Giglietti v. Bottalico et al

Filing 33

MEMORANDUM OPINION AND ORDER: #100370 For the forgoing reasons, Defendants' motion to dismiss the Amended Complaint is granted. This Order terminates docket entry no. 22. The pre-trial conference scheduled for June 3, 2011, is cancelled. The Clerk of Court is respectfully requested to enter judgment in favor of Defendants and close this case. (Signed by Judge Laura Taylor Swain on 5/26/2011) (jfe) Modified on 5/26/2011 (ajc).

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lJt\UTED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x ANTHONY GIGLIETTI, JR., Plaintiff, -v- :-lo. 10 Civ. 3()S2 (L TS) ANTHONY BOTTALICO, THE ASSOCIATlON OF COMMUTER RAIL EMPLOYEES, and MTA METRO-NORTH RAILROAD COMPANY, Defendants. -------------------------------------------------------x ME:vIORAl\DUM OPINION AND ORDER Plaintiff Anthony Giglietti, .Ir. ("Plaintiff' or "Giglietti") brings this action against Anthony Bottalico ("'Bottalico"), the Association of Commuter Rail Employees ("ACRE" and, together with Bottalico, the "Union Defendants"), and MTA Metro-North Railroad Company ("Metro-North" and, together with the Union Defendants, "Defendants") claim pursuant to the Railway Labor Act ("RLA"), 45 U.S.c. § 151 ~lsscrting a "hybrid" seq., as well as claims of intentional infliction of emotional distress and interference with contract under New York state law. Defendants have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for an order dismissing the amended complaint (the "Amended Complaint") for failure to state a claim upon which relief can be granted. The Court has jurisdiction ofPlaillliff's federal claim pursuant to 28 U.S.c. U.S.c. ~ ~ 1331 and supplemental jurisdiction of the state law claims pursuant to 28 1367. For the following reasons, the Court grants the motion to dismiss the Amended GIGUl'TTI MTD. IIPn Complaint. BACKGROUND The following facts alleged in the Amended Complaint, or set forth in documents incorporated into or referred to in the Amended Complaint, I are taken as true Jar the purposes of this motion practice. PJaintitTwas employed as an assistant conductor by Metro-North, an operating agency of the Metropolitan Transportation Authority ("MIA") \:vhich provides commuter rail service, at the time of the relevant events. (Am. Compi. ~'I 3. 6, 9.) As a Metro- North conductor, Plaintiff was represented by ACRE, which was chosen by certain categories of Metro-North employees to act on their behalf and is a party to a collective bargaining agreement (the "CBA") with Metro-North. ~'I 3, 5, 6; Joint Dec!. of Vincent F. O'Hara and Frank Rinaldi ("Joint Dec!.") Ex. C CCBA").) Bottalico is the chairman of ACRE. (Am. Compi. '1 4.) In 2008 Metro-North implemented the use of "ticket-issuing machines" ("TIMs"), devices that pcrmit train conductors to collect fares and document the issuance of tickets ~~ 011 board trains. (Id. 11, 19,20.) Plaintiff alleges that "there were problems with the TIM[s] that interfered with conductors['] ... ability to collcct fares" (id. '1 13). but that Metro-N0l1h. ACRE, and Bottalico ignored those problems and insisted on pell)etuating the use of TlMs aboard Metro-North trains Plaintiff received a letter from Metro-North dated May 5,2009, infoTI11ing him of an investigation of allegations that, on three occasions in January, February, and April 2009, The Com1may also consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference. and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit. See Rothman v. Gregor, 220 F.3d 81. 88 (2d Cir. 2000). Defendants have submitted copies or the documents referred to in the Amended Complaint. MTI1.\\I'D Plaintiff collected fares, in the amounts of $14, $15. and $14, respectively. but failed to issue a "duplex" (a substitute document) or to remit the fares to Metro-NOlih. (Am. Compi. 