Gainer v. United Automobile Aerospace Agricultural Implement Workers (UAW) Region 9

Filing 21

DECISION AND ORDER GRANTING in part and DENYING in part Defendant's 16 Motion to Dismiss. Signed by William M. Skretny, Chief Judge U.S.D.C. on 6/12/2011. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERTA GAINER,
Plaintiff,
v.

DECISION AND ORDER
08-CV-00501S

UNITED AUTOMOBILE, AEROSPACE,
AGRICULTURAL IMPLEMENT WORKERS
(UAW), REGION 9 and
GENERAL MOTORS DEPARTMENT
of UAW,
Defendant.
I. INTRODUCTION
Plaintiff Roberta Gainer, proceeding pro se, commenced this employment
discrimination action by filing a Complaint in the United States District Court for the
Western District of New York. (Docket No. 1.) Plaintiff subsequently filed an Amended
Complaint, alleging Defendant United Automobile, Aerospace, Agricultural Implement
Workers (UAW), Region 9, General Motors Department of UAW (“UAW”) discriminated
against her on the basis of race/color (African American) and sex (female), and retaliated
against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. (hereinafter, “Title VII”) and the New York State Human Rights Law, N.Y. EXEC . L. §§
296 et seq. (hereinafter, “NYHRL”).
Presently before this Court is Defendant’s Motion to Dismiss the Amended
Complaint.1 (Docket No. 16.) Plaintiff opposes the motion.2 For the reasons stated below,
1

In support of its Motion to Dism iss, Defendant filed Mem orandum of Law; Affidavit of Kevin
Donovan, Affidavit of Scott Adam s, and Reply Mem orandum of Law.
2

In opposition, Plaintiff filed a Mem orandum of Law; with Exhibits.

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Defendant’s motion is granted in part and denied in part.
II. BACKGROUND
A.

Facts
Plaintiff Roberta Gainer (“Plaintiff”) is employed by General Motors. (Amended

Compl. ¶ 19.) During the relevant time period, Plaintiff was a member of the UAW.
(Docket No. 13 at 7.)
In 1999, Plaintiff was hired as a Special Assigned Internationally Appointed
Representative (“Special Assigned”) with the UAW. (Amended Compl. ¶ 19.) While
Plaintiff worked as a Special Assigned, she applied for the position of UAW International
Representative multiple times, but was consistently denied. (Id.)
B.

Procedural History
On July 18, 2007, Plaintiff filed a charge with the EEOC, alleging UAW failed to hire

her for the position of International Representative, and that its unwritten policy for filling
such positions discriminates against blacks and females. (Docket No. 13 at 7-9). The
EEOC issued a Notice of Right to Sue on April 25, 2008, and Plaintiff commenced this
action on July 7, 2008. (Id. at 10.) Thereafter, on March 13, 2009, Plaintiff filed a charge
of retaliation alleging that UAW’s Regional Director filled out a questionnaire about her in
or before February 2009, and in February she was notified that she was being removed
from her position as Special Assigned. (Id. at 13-14.) The EEOC issued a Notice of Right
to Sue on March 26, 2009. (Id. at 25.)
Plaintiff filed an Amended Complaint on May 6, 2009. (Docket No. 13.) Defendant
filed the instant Motion to Dismiss on October 13, 2009. (Docket No. 16.)

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III. DISCUSSION AND ANALYSIS
A.

Standard of Review
Defendant argues the Amended Complaint should be dismissed in its entirety for

failure to state any claim upon which relief could be granted under Rule 12(b)(6).
Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal pleading standards are generally
not stringent. Rule 8 requires only a short and plain statement of a claim. Fed. R. Civ. P.
8(a)(2). But the plain statement must “possess enough heft to show that the pleader is
entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S. Ct. 1955, 1966, 167
L. Ed. 2d 929 (2007) (internal quotation marks and alteration omitted).
In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally
construe the claims, accept all factual allegations in the complaint as true, and draw all
reasonable inferences in favor of the plaintiff. See Roth v. Jennings, 489 F.3d 499, 510
(2d Cir. 2007); Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). This is especially true
when the Plaintiff is a pro se litigant. See Burgos v. Hopkins, 14 F.3d 787, 790 (2nd Cir.
1994) (holding that where plaintiff is a pro se litigant, the court will read his supporting
papers liberally and interpret them to “raise the strongest arguments they suggest.”)
However, legal conclusions are not afforded the same presumption of truthfulness. See
Iqbal, ___ U.S. ___, 129 S.Ct. at 1949 (“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions”).
The Court’s responsibility on a motion to dismiss is “not to weigh the evidence that
might be presented at trial but merely to determine whether the complaint itself is legally

