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United States District Court, Southern District of New York

February 3, 2003


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Plaintiff, appearing pro se, is an African-American male and former letter carrier for the United States Postal Service ("USPS"). He has commenced a number of actions against the USPS, certain of its employees, and/or the National Association of Letter Carriers and certain of its officers or representatives, all relating to Plaintiff's employment by the USPS and/or the termination of that employment. This Order deals with the first two such cases. The first of these lawsuits, which has been assigned docket number 00 Civ. 3167 ("Marshal I") names as defendants the USPS, the National Association of Letter Carriers ("NALC"), NALC Branch 36 (apparently a union local) ("Branch 36"), and individual defendants Desmond Bailey and Kenneth Wavpotich. In Marshall I, Plaintiff principally asserts claims for breach of duty of fair representation and violations of a collective bargaining agreement. He also claims that defendants defamed him and conspired to violate his constitutional rights. The Court has previously held that the complaint in Marshall I will be construed as a hybrid duty of fair representation/breach of collective bargaining agreement action under the Postal Reorganization Act ("PRA"), 39 U.S.C. § 1208(b), (c). See Marshall v. NALC, et. al, No. 00 Civ. 3167, Order at 4-5 (J. Mukasey, April 26, 2000). Plaintiff's second suit, which has been assigned docket number 01 Civ. 3086 ("Marshall II"), refers to the Marshall I complaint and asserts employment discrimination, harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, naming as defendants Kenneth Wavpotich, USPS and Branch 36.

Defendants have moved to dismiss both complaints. Plaintiff has made several motions, including a motion to consolidate Marshall I and Marshall II, a motion to amend the pleadings, a motion for reconsideration, and an "urgent" motion for vacatur of Judge Mukasey's April 26, 2000 decision in Marshall I, which dismissed the complaint in that action without leave to replead to the extent that complaint sought to assert a variety of tort and conspiracy causes of action pursuant to 42 U.S.C. § 1983.

The Court has considered thoroughly all submissions related to these motions and the decision to be rendered reflects such consideration. For the following reasons, Defendants' motions are granted. Plaintiff's motions are denied, and each case is dismissed in its entirety.


Plaintiff's Marshall I complaint was submitted to the Pro Se office of this Court in December 1999. The complaint contained conclusory allegations of violations of 42 U.S.C. § 1983, 1985, 1986, and rights violations in connection with the handling of certain grievances and disciplinary proceedings relating to Plaintiff's employment with USPS, and sought criminal prosecution of some of the defendants. By Memorandum Order dated April 26, 2000, Chief Judge Mukasey dismissed the civil rights claims without leave to replead, dismissed the request for criminal prosecutions as inappropriate, and construed the remaining claims liberally as ones for breach of a collective bargaining agreement and duty of fair representation under the Postal Reorganization Act. Judge Mukasey granted Plaintiff leave to replead in detail the latter claims only instructing Plaintiff that the amended complaint must demonstrate exhaustion of administrative remedies with respect to the remaining claims and that Plaintiff's action was timely.

Plaintiff filed an amended complaint, naming the same Defendants as in the original Marshall I complaint. The Amended Complaint in Marshall I details 1993 "delaying mail" and 1998 "late lunch" disciplinary proceedings and related grievances, and allegations of irregularities in connection therewith. In the amended Marshall I complaint, Plaintiff further alleged conspiracy and, contrary to Judge Mukasey's direction in the April 2000 order, reiterated civil rights claims and asserted a Title VII claim as well. Plaintiff did not allege receipt of, or attach, a right to sue letter. The case was thereafter reassigned from Judge Mukasey to the undersigned.

