Torres v. United Service Workers Union Local 74 et al

Filing 25

MEMORANDUM & ORDER re: 13 and 15 Motions to Dismiss are DENIED. Ordered by Judge Joanna Seybert on 9/26/2014. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JORGE TORRES,
Plaintiff,

MEMORANDUM & ORDER
13-CV-6864(JS)(SIL)

-againstUNITED SERVICE WORKERS UNION LOCAL 74
and PINELAWN CEMETARY,

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Edward Lee Sample, II, Esq.
500 Bi-county Boulevard, Suite 112n
Farmingdale, NY 11735
For Defendants
Local 74:

Joy K. Mele, Esq.
Zachary Richard Harkin, Esq.
O’Dwyer & Bernstein LLP
52 Duane Street, 5th Floor
New York, NY 10007

Pinelawn:

Eve Irene Klein, Esq.
Eric William Ruden, Esq.
Duane Morris LLP
1540 Broadway
New York, NY 10036-4089

SEYBERT, District Judge:
Plaintiff

Jorge

Torres

(“Plaintiff”)

commenced

this

action against his former employer, defendant Pinelawn Cemetery
(“Pinelawn”), and his union, defendant United Service Workers
Union

Local

74

(“Local

74,”

and

together

with

Pinelawn,

“Defendants”), alleging that Pinelawn breached its collective
bargaining agreement with the Union (the “CBA”) by terminating his
employment without just cause in violation of the Labor Management

Relations Act (“LMRA”), 29 U.S.C. § 185 et seq., and that Local 74
breached its duty of fair representation under the National Labor
Relations Act (“NLRA”), 29 U.S.C. § 151, et seq.
asserts

claims

of

disability

discrimination

Plaintiff also
and

failure

to

accommodate under the New York State Human Rights Law (“NYSHRL”),
N.Y. EXEC. LAW § 290 et seq.

Currently pending before the Court

are Defendants’ motions to dismiss the Complaint for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Docket Entries 13, 15.)

For the following reasons, Defendants’

motions are DENIED.
BACKGROUND1
In September 2008, Plaintiff began working for Pinelawn
as a seasonal “Driver/Maintenance Worker.”

(Compl. ¶ 20.)

In or

about March 2012, Plaintiff and Defendants entered into a “Last
Chance Agreement” arising out of an incident that occurred during
Pinelawn’s 2011 holiday party. (See Ruden Decl., Docket Entry 16,
Ex. A; Compl. ¶ 24.)

Although the Complaint itself does not

explain the circumstances surrounding the Last Chance Agreement,
according

to

the

agreement,2

Plaintiff

apparently

became

The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order.
1

The Court may consider the terms of the Last Chance Agreement
since it is incorporated by reference in the Complaint. See
Lewis Tree Serv., Inc. v. Lucent Techs., Inc., No. 99-CV-8556,
2000 WL 1277303, at *3 (S.D.N.Y. Sept. 8, 2000) (“[T]he Second
2

2

intoxicated at the holiday party and “was increasingly rude,
insubordinate

and

superintendent,

physically

Justin

threatening”

Locke.

(Ruden

to

Decl.

Pinelawn’s

Ex.

A

¶

2.)

Specifically,
[Plaintiff] mocked Mr. Locke’s financial
status and management style, and told him to
“step outside” with him. [Plaintiff] told Mr.
Locke that the party was on “his time” and he
could, therefore, speak his mind to Mr. Locke.
[Plaintiff] was getting increasingly red and
angry. Supervisors and co-workers did their
best to restrain [Plaintiff] and keep him away
from Mr. Locke. [Plaintiff] refused to listen
to them, and kept attempting to engage Mr.
Locke.
Towards the end of the evening,
[Plaintiff] was staring at Mr. Locke and
nodding
his
head
to
him
aggressively.
[Plaintiff] then came towards Mr. Locke in a
physically threatening manner and bumped into
him with his drink. Several supervisors again
grabbed and retrained [Plaintiff], pulling him
to the side.
(Ruden Decl. Ex. A ¶ 2.)
Plaintiff

would

“refrain[ed]

keep

from

his

abusive

Under the Last Chance Agreement,
job

provided

conduct

that,

towards

inter
Mr.

alia,

Locke,

he
his

supervisors, co-workers, customers, visitors or any person having
business at Pinelawn.”