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sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2nd Cir. 1985). A court shall grant
a motion to dismiss only if “it appears beyond doubt that the plaintiff can prove no set of
facts in support of [her] claim[s] which would entitle her to relief.” Gregory v. Daly, 243
F.3d 687, 691 (2nd Cir. 2002) (quoting Conley v. Gibson, 335 U.S. 41, 45-46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957)). In reaching its determination, a court’s review must be limited to the
complaint and documents attached or incorporated by reference thereto. See Kramer v.
Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).
“[E]mployment discrimination claims need not contain specific facts establishing a
prima facie case of discrimination.” Gillman, 2009 WL 3003244 at *3. Rather, a plaintiff
must allege facts which give fair notice of her claim and the grounds upon which it rests.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
Plaintiffs must allege facts making it at least plausible that their gender or complaints about
unlawful discrimination were a motivating factor in their employer’s adverse employment
action. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120-21 (2nd Cir. 2010)
(explaining that Twombly and Iqbal did not impose a heightened pleading requirement in
employment discrimination cases and a plaintiff must only plead specific facts to make the
claim plausible.
B.

Timeliness
Defendant argues Plaintiff’s allegations occurring more than 300 days prior to the

filing of her EEOC charge on July 17, 2007 are time-barred. (Def.’s Memo., p. 6.) Plaintiff
alleges that although she did not file a formal charge of discrimination with the EEOC until
July 17, 2007, she sent a “New Charge Questionnaire” to the agency on April 16, 2007,

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which was within 300 days of the alleged discriminatory acts complained of. (Pl.’s Memo.,
pp. 13-14.)
To sustain a claim under Title VII, a plaintiff must file a timely charge with the EEOC
or the equivalent state agency. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712
(2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). In a state such as
New York, where state and local agencies have the authority to grant relief from unlawful
employment practices, a discrimination claim must be filed with the state or local agency
within 300 days after the alleged unlawful conduct. 42 U.S.C. § 2000e-5(e)(1); Forsyth v.
Fed’n Emp’t and Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005) (citing 42 U.S.C. §
2000e-5(e)(1)); see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127,
71 L. Ed. 2d 234 (1982) ("filing a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling").
The time for filing a charge of employment discrimination begins when a “discrete
act” occurs. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 127 S.Ct. 2162,
2165, 167 L.Ed.2d 982 (2007).

The Supreme Court held that discrete acts of

discrimination are deemed to have occurred on the date they happened. National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
Discrete acts generally are easy to identify and include such things as termination, failure
to promote, denial of transfer, or refusal to hire. Id. at 114. Therefore, a party must file an
EEOC charge within 300 days after the complained of act, or lose the ability to recover for
it. Id. at 108. Discriminatory acts which are time barred may support a timely claim only
as “background evidence.” Id. at 113.
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EEOC regulations permit plaintiffs to amend their charges “to cure technical
difficulties or omissions” where such amendments “will relate back to the date the charge
was first received.” 29 C. F. R. § 1601.12(b). To be considered a “charge” within Title VII,
the writing from the person making the charge must name the employer and generally
describe the allegedly discriminatory acts. 29 C. F. R. § 1626.8(b). Although it is not
imperative, a charge also “should contain” the full contact information for the employer and
the individual filing the charge, and a “clear and concise statement of the facts, including
pertinent dates, constituting the alleged unlawful employment practices.” Id. § 1626.8(a)(15). In addition, notice to the EEOC must be of a kind that would convince a reasonable
person that the grievant has manifested an intent to activate the Act’s machinery.”
Holowecki v. Federal Exp. Corp., 440 F.3d 558, 566 (2nd Cir. 2006) (citing Bihler v. Singer
Co., 710 F.2d 96, 99 (3rd Cir. 1983)).
In her memorandum, Plaintiff states that she mailed a “New Charge Questionnaire”
and 52-page attachment to the EEOC on April 16, 2007, which it received on April 17.
(Pl.’s Memo., p. 13.) She further states that she contacted the EEOC on more than one
occasion due to her concerns over the 300 day time limit. (Id. p. 14.) According to
Plaintiff, she received the draft charge on or about June 8, 2007, made some minor
changes, and mailed it July 17, 2007. (Id.) A copy of the charge filed on July 17, 2007 is
attached to the Amended Complaint. The Amended Complaint does not include any
allegations of, nor does it contain any attachments regarding the questionnaire.
As stated above, on a motion to dismiss, a court’s review must be limited to the
complaint and documents attached or incorporated by reference thereto. See Kramer, 937
F.2d at 773. Because there is no support for Plaintiff’s argument in her Amended
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Complaint, her alleged “New Charge Questionnaire” cannot be considered a “charge” with
the EEOC and the “relation back” doctrine cannot be used to correct Plaintiff’s untimely
filing.
C.

