the court's directive, and defendants renewed their motions for
summary judgment on Dr. Commodari's § 301/fair representation
claim shortly thereafter.
Pending decision on the defendants' motions for summary
judgment, plaintiff, by leave of court, amended his complaint to
plead national origin discrimination in violation of the § 1983,
§ 1981, Title VI, and Title VII against both LIU and the Union,
as well as retaliation claims against LIU.
On November 30, 1999, the Union filed a motion to dismiss
and/or for summary judgment on the Amended Complaint
On December 3, 1999, LIU filed a motion to dismiss the Amended
Applicable Standards of Review
a. Motion to Dismiss vs. Motion for Summary Judgment
With the exception of LIU's motion to dismiss the employment
discrimination claims of plaintiff's Amended Complaint,
defendants style their motions as "motions to dismiss and/or for
summary judgment." Pursuant to Fed.R.Civ.P. 12(b), the latter
motions will be treated as motions for summary judgment inasmuch
as defendants' arguments are not confined to the pleadings, but,
instead, rely on affidavits from university and union officials,
as well as documentary evidence concerning past review and
termination practice at LIU. See Fed.R.Civ.P. 12(b). Plaintiff
has received a copy of the Notice to Pro Se Litigants required by
Local R. Civ. P. 56.2 and has been given a reasonable opportunity
to present all material pertinent to his opposition to summary
LIU's motion to dismiss the employment discrimination claims,
however, is not styled in the alternative as a motion for summary
judgment and does not present matters outside the Amended
Complaint. LIU's motion on Dr. Commodari's employment
discrimination claims, therefore, will be decided under the
standards applicable to a motion to dismiss pursuant to Rule
12(b)(6). See Fed.R.Civ.P. 12(b).
b. Standard for Summary Judgment
Fed.R.Civ.P. 56(c) provides that summary judgment "shall be
rendered forthwith" if the record shows "that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-328, 106 S.Ct. 2548, 2552-53, 91
L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-252, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986). A
genuine issue of material fact exists if the evidence in the
record would allow a reasonable jury to return a verdict for the
non-moving party. See Anderson, 477 U.S. at 248, 106 S.Ct. at
2510. In making this determination, the non-moving party's
evidence must be credited, and all justifiable inferences are to
be resolved in his favor. See id. at 255, 106 S.Ct. at 2513.
However, the existence of a mere scintilla of evidence in support
of his position is insufficient; the non-moving party must
produce admissible evidence on which a jury could reasonably find
in his favor. See id. at 252, 106 S.Ct. at 2512. Moreover,
while a pro se plaintiff's papers must be read liberally, see
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999),
he must still provide evidentiary support, rather than mere
assertions, in order to overcome a motion for summary judgment,
see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Thus, a
pro se plaintiff faced with a summary judgment motion "may not
rest upon the mere allegations" of his complaint to defeat a
for summary judgment. Fed.R.Civ.P. 56(e); see Champion v.
Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (holding that Rule 56(e)
applies to pro se plaintiffs who have received adequate notice of
the nature and consequences of a motion for summary judgment).
c. Standard for Dismissal Pursuant to Rule 12(b)(6)
Upon a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a complaint should not be dismissed unless it
"appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2
L.Ed.2d 80 (1957).
In ruling on such a motion, the court is to look only
to the allegations of the complaint and any documents
attached to or incorporated by reference in the
complaint, to assume all well-pleaded factual
allegations to be true, and to view all reasonable
inferences that can be drawn from such allegations
and documents in the light most favorable to the
Dangler v. New York City Off Track Betting Corp., 193 F.3d 130,
138 (2d Cir. 1999) (citations omitted). Moreover, in evaluating
whether a plaintiff has sufficiently alleged facts which, if
true, would entitle him to relief, complaints prepared by pro se
litigants should be held "to less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam); see
Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997).
The § 301/Fair Representation Claim
Defendants have contested the merits of Dr. Commodari's §
301/fair representation action and, in addition, have urged
throughout these proceedings that Dr. Commodari is procedurally
barred from bringing the action because of his alleged failure to
exhaust his remedies under the CBA and a lack of standing to
enforce the arbitral award. Because Dr. Commodari's claim is
readily decided on the merits, this court will not reach
defendants' procedural arguments, though, as noted at the October
12, 1999 conference, defendants' exhaustion argument appears to
have merit, (Tr. 52).
a. Applicable Law
Under federal labor law, an employee may bring a complaint
against his union and/or his employer alleging (1) that the
employer breached a collective bargaining agreement and (2) that
the union breached its duty of fair representation in redressing
his grievance against the employer. See DelCostello v.
International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct.
2281, 2289-91, 76 L.Ed.2d 476 (1983); Vaca v. Sipes,
386 U.S. 171, 184-86, 87 S.Ct. 903, 913-15, 17 L.Ed.2d 842 (1967); White
v. White Rose Food, 128 F.3d 110, 113 (2d Cir. 1997). Section
301 of the Labor Management Relations Act, 29 U.S.C. § 185
(1998), governs the employer's duty to honor the collective
bargaining agreement, and the duty of fair representation is
implied by § 9(a) of the National Labor Relations Act,
29 U.S.C. § 159(a) (1998). See DelCostello, 462 U.S. at 164, 103 S.Ct. at
2290-91; White Rose Food, 128 F.3d at 113; Price v.
International Union, United Auto. Aerospace & Agric. Implement
Workers, 795 F.2d 1128, 1134 (2d Cir. 1986). The plaintiff may
sue the union or the employer, or both, but must allege
violations on the part of both. See DelCostello, 462 U.S. at
165, 103 S.Ct. at 2291; White Rose Food, 128 F.3d at 114.
b. Dr. Commodari's termination did not violate the CBA or the
For the reasons set forth on the record at the October 12th
argument, the defendants' interpretation of CBA is the better,
and indeed the only plausible, reading of the plain language of
the CBA. To