(Ruden Decl. Ex A. ¶ 7.)

Plaintiff agreed

that if he failed to do so, “his employment [would] be immediately
terminated,” and that “neither [Local 74] nor [Plaintiff would]

Amended Complaint incorporates by reference the allegedly
breached contract and the Court may consider the terms of that
contract on a motion to dismiss.”).
3

have recourse to challenge his termination through the grievance
and arbitration procedure of the [CBA].”

(Ruden Decl. Ex A. ¶ 7.)

On or about July 29, 2013, Plaintiff climbed a six-foot
wall to trim a hedge growing on it and fell and “severely injured
his lower back.”

(Compl. ¶ 25.)

Plaintiff filed for worker’s

compensation and was out of work for one month.

(Compl. ¶ 26.)

In late August 2013, Plaintiff advised Pinelawn that he wanted to
return to work.

(Compl. ¶ 27.)

However, Pinelawn would not allow

Plaintiff to return until “he could demonstrate that he was 100%
healed or had no restrictions.”
marks omitted).)

(Compl. ¶ 28 (internal quotation

On or about August 30, 2013, Plaintiff returned

to work after obtaining a doctor’s note, which, according to the
Complaint,

“authorize[ed]

restrictions.”

him

to

return

to

work

without

(Compl. ¶¶ 29-30.)

Plaintiff

claims

that

after

he

returned

to

work,

Pinelawn “began a campaign of harassment and intimidation against
[him] on the basis of his physical disabilities and in retaliation
for taking leave.”

(Compl. ¶ 31.)

Plaintiff specifically alleges

that “[o]n his first day back to work, despite five years of
working experience, . . . Pinelawn assigned Plaintiff bronze
trimming,
employees.”
Assistant

a

task

typically

(Compl. ¶ 32.)
Superintendent,

reserved

for

only

probationary

On September 5, 2013, Pinelawn’s
Louis

Raico

(“Raico”)

“summoned”

Plaintiff to a meeting with Pinelawn’s Supervisor, Melvin Vargas,
4

“to discuss Plaintiff’s injury.”
September

6,

2013,

Raico

(Compl. ¶ 33.)

“informed

Plaintiff

The next day, on
he

was

terminated for violating the Last Chance Agreement.”

being

(Compl.

¶ 34.)
Plaintiff alleges that Pinelawn’s stated reason for
terminating his employment--i.e., a violation of the Last Chance
Agreement--was

“false

discrimination.”

and

a

pretext

(Compl. ¶ 35.)

for

invidious

disability

He alleges that he was “an

individual with a ‘disability,’ as defined by the NYSHRL,” and
“that Pinelawn’s decision to discharge [him] was based on [his]
disabilities.”

(Compl. ¶¶ 36-37.)

He further alleges that

Pinelawn “regarded [him] as suffering from a physical impairment
that prevented the exercise of normal bodily functions.”
¶ 39.)

(Compl.

Based on these allegations, Plaintiff claims that Pinelawn

breached the CBA by terminating his employment without just cause
and also discriminated against him on the basis of disability and
failed to accommodate his disability in violation of the NYSHRL.
In September 2013, Plaintiff filed a formal grievance
regarding his termination with Local 74.

(Compl. ¶ 40.)

On

September 9, 2013, Local 74 held a grievance meeting to discuss
Plaintiff’s termination.

(Compl. ¶ 41.)

After the meeting,

Plaintiff asked the Shop Steward, Mike Herron, if Local 74 would
“pursue his grievance,” and Herron responded, “I’ll get back to
you.”

(Compl. ¶ 42.)

By letter dated September 27, 2013, Local
5

74 advised Plaintiff that, “after careful review of all the facts
and circumstances relating to [the] grievance,” Local 74 had
decided

that

grievance.3

it

would

“not

be

proceeding

further

with”

the

(Mele Decl., Docket Entry 14, Ex. B; Compl. ¶ 43.)

