The opinion of the court was delivered by: SPATT
This action arises from the claims of the plaintiff, John M. Lettis ("Lettis" or the "plaintiff"), against the United States Post Office of Williston Park ("Williston Park Post Office") and numerous of its employees (collectively, the "Postal Service defendants") for the breach of the national collective bargaining agreement (the "CBA") between the United States Postal Service ("USPS") and the National Association of Letter Carriers ("NALC"), and against the National Association of Letter Carriers Branch 6000 ("Branch 6000") for the breach of its duty of fair representation, in violation of Section 301 of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 185, based on the termination of the plaintiff's employment at the Williston Park Post Office, following an incident which occurred on November 16, 1993. Presently before the Court is the plaintiff's motions: (1) pursuant to Fed. R. Civ. P. 21 and 4(a), for leave to drop the Williston Park Post Office, USPS Postal Inspector Nator QGMF, Mike Goodman, Bob Green, Pat Kosta, Debra Mullins, John Serio, Julia Dowling, and Tasula Williams as defendants and to amend the summons accordingly; (2) pursuant to Fed. R. Civ. P. 20(a), 21, and 4(a), for leave to add NALC, USPS, Don Daly ("Daly") and Dominic A. Prestano ("Prestano") as defendants and to amend the summons accordingly; and (3) pursuant to Fed. R. Civ. P. 15(a) and (c), for leave to amend the complaint to assert a cause of action arising from the arbitration held on February 25, 1994 with regard to the plaintiff's suspension from the Williston Park Post Office (the "Suspension Arbitration").
A. Original pro se complaint
The plaintiff, proceeding pro se, commenced this action on February 15, 1995. According to the original handwritten complaint, Lettis had been employed as a letter carrier for twenty-six (26) years. Lettis is a former member of NALC and its affiliated labor organization, Branch 6000, for which he was a shop steward. On November 16, 1993, while working at the Williston Park Post Office, Lettis was allegedly assaulted by a fellow letter carrier, defendant Andrew Kachianos ("Kachianos"). It is alleged that Kachianos tripped Lettis and spit in his face. Marion Kang witnessed this assault. The plaintiff alleges that as he went to get the defendant, Joe Celentano ("Celentano"), he saw the defendant Bob Green ("Green") give Kachianos a bear hug. Shortly thereafter, the police were summoned to the scene.
As a result of this incident, Lettis alleges that his employment "was wrongfully terminated and [that he was] falsly [sic] accused of actions by USPS." Complaint P 3. The original complaint denotes that this action is:
for monetary damages seeking retribution for violations of the plaintiffs [sic] rights, secured by the Constitution of the U.S. and specifically, fraud, mental anguish, slander and perjury, in a [sic] arbitration trial on June 9 with U.S. Postal Service and NALC BR 6000 making a pre-arbitration deal, to give me back my job if I plead guilty.
B. Proposed amended complaint
On or about April 24, 1996, the plaintiff retained counsel and this present motion to amend the complaint ensued. The proposed amended complaint withdraws the action as to the following defendants: (1) Williston Park Post Office; (2) USPS Postal Inspector Nator QGMF; (3) Mike Goodman; (4) Bob Green; (5) Pat Kosta; (6) Debra Mullins; (7) John Serio; (8) Julia Dowling; and (9) Tasula Williams. However, the plaintiff proposes to add the following as defendants: (1) NALC; (2) USPS; (3) Daly; and (4) Prestano. In addition, the plaintiff seeks to add claims arising from the Suspension Arbitration.
The proposed amended complaint expands the scope of the plaintiff's allegations of misconduct by the defendants. After the incident with Kachianos, Lettis alleges that Celentano, his supervisor, ordered him to leave the post office and prevented him from speaking with the police.
Lettis further alleges that later the same day, Celentano and the defendant, Postmaster Peggy Eng ("Eng"), attempted to coerce him to make a statement outside the presence of a union delegate or shop steward, in contravention of his rights under the CBA and the law. Thereafter, Celentano and Eng directed Lettis to go home and not to return to the post office until further notification. Lettis was also directed by Prestano, vice-president of Branch 6000, to remain at home and not to return to work the following day.
On November 17, 1993, Lettis was advised by Prestano not to report to work until further notification. On November 18, 1993, Lettis received a formal notice of suspension from the USPS, advising him that he was placed in an off-duty, without pay status effective November 16, 1993 at 1405 hours. The letter of suspension gave the following sole reason for its action:
On November 16, 1993 you and letter Carrier Kachianos were involved in an altercation on the workroom floor. In that you may be injurious to yourself or other employees, to retain you in an active duty status would not be in the best interest of the Postal Service.
Branch 6000, for itself and as an agent for NALC, filed a grievance on behalf of Lettis, objecting to his suspension. Branch 6000 appointed defendant Don Daly ("Daly"), a shop steward, to represent Lettis in Step 1 of the grievance procedure and Daly and/or Prestano to represent him in Step 2 of the grievance procedure.
