1999 WL 777861, *1 (S.D.N.Y., Sep 30, 1999).
B. Class Certification
We first address Hussein's request to certify this action as a
class action. See Complaint at 11-13 (Petition to certify class).
"It is well settled in this circuit that pro se plaintiffs cannot
act as class representatives. They do not satisfy the
requirements of [Fed. R. Civ. P.) 23(a)(4)." McLeod v. Crosson,
1989 WL 28416, at *1 (S.D.N.Y. Mar. 21, 1989); see Nwanze v.
Philip Morris Companies, 1999 WL 292597, *2 (S.D.N.Y. May 10,
1999); Wise v. Chassin, 1997 WL 790585, *2 n.2 (S.D.N.Y. Dec 24,
1997); Naum v. City of New York, 1996 WL 140305, *1 (S.D.N.Y. Mar
28, 1996) (citing Osipova v. Home Energy Assistance Program, 1985
WL 3956, at *2 (S.D.N.Y.) ("the law is settled that pro se
litigants cannot qualify as adequate class representatives")).
Hussein, proceeding pro se, cannot act as class representative
and therefore, his request for class certification is denied.
C. Claim Pursuant to 42 U.S.C. § 1981
Hussein alleges that defendants violated his civil rights
pursuant to 42 U.S.C. § 1981 by committing an "unfair labor
practice towards the members of Roll Call . . . [and] their right
to work without discrimination in the form of equal payment."
Complaint at ¶ 6. Section 1981 prohibits "certain racially
motivated and purposely discriminatory acts." Yusuf v. Vassar
College, 35 F.3d 709, 714 (2d Cir. 1994) (citing General Bldg.
Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982));
Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc).
In order to establish a Section 1981 claim, a plaintiff must
allege facts that: 1) he is a member of a racial minority; 2) the
defendants intended to discriminate on the basis of race; and 3)
the discrimination concerned one or more of the activities
enumerated in the statute including the making and enforcing of
contracts. Brown v. City of Oneonta, N.Y., 195 F.3d 111 (2d Cir.
1999) (citing Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam)).
Section 1981's prohibition against racial discrimination has
only been expanded to include discrimination based on ancestry or
ethnic characteristics. See Saint Francis College v. Al-Khazraji,
481 U.S. 604, 613 (1987); Magana v. Northern Mariana Islands,
107 F.3d 1436, 1446-47 (9th Cir. 1997); see also Runyon v. McCrary,
427 U.S. 160, 167 (1976) (Section 1981 does not prohibit
discrimination based on gender or religion); Al-Khazraji, 481
U.S. at 613 (Section 1981 does not prohibit discrimination based
on national origin); Kodish v. United Air Lines, Inc.,
628 F.2d 1301, 1303 (10th Cir. 1980) (Section 1981 does not prohibit
discrimination based on age).
The basis of Hussein's discrimination claim is his status as a
roll call waiter. Because Section 1981 does not prohibit
discrimination based on employment categorization, plaintiff's
Section 1981 claim is dismissed.
D. Claim Pursuant to LMRA
Hussein's final claim is against the Association and the
Sheraton Hotel for breach of the CBA and against the Union for
breach of its duty of fair representation. Defendants contend
that the claim is barred by the statute of limitations or, in the
alternative, the claim is substantively deficient.
A claim by a union member against both his employer and union
is considered a "hybrid" Section 301 claim. See DelCostello v.
Int'l Brotherhood of Teamsters, 462 U.S. 151, 163-64 (1983); Vaca
v. Sipes, 386 U.S. 171, 184-86 (1967). Such a claim is comprised
of two causes of action: the suit against the
employer and the suit against the union. "Yet the two claims are
inextricably interdependent. `To prevail against either the company
or the Union . . . [plaintiff] must not only show that [the employer
acted] contrary to the [CBA] but must also carry the burden of
demonstrating a breach of duty by the Union.'" DelCostello, 462
U.S. at 164 (quoting United Parcel Service, Inc. v. Mitchell,
451 U.S. 56, 66-67 (1981) (Stewart, J., concurring in the judgment)
Liberally construed, Hussein alleges that the Sheraton is
violating the CBA by refusing to include roll call waiters in the
share system and by granting splits to its regular waiters,
thereby denying roll call waiters work opportunities. Hussein
relies on three decisions from the Office of the Impartial
Chairman to support his allegations. He claims that in Decision
Nos. 85-211 and 86-66 the Impartial Chairman held that hotels
could not utilize splits for any waiter. Complaint at ¶ 11 (1986
decision "stopped a steady [A-list and B-list] from being
assigned a . . . `split' since the contract guarantees only . . .
"one table' for any [waiter]."), ¶ 12 (1986 decision found splits
to be "illegal"), 6 18 (1986 decision "concluded . . . that
split[s are] illegal"). Hussein further claims that Decision No.
93-12 unlawfully discriminates against plaintiff by precluding
roll call waiters from participating in the share system.
