Guerrero v. Soft Drink and Brewery Workers Union, Local 812 et al

Filing 64

MEMORANDUM OPINION AND ORDER re: 50 MOTION to Dismiss First Amended Complaint filed by Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters, 48 MOTION to Dismiss First Amended Complaint filed by Coca-Cola Refreshments USA, Inc. For the reasons outlined above, defendants' motions to dismiss are GRANTED. Plaintiff is granted leave to replead his first and sixth causes of action. Any amended complaint must be filed no later than twenty-one days from the date of this order. The Clerk of Court is directed to terminate the motions pending at Dkt. Nos. 48 and 50. (As further set forth in this Order.) (Signed by Judge Gregory H. Woods on 2/16/2016) (kko)

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------X
:
GABRIEL GUERRERO,
:
Plaintiff, :
:
-v :
:
SOFT DRINK AND BREWERY WORKERS
:
UNION, LOCAL 812, INTERNATIONAL
:
BROTHERHOOD OF TEAMSTERS,
:
COCA-COLA REFRESHMENTS USA, INC.,
:
JOSE RAMIREZ and CARLOS DOE,
:
:
Defendants. :
:
----------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 2/16/2016

1:15-cv-911-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, District Judge:
I.

INTRODUCTION
Plaintiff, Mr. Gabriel Guerrero, worked as a driver for a Coca-Cola distributor in the Bronx.

Under pressure, Plaintiff confessed to his employer that he had once deviated from his delivery
route, and that he had traded one can of soda intended for delivery for free food. Plaintiff alleges
that his confession was false. Nonetheless, as a result of his confession, Plaintiff was terminated.
Plaintiff asserts that his union breached its duty of fair representation to him by failing to investigate
the cause of his termination, and by making tactical errors during his arbitration hearing. Because
the complaint fails to plausibly allege that Plaintiff’s union acted arbitrarily or in bad faith, however,
Plaintiff’s claims against his union for breach of its duty of fair representation are dismissed. For the
reasons outlined below, Plaintiff’s other allegations against the defendants are also dismissed in their
entirety.

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 2 of 12

II.

BACKGROUND1
Plaintiff worked as a driver for Coca-Cola Refreshments USA, Inc. (“CCR”), making

deliveries from a distribution center in the Bronx. First Amended Complaint, Dkt. No. 47
(“Compl.”) ¶¶ 5, 12. On July 2, 2014, after returning from his route, one of Plaintiff’s supervisors
directed him to a conference room, where he was left alone for thirty minutes. Id. ¶ 14. Plaintiff
was then directed to another room, where Mr. Carlos Doe, the company’s regional security officer,
sat alone. Id. ¶ 15. Plaintiff suspected that Mr. Doe was investigating the theft of products by
drivers. Id. ¶ 16. Moreover, he feared that one of his fellow drivers, Mr. Felix Ruiz, who was hostile
to Plaintiff, had prompted the company to investigate Plaintiff “in order to mitigate his own
penalties” in connection with an ongoing investigation of theft by Mr. Ruiz. Id. ¶¶ 16-17.
Plaintiff and Mr. Doe sat together in silence for thirty minutes until they were joined by Mr.
Jose Ramirez, the distribution manager for all employees at the Bronx distribution facility, and two
of Plaintiff’s intermediate supervisors. Id. ¶¶ 6, 11, 17. Mr. Brian Harrison, a representative of
Plaintiff’s union—Soft Drink and Brewery Workers Union, Local 812 (“Local 812”)—also joined
the meeting. Id. ¶ 17. Plaintiff asked why Mr. Harrison was representing him at the meeting, rather
than one of his shop stewards, and was told that they were not available. Id. ¶¶ 9, 18. Plaintiff was
specifically told that one of the stewards, Mr. Mario Alvarado, had already left for the day. Id. ¶¶ 9,
18.
As Plaintiff had anticipated, Mr. Doe and one of Plaintiff’s supervisors began to question
him about whether he had stolen from the company. Id. ¶ 19. Throughout the questioning, they
pointed to a thick, closed file on a table, indicating that they had proof that Plaintiff had exchanged

Unless otherwise noted, the facts are taken from the amended complaint, and are accepted as true for the
purposes of this Rule 12(b)(6) motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
However, “[t]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