However, the Complaint alleges that Plaintiff’s grievance was
meritorious and that Local 74 “failed to investigate the grievance”
and “acted arbitrarily in failing to process the grievance.”
(Compl. ¶ 46.)

Based on these allegations, Plaintiff claims that

Local 74 breached its duty of fair representation.

(Compl. ¶¶ 49-

55.)
Pinelawn and Local 74 have separately moved to dismiss
the Complaint but assert nearly identical arguments in support.
(Docket Entries 13, 15.)

These motions are currently pending

before the Court.
DISCUSSION
The Court will first set forth the applicable legal
standard before turning to Defendants’ motions more specifically.
I.

Legal Standard
The standard for evaluating a motion for judgment on the

pleadings pursuant to Rule 12(c) is the same as the standard for
a motion to dismiss under Rule 12(b).

See Karedes v. Ackerley

The Court may consider the terms of the letter since it is
incorporated by reference in the Complaint. See Lewis, 2000 WL
1277303, at *3.
3

6

Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005).

In deciding a Rule

12(b)(6) motion 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. Ct. 1937, 173 L. Ed. 2d 868
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007); accord Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009).

First, although the Court must

accept all allegations as true, this “tenet” is “inapplicable to
legal conclusions;” thus, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.”
72.

Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at

Second, only complaints that state a “plausible claim for

relief” can survive a Rule 12(b)(6) motion to dismiss.
U.S. at 679.

Iqbal, 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.
The Court is confined to “the allegations contained
within the four corners of [the] complaint.”

Pani v. Empire Blue

Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).

However, this

has been interpreted broadly to include any document attached to
the complaint, any statements or documents incorporated in the
complaint by reference, any document on which the complaint heavily
relies, and anything of which judicial notice may be taken.
7

See

Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002)
(citations omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773
(2d Cir. 1991).
II.

Hybrid Section 301/Duty of Fair Representation Claim
As noted, Plaintiff claims that Pinelawn breached the

CBA when it terminated his employment without just cause and that
Local

74’s

failure

to

investigate

and

process

Plaintiff’s

grievance regarding his termination constitutes a breach of its
duty of fair representation.

Although Plaintiff’s claims against

Pinelawn and Local 74 are distinct causes of action,4 “courts have
combined them to create one claim known as the hybrid § 301/duty
of fair representation claim.”

Chiari v. N.Y. Racing Ass’n Inc.,

972 F. Supp. 2d 346, 367 (E.D.N.Y. 2013) (internal quotation marks
and citations omitted).

Under a hybrid Section 301/duty of fair

representation claim, “[t]he plaintiff may sue the union or the
employer, or both, but must allege violations on the part of both.”
White, 237 F.3d at 178–79; accord Thomas v. Little Flower for
Rehab. & Nursing, 793 F. Supp. 2d 544, 547 (E.D.N.Y. 2011) (“To
prevail on a hybrid § 301/duty of fair representation claim, the
Plaintiff must establish both that: (1) [the employer] breached

“Section 301 of the LMRA governs the employer’s duty to honor
the collective bargaining agreement, and the duty of fair
representation is implied from § 9(a) of the [NLRA], 29 U.S.C.
§ 159(a).” White v. White Rose Food, 237 F.3d 174, 179 n.3 (2d
Cir. 2001).
4

8

the

CBA

and

(2)

[the

union]

breached

representation.” (citations omitted)).

the

duty

of

fair

Accordingly, “‘a breach of

the union’s duty of fair representation is essential to both of
[Plaintiff’s] claims.’” Chiari, 972 F. Supp. 2d at 367 (alteration
in original) (quoting Stephens v. Maxx Props., No. 11-CV-2575,
2012 WL 1949339, at *2 (E.D.N.Y. May 29, 2012)).
Defendants

argue

that

Plaintiff

has

failed

to

sufficiently allege that Local 74 breached its duty of fair
representation.

(Local 74’s Br., Docket Entry 14-3, at 6-9;

Pinelawn’s Br., Docket Entry 17, at 4-6.)
“To

state

a

claim

for

a

violation

of

The Court disagrees.
the

duty

of

fair

representation, the plaintiff must allege that (1) 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.’”