Complaint at ¶ 9 (1993 "arbitrator wrongly followed the Hotel
illegal unequal treatment of roll call").
i. Statute of limitations
Even accepting Hussein's interpretation of the Impartial
Chairman's decisions, the complaint must be dismissed as barred
by the applicable statute of limitations. The statute of
limitations governing a hybrid Section 301 action is six months.
White v. White Rose Food, 128 F.3d 110, 114 (2d Cir. 1997)
(citing DelCostello, 462 U.S. at 169)). The statute begins to run
"when the employee knew or should have known of the breach of the
duty of fair representation." White, 128 F.3d at 114 (citing
Cohen v. Flushing Hosp. & Med. Ctr., 68 F.3d 64, 67 (2d Cir.
1995)). Furthermore, "[o]nce a plaintiff learns of his union's
breach of its duty of fair representation, the union's subsequent
failure to actually represent the plaintiff `cannot be treated
as a continuing violation that preclude(s) the running of the
limitations period.'" Buttry v. General Signal Corp.,
68 F.3d 1488, 1492 (2d Cir. 1995) (quoting Flanigan v. International Bhd.
of Teamsters, Truck Drivers Local 671, 942 F.2d 824, 827 (2d Cir.
Hussein knew or should have known of the Union's alleged breach
of the duty of fair representation more than six months before he
filed this action on April 1, 1999. Hussein claims that the
Sheraton Hotel violated the CBA by excluding roll call waiters
from the share system and that the Union failed to represent him
on this claim. Essentially, Hussein's claim stems from Decision
No. 93-13, which excluded roll call waiters from the share
system. Thus, his claim clearly dates back to Decision No. 93-13,
decided on February 2, 1993, when he grieved the inclusion of
roll call waiters in the share system. Furthermore, any
allegation of unfair representation by the Union should have been
known after Decision No. 93-13 was decided. See Ghartey v. St.
John's Queens Hospital, 869 F.2d 160, 163-66 (2d Cir. 1989).
In addition, plaintiff has commenced several other litigations
in this Court that indicate that he knew or should have known
about the alleged unfair representation more than six months
before he filed this action. See, e.g., Hussein v. Hotel
Employees and Restaurant Union Local 6 et al., No. 98 Civ. 9017
(SAS) (attached exhibits to complaint refer to disparity in roll
call wages); Hussein v. Broomfield et al., No. 95 Civ. 41 (KMW)
(same); Hussein v. The Pierre Hotel et al., No. 93 Civ. 3698
Accordingly, Hussein's LMRA claim of unfair representation due
to the exclusion of roll call waiters from the share system is
barred by the statute of limitations.
Hussein's claim of unequal work opportunity is barred by the
statute of limitations. Hussein claims that he is being denied
work opportunities because the Sheraton Hotel continues to assign
splits in violation of the CBA as defined in Decision Nos. 85-211
and 86-66. He further claims that the Union failed to represent
him in Decision Nos. 85-211 and 86-66, by advocating a position
contrary to his current position (i.e., the Union argued that
regular waiters are entitled to splits).
However, not only were Decision Nos. 85-211 and 86-66 decided
fifteen years ago, but they have also been consistently enforced
since that time. See Ghartey, 869 F.2d at 163-66; Dittman v.
General Motors Corp., 941 F. Supp. 284, 288 (D.Conn. 1996),
aff'd, 116 F.3d 465 (2d Cir. 1997). Like plaintiff's claim based
on unequal pay, his claim based on Decision Nos. 85-211 and 86-66
— that regular waiters should not be assigned splits — was
noted in Hussein's prior court proceedings. Accordingly,
Hussein's claim of unequal work opportunity is dismissed as time
Hussein's opposition papers claim that the statute of
limitations began to run on March 2, 1999, the date of the
Impartial Chairman's decision in Decision No. 99-12. See
Plaintiff's Letter in opposition to Motion to Dismiss dated Dec.
14, 1999. The United States Court of Appeals for the Second
Circuit, however, has held that a claim cannot be revived simply
by making a formal request for a rehearing. White, 128 F.3d 115.
As noted in the 1999 decision, plaintiff was rearguing issues
already raised and decided in 1993. Decision No. 99-12, at 1-2
("If this grievance is considered an application for reopening
and reconsideration, the Union does not claim there is any new
evidence or newly discovered facts which would warrant reopening.
Instead, the Union's contention, based apparently upon the
dissatisfaction of two roll call waiters, is that the . . .
decision is unfair and inequitable to those roll call waiters.
