Tappin v. (MTA) Metropolitan Sub. Bus et al
Filing
68
MEMORANDUM & ORDER granting 31 Motion to Dismiss for Failure to State a Claim; granting 31 Motion to Dismiss for Lack of Jurisdiction; granting 33 Motion to Dismiss; denying 36 Motion to Disqualify Counsel. For the foregoing reasons, MS BA's and the Union's respective motions to dismiss the Amended Complaint are GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE. In addition, Plaintiff's motion to disqualify the Union's counsel is DENIED. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mark this matter CLOSED and to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 3/31/2014. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
DEBBIE TAPPIN,
Plaintiff,
-against-
MEMORANDUM & ORDER
12-CV-2016(JS)(AKT)
METROPOLITAN SUB. BUS AUTHORITY and
TRANSPORT WORKERS UNION OF
AMERICA, LOCAL 252,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Debbie Tappin, pro se
47 Grenada Avenue
Roosevelt, NY 11575
For Defendants
MSBA:
Valerie K. Ferrier, Esq.
MTA Bus Company
2 Broadway, 21st Floor, Rm. D21.71
New York, NY 10004
Union:
Michael Dennis Bosso, Esq.
Colleran, O’Hara & Mills, LLP
1225 Franklin Avenue, Suite 450
Garden City, NY 11530
SEYBERT, District Judge:
Currently pending before the Court are: (1) Metropolitan
Suburban Bus Authority’s (“MSBA”) motion to dismiss the Amended
Complaint
(Docket
Entry
America, Local 252’s
31);
(2)
Transport
Workers
Union
of
(the “Union”) motion to dismiss the Amended
Complaint (Docket Entry 33); and (3) pro se plaintiff Debbie
Tappin’s (“Plaintiff”) motion to disqualify the Union’s counsel
(Docket Entry 36).
For the following reasons, MSBA’s and the
Union’s respective motions to dismiss the Amended Complaint are
GRANTED, and Plaintiff’s motion to disqualify the Union’s counsel
is DENIED.
BACKGROUND1
The Court presumes general familiarity with the factual
background
of
this
case,
which
is
discussed
in
the
Court’s
January 18, 2013 Memorandum and Order (the “January 2013 Order,”
Docket Entry 28).
Plaintiff
initially
commenced
this
employment
discrimination action on April 23, 2012 against MSBA, Patricia
Bowden
(“Bowden”),
Norma
Perez
(“Perez”),
and
the
Union.
Thereafter, the defendants filed motions to dismiss the Complaint.
On January 18, 2013, the Court granted Bowden’s and Perez’s motions
to dismiss, thus terminating them from the action.
2013 Order.)
the
Union,
Complaint.
complaint
(See January
The Court also dismissed the claims against MSBA and
but
allowed
Plaintiff
leave
to
file
an
Amended
The Court found that, although Plaintiff used a form
and
“checked
the
boxes
indicating
that
she
was
discriminated against on the basis of color,” her allegations were
conclusory and she had not sufficiently alleged that either MSBA
The following facts are taken from Plaintiff’s Amended
Complaint and the documents attached thereto and are presumed
to be true for the purposes of this Memorandum and Order.
1
2
or the Union took any action on the basis of her race or color.
(January 2013 Order at 9, 11.)
Plaintiff filed her Amended Complaint on February 14,
2013.
(Docket
Entry
29.)
Like
in
her
original
Complaint,
Plaintiff’s Amended Complaint alleges that she was employed as a
bus operator for MSBA and was a member of the Union in 2010.
Compl. ¶¶ 14-16; January 2013 Order at 2.)
(Am.
At that time, Perez
was a dispatcher employed by MSBA and Plaintiff’s supervisor. (Am.
Compl. ¶ 14.)
Part of Perez’s job responsibilities included
collecting employees’ time cards.
(Am. Compl. ¶ 20.)
According to the Amended Complaint, Perez had a history
of discrimination against black females and Plaintiff “witnessed
many unpleasant and racist confrontations between Norma Perez and
black female bus operators.”
(Am. Compl. ¶ 17.)
