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GALLAGHER v. INTERNATIONAL BROTH. OF ELEC. WORKERS

December 18, 2000

MICHAEL GALLAGHER, PLAINTIFF
V.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; J.J. BARRY, AS PRESIDENT OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; IBEW LOCAL UNION NO. 43, FINGER LAKES N.Y. CHAPTER OF THE NATIONAL ELECTRICAL CONTRACTOR ASSOCIATION, INC., BURNS ELECTRIC CO., INC.; RIDLEY ELECTRIC, AND SYRACUSE MERIT ELECTRIC, INC., DEFENDANTS.



The opinion of the court was delivered by: Munson, Senior District Judge.

MEMORANDUM — DECISION AND ORDER

The collective bargaining agreement allegedly allows contractors to request employees from Local 43's hiring hall who possess special skills. The agreement purportedly also permits Local 43 members classified as "foreman" to receive preferential consideration over members who are not so classified. (Complaint ¶ 30). The complaint asserts that the effect of these [two] provisions is to allow [Local 43] and the electrical contractors . . . to undermine the fairness of the referral procedure and to discriminate against members on the basis of age. (Complaint ¶ 30).

Plaintiff claims that the defendants engaged in unlawful discriminatory practices relating to his employment through patterns and practices of failing, because of his age, to refer him for employment to positions for which he was fully qualified, by permitting electrical contractors to request younger workers in preference to older workers, to layoff older workers before younger workers, by negotiation and administering a collective bargaining agreement that enabled the union and electrical contractors to discriminate on the basis of age, and by retaliating against him for attempting to oppose these discriminatory practices. (Complaint ¶ 3). Plaintiff further states that defendant Local 43 is the agent of defendants IBEW and J.J. Barry and, therefore, liable for any of its agent's acts. (Complaint ¶ 37).

On March 3, 1997, plaintiff filed a grievance against several electrical contractors asserting that they were laying off employees based on age. Plaintiff was represented by Local 43. After his grievance was rejected, plaintiff maintains that Local 43 removed him from the referral list for a period of time in retaliation for filing his grievance. (Complaint ¶ ¶ 34, 35).

On November 17, 1997, plaintiff filed an age discrimination complaint with the New York State Division of Human Rights ("NYSDHR") naming Local 43, Finger Lakes NECA and fourteen electrical contractors as respondents. The complaint was also filed with the Equal Employment Opportunity Commission ("EEOC") pursuant to a work sharing agreement between the EEOC and the NYSDHR. An amended complaint filed on January 22, 1998, named Local 43, Finger Lakes NECA, and three electrical contractors as respondents. Neither complaint named the IBEW or J.J. Barry as a respondent. On May 4, 2000, plaintiff was issued a right-to-sue letter by the EEOC. The right-to-sue letter adopted the finding by the NYSDHR that there was no probable cause to believe that Local 43 discriminated against plaintiff because of his age. (Defs.' Ex. D). This action was commenced on July 28, 2000 when plaintiff filed a complaint alleging violations of the Age Discrimination in Employment ("ADA") 29 U.S.C. § 621 et. seq., and New York Executive Law § 296 et seq. The complaint seeks doubled compensatory damages, injunctive relief, costs and attorneys' fees.

[1] Currently before the court is a motion made by the International defendants for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff has entered opposition to this motion. The court notes that plaintiff appears pro se and the court is required to review pro se complaints more liberally than those prepared by an attorney, and should be especially hesitant to dismiss for procedural deficiencies where that failure is by a pro se litigant. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).

DISCUSSION

[2] A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994). Consequently, judgment on the pleading is appropriate only if, after drawing all reasonable inferences in favor of the non-moving party, it is apparent from the pleadings that the moving party is entitled to judgment as a matter of law. United States v. Weisz, 914 F. Supp. 1050, 1052 (S.D.N Y 1996). In deciding a motion for judgment on the pleadings, a court may consider the factual allegations in the complaint, which are accepted as true, documents attached to the complaint as an exhibit or incorporated by reference, matters of which judicial notice may be taken, or to documents either in plaintiffs possession or of which plaintiff had knowledge and relied on in bringing suit. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

A finding that plaintiff has had notice of documents used by defendants in support of their motion for judgment on the pleadings is significant since the problem that usually arises when a court reviews statements extraneous to a complaint is the lack of notice to the plaintiff that they may be considered. To meet this notice requirement, 12(c) motions are often converted into summary judgment motions. However, when plaintiff has actual notice of all the information in the movant's papers, and has relied on these papers in framing the complaint the necessity for turning the Rule 12(c) motion into one under Rule 56 is absent.

In support of their motion, the International defendants have submitted copies of the IBEW/NECA collective bargaining agreement (Exhibit A), the charges file by plaintiff with the EEOC (Exhibits B and C), and the right-to-sue letter issued to plaintiff by the EEOC. These defendants maintain that plaintiff did not attach these documents to the complaint even though he relied upon their content in instituting this lawsuit by alleging that several paragraphs of the collective bargaining agreement were used by the IBEW and Local 43 to discriminate against him because of his age, (Complaint ¶ ¶ 25-30), and to establish jurisdictional requisites to instituting this action, by alleging that he had filed a charge with the EEOC, (Complaint ¶ ¶ 17-18), and was issued a right-to-sue letter by the EEOC (Complaint ¶ 19).

Plaintiff does not deny that he had notice of these documents. Although these documents were not attached to plaintiffs complaint, the court finds that they are documents of which plaintiff had notice, and upon which plaintiff relied upon in bringing this action. Therefore, they may properly be considered by the court on a Rule 12(b) motion for judgment on the pleadings. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).

The International defendants contend that plaintiffs claim against it must b dismissed because the IBEW was no named in a charge filed with the EEOC or the NYSDHR. In Vital v. Interfaith Medical Center, 168 F.3d 615, the Second Circuit Court of Appeals held that a Title VII or ADEA complainant must first file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that part in federal court. Id. at 619 (citing 42 U.S.C. § 2000e(f)(1)). The object of this requirement is "to notify the charged party of the alleged violation and also [to] bring the party before the EEOC, making possible effectuation of its primary goal of securing voluntary compliance with its mandates." Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir.), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134, (1982).

[3] The Circuit further held that because the administrative charges are generally filed by parties not versed in the vagaries of Title VII or the ADEA and its jurisdictional and pleading requirements, the courts recognize an exception to the exhaustion rule which permits a Title VII or ADEA action to proceed against an unnamed party "where there is clear identity of interest between the unnamed defendant and the party named in the administrative charge." Johnson v. Palma, 931 F.2d 203, 209 ...


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