Under the criteria and long standing precedents established by
decisions of this Office, in dealing with such applications . . .
the Union's contention does not warrant reopening and
reconsideration."). Because the 1999 grievance is simply an
attempt to relitigate the 1993 grievance, plaintiff's reliance on
March 2, 1999, as the accrual date is misplaced.
ii. Failure to state a claim
Even if the statute of limitations did not bar Hussein's
Section 301 claim, the claim would still be dismissed for failure
to state a claim. As noted above, to prevail on a Section 301
claim, plaintiff must demonstrate not only that the Hotel
breached the CBA, but also that the Union breached its duty to
represent plaintiff fairly. To establish a breach of the duty of
fair representation, a plaintiff must set forth how the Union's
conduct was arbitrary, discriminatory, or in bad faith. Samuels
v. Air Transp. Local 504, 992 F.2d 12, 16 (2d Cir. 1993) (quoting
Vaca v. Sipes, 386 U.S. 171, 190 (1967)). In other words, to
establish the Union's breach of its duty of fair representation,
Hussein must establish that the Union's agreement to distinguish
between A-list, B-list, and roll call waiters was arbitrary,
discriminatory, or in bad faith. Review by the judicial system of
union action, however, 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)
(citations and internal quotation marks omitted).
Hussein's primary argument — that the Union discriminated
against him as a roll call waiter by excluding him from the share
system and by allowing splits to be awarded to regular waiters
— must be dismissed. In Humphrey v. Moore, 375 U.S. 335
84 S.Ct. 363, 11 L.Ed.2d 370 (1964), the Supreme Court held:
Inevitably differences arise in the manner and degree
to which the terms of any negotiated agreement affect
individual employees and classes of employees. The
mere existence of such differences does not make them
invalid. The complete satisfaction of all who are
represented is hardly to be expected. A wide range of
reasonableness must be allowed a statutory bargaining
representative in serving the unit it represents,
subject always to complete good faith and honesty of
purpose in the exercise of its discretion. Just as a
union must be free to sift out wholly frivolous
grievances which would only clog the grievance
process, so it must be free to take a position on
the not so frivolous disputes. Nor should it be
neutralized when the issue is chiefly between two
sets of employees. Conflict between employees
represented by the same union is a recurring fact.
To remove or gag the union in these cases would
surely weaken the collective bargaining and
Humphrey, 375 U.S. at 349-50.
The Second Circuit reiterated these principles in Haerum v. Air
Line Pilots Ass'n, 892 F.2d 216 (2d Cir. 1989), writing:
[t]he duty of fair representation does not require
that a union achieve absolute equality among its
members. Rather, because a union by necessity must
differentiate among its members in a variety of
contexts, a showing that union action has
disadvantaged a group of members, without more, does
not establish a breach of the duty of fair
Haerum, 892 F.2d at 221 (citation omitted). Thus, plaintiff's
argument based solely on the fact that three categories of
waiters were created by the CBA and are treated differently than
each other fails to state a claim that the Union breached its
duty of fair representation.*fn4
In addition, Hussein has not set forth any allegations that
would support an inference that the Union acted arbitrarily. "A
Union's actions are arbitrary only if, in light of the factual
and legal landscape at the time of the unions's actions, the
union's behavior is so far outside a wide range of reasonableness
as to be irrational." Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65,
67 (1991) (citation and internal quotation marks omitted).
Furthermore, "[a] union's reasoned decision to support the
interests of one group of employees over the competing interests
of another group does not constitute arbitrary conduct."
Spellacy, 156 F.3d at 129. Accordingly, plaintiff's allegations
fail to state a claim.
Hussein has filed a total of ten complaints in this Court,
including four within the past year. Seven of these complaints,
including this one, have been against the Union, employees of the
Union, and hotels where Hussein has been employed as a roll call
waiter. Hussein v. The Pierre Hotel. et al, NO. 99 Civ. 2715 (DC)
(S.D.N.Y.) (motion to dismiss pending); Hussein v. Waldorf
Astoria, et al, No. 99 Civ. 1652 (DC) (S.D.N.Y.) (all claims
dismissed except Title VII claim); Hussein v. Hotel Employees and
Restaurant Union Local 6, et al., No. 98 Civ. 9017 (SAS)
(S.D.N.Y.) (motion for summary judgment pending); Hussein v.
Broomfield, et al., No. 95 Civ. 41 (KMW) (S.D.N.Y.) (dismissed
Jan. 26, 1996); Hussein v. Pierre Hotel. et al., 93 Civ. 3698
(MGC) (S.D.N.Y.) (dismissed Jan. 22, 1996); Hussein v. Pita, 88
Civ. 2549 (TPG) (S.D.N.Y.).
In addition, plaintiff has filed two complaints against judges
of this Court, both
dismissed sua sponte. Hussein v. Chin, No. 00 Civ. 2415 (MBM)
(S.D.N.Y.) (dismissed sua sponte on Mar. 30, 2000); Hussein v.
Griesa, et al., No. 93 Civ. 1268 (CLB) (dismissed sua sponte
on Mar. 4, 1993). Every complaint filed with the Court expends
valuable resources. Not every disagreeable incident or decision
should become a lawsuit. Plaintiff is hereby informed that the
continued filing of non-meritorious actions may result in the
entry of an order barring him from filing any future action without
prior leave of court pursuant to 28 U.S.C. § 1651(a).
For the reasons set forth above, defendants' motion to dismiss
the complaint is granted.
Dated: New York, New York
May 30, 2000