The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
In its August 25, 1999 decision, this Court held that an
employer being sued for age discrimination, based partly upon the
terms of a Collective Bargaining Agreement and a Performance
Planning and Evaluation Program ("PP & E"), may seek contribution
under the New York Human Rights Law ("NYHRL") and CPLR 1401 from
the union that was a party to those labor agreements. See
Rodolico v. Unisys Corp., 189 F.R.D. 245 (E.D.N.Y. 1999). As a
result of this decision, pursuant to Rule 14 of the Federal Rules
of Civil Procedure ("Fed. R. Civ.P."), the Court granted Unisys'
motion for leave to file a third-party complaint against
Engineers Union Local 444 ("Local 444" or the "Union") to the
extent it seeks contribution under the NYHRL. While the Court
noted that timely motions for leave to implead non-parties should
be freely granted, and that the third-party complaint was not
obviously without merit, the prior decision did leave open the
obvious right of the Union to file a motion to dismiss after
being served with the third-party complaint.
Presently before the Court is the Union's motion to dismiss the
third-party complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the
basis that Unisys' state law claim for contribution is preempted
by the federal labor law duty of fair representation ("DFR").
This issue was not raised nor examined in the Court's prior
opinion granting leave to Unisys to file a third-party complaint.
Alternatively, the Union claims that because Unisys' claim
against it is arbitrable under the terms of the collective
bargaining agreement ("CBA"), the third-party complaint must be
stayed pending arbitration.
The underling facts of the complaint were detailed in the
Court's August 25, 1999 decision and will not be repeated here.
In short, the plaintiffs allege that Unisys violated the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the
"ADEA"), and the New York State Human Rights Law, N.Y. Exec. Law
§ 290, et seq. (the "NYHRL") in connection
with a reduction in force ("RIF"). The putative plaintiffs, all
members of Local 444, allege that Unisys' policies and practices
in connection with the RIF, discriminated against older employees
in violation of the ADEA and the NYHRL. The plaintiffs'
allegations can be summarized as follows:
The layoff discriminated against older employees by
disproportionately selecting them for discharge, by
discriminatorily implementing a provision in a
collective bargaining agreement giving Unisys
discretion in selecting employees for lay off, and by
using evaluation practices which, as described below,
disfavored older workers.
Plaintiffs' Complaint at ¶ 2.
On October 22, 1999, Unisys filed its third-party complaint
against the Union. The third-party complaint summarizes the facts
set-forth in the plaintiffs' complaint and adds the following:
Plaintiffs make two assertions against Unisys that
impact on Unisys' claims against the Union. First, at
least one class representative claims that Article 11
discriminated against employees age 40 and older.
Second, plaintiffs assert that the RIF reflected a
departure from age neutrality. Plaintiffs' claims,
therefore, depend on evidence that the PP & E was
biased against older workers.
Unisys' Third-Party Complain at ¶ 13. Essentially, in support of
its third-party complaint, Unisys argues that the Union's
participation in the process leading to the alleged unlawful
discrimination, namely, the Union's actions that led to the
performance appraisal system and the Union's agreement to a
three-tiered, weighted seniority system, makes it appropriate to
hold the Union accountable for contribution for its proportionate
share of any damages that may ultimately be awarded to the
On a motion to dismiss for failure to state a claim, the Court
should dismiss the complaint pursuant to Rule 12(b)(6) if it
appears "beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 (2d Cir.
1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 101-02, 2 L.Ed.2d 80 ); see also IUE AFL-CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993), cert.
denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). The
Second Circuit stated that in deciding a Rule 12(b)(6) motion, "a
district court must limit itself to facts stated in the complaint
or in documents attached to the complaint as exhibits or
incorporated in the complaint by reference." Newman & Schwartz
v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.
1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773
[2d Cir. 1991]); see also International Audiotext Network, Inc.
v. AT & T Co., 62 F.3d 69, 72 (2d Cir. 1995); Paulemon v.
Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994).
It is not the Court's function to weigh the evidence that might
be presented at a trial; the Court must merely determine whether
the complaint itself is legally sufficient, see Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985), and in doing so, it
is well settled that the Court must accept the factual
allegations of the complaint as true, see Strom v. Goldman,
Sachs & Co., 202 F.3d 138, 140 (2d Cir. 1999); LaBounty v.
Adler, 933 F.2d 121, 123 (2d Cir. 1991); Proctor & Gamble Co.
v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir.
1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d
743 (1990), and construe all reasonable inferences in favor of
the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Leeds v. Meltz, 85 ...