The Marshall I complaint generally alleges breaches of duty of fair representation and of a collective bargaining agreement in connection with disciplinary actions, grievances and related proceedings arising in the course of Plaintiff's employment with USPS. The complaint further alleges that all of the disciplinary actions and alleged procedural irregularities were part of a conspiracy to deprive Plaintiff of civil rights in violation of 42 U.S.C. § 1983, 1985 and 1986. The complaint alleges a conspiracy which began with the 1993 disciplinary actions and continued through the October 15, 1999, termination of Plaintiff from USPS employment. Plaintiff details the following specific incidents:

(1) Plaintiff describes a "delaying the mail" charge arising from an incident in November 1993. Plaintiff alleges that the union representative did not represent him adequately and that the grievance procedure under the relevant collective bargaining agreement was not followed properly, including exclusion of Plaintiff from a "Step One" grievance proceeding. Plaintiff claims that his supervisor pressed charges to cover up his own misconduct as revealed in Plaintiff's grievances. Plaintiff further claims that a co-worker who was more culpable than Plaintiff was treated more favorably. Plaintiff further alleges a union coverup of the union's misconduct in connection with the charges. Plaintiff alleges concealment of evidence. Plaintiff generally charges conspiracy to deprive him of civil rights. Plaintiff refers to the Due Process and Equal Protection clauses of the Constitution, denial of "equal treatment in disciplinary action," and unspecified "invidious discrimination and violation of rights by discriminatory purposes" in violation of the civil rights statutes. The complaint further describes disciplinary actions taken in March 1994, September 1995, October 1996 and March 1998 with respect to automobile accidents.
(2) Plaintiff describes in detail a "late lunch" charge arising from a April 1998 incident. Plaintiff filed grievances regarding a July 1998 charge. Plaintiff again alleges improper procedures and suppression of evidence in connection with disciplinary and grievance proceedings. Plaintiff asserts a pattern of behavior in a "master plan" to fire an innocent person instead of a co-worker whom the union wanted to keep because the co-worker would have had a hard time finding another job. Plaintiff makes conclusory allegations of discrimination and civil rights violations and conspiracy to commit such violations. Plaintiff further alleges that he filed a complaint regarding his supervisor, Bailey, in August 1998, and filed a grievance regarding union delegates in March 1999.
In January 2001, Plaintiff filed an additional complaint, naming USPS, Wavpotich and Branch 36 as defendants. At Judge Mukasey's direction, the Court docketed the new complaint as number 01 Civ. 3086, and assigned the matter to the undersigned for further proceedings as appropriate. This matter was docketed in April 13, 2001 and is referred to herein as Marshall II. The Marshall II complaint alleges discriminatory conduct on the basis of race consisting of unequal terms and conditions of employment in violation of Title VII, as well as harassment and retaliation. This complaint contains no new factual allegations, referring to the Marshall I complaint for the relevant facts. Plaintiff also attaches an Equal Employment Opportunity Commission ("EEOC") right to sue letter, apparently arising from a 1995 administrative complaint against the USPS. Plaintiff alleges that he was disciplined for delaying the mail and for being involved in two motor vehicle accidents. Plaintiff specifies three incidents: issuance of a 1993 letter of warning, dated December 6, 1993, signed by defendant Wavpotich, (Compl. at A-1,) following an incident of delaying the mail; a 1994 notice of suspension issued on March 10, 1994 following a motor vehicle accident (id. at A-57); and a September 7, 1995 notice of suspension following a motor vehicle accident in 1995 (id. at A-59). Plaintiff argues that these disciplinary measures were acts of discrimination and retaliation for filing a grievance against defendant Wavpotich.


Plaintiff's Motions for Reconsideration and Vacatur of April 20, 2000 Decision in Marshall I
Plaintiff seeks reconsideration or vacatur of the April 20, 2000 Order entered by Judge Mukasey in Marshall I, to the extent it dismissed his conspiracy, defamation and slander claims. Plaintiff argues, in essence, that the Court somehow lost subject matter jurisdiction of these claims (and therefore lacked the power to dismiss them with prejudice) when it failed to agree with Plaintiff that he had stated viable claims for constitutional violations, and that he had intended to assert the defamation and slander claims pursuant to state common law rather than 42 U.S.C. § 1983. (See Pl.'s Oct. 1, 2002 "Urgent Motion").