Jiggetts v. Local 32BJ,

SEIU, No. 10–CV–9082, 2011 WL 4056312, at *5 (S.D.N.Y. Aug. 10,
2011) (quoting Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d
703, 709 (2d Cir. 2010)), adopted by 2011 WL 4072033 (S.D.N.Y.
Sept. 13, 2011).

As discussed below, Plaintiff has adequately

pleaded these elements.
In situations like this, where “an employee claims that
his union breached its duty of fair representation by failing to
grieve his complaints, courts typically look to determine whether
the union’s conduct was arbitrary.”
9

Moore v. Roadway Express,

Inc., No. 07-CV-0977, 2008 WL 819049, at *5 (E.D.N.Y. Mar. 25,
2008) (citing Clarke v. Commc’n Workers of Am., 318 F. Supp. 2d
48,

56

(E.D.N.Y.

2004)

(collecting

cases)).

A

union

acts

arbitrarily if it “ignores or perfunctorily presses a meritorious
claim,” Samuels v. Air Transport Local 504, 992 F.2d 12, 16 (2d
Cir.

1993),

but

not

where

it

“fails

to

process

a

meritless

grievance, engages in mere negligent conduct, or fails to process
a

grievance

due

to

error

in

evaluating

the

merits

of

the

grievance,” Cruz v. Local Union No. 3 of the Int’l Bd. of Elec.
Workers, 34 F.3d 1148, 1153-54 (2d Cir. 1994).

“Before deciding

that a grievance lacks merit, however, the union must ‘conduct at
least a minimal investigation . . . .’”

Llanos v. Brookdale Univ.

Hosp. & Med. Ctr., No. 10-CV-1726, 2011 WL 809615, at *3 (E.D.N.Y.
Mar. 2, 2011) (quoting Clergeau v. Local 1181, Amalgamated Transit
Union, AFL–CIO, No. 06-CV-5567, 2008 WL 3334035, at *3 (E.D.N.Y.
Aug. 10, 2008)).

However, “only an egregious disregard for union

members’ rights constitutes a breach of the union’s duty to
investigate,” and “tactical errors are insufficient to show a
breach of the duty of fair representation; even negligence on the
union’s part does not give rise to a breach.”

Thomas, 793 F. Supp.

2d at 548 (internal quotation marks and citation omitted) (brackets
omitted).

Thus, to state a claim of a breach of the duty of fair

representation, Plaintiff must “plausibly allege[ ] that: (1) [he]
had a meritorious grievance; (2) [Local 74] was aware of the
10

grievance; and (3) [Local 74] acted arbitrarily in failing to
process the Plaintiff’s grievance.”

Id.

(citing Young v. U.S.

Postal Serv., 907 F.2d 305, 308 (2d Cir. 1990)).
Here, Plaintiff claims that Pinelawn terminated his
employment because of disability or perceived disability and for
taking leave from work following his alleged back injury.
Compl. ¶¶ 31-39.)

(See

Local 74 argues that “there are no facts [in

the Complaint] supporting plaintiff’s claim that his grievance had
merit” and that he was terminated for a violation of the Last
Chance Agreement.

(Local 74’s Br. at 7.)

However, Plaintiff

alleges that on his first day back from leave, he was assigned to
a task “typically reserved for only probationary employees;” six
days later, there was a meeting to “discuss [his] injury;” and the
next day, Plaintiff was terminated.

(Compl. ¶¶ 32-34.)

The Court

finds that these allegations, although sparse, plausibly allege
that Plaintiff may have been terminated based on his back injury
and in retaliation for taking leave, and not for a violation of
the Last Chance Agreement.

Pinelawn may very well have had a

legitimate reason to terminate Plaintiff’s employment based on the
Last Chance Agreement, but at this stage, the Court must accept
Plaintiff’s allegations as true and therefore cannot dismiss the
Complaint as implausible.

See Moore, 2008 WL 819049, at *5.

Additionally, there is no dispute that Local 74 was aware
of Plaintiff’s grievance, and Plaintiff alleges that Local 74
11

failed to investigate it.

(Compl. ¶¶ 40-47.)

An allegation that

Local 74 failed to investigate Plaintiff’s grievance plausibly
alleges a breach of the duty of fair representation.