1

2

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 3 of 12

products for cash. Id. ¶ 19. At first, Plaintiff denied the accusations, but then, after persistent
questioning from his accusers, Plaintiff admitted that he had traded one can of soda for food, and
that he had once deviated from his delivery route to get a haircut. Id. ¶¶ 20-21. But Plaintiff’s
confession was false; Plaintiff admitted to the violations because he believed that the statements
would end the investigation, and that he would ultimately be vindicated. Id. ¶ 22.
Plaintiff and his union representative, Mr. Harrison, then left the conference room. Id. ¶ 23.
Outside the room, Plaintiff explained to the union representative that his confession was false, and
explained what had motivated him to lie to his questioners. Id. Mr. Harrison then “opened the
conference room door slightly and asked ‘are you guys going to fire him?[’] Carlos Doe responded
that [Plaintiff] could go back to work, ‘but if I hear your name again we will have a big problem.’”
Id. ¶ 23.
Three weeks later, Mr. Ramirez handed Plaintiff a resignation letter. Plaintiff consulted with
his Local 812 delegate, who advised him that the resignation offer was “a good deal,” and that
Plaintiff should accept it. Id. ¶ 26. Plaintiff refused to sign the resignation letter, and was, instead,
terminated later that day. Plaintiff received a letter in connection with his termination, stating that,
after a thorough investigation, the company had concluded that Plaintiff had “misappropriated
product for personal gain and falsified documentation to hide [his] theft.” Id. ¶ 28. Plaintiff filed a
grievance with his union the following day. Id. ¶ 27.
Plaintiff’s shop steward, Mr. Alcantara, later contacted him to ask about the circumstances of
Plaintiff’s termination. Id. ¶ 29. Plaintiff explained what had happened during his interrogation, and
was surprised to learn that, contrary to what he was told on the day of his interview, Mr. Alcantara
had been on site that day, available to represent him. Id. ¶ 30. Mr. Alcantara told Plaintiff that
Mr. Ramirez, the CCR manager, had specifically told Mr. Alcantara that Plaintiff would not be
interrogated that day. Id.

3

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 4 of 12

An arbitration hearing regarding Plaintiff’s termination was scheduled pursuant to Local
812’s collective bargaining agreement with CCR. In mid-August 2014, Plaintiff met with his Local
812 attorney to discuss his case. During the 45-minute meeting with his attorney, Plaintiff
“suspected that the attorney was not properly considering his defenses or the underlying facts, and
simply not listening at other times.” Id. ¶ 31.
The arbitration hearing regarding Plaintiff’s termination was held on October 2, 2014. Id.
¶ 32. Local 812 represented Plaintiff’s interests at the arbitration. Id. ¶¶ 31-32, 34. Plaintiff himself
testified at the arbitration hearing, as did Mr. Doe and Mr. Alvarado. Id. ¶ 31. A single character
witness testified on Plaintiff’s behalf, although Plaintiff requested that more character witnesses be
heard. Id. ¶ 33. No documentary or photographic evidence was presented at the hearing. Id.
During the hearing, CCR argued that Plaintiff’s admitted misconduct—his exchange of product for
free lunch, and going off route for a haircut—constituted sufficient cause for his termination. Id.
Defending Plaintiff’s interests, “Local 812 explained that [Plaintiff] was harassed, scared and felt
trapped during the Investigatory Interview and therefore uttered two easily disprovable false
admissions of guilt to Carlos Doe . . . .” Id. ¶ 34.
On October 16, 2014, two weeks after the arbitration hearing, the arbitrator issued a written
opinion and award. Id. The arbitrator concluded that Plaintiff had been terminated for good cause,
“‘[b]ased upon the substantial evidence of the case as a whole[.]’” Id.
III.

PROCEDURAL HISTORY
Plaintiff commenced this case on January 7, 2015 with a filing in New York Supreme Court,

Bronx County. Defendants removed the case to this Court on February 6, 2015. Plaintiff’s counsel
first considered requesting a remand of the action to state court, Dkt. No. 15, then, following a
conference with defense counsel and the Court, attempted to dismiss the action pursuant to Federal