A motion for reconsideration can be granted if there is an intervening change of controlling law, new evidence becomes available, or there is a need to correct a clear error or prevent manifest injustice. Virgin Atlantic Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). Plaintiff's arguments reveal his frustration with the Court's analysis but fail to identify any valid ground for reconsideration. His requests for reconsideration and/or vacatur of the decision are also untimely, having been raised well after entry of the April 20, 2000 decision in a May 31, 2001 "Notice of Motion" and an October 1, 2002 "Urgent Motion".

Furthermore, Plaintiff's efforts to replead and reargue these claims, as detailed in the Amended Complaint in Marshall I and in his papers opposing the dispositive motions, reveal that he is unable to state viable claims of which the Court would have jurisdiction. (See discussion infra.)

Plaintiff's Motion for Consolidation

Plaintiff moves to consolidate Marshall I and Marshall II as well as two later-filed actions. Plaintiff's motion is denied. Although it appears that Plaintiff originally intended the complaint that was docketed as 01 Civ. 3068 merely to modify and supplement the amended complaint in 00 Civ. 3167, the parties have briefed the motions to dismiss separately, and Plaintiff in his papers has treated them separately as well. Plaintiff's papers treat Marshall I (00 Civ. 3167) as raising civil rights, common law and "hybrid" labor law claims only, disclaiming any Title VII aspect of that complaint as premature, and he treats Marshall II (01 Civ. 3068) as raising his Title VII claim. The Court will deal with the complaints, and the motions directed to them, in like fashion for purposes of this decision. The Court acknowledges that the 01 Civ. 3068 complaint seeks to incorporate by reference the entire factual content of the amended complaint in 01 Civ. 3167 and has construed the complaints in that fashion, considering all of the relevant allegations and attachments in the Marshall I complaint with respect to the issues posed in the pending motions.

The Court further denies the motion insofar as it seeks the consolidation of the above two cases with two related, later-filed complaints (02 Civ. 1754 and 02 Civ. 1756). Those actions, docketed in 2002, were stayed pending the outcome of the dispositive motion practice in the earlier cases. Plaintiff subsequently withdrew case No. 02 Civ. 1746 and that action is therefore closed. Although the Court has the power to consolidate actions involving common questions of law and fact (Fed.R.Civ.P. 42(a)), such consolidation would not here serve the interests of justice in light of the pendency of the instant motion practice. Nor will the Court consider the two newest complaints "as evidence" in connection with the merits of the pending motions or otherwise, as the instant motions are directed to the content of the pleadings in Marshall I and Marshall II, and the Federal Rules of Evidence make no general provision for the use of pleadings as substantive evidence of liability.

Plaintiff's Motion for Amended Pleadings

The Court further denies Plaintiff's January 9, 2001 "motion for amended pleadings," which sought amendment of the Marshall I complaint to incorporate the EEOC right to sue letter, in light of the Court's decision to treat the 00 Civ. 3167 and 01 Civ. 3068 complaints as set forth above.

Motions to Dismiss the Marshall I Complaint

Union Defendants

NALC and Branch 36 (collectively, the "Union Defendants"), move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings in Marshall I, arguing that Plaintiff's duty of fair representation claim is barred by a six-month statute of limitations. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169 (1983) (six-month statute of limitations applicable to duty of fair representation claims). In reviewing Union Defendants' Rule 12(c) motion, the Court applies the same standards as on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. See New York Marine & General Insurance Co. v. M/V Admiralengracht, No. 97 Civ. 7402 (JGK), 1999 WL 253628, at *1 (S.D.N.Y. April 28, 1999). The Court thus views the allegations of the complaint in the light most favorable to Plaintiff and draws all reasonable inferences in Plaintiff's favor. Id.