'l~ 36,37; .Ioint Decl. Ex. D (the "May 5, 2009, Letter").) These fares had been paid by "spotters" hired by Metro-North to monitor the collection and remittance of fares by conductors. (Am. Compi. ~ 39.) The May 5, 2009, Letter advised PlaintifTthat the investigatory hearing would be held on May 12,2009, that Plaintiff had the right to "have duly accredited representation and/or witnesses present in accordance with [the CBA]," and that a "Pre-Trial Meeti between Metro- North and ACRE was scheduled for May 8, 2009. (\1ay 5, 2009, Letter.) While the Amended Complaint does 110t deny or otherwise discuss the accuracy of the allegations in the May 5, 2009, Letter, it does refer to the incidents as "crror[s]" involving the use of a TIM," (See, e.g., Am. Compi. '1'161,67,68,97,100.) Plaintiff was represented by an ACRE representative at the May 12,2009, formal investigation hearing. (Am. Comp\. ~r'! 40-41.) On May 18,2009, Metro-North issued a "Notice of Discipline" indicating that Plaintiffwas "[d]ismissed from \1etro-North Railroad in all capacities." (Joint Decl. Ex. F; Am. Compi. ~i 44.) Unbeknownst to Plainti ,ACRE appealed, without success, the dismissal decision pursuant to the appeal process established by the CBA. (Am. Compl. 'r~ 46-48; see also CBA ~ 26(g)-(j).) ACRE then instituted a proceeding before a Special Board of Adjustment. as provided for by the CBA and the RLA, seeking to reverse Metro-North's termination of Plainti employment. (See Am. Compi. 11156: Joint Dec!. Ex. G; The Amended Complaint discusses a "S29.00 dollar error." (Am. Compi. ~161; see also id. 'I'! 67, 100.) That is the slim of the first two alleged thefts. Plaintiff believes that he was found guilty "only of poor procedure in using the TI M on t\VO occasions not three." c~1'1 59.) (ilGLlF rn :vnll. \"PI) CBA ~~ 24, 26(j); 45 U.S.C.A. ~ 153, Second (West 2007) (providing for the establishment of special boards of adjustment).) On December 9,2009, the Special Board of Adjustment denied Plaintiff's claim. (Am. Compl. ,! 58; Joint Decl. complains that ACRE and Bottalico t~liled H ("December 2009 Award"l) Plaintiff to represent him adequately by failing to obtain a lawyer for him in connection 'vvith the May 12.2009, investigation hearing or subsequent appeals (Am. Compl. ,!1I142, 57. 52);-+ Illiling to inform him of the various appeals of the dismissal decislOn, of the submissions made in connection therewith, and of his right to pmiicipate in those proceedings (id. 111'147, 48,52,53, .63, und ofrcfusll1g to "intercede" on Plaintiff's behalf in order to have him reinstated to his position with Metro-North despite Bottalico 's havll1g As noted above, Plaintiff contends that the "award did not find plaintiff guilty of theft, but only of poor procedure in using the TIM on two occasions not three." (Am. Compl. '159.) This allegation is clearly contradicted by the text of the award, which denied Plaintiffs application to reverse his termination and spcclrically rejected Plaintiff's explanation that he was unable to issue tickets to the spotters because of TIM malfullction in light of his failure to issue duplexes, which were intended for use in case of such a malfunction. and his failure to remit the fares to Metro-North at the end of the day of incident. (Sce December 2009 Aware! (denying Plaintiff's claim in its cntirety).) Plaintiff was in f~lct represented by a union representative at all of the proceedings. To the extent that Plaintiff asserts that Defendants failed to provide a non-union representative or attorney, the CBA provides no slIeh right. CBA §§ l(d) (defining "duly accredited representative" as "a member orthe Local Committee of Adjustment of [ACRE] having jurisdiction or a member of [ACRE] designated by the general chairman), 2(} (permitting employees subject to discipline to be represented by a duly accredited representative).) Plaintiff also alleges that ACRE failed to advise him that "he could arbitrate [the dismissal] dccision in Chicago as opposed to the Special Board of Adjustment" provided for by the CBA. (Am. Compl. '153.) Although no authority is cited for this contention. it appears to bc based on the RLA's provision that the headquarters of the National Railroad Adjustment Bonrd is to be maintained in Chicago. See 45 U.S.CA. ~ 1 (s) (West 20(7). Special boards ofadjllstment may be established by parties to disputes otherwise referable to the National Railroad Adjustment