See Thomas,

793 F. Supp. 2d at 548 (“Insofar as a ‘minimal investigation’ can
constitute

a

breach

of

the

duty

of

fair

representation,

an

allegation of a failure to perform any investigation after notice
of a grievance plausibly alleges a breach of the duty of fair
representation.”); Passante v. N.Y. State Nurses Ass’n, No. 10–
CV–0087, 2010 WL 2425953, at *3 (N.D.N.Y. June 11, 2010) (“It is
enough at this juncture that [the union] allegedly failed to meet
the minimum requirements in handling [the plaintiff’s] grievance
and that such a failure was not a tactical decision but rather an
arbitrary omission--an omission that may have involved either no
decision at all or a decision made in reckless disregard of [the
plaintiff’s rights.”); Moore, 2008 WL 819049, at *5 (“Assuming, as
the court must, that plaintiff made valid complaints to his shop
steward and that [the union] failed to conduct even a minimal
investigation, plaintiff has stated a claim that [the union]
breached its duty of fair representation by failing to investigate
plaintiff’s grievances.”). Pinelawn argues that “there is no basis
to believe, nor has any been alleged” that Local 74’s conduct was
arbitrary because the Complaint acknowledges that Local 74 held a
meeting regarding the grievance and then later informed Plaintiff
that it would not pursue the grievance.
12

(Pinelawn’s Br. at 6.)

However,

just

necessarily

because

mean

that

Local
it

74

held

fulfilled

a

its

“meeting”
duty

to

does

not

investigate

Plaintiff’s grievance and, at this stage, the Court “is required
to make all inferences and construe any ambiguities in favor of
the Plaintiff.”

Thomas, 793 F. Supp. 2d at 549.

The allegations

of the Complaint are no doubt scant and the Court therefore has
some concerns about the validity of Plaintiff’s claim; however,
the Complaint does state a claim.
The

Complaint

also

sufficiently

alleges

a

causal

connection between Local 74’s alleged conduct and Plaintiff’s
injury.
the

Local 74 incorrectly argues that the Court should dismiss

Complaint

because

Plaintiff

“fails

to

demonstrate

the

necessary causal connection between Local 74’s wrongful conduct
and his injuries.”

(Local 74’s Br. at 9.)

However, Plaintiff

need not demonstrate a causal connection because, “when deciding
a Rule 12(b)(6) motion to dismiss, the Court’s task is merely to
assess the legal feasibility of the complaint, not to assay the
weight of the evidence which might be offered in support thereof.”
Thomas, 793 F. Supp. 2d at 549 (internal quotation marks and
citation

omitted).

Plaintiff

connection, which he does.

only

needs

to

plead

a

causal

(See, e.g., Compl. ¶ 48 (“Defendant

Local 74 has caused injury to Plaintiff by denying him the benefits
of the CBA, including his right to arbitrate his termination and
his right to restoration . . . .”).)
13

In sum, the Court finds that the Complaint plausibly
alleges that Local 74 acted arbitrarily in the investigation of
Plaintiff’s grievance and that there is a causal connection between
that conduct and Plaintiff’s injury.

Additionally, the Court also

finds that the Complaint adequately alleges that Pinelawn breached
the CBA by terminating his employment without just cause.
¶ 54.)
for

(Compl.

Accordingly, Defendants’ motion to dismiss the Complaint

failure

to

plead

a

hybrid

Section

301/duty

of

fair

representation claim is DENIED.5
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motions

to

dismiss the Complaint (Docket Entries 13, 15) are DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
26 , 2014
Central Islip, NY

Pinelawn’s motion papers also request that the Court decline to
exercise supplemental jurisdiction over Plaintiff’s NYSHRL
claims “in the event that the Court dismisses Plaintiff’s
federal law claims.” (Pinelawn’s Br. at 8.) However, the Court
has not dismissed Plaintiff’s hybrid Section 301/DFR claim and
Pinelawn’s motion in this regard is therefore DENIED AS MOOT.
Because neither Defendant addresses the merits of Plaintiff’s
NYSHRL claims, the Court will not analyze whether Plaintiff has
plausibly alleged such claims.
5

14