Analysis
1.

Failure to Hire

Under Title VII, it is unlawful for an employer to “discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1);
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 2150, 156 L.Ed.2d 84 (2003).
NYHRL claims are analyzed the same as claims brought under Title VII. Tomka v. Seiler
Corp., 66 F.3d 1295, 1304 n.4 (2d Cir. 1995).
In her Amended Complaint, Plaintiff alleges that, while she was “employed by
General Motors” as a Special Assigned Representative, she applied to the UAW for the
position of International Representative. (Amended Compl. ¶ 19.) UAW concedes in its
motion that it employs twenty-seven International Representatives. (Def.’s Memo., p. 2.)
Plaintiff further alleges that although she is qualified for the position, she has consistently
been rejected in favor of Caucasian applicants. (Amended Compl. ¶ 19.) She attributes
the alleged discrimination to an unwritten policy of filling the positions with elected
Presidents or Chairpersons of UAW Local Unions, which favors Caucasian males. (Pl.’s
Memo., pp. 19-20.)
Defendant argues that Plaintiff was not qualified for an International Representative
position because she lacked experience with collective bargaining and handling

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grievances, and familiarity with the National Labor Relations Act. (Def.’s Memo., p. 13).
Whether Plaintiff held the qualifications necessary for the position is a fact-based
inquiry. Such a decision cannot be rendered pursuant to a motion to dismiss. The Court
finds that Plaintiff has sufficiently stated a cause of action for failure to hire under Title VII,
such that Defendant is on notice of her claim and the grounds upon which it rests.
2.

Failure to Promote

Plaintiff argues she was not promoted because of her race. (Pl.’s Motion, p. 7.)
Defendant contends Plaintiff fails to state a claim for failure to promote because UAW was
not her employer. (Def.’s Memo., p. 4.)
A claim for failure to promote relates to a current employer. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) (to succeed on a claim for failure to
promote, a plaintiff must allege: (1) she is a member of a protected class, (2) she applied
and was qualified for the job for which the employer was seeking applicants, (3) she was
rejected for the position, and (4) the position remained open and the employer continued
to seek applicants). There is no allegation that UAW was Plaintiff’s employer at any point
in time. In addition, Plaintiff does not allege any facts regarding a promotion.
Accordingly, Plaintiff’s claim for failure to promote is dismissed.
3.

Retaliation Claim

Title VII prohibits employers and labor organizations from discriminating against an
employee for making a charge, testifying, assisting, or participating in an investigation or
proceeding. 42 U.S.C. §§ 2000e-3(a). To prevail on a Title VII retaliation claim against a
Union, a plaintiff must establish a breach of duty of fair representation because of race,
color, religion, sex, or national origin. Agosto v. Correctional Officers Benev. Ass’n, 107

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F.Supp.2d 294, 30 (S.D.N.Y. 2000). To prevail on a Title VII retaliation claim against an
employer, a plaintiff must show that (1) she participated in a protected activity, (2) her
participation was known to the defendant, (3) she suffered an adverse employment action,
and (4) a causal connection exists between the protected activity and the adverse
employment action. Richardson, 180 F.3d at 443; Jones v. Smithkline Beecham Corp.,
309 F.Supp.2d 33, 356 (N.D.N.Y. 2004).
Plaintiff alleges that UAW’s Regional Director met with her to discuss a possible
reduction in her Special Assigned position. (Pl.’s Memo., p. 6.) He is alleged to have
stated that he was required to fill out a questionnaire about her, but did not know how to
answer a particular question in light of the fact she was suing UAW. (Id.) The Regional
Director further advised he would turn in the questionnaire at the UAW’s Board Meeting
in February 2009. (Id.) On February 10, 2009, Plaintiff was advised that her Special
Assigned position was eliminated. (Id. at 7.) She was placed in a different job assignment
with a 33% reduction in pay. (Amended Compl. ¶ 19.)
Plaintiff does not allege that the Union breached its duty of fair representation, but
rather that the Union retaliated against her for filing a lawsuit by eliminating her position.
As stated above, Plaintiff does not allege that she was an employee of UAW. Thus, she
has not stated a cognizable claim for retaliation and Plaintiff’s claim is dismissed.

IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is granted as to Plaintiff’s
failure to promote and retaliation claims and denied as to Plaintiff’s failure to hire claim.

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V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion to Dismiss (Docket No. 16) is
GRANTED in part and DENIED in part.

SO ORDERED.

Dated: June 12, 2011
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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