Board in order to resolve sllch disputes. See 45 U.S.CA. ~ 153, Second (West 2(07). II 4 successfully done so on behalf of other conductors who had been found to have committed thefts in amounts as large as $11,000 (Am. CompI. '1'164-67). Plaintiff also issue with the adequacy orthe investigation and the resulting dismissal, asscliing that thc spotters identified Plaintiff ""from pictures under dubiolls circumstances," that their testimony was not challenged (id. " 42), and that the dismissal "is questionable in as much as [P]laintiff ... was fired ... when othcr conductors, who were gui lty of larger errors or theft extending to thousands of dollars[ ,] received lesser or no punishment" 4,62). Bottalico receives a significant portion of his income from Metro-North. (Am. Comp1. 414 16.) Plaintiff al that, in exchange for this compensation, Bottalico "is required to support Metro-North's policies" (id.~· 18), and in particular Metro-North's policy favoring the use ofTlMs (id. '1'119-20,25-28). Metro-North has long had a practice of paying certain union officials who are themselves Metro-North employees (including officials of unions other than ACRE) the full salaries of the rail service jobs for which they are qualified and releasing them from such rail service jobs to instead work on varioLls tasks relevant to union-management relations. (ld. '1'[ 17, 19,21-22,24,25; see also Joint Dec!. Exs . .I (the "\'larch 8,2001, Memorandum"), K (the "February 28, 2002, Mcmorandum"), L (the "March 7,2008, Letter").6) The three mcmoranda are cited in the Amended Complaint and may thus be considered on this motion practice. In the March 8, 2001, Memorandum, which was addressed by a c.J. Wytelllls to Peter Cannito, then-president of Metro-)Jorth, the author discussed "unonymolls compluints made LO the Inspector General's office" concerning the assignmenl of two ACRE union officials to full lime "company business" positions. (March 8, 2001. Memorandum at 1.) The rV1emorandum states that "[t]hese two union representatives handle matters that concern both union and management at meetings 011 u wide range of activities" Od.) and that these positions were created in order to reduce the number of "train service personnel (engineers and conductors)" who were permitted to be "markcd otl" and whose shifts had to be "covered 0 IT of the extra list or by regular train service personnel (often at premium pay), for varioLls meetings with management" (id. at 2). Wytel1l1s related that Metro­ (;I(;;JI:TT~MTI) WPD The arrangements are terminable at any time. Plaintiff asserts that, because Bottalico receives compensation tl'om Metro-North that can be terminated at Metro-North's wilL Bottalico and ACRE are subject to influence by Metro-North including enlistment in support of:\.1etro­ North's mission to require conductors to lise TIMs and to suppress any evidence of the TIMs' North had found that having fewer employees engaged full time to attend to labor­ management issues \vas cost cffccti ve (and therefore that these are not "no show" positions). (hl at 2-3.) The Memorandum notes that a similar complaint had previously been made about two other ACRE officials, including Bottalico. (Id. at 1.) In the February 2002, Memorandum to Cal1nito, \Vytenus discusses a letter sent by an official of another union, the UTe, to the Connecticut Department of Transportation, making allegations that "are identical in many respects to a number of anonymous complaints that have been forwarded to us by MTA's Inspector General over that past t'.vo years." (February 28,2002, Memorandum at 1.) Wytenus explains that UTU's complaint arises from its loss to ACRE in a February 2000 representation clection, which UTU alleged VIetro-North influenced by paying ACRE officials for time spent campaigning. (Id. at 1-3.) Finally, 111 the March 7, 2008. letter to Karen Rae. the New York: State Departmcnt of Transportation Deputy Commissioner of Policy and Strategy, Cannito expresses his "dismay about devoting the time to respond to the allegations [in a letter fro111 a UTU official to Rae]. since the very same charges he makes have repeatedly been made over the last eight years in complaints to the Office of the MTA Inspector General (four complaints), the federal National 'vlediation Board, the Office of the Ne\v York State Comptroller. officials of the Connecticut Department of Transportation, the Executive Director and CEO of MTA, and to several members of the State Legislature." (March 7. 