4

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 5 of 12

Rule of Civil Procedure 41(a)(1)(A)(i). Dismissal under that rule was not available at that time given
that two of the defendants had already filed answers. Dkt. No. 21.
Plaintiff filed his first complaint in this case on March 9, 2015. Dkt. No. 29. The
defendants moved to dismiss that complaint on March 27, 2015, on a number of grounds, including
arguments that the complaint failed to state a claim. Plaintiff responded to the motions to dismiss
on April 24, 2015, by filing the first amended complaint. Dkt. No. 44.
The first amended complaint asserts a number of claims against the defendants. The first
cause of action asserts that Local 812 breached its duty of fair representation in connection with its
representation of him in the arbitration proceeding. Compl. ¶¶ 35-40. The second cause of action
asserts that CCR engaged in unfair labor practices, in violation of 29 U.S.C. § 158(a)(1), (2).
Id. ¶¶ 41-44. The third cause of action asserts that CCR violated 42 U.S.C. § 1981, by denying
Plaintiff “equal protection of laws as similarly situated employees.” Id. ¶¶ 45-49. The fourth and
fifth causes of action assert that Local 812 violated state and city discrimination laws by violating 42
U.S.C. § 1981. Id. ¶¶ 50-55. The sixth and final cause of action asserts that Mr. Ramirez, CCR, and
Local 812 conspired to deprive Plaintiff of equal protection of the law, in violation of 42 U.S.C. §
1985(3). Id. ¶¶ 56-58. The defendants now move to dismiss all of these claims pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 12(b)(1).
IV.

ANALYSIS
A. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. DiFolco
v. MSNBC Cable LLC, 622 F.3d 104, 110-11 (2d Cir. 2010) (quoting Shomo v. City of New York, 579
F.3d 176, 183 (2d Cir. 2009)). To avoid dismissal, 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

5

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 6 of 12

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A formulaic
recitation of the elements of a cause of action, devoid of supporting facts, does not suffice. Id. To
satisfy the “plausibility” requirement, the plaintiff must plead facts that permit the court “to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556).
The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is
“substantively identical” to that governing Rule 12(b)(6). Lerner v. Fleet Bank, N.A., 318 F.3d 113,
128 (2d Cir. 2003). However, the plaintiff bears the burden of establishing jurisdiction in a
Rule 12(b)(1) motion, and the plaintiff must meet that burden by a preponderance of the evidence.
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). “‘[J]urisdiction must be
shown affirmatively, and that showing is not made by drawing from the pleadings inferences
favorable to the party asserting it.’” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)).
B. Duty of Fair Representation
Plaintiff’s first cause of action against Local 812 asserts that the union breached its duty of
fair representation to him.2 “‘[A] union breaches the duty of fair representation when its conduct

2

Plaintiff has not expressly asserted a claim under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185,
but suggests in his opposition that the claim can be framed as a hybrid § 301/duty of fair representation claim. In that,
he is correct. “Although formally comprised of two separate causes of action, a suit in which an employee alleges that an
employer has breached a CBA and that a union has breached its duty of fair representation by failing to enforce the CBA
is known as a ‘hybrid § 301/fair representation claim.’” Acosta v. Potter, 410 F. Supp. 2d 298, 308 (S.D.N.Y. 2006) (citing
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983); Carrion v. Enter. Ass’n, Metal Trades Branch Local Union 638,
227 F.3d 29, 33-34 (2d Cir. 2000)). “The law is clear that regardless of who is named as a defendant, a hybrid claim is
presented if an employee has a cause of action against employer and the union, where the two claims are inextricably
linked, and where the case to be proved is the same against both.” McKee v. Transco Prods., Inc., 874 F.2d 83, 86 (2d Cir.
1989). “To establish a hybrid § 301/DFR claim, a plaintiff must prove both (1) that the employer breached a collective
bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union members. The
plaintiff may sue the union or the employer, or both, but must allege violations on the part of both.” White v. White Rose
Food, 237 F.3d 174, 178-79 (2d Cir. 2001). However, “[b]ecause a union’s breach of the duty of fair representation ‘is a
prerequisite to consideration of the merits of plaintiff’s claim against’ an employer for breach of a CBA, courts presented
with hybrid claims need not reach the question of whether the employer violated the CBA unless the union has acted
arbitrarily, in bad faith, or discriminatorily.” Acosta, 410 F. Supp. 2d at 309 (quoting Young v. U.S. Postal Serv., 907 F.2d
305, 307 (2d Cir. 1990)). As a result, because the Court concludes that Plaintiff has not adequately pleaded a breach of