For example,
Perez referred to black, female bus operators using derogatory
language and twice submitted “false reports” against two black
female operators, resulting in their termination.
(Am. Compl. ¶¶
17, 19.)
On July 27, 2010, Plaintiff asked a co-worker to submit
her time card.
(Am. Compl. ¶ 21.)
The co-worker did so, but Perez
refused to accept the card claiming that it was incomplete and
that Plaintiff would not be paid until the card was completed.
(Am. Compl. ¶ 21.)
The co-worker found Plaintiff in the parking
lot, and Plaintiff returned to the office.
3
(Am. Compl. ¶ 22;
January 2013 Order at 2.) Plaintiff filled out her card but forgot
to check her schedule for the following day.
(Am. Compl. ¶ 22.)
As such, she called the office and Perez answered.
¶ 22.)
(Am. Compl.
Perez informed Plaintiff that she should come to the job
site and check the schedule herself and hung up the phone.
(Am.
Compl. ¶ 22.)
Days later, Plaintiff was told to contact her Union Shop
Steward, Grover Howell, and report to MSBA General Superintendent
John Freeman.
(Am. Compl. ¶ 23.)
Plaintiff was fired, but the
Union grieved her termination and a hearing was held on August 10,
2010.
(Am. Compl. ¶¶ 23-24.)
According to the Amended Complaint,
it was not until the hearing that Plaintiff saw two complaints
from Perez alleging insubordination. (Am. Compl. ¶ 24.) Plaintiff
advised her union representative that Perez’s allegations were
untrue and that cameras in Perez’s office would confirm Plaintiff’s
account of events.
(Am. Compl. ¶ 25.)
Plaintiff also informed
the representative of others who would attest to Perez’s history
of asserting false allegations against black female bus operators.
(Am. Compl. ¶ 25.)
In fact, Plaintiff recounted an incident in
2010 in which “Liz Doe” and Perez were “involved in a fist fight
“because Norma Perez had filed a false report on Liz Doe.”
Compl. ¶ 28.)
(Am.
The union representative did not investigate the
information Plaintiff provided to him.
4
(Am. Compl. ¶ 27.)
Plaintiff’s termination was sustained, and the Union
appealed the decision to arbitration.
(January 2013 Order at 3.)
The arbitration took place on September 8, 2010 and Plaintiff was
represented by the Union Vice-President, Jay Brucaleri.
Compl. ¶ 30.)
attorney.
(Am.
The Union did not provide Plaintiff with a licensed
(Am. Compl. ¶ 30.)
At the hearing, Mr. Brucaleri
informed Plaintiff that he did not investigate the information
provided to him because he did not want to get other employees
involved, “otherwise there would be some retaliation from MSBA if
they testified at the hearing.”
(Am. Compl. ¶ 30.)
On September
24, 2010, the arbitrator issued his Opinion and Award, finding
that
Plaintiff
was
not
credible,
but
reinstating
Plaintiff’s
employment as this was her first violation involving threatening
behavior. (Am. Compl. ¶ 31; January 2013 Order at 3-4.) Plaintiff
returned to work but experienced consistent harassment from her
supervisors and management.
(Am. Compl. ¶ 32.)
On or around May 2, 2011, Plaintiff filed a charge of
discrimination against the Union with the United States Equal
Employment Opportunity Commission (“EEOC”).
at 4.)
(January 2013 Order
Plaintiff received a right-to-sue letter from the EEOC on
April 5, 2012.
(Am. Compl. ¶ 35.)
In her Amended Complaint,
Plaintiff asserts that the she was discriminated against on the
basis
of
her
race
and
gender,
environment, and retaliated against.
5
subject
to
a
hostile
(Am. Compl. ¶¶ 9-10.)
work
DISCUSSION
The Court will address the motions to dismiss the Amended
Complaint before turning to Plaintiff’s motion to disqualify the
Union’s counsel.2
I.
Legal Standards
A.
Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).
Makarova v.
In resolving a
motion to dismiss for lack of subject matter jurisdiction, the
Court may consider affidavits and other materials beyond the
pleadings to resolve jurisdictional questions.
See Morrison v.
Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008).
B.
