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February 14, 2002


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


Plaintiff, Sondra F. Messina ("Messina") brings this action against Local 1199 SEIU, National Health & Human Service Employees Union, AFL-CIO ("Local 1199") and certain of its officers pursuant to the Labor-Management Reporting and Disclosure Act ("LMRDA"), Sections 101(a)(2) and (5), 29 U.S.C. § 411(a)(2) and (5), and Section 609, 29 U.S.C. § 529, and under the Labor Management Relations Act ("LMRA"), Section 301, 29 U.S.C. § 185. Currently before the Court is defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and for summary judgment under Rule 56. For the reasons discussed below, defendants' motion is granted in part and denied in part.


Local 1199, an affiliate of the Service Employees International Union, AFL-CIO, CLC ("SEIU") with over 200,000 members, represents a wide spectrum of health care workers employed at hospitals, medical centers, drug stores, and other such institutions. See Am. Compl. ¶¶ 15, 19. Defendants Dennis Rivera ("Rivera"), Steve Kramer ("Kramer"), and Phyllis Mushkin ("Mushkin") are respectively the elected President, Executive Vice President, and a Vice President of Local 1199. See id. ¶¶ 16-19. Plaintiff Messina has been a member of Local 1199 for over thirty years, during which time she has been employed as a Laboratory Technologist in the Biochemistry/Toxicology Department of Long Island Jewish Medical Center ("LIJ"). See id. ¶¶ IT 14, 23.

Plaintiffs account of her conflict with the union leadership begins around March 20, 1998, when plaintiff submitted a letter for publication to the attention of Dan North ("North"), then the Assistant Editor of Local 1199's newspaper, 1199 News. See id. 135. The five paragraph letter was entitled "An Open Letter to Dennis Rivera," contained the signatures of plaintiff and around 70 union members, and strongly criticized the union representatives as being dishonest, "cozy with the bosses," unresponsive to grievances by union membership, "abusive and divisive," and for perpetuating a monarchy in union leadership. Id. ¶ 37 (reprinting plaintiffs letter). Several months later, North wrote plaintiff, notifying her that the March letter would be reprinted in the 1199 News in an edited form. See id. at ¶ 38. North explained that the cuts were made both to shorten the length of the letter and to eliminate attacks on individuals. Specifically, North wrote,

"While. . . . 1199 News is an appropriate place for criticism of the union, it has never been a place for attacks on individuals in the union. Debate over policy is good, but I think the important issues tend to get lost when letters start down the road of personal attack. With that in mind, I took out all the names and all the charges against individuals.
I think the letter as edited still makes your point."*fn1

Id. The edited letter was published in the May-June 1998 edition, concurrent with the publication of a letter from another LIJ union member praising the union leadership. Plaintiff alleges on information and belief that this "rebuttal letter" was unedited and that it used two inches more space than plaintiffs letter. See id. ¶ 4243. Further, plaintiff claims that the edited version of her letter changed the tenor of the original letter and watered down the content-based criticisms of union leadership contained in the original, thereby infringing plaintiffs and other members' free speech rights.*fn2 See id. ¶ 40.

Plaintiff alleges that on a number of occasions subsequent to the publication of her letter, and with the knowledge of Kramer and Rivera, defendant Mushkin denied the plaintiff the right to attend meetings of her department and threatened to remove plaintiff as a delegate. See id. ¶¶ 33-34. In May of 1998, Mushkin sent plaintiff a letter stating that the union had received charges against her and that the Hearing and Appeals Board at LIJ had recommended plaintiffs suspension as a union delegate pending the outcome of such charges. See id. ¶ 44. Plaintiff maintains that no such charges were ever brought and that the allegations in Mushkin's letter were fabricated. See id. ¶ 46. Furthermore, plaintiff claims that when she herself brought a complaint pursuant to the union's Constitution against Mushkin for multiple charges relating to such behavior by Mushkin and Mushkin's treatment of members generally, defendant Rivera failed to process the charges brought by plaintiff. See id. ¶¶ 47-48.