6

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 7 of 12

toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.’” White v. White
Rose Food, 237 F.3d 174, 179 (2d Cir. 2001) (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33,
44 (1998)). The bar for finding that a union has breached this duty is high. “Judicial review of
union action . . . must be highly deferential, recognizing the wide latitude that [unions] need for the
effective performance of their bargaining responsibilities.” Spellacy v. Airline Pilots Ass’n-Int’l, 156
F.3d 120, 126 (2d Cir. 1998) (internal quotation marks omitted).
“‘[A] union’s actions are arbitrary only if, in light of the factual and legal landscape at the
time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ as
to be irrational.’” White, 237 F.3d at 180–81 (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65
(1991)). “‘This ‘wide range of reasonableness’ gives the union room to make discretionary decisions
and choices, even if those judgments are ultimately wrong.’” Id. at 179. “A union acts in bad faith
when it acts with an improper intent, purpose, or motive.” Spellacy, 156 F.3d at 126. Moreover, “[a]
showing of ‘[b]ad faith requires a showing of fraudulent, deceitful, or dishonest action.’” Id.
(quoting Sim v. N.Y. Mailers’ Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999)).
It is well established that, in the context of a union’s representation of an employee in an
arbitration proceeding, “[t]actical 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.” Barr v. United
Parcel Serv., Inc., 868 F. 2d 36, 43 (2d Cir. 1994). “[P]roof of mere negligence or errors of
judgment . . . is insufficient. . . . . ‘As long as the union acts in good faith, the courts cannot
intercede on behalf of employees who may be prejudiced by rationally founded decisions which
operate to their particular disadvantage.’” Id. at 43-44 (quoting Cook v. Pan American World Airways,
Inc., 771 F.2d 635, 645 (2d Cir. 1985), cert. denied, 474 U.S. 1109 (1986)). “[T]o show that the Union’s

the union’s duty of fair representation, the Court does not reach the question of whether Plaintiff’s employer breached
the collective bargaining agreement.

7

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 8 of 12

tactical decisions in failing to present witnesses, or that its alleged perfunctory or otherwise
inadequate representation of an employee during a grievance arbitration proceeding, are enough to
support a breach of a union’s duty of fair representation, the evidence must sufficiently indicate that
the union’s actions ‘amounted to conduct and omissions so egregious, so far short of minimum
standards of fairness to the employee and so unrelated to legitimate union interests as to be
arbitrary.’” Tucker v. American Bldg. Maintenance, 451 F. Supp. 2d 591, 596 (S.D.N.Y. 2006) (quoting
Barr, 868 F.2d at 43) (internal quotation marks omitted).
The facts asserted by Plaintiff do not plausibly meet the high bar required to establish a
breach of the duty of fair representation. Plaintiff first argues that the Court should find that the
complaint adequately pleads a breach of the duty of fair representation because he was represented
at his interview by a Local 812 representative other than his shop steward. Plaintiff’s Memorandum
of Law in Opposition, Dkt. No. 56 (“Opposition”) at 6. However, the complaint asserts that the
reason that his shop steward did not appear was “fraud” on the part of his employer—Mr.
Ramirez’s statement to the shop steward that no interview would take place that day, and Plaintiff’s
employer’s statement during the interview that the steward had left for the day. Accepting these
allegations as true, the complaint does not suggest that Local 812 acted arbitrarily or in bad faith.
Rather, they allege that Local 812 was itself deceived; nonetheless, Local 812 provided Plaintiff
representation at the interview.
The second set of arguments asserted by Plaintiff, relating to tactical decisions made by
Local 812 in connection with the arbitration hearing, are plainly insufficient to support his claim that
the union breached its duty of fair representation. In particular, Plaintiff takes issue with the union’s
failure to call certain witnesses at the hearing, and the union’s failure to “allege or argue fraud against
CCR for Ramirez’s intentional misrepresentation” to the shop steward. Opposition at 6; Compl. ¶
37. The principal question raised in the arbitration proceeding was whether Plaintiff “was