Rule 12(b)(6)
In deciding Rule 12(b)(6) motions to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
The Court notes that Plaintiff has filed sur-replies in
connection with Defendants’ motions. (See Pl.’s Sur-Reply to
MSBA’s Mot., Docket Entry 56; Pl.’s Sur-Reply to Union’s Mot.,
Docket Entry 53.) She has not, however, requested permission to
do so. Though the Court need not consider unauthorized surreplies, and indeed the Union has specifically objected to such
consideration, the Court finds that the sur-replies do not
change the analysis. (See Union’s 4/30/13 Ltr., Docket Entry
57.)
2
6
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
First,
although
allegations
as
the
Court
true,
this
must
accept
“tenet”
is
all
of
a
complaint’s
“inapplicable
to
legal
conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
555); accord Harris, 572 F.3d at 72.
Second, only complaints that
state a “plausible claim for relief” survive a motion to dismiss.
Id. at 679 (citing Twombly, 550 U.S. at 556).
Determining whether
a complaint does so is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Id.; accord Harris, 572 F.3d at 72.
While pro se
plaintiffs enjoy a somewhat more liberal pleading standard, see
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed.
2d 1081 (2007) (“[A] pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted
by
omitted)),
lawyers.”
they
must
(internal
still
quotation
comport
with
marks
the
and
citation
procedural
and
substantive rules of law, see Colo. Capital v. Owens, 227 F.R.D.
181, 186 (E.D.N.Y. 2005).
7
II.
MSBA’s Motion to Dismiss
MSBA moves to dismiss the Amended Complaint because
Plaintiff did not name it in her complaint to the EEOC and because
Plaintiff has otherwise failed to state a claim against MSBA.
Court
agrees
complaint,
that
Plaintiff
therefore
did
not
rendering
any
name
MSBA
in
additional
her
The
EEOC
analysis
unnecessary.
“A prerequisite to commencing a Title VII action against
a defendant is the filing with the EEOC or authorized state agency
of a complaint naming the defendant.”
203,
209
(2d
Cir.
1991)
(citing
Johnson v. Palma, 931 F.2d
42
U.S.C.
§
2000e-5(e)).
Therefore, “[a]s 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); see Bridges v. Eastman
Kodak Co., 822 F. Supp. 1020, 1025 n.4 (S.D.N.Y. 1993) (“[D]eciding
whether to dismiss a defendant because of a plaintiff’s failure to
name
him
as
a
respondent
in
his
or
her
EEOC
charge
is
a
jurisdictional issue.”).
Here, Plaintiff alleges that she properly brought a
charge with the EEOC and that she received a right-to-sue letter
before commencing this action. (Am. Compl. ¶¶ 2, 33-35.) However,
8
the charge to which she apparently refers3 names only the Union,
without any mention of either MSBA or Perez.
(See EEOC Charge,
MSBA’s Br. to Dismiss Ex C., Docket Entry 32-3.) Indeed, Plaintiff
asserts in the EEOC charge that “[t]he person responsible for my
termination
from
employment
is
Patricia
President of my Union (Local 252).”
Bowden,
who
is
the
(EEOC Charge at 2.)
This does not end the inquiry, however.
“[I]f there is
an ‘identity of interest as between the parties’ then a Court may
overlook a plaintiff’s failure to comply with the EEOC filing
requirement.”
whether
the
Darden, 191 F. Supp. 2d at 389.
identity
of
interest
exception
In determining
applies,
courts
consider the following 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
Although Plaintiff alleges that she filed a charge with the
EEOC on October 10, 2010, the right-to-sue letter that she
attaches to her original Complaint and Amended Complaint
contains an EEOC Charge Number of 520-2011-01838, thus
indicating a calendar year of 2011. (See Am. Compl., Ex. A at
10.) The EEOC charge provided by MSBA contains the same Charge
Number, and reflects a date of May 13, 2011. Plaintiff has not
disputed that MSBA attaches the appropriate charge or that she
filed any other charge with the EEOC. In fact, in her
unauthorized sur-reply, Plaintiff indicates that she filed an
EEOC charge against MSBA in May 2011. (Pl.’s Sur-Reply to
MSBA’s Mot., Docket Entry 56, ¶ 4.)