The limitations period on a hybrid suit where a plaintiff sues the employer and the union is six (6) months from the date the Plaintiff knew or should have known of the breach of the duty of fair representation. See White v. White Rose Food, 128 F.3d 110, 114 (2d Cir. 1997). Plaintiff has alleged that his duty of fair representation rights were severely and consistently violated by numerous persons identified as agents of the Union Defendants with respect to the "delaying the mail" incident in 1993 and the "late lunch" charge in 1998. With respect to the 1993 incident, Plaintiff alleges that "supervisor Mr. Walters present[ed] to [him] a [S]tep [O]ne A form written on February 9, 1994, the same day when they issued a memo for failure to drive in a safe manner on 3/24/94." Am. Compl. ¶ 19. Thus, Plaintiff was aware of the union conduct of which he complains no later than March of 1994, over five years before he first filed this action. With respect to the 1998 incident, Plaintiff alleges that he was discriminated against by Shop Steward Benito Bonano at the Step One phase of the grievance procedure, by union Hearing Officer Patrick McNally at the Step One-A phase of that process, and by defendant Desmond Bailey at the subsequent arbitration in which the removal notice was rescinded. Plaintiff argues that Mr. Bonano failed to "prevent[] the employment discrimination and collective bargaining discrimination by unequal treatment by supervisor Desmond Bailey" in that he failed to introduce the statement of Ramon Diaz (which Plaintiff claims was favorable to his case) at the September 5, 1994 Step One. Am. Compl. ¶ 31. With respect to union Hearing Officer Patrick McNally, Plaintiff asserts that he should have presented the Diaz statement at the Step One-A on September 14, 1998. Id. ¶ 33. Plaintiff was aware that the statement had not been presented at Step One by March 2, 1999 or before then. See id. at A-64, A-65. Indeed, Plaintiff's filing of grievances regarding all of the matters complained of here (e.g., failure to permit him to attend proceedings, inadequate representation in connection with the same, failure to follow up to his satisfaction on his allegations of union and employer fraud and corruption) more than 6 months prior to the filing of the Marshall I complaint with the Pro Se office, demonstrates that Plaintiff was well aware of the claimed violations in time to bring timely complaints and failed to do so. The Court finds that the Marshall I PRA claims against the Union Defendants are time-barred.

For this reason, and because Plaintiff's civil rights claims were dismissed by the April 20, 2000 Order, Marshall I is dismissed in its entirety as against the Union Defendants.*fn1

Government Defendants

Defendants USPS, Bailey and Wavpotich, (collectively, "Government Defendants") move to dismiss Plaintiff's complaint in Marshall I pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Government Defendants argue that Plaintiff's hybrid PRA claims should be dismissed for untimeliness and for failure to state a claim. Government Defendants further assert that Plaintiff's remaining claims for conspiracy to violate his civil rights, violation of his equal protection rights, libel, defamation, and slander are precluded on various grounds including, inter alia, sovereign immunity and failure to state a claim. Finally, Government Defendants argue that Plaintiff has failed properly to serve defendants Bailey and Wavpotich.

As explained above, Plaintiff is required to bring any hybrid claims no more than six months from the date Plaintiff knew or should have known that the union breached its duty of fair representation. See White v. White Rose Food, 128 F.3d at 114. Here, Plaintiff's pleadings make it clear that Plaintiff knew of all the conduct complained more than six months prior to filing his first complaint with the Pro Se office. (See supra, page 7.) Plaintiff's hybrid duty of fair representation/collective bargaining agreement breach claim is therefore dismissed as untimely as against Government Defendants.

Government Defendants further argue that Plaintiff's claims of conspiracy, violation of equal protection rights, and libel, defamation and slander are barred by sovereign immunity and should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction generally has the burden, once challenged, of proving by a preponderance of the evidence that jurisdiction exists. See id.

The United States is immune from suit absent an express waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). Suits against federal agencies or federal officials in their official capacities are suits against the United States and are similarly barred absent an applicable waiver. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).