The proposed amended complaint asserts numerous claims regarding his representation at these grievance procedures. In particular, Lettis alleges that Prestano (1) failed to conduct a thorough and proper investigation of the incident, as plaintiff had requested; (2) failed to locate a certain truck driver who was in the Post Office when the altercation occurred and who witnessed some or all of the incident; and (3) accepted Kachianos' version of the incident despite the version related by Marion Kang ("Kang") who witnessed the incident and who maintained that Lettis was the victim, not the aggressor.
In addition, Lettis contends that NALC and Branch 6000, through its agent Prestano, failed to introduce relevant witnesses and supporting evidence. Lettis further asserts that NALC and Branch 6000 breached their duty of fair representation by the perfunctory conduct of its representatives in the various steps of the grievance procedure and by assigning Daly, who was simultaneously handling Kachianos' grievance, to represent plaintiff in Steps 1 and 2 of the grievance procedure. Lettis maintains that this demonstrates a clear conflict of interest by Daly. As a result of this alleged perfunctory representation by NALC and Branch 6000, Lettis' suspension was upheld by the arbitrator.
On or about March 28, 1994, Lettis received a Notice of Removal (the "Notice") advising him of his discharge from USPS, effective May 2, 1994. The Notice listed the following three charges: (1) verbal threat of a fellow postal employee; (2) creating a hostile work environment; and (3) conduct unbecoming a postal employee. This prompted Branch 6000 to file a second grievance objecting to Lettis' discharge.
Lettis alleges that NALC, Branch 6000 and Prestano persisted in refusing to believe Lettis' version of the incident, accepting Kachianos' version instead. With regard to the discharge grievance procedures, Lettis alleges that Branch 6000 and NALC breached their duty of fair representation by: (1) assigning Daly to represent him when Daly had previously represented Kachianos in a grievance; (2) the perfunctory conduct of its representatives in the various steps of the grievance procedure; (3) failing to supply Lettis with an attorney; and (4) failing to raise certain defenses, including double jeopardy, laches, denial of due process, and delay.
Prior to the incident of November 16, 1993, Celentano allegedly engaged in conduct calculated to induce a disturbance between Lettis and Kachianos, by falsely stating to Kachianos that Lettis had complained to Eng that Kachianos had been violating work rules, in particular, the rule prohibiting "working off the clock." Eng, Prestano, Celentano and Otto allegedly conspired to allow or create an incident resulting in Lettis' discharge. Eng allegedly failed in her duties as Postmaster by permitting the work environment to become hostile and undisciplined. For example, Eng allegedly permitted the drinking of alcohol at the post office on a daily basis. Otto allegedly made defamatory remarks about the plaintiff and incited Kachianos into assaulting Lettis.
Subsequent to Lettis' discharge, NALC, Branch 6000 and Prestano allegedly failed to assist Lettis in obtaining unemployment benefits and impeded Lettis from obtaining other employment by giving negative references to prospective employers.
A. Dismissal of defendants
The plaintiff seeks to withdraw the action as to the following defendants: (1) Williston Park Post Office, United States Postal Inspector Nator QGMF, Mike Goodman, Bob Green, Pat Kosta, Debra Mullins, John Serio, Julia Dowling and Tasula Williams.
Fed. R. Civ. P. 21 ("Rule 21") states in pertinent part as follows:
...Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
On February 15, 1995, proceeding pro se, the plaintiff filed a complaint. In the original complaint, the plaintiff named as party defendants numerous people against whom he believed valid claims existed. Having retained counsel and conducted certain discovery, the plaintiff has subsequently learned that "no viable claims exist against certain defendants and that there is no legitimate purpose in continuing to prosecute this action as against those parties." See Plaintiff's Memorandum Of Law In Support Of Motion ("Memo in Support") at 3. In light of the plaintiff's realization, without objection, the Court grants the plaintiff's motion to withdraw the action as to the designated defendants, pursuant to Rule 21. Accordingly, the following defendants are dismissed from the present action: the United States Post Office - Williston Park, United States Postal Inspector Nator QGMF, Mike Goodman, Bob Green, Pat Kosta, Debra Mullins, John Serio, Julia Dowling and Tasula Williams.
B. Additional parties and claims
Motions to amend a complaint are governed by Fed. R. Civ. P. 15(a) which states, in pertinent part, as follows:
(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires....
"Only 'undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of the amendment' will serve to prevent an amendment prior to trial." Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1002 (E.D.N.Y. 1995) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); see also Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) ("The rule in this circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith."); Health-Chem Corp. v. Baker, 915 F.2d 805 (2d Cir. 1990). The Second Circuit has opined that "it is rare that such leave [to amend] should be denied, especially when there has been no prior amendment." Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (citations omitted). The decision to grant to deny a motion to amend rests within the sound discretion of the district court. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995).
Initially, the Court notes, and the parties agree, that the plaintiff's claims for breach of the duty of fair representation by his union and the corresponding breach of the collective bargaining agreement by his employer should be brought pursuant to the Postal Reorganization Act, 39 U.S.C. § 1208, rather than Section 301 of the LMRA, 29 U.S.C. § 185. 39 ...