2008, Letter at 1.) Cannito notes that "compensation to union officials who are released from their railroad duties to conduct union business with their employers is by no means unusual and, indeed, is quite C01111110n in the transportation industry." that prior collective bargaining agrecments with ACRE's predecessors provided Cor sllch compensation, and that having specially designated employees to represent lInion interests before Metro-North is more effective than "to deal haphazardly with varioLls groups of employees having ditlerent agendas." (.1.1. at 2.) The question of whether the payment of ACRE union leaders compensation by :Yletro-North rcsulted in improper employer domination of the L1nion came before the National Mediation Board in 2002 in the context of a disputed union clection. There, a rival union alleged that Metro­ '\'orth's payment of "release time" to ACRE officials, including Bottalico, constituted illegal "carrier interference" with employees' choice of representative in that Metro­ N011h subsidized, and therefore dominated, ACRE. In re Ass'n of Commuter Rail Emps. 29 N.M.S. 458,459-60 (2002). The Board held that ACRE was not dominated by Metro-North, reasoning that he amount of release time Lpaid to union officials] is not proof or currier domination:' hl at 473. (il<dJFTTIMTD II'I'D flaws ~ so as to effectively deprive Plaintiff of any union representation. (Am. CompJ. '1'1 30, 32-33,35,54,68-69.) Plaintiff alleges that, as a result of these payments from Metro-North, ACRE "took a dive" in the disciplinary proceedings in order to please Metro-North and thereby safeguard 80ttalico's compensation. (Am. Compl. '175.) PlaintitTalso asserts that Metro-North breached a number of provisions of the CBA in its conduct of the investigation and disciplinary process. In particular, Plaintiff alleges that Metro-North violated the provision oftlle C8A requiring that the Special Board of Adjustment is to be composed of olle Metro-North representative, one ACR E representative, and one jointly selected neutral member, because as a result of 8ottalico's compensation by Metro­ North, "Metro-North \vas. in effect, appointing all three [Board membersj" (Am. CompJ. '186); that Metro-North "did not conduct a t~1ir and impartial investigation" as required by the CBA, presumably due to its payments to and alleged conspiracy with Bottalieo fuL '1'187-88); that Metro-North was required by the CBA to, but did not, pay Plaintiff when he was taken out of service during the investigation' 'I! 89); that Metro-North failed to timely notify Plaintiff of the investigation (id. '190); and 1hat Metro-North violated the notification requirements with respect to its disciplinary decisions 'I~' 92-(4). Tn adjudicating a 11I0tion to dismiss a complaint for failure to state a claim pursuant to Rule 12(b)(()) of the Federal Rules of Civil Procedure, the COUI'! accepts the factual allegations in the complaint as true and draws all reasonable inferences in the plaintiffs favor. Roth v. Jennings, 489 F.3d 499, 50 I (2d Cir. 2007). Nevertheless, »[t]o survive a motion to (rll;Lll :'v1 rD WPD 7 dismiss, a complaint must contain sufficient factual matter. accepted as true, to 'state a claim to relief that is plausible on its f~lce.'" Ashcroft v.lqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twomblv, 550 l.S. 544, 570 (2007)). This standard applies to all civil actions. Iqbal, 129 S. C1. at 1953. "[M]ore than a sheer possibility that a defendant has acted unlav\!fully" is required and "'[t]hreadbare recitals of the clements of a cause of action, supported by mere conclusory statements, do 110t suffice." at 1949 (citing Twomblv. 