Damages claims against the USPS are governed by the Federal Tort Claims Act ("FTCA"), 39 U.S.C. § 409(c). Here, the Court lacks jurisdiction of Plaintiff's claim because Plaintiff "failed to allege the presentation of the claim to the appropriate federal agency and a final disposition of the claim by the agency, as required by 28 U.S.C. § 2675." Altman v. Connally, 456 F.2d 1114, 1116 (2d Cir. 1975) (per curiam). Furthermore, Plaintiff's causes of action for constitutional torts, to the extent asserted against the USPS and/or the individual defendants in their official capacity, are outside the scope of any applicable waiver of sovereign immunity. See 28 U.S.C.A. § 1346 (West 2002). Plaintiff further fails to state a claim under 42 U.S.C. § 1983 because that statute only provides redress for federal statutory and constitutional violations under color of state law. John's Insulation, Inc. v. Siska Construction Co., Inc., 774 F. Supp. 156, 161 (S.D.N.Y. 1991). Plaintiff's claims against the USPS and the individual government Defendants in their official capacity are therefore dismissed for lack of subject matter jurisdiction.

Dismissal of Plaintiff's non-Title VII statutory and common law claims for conspiracy violations of his civil rights and employment-related torts to the extent they are premised on a claim of race discrimination is appropriate for the further reason that they are precluded by Title VII.*fn2 "Title VII is the exclusive remedy for [employment] discrimination by the federal government on the basis of race, religion, sex or national origin." Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996). Plaintiff's claims against the Government Defendants all arise from and relate to alleged discrimination in federal employment, for which Title VII is the exclusive remedy. Title VII was intended as the "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. General Services Admin., 425 U.S. 820, 829 (1976). Such claims, as well as constitutional tort claims asserted on the same basis, against the individual defendants are also precluded by the exclusivity of the Title VII remedy. See Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998); Schweiker v. Chilicky, 487 U.S. 412, 422-423 (1988).

The complaint in Marshall I is dismissed in its entirety. As the claims in Marshall I are dismissed for the foregoing reasons, Defendants' other arguments in support of their motion will not be addressed here.

Motions to Dismiss the Marshall II Complaint

Government Defendants

Government Defendants argue that Plaintiff's Title VII claim against them should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because Plaintiff did not name the proper party defendant. Under Title VII, a federal employee may bring a suit in which "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C.A. § 2000e-16(a) (West 2002). Subsection (a) of 42 U.S.C. § 2000e-16 identifies the USPS as one such "department, agency or unit." Indeed, the right to sue letter issued by the EEOC to Plaintiff specifically instructed him to "name as the defendant in the complaint [in any subsequent lawsuit] the person who is the official head or department, identifying that person by his or her full name and official title." Thus, on the plaintiff's Title VII claim, the only appropriate defendant is the Postmaster General, in his official capacity. The Marshall II complaint does not name the Postmaster General, the head of the USPS, as a defendant. Accordingly, the plaintiff's Title VII claim, as it relates to the employee defendant Wavpotich and the USPS as an entity, is dismissed for lack subject matter jurisdiction.

Government Defendants also move to dismiss the complaint in Marshall II pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56.

A court must not dismiss an action unless pursuant to Rule 12(b)(6) "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). In evaluating a motion to dismiss, the Court is obliged to take as true the facts as alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). The Court is also permitted to take into account the contents of documents attached to or incorporated in the complaint, Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989), as well as those documents which are "integral" to the complaint. San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808 (2d Cir. 1996).

An employee suing the federal government must exhaust certain administrative remedies before initiating a lawsuit in federal court. The first step is to "initiate contact with a[n] [EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1); see Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000). The timeliness requirement is not jurisdictional, and the filing deadline is subject to waiver, estoppel and equitable tolling. See Briones v. Runyon, 101 F.3d at 290. The burden is on the plaintiff to demonstrate that any of these exceptions applies. Plaintiff does not argue that any of these exceptions apply.

Defendants argue, proffering documentation of Plaintiff's initial complaint regarding these incidents,*fn3 that Plaintiff's claims concerning the 1993 letter of warning and 1994 notice of suspension are untimely because Plaintiff did not contact an Equal Employment Opportunity ("EEO") Counselor in a timely fashion are required by Title VII. Here, Plaintiff contacted an EEO Counselor regarding the allegedly discriminatory treatment on October 13, 1995. Applying the 45-day requirement, the only timely allegations in the Complaint would be those relating to events alleged to have occurred on or after August 29, 1995. Because the claims arising from the 1993 letter of warning and 1994 notice of suspension incidents predate the August 29, 1995 cutoff in relation to the EEO complaint (i.e., 45 days before the EEO complaint), they are dismissed as untimely.