8

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 9 of 12

terminated for just cause.” Compl. ¶ 32. In that context, a decision to focus the hearing on
Plaintiff’s confessed violations of company policy—and not the arguably collateral issue of what
caused Plaintiff to be represented at an investigatory interview by one union representative and not
another—does not plausibly fall “so far short of minimum standards of fairness to the employee and
so unrelated to legitimate union interests as to be arbitrary.” Barr, 868 F.2d at 43 (quoting N.L.R.B.
v. Local 282, Int’l Brotherhood of Teamsters, 740 F.2d 141, 147 (2d Cir. 1984)). Neither does a decision
to call only one character witness rather than multiple. There are no allegations that Local 812’s
alleged tactical missteps were motivated by bad faith. While Plaintiff believes that a different
strategy would have yielded better results, ultimately “[p]roof of mere negligence or errors of
judgment . . . is insufficient. . . . As long as the union acts in good faith, the courts cannot intercede
on behalf of employees who may be prejudiced by rationally founded decisions which operate to
their particular disadvantage.” Barr, 868 F.2d at 43-44 (internal quotation marks and citations
omitted); see also Tomney v. Int’l Center for the Disabled, 357 F. Supp. 2d 721 (S.D.N.Y. 2005) (finding
tactical errors or lapses in arbitration proceeding inadequate to plead breach of duty of fair
representation).
Finally, Plaintiff asserts that Local 812 breached its duty of fair representation by “failing
to . . . conduct a rudimentary investigation to vindicate [Plaintiff], [and] ascertain the evidence
allegedly evidencing his guilt . . . .” Compl. ¶ 37. Failure by a union to conduct an investigation can
give rise to a breach of the duty of fair representation. However, “‘although a union has a duty to
perform some minimal investigation, only an egregious disregard for union members’ rights
constitutes a breach of the union’s duty to investigate.’” Thomas v. Little Flower for Rehab. & Nursing.
793 F.Supp.2d 544, 548 (E.D.N.Y. 2011) (internal quotation marks and citation omitted). The Court
is mindful that, 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

9

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 10 of 12

offered in support thereof.” AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d
Cir. 2003) (internal quotation marks and citation omitted). Still, the Court finds that the complaint
fails to plausibly allege a violation of the duty of fair representation as a result of the union’s failure
to investigate.
The facts pleaded in the complaint do not plausibly demonstrate an egregious disregard for
Plaintiff’s rights by Local 812 as a result of its failure to “ascertain the evidence allegedly evidencing
his guilt.” Compl. ¶ 37. It is important to remember that Plaintiff’s termination was supported by
Plaintiff’s own confession of his guilt; no documentary or photographic evidence was introduced at
the arbitration hearing regarding Plaintiff’s termination. Id. ¶ 33. The complaint describes a series
of occasions in which Local 812 representatives probed the circumstances of Plaintiff’s false
confession and his eventual termination, including: (1) the presence of Mr. Harrison, a union
representative, at Plaintiff’s interview; (2) Plaintiff’s conversation with Mr. Harrison immediately
following Plaintiff’s interview, id. ¶ 22; (3) Plaintiff’s conversation with his shop steward regarding
the circumstances of his termination, id. ¶ 29; (4) a 45-minute interview with an attorney from Local
812 assigned to represent him, id. ¶ 31; and (5) the arbitration hearing itself, at which Plaintiff and
his principal accuser testified, id. ¶ 33.
In light of these pleaded facts describing a series of fact-finding efforts by the union, the
Court cannot conclude that the complaint plausibly alleges that Local 812 acted arbitrarily or in bad
faith in conducting its investigation of Plaintiff’s termination. Instead, the complaint’s assertion that
Local 812 failed to conduct a rudimentary investigation appears to be the kind of formulaic
recitation of an element of the cause of action that the Supreme Court warned against in Twomby and
Iqbal—unsupported, and in this case, arguably contradicted, by specifically pleaded facts. As a result,
the Court concludes that the complaint fails to assert sufficient nonclusory factual matter “to nudge

10

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 11 of 12

[its] claims across the line from conceivable to plausible . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
C. “Class of One” Section 1985(3) Claim
A conspiracy claim under Section 1985(3) requires a plaintiff to allege: “1) a conspiracy;
2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in
furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” Britt v. Garcia, 457 F.3d 264, 269
n. 4 (2d Cir. 2006) (internal quotation marks omitted); see also 42 U.S.C. § 1985(3). The conspiracy
must also be “motivated by some racial or perhaps otherwise class-based, invidious discriminatory
animus.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (internal quotation
marks omitted); see also Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Critically, the plaintiff has not
alleged that the conspiracy was motivated by any kind of racial or other class-based discriminatory
animus. Therefore, his claim under Section 1985(3) must fail.
In an attempt to rescue his claim, Plaintiff argues that he is relying on a “class of one”
theory, because he was “‘ intentionally treated differently from others similarly situated and . . . there
is no rational basis for the difference in treatment.’” Opposition at 6 (quoting Robinson v. Allstate Ins.
Co., 508 F. App’x 7, 10 (2d Cir. 2013). But Plaintiff ignores the fact that “a claim under § 1985(3)
for conspiracy to deny equal protection in violation of the Fourteenth Amendment is not actionable
in the absence of state action.” Edmond v. Hartford Ins. Co., 27 F. App’x 51, 53 (2d Cir. 2001) (citing
United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 831-32 (1983)); see also 15A C.J.S.
Conspiracy § 80 (2015) (“When an alleged conspiracy is aimed at a right that is by definition a right
only to be protected from state interference, such as First and 14th Amendment rights, the plaintiff
must prove state involvement in the interference with that right. . . . A showing of state action is