3
9
from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed
party; 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.
Each
of
these
factors
weighs
against
identity of interest exception in this case.
applying
the
First, Plaintiff’s
allegations make it abundantly clear that she had a conflict with
Perez and that her claims of discrimination directly involved Perez
and MSBA from the start.
Second, courts have made clear that the
interests of unions and of the employer are not so similar that it
would be unnecessary to name one to the exclusion of the other in
an EEOC charge.
See, e.g., Pajooh v. Dep’t of Sanitation City of
N.Y., --- F. App’x ----, 2013 WL 6570706, at *1 (2d Cir. Dec. 16,
2013) (finding that there was no identity of interest between the
employer and the union); Vital v. Interfaith Med Ctr., 168 F.3d
615, 620 (2d Cir. 1999) (same).
Nothing about the circumstances
of this case change that analysis.
Third, the Court finds that
there would be prejudice because MSBA has apparently “ceased all
bus operations in Nassau County over a year ago.”
(MSBA’s Br. to
Dismiss at 7; see also Am. Compl. ¶ 12 (Plaintiff alleges that
MSBA “was taken over by another Agency”).)
Finally, Plaintiff has
not alleged, nor is there anything to suggest, that MSBA made any
representations to Plaintiff regarding the Union.
10
Thus, MSBA’s motion to dismiss the Amended Complaint
against it is GRANTED, and Plaintiff’s claims against MSBA are
DISMISSED WITH PREJUDICE.
III. The Union’s Motion to Dismiss
The Union also moves to dismiss the Amended Complaint,
asserting that the Amended Complaint still fails to sufficiently
allege that the Union acted with discriminatory intent against
Plaintiff.
The Court agrees.
In addition to prohibiting discrimination by employers-
-the legal standards of which are discussed more fully in the
January
2013
provides
that
Order
it
is
and
incorporated
unlawful
for
a
herein--Title
labor
VII
also
organization
“to
discriminate against[] any individual because of his race, color,
religion, sex, or national origin” or “to cause or attempt to cause
an employer to discriminate against an individual.”
2000e-2(c)(1), (3).
organization’s
42 U.S.C. §
Title VII claims arising out of a labor
representation
of
its
members’
interests
“are
subject to an analysis different from that applicable to Title VII
claims
against
employers.”
See
Oparaji
v.
United
Teachers, 418 F. Supp. 2d 139, 146 (E.D.N.Y. 2006).
Fed’n
of
To establish
such a claim, “the plaintiff must first demonstrate that the union
breached its duty of fair representation to the member,” id., by
showing that the union’s conduct was “‘arbitrary, discriminatory,
or in bad faith’” and that it injured the plaintiff, see Pinkard
11
v. N.Y.C. Dep’t of Educ., No. 11-CV-5540, 2012 WL 1592520, at *7
(S.D.N.Y. May 2, 2012) (citing Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 44, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998);
Spellacy v. Airline Pilots Assoc.-Int’l, 156 F.3d 120, 130 (2d
Cir. 1998)).
“Then, the plaintiff must show some indication that
the union’s actions were motivated by unlawful discrimination or
retaliation.”
Oparaji, 418 F. Supp. 2d at 146; see also Ross v.
Commc’n Workers of Am., Local 1110, No. 91-CV-6367, 1995 WL 351462,
at *5 (S.D.N.Y. June 9, 1995) (holding that if a union breaches
its duty of fair representation and is motivated by discriminatory
reasons, such a claim may be brought under Title VII), aff’d, 1996
WL 80688 (2d Cir. 1996).
In the January 2013 Order, the Court held that, even if
Plaintiff had sufficiently alleged a breach of the duty of fair
representation, “the only allegation of discriminatory intent in
the Complaint is Plaintiff’s checking the boxes indicating that
she was discriminated against on the basis of her color.” (January
2013 Order at 11.)
insufficient.
Thus, Plaintiff’s allegations were deemed
Now, in her Amended Complaint, Plaintiff asserts
that she was discriminated against because she is a black female
and raises a number of allegations regarding “racist” behavior by
Perez.