Again, in August of 1998, Mushkin sent plaintiff a letter, this time notifying her that she had been brought up on charges and was required to attend a hearing. Claiming that this letter failed to meet the requirements imposed by the union's Constitution that complaints include certain information, including the name of the member bringing the charges as well as the specific charges being brought, see id. ¶¶ 51-55, plaintiff responded to this notice with a letter of her own, addressed to Mushkin and copying Rivera and the Board, attacking the adequacy of the hearing notice. Thereafter, plaintiff received a letter from the Hearing and Appeals Board stating that the Board had met three times after first notifying the plaintiff and giving her an opportunity to attend, and that the Board had decided to indefinitely drop plaintiff from the delegate rolls. Plaintiff alleges that she received no notice at all of these two other meetings. See id. ¶ 61. On October 14, plaintiff again responded by letter, this time to the Board, explaining that she had not been notified of two of the hearings and that the notice she did receive of one hearing was inadequate. See id. ¶ 61.

In January of 1999, plaintiff learned that Mushkin filed a "dropped delegate" form with persons in charge of delegate records. She spoke with Dawna Fennell ("Fennell"), Delegates Secretary, who told her that she still believed Messina to be a delegate. See id. ¶ 63. Subsequently, plaintiff continued to function as a delegate, attending multiple meetings in May and June of 1999. See id. ¶¶ 66-71.

At a June 8 meeting at which plaintiff and several other delegates again raised the issue of members' open grievances, the clash over plaintiffs status as a delegate came to a head. At this meeting, Mushkin and Kramer both pronounced that plaintiff was not in fact a delegate. See id. ¶¶ 7172. When plaintiff later tried to contact Local 1199's counsel to discuss these matters, her letter and phone calls went unanswered. See id. ¶¶ 73-75. This situation became still more confusing when, in November of 1999, plaintiff received word from Fennell that she was being entered into the system as a delegate. See id. ¶ 76. However, in January of 2000, after plaintiff was invited by form letter invitations to attend several delegate meetings, she received a letter from the union notifying her of the error and revoking these invitations on grounds that she was no longer a delegate. See id. ¶ 77-83. Messina submitted numerous letters and petitions around this time to Local 1199 and to the SEIU asking to attend these meetings and to be reinstated as a delegate. See id. ¶¶ 81, 85. After seeking this remedy at the union level, plaintiff filed this lawsuit in September of 2000.


Plaintiffs complaint asserts eight claims for relief. Plaintiffs first claim asserts that her removal as an elected delegate was in reprisal for her zealous representation of union membership, assertion of free speech rights, and for bringing charges against an elected vice-president, and violated plaintiffs Title I rights as a union member and delegate under § 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2). Similarly, claim six asserts that defendants' course of conduct is part of a purposeful and deliberate attempt to suppress opposition to and dissent from their actions and views within Local 1199, and to inhibit free assembly, also in violation of § 101(a)(2). In claim two, plaintiff asserts that the publication of plaintiffs March letter in the 1199 News in its edited form constitutes a censure, and is an independent violation of plaintiffs free speech rights under Section 101(a)(2). Claim three alleges a violation of § 609 of the LMRDA, 29 U.S.C. § 529, on the theory that the retaliatory removal of plaintiff as an elected delegate for exercise of Title I rights constitutes unlawful "discipline." Building on claim three, claim four asserts that the imposition of such "discipline" taken without due process, after a "sham" hearing, and without affording plaintiff the opportunity to prepare a defense, violates § 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5). Claim five asserts that the three individual defendants should be held jointly and severally liable under § 102 for deprivations of plaintiffs rights under § 101. Claim seven asserts a cause of action under § 301 of the LMRA, 29 U.S.C. § 185, against Local 1199 only, alleging a breach of contract with respect to the provisions of the Local 1199 and SEIU constitutions that were violated when plaintiff was wrongly removed as an elected delegate. Finally, the eighth claim for relief asserts a claim against Local 1199 alone for breach of contract with respect to the constitutions of Local 1199 and SEIU for wrongly removing plaintiff as an elected delegate under New York State law.

Defendants move to dismiss plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants further argue that as far as plaintiffs seventh claim is based on alleged violations of plaintiffs contractual rights under the Local 1199 and SEIU constitutions, Local 1199 is not governed by the SEIU constitution in connection with disciplinary matters, and as the LMRA is applicable only to breaches of international ...

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