as sounding in breach of the duty of fair
representation, and is barred by the six-month statute of limitations that applies to such claims.
The employer has moved to dismiss plaintiff’s claim against it for lack of subject matter
jurisdiction, arguing that (1) since plaintiff has not filed an amended complaint asserting a hybrid
claim, his New York Labor Law claim has no jurisdictional basis, and the Court should not
exercise supplemental jurisdiction if it dismisses the claim against the Union; or, alternatively,
(2) if the Court construes plaintiff’s whistleblower claim as a hybrid claim for breach of the
collective bargaining agreement against the employer, then his claim fails because (a) he has not
exhausted the grievance and arbitration procedures in the collective bargaining agreement; and
(b) he has not sued within the six-month statute of limitations that applies to such claims.
Plaintiff has failed to respond to either of defendants’ motions.
I have a duty to sua sponte consider whether this Court has subject matter jurisdiction.
See D’Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd., 756 F.3d 151, 161 (2d Cir. 2014). In
fulfillment of that duty, I had considered the grounds stated in the Union’s notice of removal at
the time the case was removed and had determined that, in fact, the Union was correct and that
any state law claims that plaintiff attempted to plead in state court are completely preempted by §
301 of the LMRA. This is because the issue here is whether plaintiff was properly terminated
pursuant to the terms of the “for cause” provisions of the collective bargaining agreement and its
procedures, and it is important that there be a uniform body of federal law construing such terms.
“Such a suit, as a formal matter, comprises two causes of action. The suit against the
employer rests on § 301 [or 29 U.S.C. § 185(a)], since the employee is alleging a breach of the
collective bargaining agreement. The suit against the Union is one for breach of the Union’s
duty of fair representation, which is implied under the scheme of the National Labor Relations
Act.” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 2290 (1983).
Because § 301 of the LMRA completely preempts any state law claims that plaintiff may have
arising out of his termination, the only claim that he has is a hybrid claim for breach of the duty
of fair representation against the Union and breach of the termination provisions of the collective
bargaining agreement against the employer. I therefore deny the portion of the employer’s
motion that seeks dismissal for lack of subject matter jurisdiction, and construe plaintiff’s
complaint as one for breach of the termination provisions of the collective bargaining agreement.
However, the Union is correct that an action for breach of the duty of fair representation
must be brought within six months of the date upon which the Union member knew or should
have known that the duty had been breached. See Campbell v. Kane, Kessler, P.C., 144 F.
App’x 127, 131 (2d Cir. 2005) (quoting White v. White Rose Food, 128 F.3d 110, 114 (2d
Cir.1997)). Here, the complaint alleges that the Union failed to adequately represent plaintiff in
August, 2015. He commenced this action in June, 2016, well beyond the six-month period; thus
that claim is time-barred. In addition, the claim against the employer is also time-barred as the
six-month statute of limitations is equally applicable to claims against an employer for breach of
the collective bargaining agreement. DelCostello, 462 U.S. at 169, 103 S. Ct. at 2293.
Accordingly, defendants’ motions are granted. The Clerk is directed to enter judgment,
dismissing the complaint.
Digitally signed by
Brian M. Cogan
Dated: Brooklyn, New York
December 27, 2016
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