(See generally Am. Compl.)
However, upon close inspection
of the Amended Complaint, it is apparent that the only purported
allegations of discriminatory intent are attributable to Perez.
12
The actions of Perez, though, cannot be attributed to the Union.
See Badlam v. Reynolds Metals Co., 46 F. Supp. 2d 187, 201-02
(N.D.N.Y. 1999) (noting that union liability extends only insofar
as the individual in question was acting as a union steward and
not as an individual employee).
At best, Plaintiff conclusorily asserts that the Union
“intentionally and knowingly failed to provide the plaintiff with
the
same
protection
and
representation
afforded other classes of MSBA employees.”
normally
offered
and
(Am. Compl. ¶ (g).)
Such blanket assertions fail to rectify the deficiencies in the
original Complaint.
2d
249,
269
See Reyes v. Fairfield Props., 661 F. Supp.
(E.D.N.Y.
2009)
(“Even
liberally
construed,
plaintiffs’ complaint fails to allege any facts relating to race,
other than a conclusory statement that defendants retaliated and
discriminated against plaintiffs based on their being AfricanAmerican, which is insufficient under Iqbal.”); see also Gear v.
Dep’t of Ed., No. 07-CV-11102, 2010 WL 5297850, at *5 (S.D.N.Y.
Dec. 21, 2010) (Plaintiff “makes a single, conclusory allegation
that [the union] would have acted differently if she were white.”).
Accordingly, the Union’s motion to dismiss the Amended Complaint
against it is GRANTED.
Moreover, the Court has already granted Plaintiff leave
to
replead
once,
and
she
has
demonstrated
sufficiently allege a claim against the Union.
13
an
inability
to
The Court notes
that Plaintiff, in her opposition to the Union’s motion and in her
unauthorized sur-reply, asserts that the Union’s Vice President
informed her that the Union has a policy of “not assigning a lawyer
to
represent
black
proceeding[s].”
2.)
bus
driver[s]
at
MSBA
arbitration
(Pl.’s Opp. to Union’s Mot., Docket Entry 35, at
However, Plaintiff cannot amend her pleadings through her
briefs.
See Fadem v. Ford Motor Co., 352 F. Supp. 2d 501, 516
(S.D.N.Y. 2005) (“It is longstanding precedent in this circuit
that parties cannot amend their pleadings through issues raised
solely
in
their
briefs.”);
O’Brien
v.
Nat’l
Prop.
Analysts
Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic
that the Complaint cannot be amended by the briefs in opposition
to
a
motion
to
dismiss.”).
In
any
event,
Plaintiff’s
own
allegations belie any discriminatory intent on the part of the
Union, suggesting that to the extent that the Union’s actions were
lackluster, it was because the Union was confident that Plaintiff’s
employment would be reinstated.
(Am. Compl. ¶ 29.)
Accordingly,
any additional amendment would be futile and Plaintiff’s claims
against the Union are DISMISSED WITH PREJUDICE.
IV.
Plaintiff’s Motion to Disqualify Union Counsel
Finally,
Plaintiff
moves
to
disqualify
the
Union’s
counsel--Colleran, O’Hara & Mills, LLP--on the basis of a purported
conflict of interest.
She asserts that counsel “was retained to
be the [c]ounsel for every active member, and therefore the
14
continued
service
on
behalf
of
Union
Local
252
against
plaintiff will exist as an actual conflict of interest.”
the
(Pl.’s
Mot. to Disqualify, Docket Entry 36, at 1 ¶ 5.) Plaintiff’s motion
suffers from several fatal deficiencies.
First, as the Court has already determined that MSBA and
the Union’s respective motions to dismiss should be granted,
Plaintiff’s motion is moot.
In other words, there will be no
“continued service” on behalf of the Union, because Plaintiff’s
claims against the Union have been dismissed.
Second,
Plaintiff’s
claim
fails
on
the
merits.
Initially, the Court notes that motions to disqualify counsel
require a very high burden and are looked upon with disfavor. See,
e.g., Gabazyzadeh v. Taylor, 639 F. Supp. 2d 298, 300-01 (E.D.N.Y.