550 U.S. at 555 (2007)). In applying these principles. tbc Court "bcgin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assLlmption of truth." Iqbal, 129 S. Ct. at 1950. Eliminating the conclusory allegations it'om consideration, the Court next determines whether the remaining "well-pleaded. nonconclusory fa.ctual allegation[s]" regarding Defendants' conduct "g[iJve rise to a 'plausible suggestion of [illegal activity]. '" Under the RLA, "[a] union 'has a duty to represent fairly all employees subject to the collective bargaining agreement." Vaughn v. Air Line Pilots Ass'n, In!'l, 604 F.3d 703, 709 (2d Cir. 2(10) (quoting Spellacy v. Airline Pilots Ass'n. Int'l, 156 120, 126 (2d Cir. 1998)). "[A] union breaches its duty of fair representation if its actions are either 'arbitrary, discriminatory, or in bad t~lith:"Airline Pilots Ass'n, Int'I v. O'J'\eill, 499 U.S. 65, 67 (1991) (quoting Vaca v. Sipes, 386 US 171. 190 (1 (67)), and there is a '''causal connection between the union's wrongful conduct and the [plaintiffs] injuries.'" -,--,"=:..:..:c.:., 604 F.3d at 709 (quoting ==~J.' 156 F.3d at 126). The Court's review of allegations of breach ofa union's duty of fair representation (the "DFR claim") IS "highly deferential, recognizing the wide latitude that unions need for the effective pertormancc ofthcir bargaining responsibilities." marks, citation, and alteration omitted). (i1<iIIETTIMTD.\\1'1l II 1<1 (Il1temal quotation "A union's actions (Ire arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, thc union's bchavior is so far outside a wide range of reasonableness as to Irrational." Sanozkv v. In1'l ASS'll of Machinists and Aerospace (2d Cir. 2005) (internal quotation marks. citation, and alteration Workers, 4] 5 F.3d 279. omitted). "Tactical errors are insufficient to show a breach of the duty of fair representation; even negligence on the L1nion's part does not give rise to a breach." Barr v. United Parcel Serv.. Inc., 868 F.2d 36, 43 (2d Cir. 1(89). "A union's acts are discriminatory whcn 'substantial evidence' indicates that it engaged in discrimination that was 'intentional, sc\'cre, and unrelated to legitimate union objectives. ,,, Vaughn, 604 F.3d at 709 (quoting "-=:..:.-=,-=~=,-=-,,-==-::.c,-,,-,,,-=-,= Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (I (n I)). "Bad faith, which 'encompasses fraud, dishonesty. and other intentionally misleading conduct,' requires proof that the union acted with 'all improper intent, purpose, or motive. '" Spellacy, I at 7 09-1 0 (quoting at 126). Plaintiff specifically alleges, and the documents referred to in the Amended Complaint cOlToborate, that Bottalico is paid a salary by Metro-North and is 110t required to perf0l111 regular railway duties, and that the arrangement can be terminatcd at any time. Plaintiff also alleges that he was accllsed offailing properly to collect and remit $43 in tares in connection witll his usc oCthe TiM, was round to have violated procedures and that his employment was terminated as a sanction lor the violations. He identifies a number of alleged procedural violations, including noncompliance with notice timing procedures and failure to infonn him that certain measures wcre being pursued. He also asserts that other, unidentified, employees were retained by Metro-North after "intervention" by the union after having been \lTD \\'PI) \ I 1-:,1, )'~:\ II found to have stolen amollnts mllch than $43. The thrust of Plaintiffs DFR claim is his assertion that the outcome ofthe disciplinary process was the product of collusion between Botallico and Metro-North, and that Bottallico was motivated to produce a result consistent \',,;ith Metro-North' s goal of requiring TIM use by the conductors by the potential for tennination of his compensation aITangement were Metro Korth to be displeased with the outcome of the proceedings against Plaintiff. This theory of violation is supported only by conclllsory allegations of bad failh action, and fommlaic recitations of the elements that are required to be proven to sllcceed on a DFR claim.7 Stripped of the conclusory allegations of bad faith and collusion, the Amended Complaint's tactual allegations are insufficient to push Plaintiffs DFR claim over line from possible to the