Government Defendants further argue that Plaintiff has failed to allege facts giving rise to an inference of discrimination concerning his 1995 notice of suspension. In Swierkiewicz v. Sorema N.A., 122 S.Ct. 992 (2002), the Supreme Court overturned Second Circuit authority requiring Title VII plaintiffs to plead facts establishing a prima facie case of discrimination under the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-05 (1973). The Supreme Court held that plaintiffs must merely give defendants "fair notice of what [their] claims are and the grounds upon which they rest," Swierkiewicz, 122 S.Ct. at 999, and need not plead facts sufficient to make out a prima facie case of discrimination. Id; see also, Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Under this standard, to survive a Rule 12(b)(6) motion to dismiss, a complaint need only provide a short and plain statement of the claim and the grounds on which it rests. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957).

Even under this liberal standard, Plaintiff pleads insufficient facts to support a racial discrimination claim. The Court takes notice of the facts alleged in Marshall I and the documents attached to and integral to the Marshall II complaint. See Cosmas v. Hassett, 886 F.2d at 13. While Plaintiff alleges that he is Black, describes Defendant's actions, and asserts that he was subject to harassment in connection with the 1995 notice of suspension incident, Plaintiff fails to tie the alleged discrimination surrounding the notice of suspension to his race. Nowhere in the complaint does Plaintiff allege that this discipline was a result of discrimination against him on the basis of race. Plaintiff's complaint therefore does not allege sufficient facts to give rise to an inference of discrimination. Cf. Phillip v. University of Rochester, No. 01 Civ. 7582, 2003 WL 139522, at * 7 (2d Cir. Jan. 21, 2003).

Moreover, Plaintiff has failed to state a viable retaliation claim. To establish a case of retaliation violative of Title VII, a plaintiff must show that: (1) he or she was engaged in protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Even under the more flexible pleading standard set out in Swierkiewicz, Plaintiff fails to set forth a cognizable claim. Plaintiff does not assert any prior Equal Employment Opportunity-type protected activity, but simply asserts claims related to prior grievances that Plaintiff had filed with his union. The complaint thus fails to connect the alleged retaliation to any activity directed at the enforcement of rights protected by Title VII. For all of the foregoing reasons, Plaintiff's remaining claims against Government Defendants are therefore dismissed.

Branch 36

Branch 36 also moves for judgment on the pleadings as to Marshall II, arguing failure to pursue Title VII administrative proceedings as against Branch 36. Branch 36 alleges that the Plaintiff's claim is barred because he nowhere alleges that he filed a charge with the EEOC or received a right to sue letter regarding Branch 36. The filling of a timely charge with the EEOC is a statutory prerequisite to Title VII claims. "A complainant must file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court under Title VII." Vital v. Interfaith Medical Ctr., 168 F.3d 615, 619 (2d Cir. 1999). Plaintiff attaches to the Marshall II complaint a right to sue letter that names only USPS as the respondent, and makes no mention of Branch 36. There is no indication that Plaintiff ever commenced an administrative proceeding against Branch 36. Thus, Plaintiff's claim against Branch 36 in Marshall II is barred because he nowhere alleges that he filed a charge with the EEOC or received a right to sue letter regarding Branch 36. See Vital, 168 F.3d at 620 (employer and union did not have clear identity of interest and thus employee could not maintain claims under Title VII against union because the plaintiff had named only his employer in the EEOC charge). Plaintiff's claims against Branch 36 in Marshall II are therefore dismissed.

For all the foregoing reasons, Plaintiff's complaint in Marshall II is dismissed.


Defendants' motions to dismiss the complaints in Marshall I and Marshall II are granted. Plaintiff's pending motions are denied in their entirety. Both cases, 00 Civ. 3167 and 01 Civ. 3068, are dismissed in their entirety.


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