2009)
(“[I]t
is
well-established
that
motions
to
disqualify
opposing counsel are viewed with disfavor in this Circuit because
they are often interposed for tactical reasons and result in
unnecessary
delay.”
(internal
quotation
marks
and
citations
omitted)); Scantek Med., Inc. v. Sabella, 693 F. Supp. 2d 235, 238
(S.D.N.Y. 2008) (“In view of their potential for abuse as a
tactical
device,
motions
to
disqualify
subject to particularly strict scrutiny.
opposing
counsel
are
Courts are also chary to
grant motions to disqualify . . . .” (internal citations omitted)).
Here, Plaintiff has wholly failed to meet this high standard,
particularly because Plaintiff’s argument stems in part from her
15
flawed assertion that Colleran, O’Hara & Mills, LLP is the Union’s
“in house” counsel.
(Pl.’s Mot. to Disqualify at 1 ¶ 5.)
Rather,
as is the case here, unions typically retain counsel to provide
legal representation in particular circumstances.
(See Union’s
Opp. to Pl.’s Mot. to Disqualify, Docket Entry 41, at 2-3.)
Moreover,
counsel
was
not
involved
in
any
of
the
underlying proceedings, and therefore there is no “conflict.”
In
fact, part of her claim is that she was not provided a lawyer
during
arbitration.
(See
Pl.’s
Aff.
in
Support
Disqualify, attached to Docket Entry 36, at 2 ¶ 4.)
of
Mot.
to
Given this
lack of representation and that counsel is not “in house,” there
is no inherent attorney-client relationship between counsel and
Plaintiff.
Nor is she necessarily entitled to any representation
in the current action.4
See, e.g., Dean v. N.Y.C. Transit Auth.,
297 F. Supp. 2d 549, 558 (E.D.N.Y. 2004) (denying plaintiff’s
motion to appoint counsel in an employment discrimination case,
even though she had been granted in forma pauperis status).
Thus, Plaintiff’s motion is patently meritless and this
Court and other courts have rejected similar claims.
See Ruff v.
Coba Union Corr. Officers Benefits, No. 12-CV-6113 (JS)(WDW), 2013
Plaintiff apparently references the Sixth Amendment right to
counsel. (See Pl.’s Aff. in Support of Mot. to Disqualify ¶ 7.)
However, “[t]he Sixth Amendment right to counsel applies only to
‘critical stages’ of a criminal prosecution.” Meadows v.
Kuhlmann, 812 F.2d 72, 76 (2d Cir. 1987).
4
16
WL
5960890,
at
*6
(E.D.N.Y.
plaintiff’s
allegation
individuals
against
that,
whom
Nov.
because
the
6,
2013)
counsel
plaintiff
(rejecting
had
lodged
the
represented
discrimination
claims, counsel could not represent the union in plaintiff’s
discrimination action against the union); see also Durant v. Union
Local 237, No. 12-CV-1166, 2013 WL 1232555, at *5 (E.D.N.Y. Mar. 4,
2013) (rejecting the plaintiff’s claim that there was a conflict
of interest because the union concurrently represented plaintiff
and the supervisors who made disciplinary charges against her);
Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181, 198 (E.D.N.Y.
1998) (“The Court is unaware of, nor does the plaintiff cite to,
any case law in support of the plaintiff’s argument that the
representation of two employees in separate grievance proceedings
by the same union official constitutes a per se breach of the duty
of fair representation.”).
CONCLUSION
For
the
foregoing
reasons,
MSBA’s
and
the
Union’s
respective motions to dismiss the Amended Complaint are GRANTED,
and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
In addition,
Plaintiff’s motion to disqualify the Union’s counsel is DENIED.
The
Court
certifies
that
pursuant
to
28
U.S.C.
§ 1915(a)(3) that any appeal from this Order would not be taken in
good faith and therefore in forma pauperis status is DENIED for
17
the purpose of any appeal.
See Coppedge v. United States, 369
U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mark this matter
CLOSED and to mail a copy of this Memorandum and Order to pro se
Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: March
31 , 2014
Central Islip, NY
18
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