requisite plausible showing of entitlement to relief. The pleading and the memos relating to payments by Metro-North to union officials make it clear that this compensalion structure has been in place for at least ten years at Metro North, [n and of itself, the compensation structure is See, Am. Compl. '1'1 28 ("in performing his duties for Metro-North, Bottalico acted in opposition to the best interest of the union members")' 32 ("Bottalico[,] in receiving money from Metro-North ... cannot act in an independent and unbiased manner"), 50 ("Plaintiff was never informed by ACRE of the tremendous service that Bottalico provided to IVletro-Korth to justify his Metro-North sabry), 69 ("Upon information and belief ACRE was and is supporting Metro-North's use of the TIM in detriment to its members I '] interests."), 70 ("Bottalico[,] 111 collecting most of his salary from Metro-North ... , cannot act in an independent :.l!1d unbiased manner), ("the ardor and vigor provided by ACRE and BottaIico in plaintiff's defense of these [disciplinary] charges is questionable because of ACRE, by virtue of its chairman's receiving payment hom Metro-North, had questionable loyalty and a eontlict of interest"), 74 ("ACRE's support of TIM and the arbitr8ry. capricious and unconscionable punishment that plaintiff received is a result of ACRE's chairman's agreement with Metro-North"), 75 ("because ACRE's chairman is receiving payments directly from Metro-North ... there IS an inference that ACRE in its representation of ... plaintiff took a dive"). 78 ("in its representation oi'pll1intiJT. /\CRE's conduct was arbitrary"), 79 ("in its representation of plaintiff. ACRE did not exercise complete good faith and honeslY"). 80 n its representation of plain liil..\CRE treated plaintiff with hostility and discrimination"). e,II,,1 "fITl.III'!) 10 insufficient to support an inference that the Union does not rcpresent its members in an appropriate fashion. much less that Bottalico or ACRE acted with "an improper intent, purpose or motive" III connection with the charges against Giglietti At most. the properly pleaded factual allegations might establish that ACRE and Bottalico were negligent.' Similarly, Plaintiff alleges no facts supporting an mterence that the alleged failure to intercede in his dismissal for TIM-related violations was so tar outside orthe range ofreasonabJeness as 10 be ilTational, especially 111 light of Plaintiffs allegations that full implementation of the 'rIM was a policy priority for Metro-North, In short. the Comt's "highly deferential" review or Plaintiffs well plead factual allegations reveals those allegations to be insufficient to state <\ claim of breach of the duty of fair representation by the Union Defendants. Because Plaintiffhas biled to state a claim for breach of duty offalI' representation against ACRE, his claim against Metro-North must also fail. ~=-=-:==, 237 F,3d 174, 1 supplemental jurisdiction White v. White (2d Cir. 2(01). Furthermore, the Court declines to exercise Plaintitrs state law claims. See 28 U.S.C. ~ J3()7(c)(3). As is clear from the December 2009 Award, ACRE put forward precisely the same theory of PlaIntiffs "errors" as Plaintiff asserts in this action and pressed Plaintiff's case through all available levels of appeals. Cf. ~~..L-'-'-'~-'-'-"'-"'-'~="'--'='~-'-!.:l.~=' 602 F, Supp. 2d 419,423-424 ( D.N,Y. 2009) (dismissing hybrid claim for failure to state a DFR claim where plaintiff alleged that union failed to communicate status of grievance proceedings, ullion erroneously told plaintiff that he had prevailed, and union discouraged plaint iIT from retaining independent counsel). II COl\:CLUSIO:\ For the forgoing reasons, Defendants' motion to dismiss the Amended Complaint is granted. This Order terminates docket entry no. 22. The pre-trial conference scheduled for June 3, 2011, is cancelled. The Clerk of Court is respectfully requested to enter judgment in favor of Defendants and close this case. SO ORDERED. Dated: Ne\v York, New York May 26, 2011 United States District Judge VUII cTTI MTf), II'I'D i :2

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