11

Case 1:15-cv-00911-GHW Document 64 Filed 02/16/16 Page 12 of 12

rq rdf c m a tl g g cnpay o e eu r h r t o te 4hA ed et)
eueia o pi ae n a os rct d y qa i t es n h 1
i
l n li
i
n
l gs s
t mn mn”
.
Te o pits r n p u b bifr oc dntaay f h n md e nata st
h c m a a es ol sl as ocn u g h n ote a e d edn r t e
l n st
ai e s
li
t
f
s ea
a o otate a ei cnpayw h st a o Te fr Pii’ Sc o 18 3ci
c r r h hy c dn os rc i at e c r h eo, l nfs ein 95 )l m
ts
t
t
i
t a t . r e atf t
( a
i d msd
si i e
ss .
D A a d ndCim
. b n oe l s
a
I h ops o Pitf xr s aadnd ht r fu hadi hl ma e ei
ni pot n l nfep sy bnoe te h d or, n ft ci ss r dn
s
i , ai
i
el
i, t
f a
st
te o pit Ops o a6.. Pitfloae t ops C R mt n oi ms
h c m a . pot nt n2 l nfa fld o po C’ o o t d i
ln
i
i
ai s i
e
s i
ss
Pitf scn cu oain Bcu Pitfi nt dr sD ednsmt n oi ms
l nfs eod as f c o eas l nf d oad s e nat o o t d i
a i’
e t .
e ai d
e f
’ i
ss
whepct taci,i s e md bnoe S A s. Va o 7 4 v 83 N R 21
i r e o h l m t de e aadnd e r v er ,: - - 3( S) 06
t s t
ta
i
.e t
i
ld 1 c 0
,
W 142 a*( DNYJn r 1 21 (oeig a s Htv Ow F.C p,N 1 c
L 512 t 2S ...aua 2 06 clc n c e; ae. ce i o. o 3 v
,
.
y , ) lt
s) r
n n r
. -51(M B 21 W 4710a*(. ... et1 21 (oeig a ss aoa s v
40 K) 04 L 672 t 8 ED NYSp 9 04 clc n c e; el J k n.
,
,
. , ) lt
s )e s c o
F.Ep 76F d 8 162 C 21 ( Gn ayb p hp ntl a, p tlepn
e x , 6 . 19 9(d i 04 “ eel, u e as oawy a ai r os
d .
3 ,
r )
.
rl t r
s ra s e
rlc a es n y p tstony o u u s m ci s r e n s n t aadn te.
ee s dci b a a y a ret pr e o el m o d es ad o bno oh s
ft
io
r' t
s
a
f e
r)
Aaeu te eod h d orhadi hl ma e e b Pitfr d msd
s r l h scn t r fu , n ft ci ss r d y l nfa i i e
st
,
, i, t
f a
st
ai e s s .
V
.

C C UI
ON L S ON
Fr hraos u nd bv d edn’mt nt d msr G A T D Pitfs
otee n ol e aoe e nat o os oi i a R N E. l nfi
s
t
i
, f
s i
ss e
ai

g n devt rp a h fsadi h as oain Ay mne c m a tms bfe
r t lae oe edi it n st cu sf c o n a edd o pi u ei d
ae
l
sr
x
e
t .
ln t l
nl eta t et oe a fo te a oti od. TeCr o Cu i de e t
oa r hn wn-n dy r m h d e f hs re h l k f or si c d o
t
y
s
t
r
e
t rt
t m a temt n pn n a D.Ns4 ad 0
e i t h o os ed gt k o 8 n 5
r ne
i
i
t .
.
S O DR D
O R E E.
D e Fbu y 621
a d era 1 06
t:
r ,
N wYr N wYr
e ok e ok
,

___________________
__________________
G E O YH W O S
R G R . O D
U tdt e DtcJde
ne St irt ug
i
a s si

1
2