The opinion of the court was delivered by: Barbara S. Jones, United States District Judge.
Ellen Geaney, a pro se Plaintiff, filed this action pursuant to § 510 of Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140, and to 42 U.S.C. § 1985 (2). Plaintiff alleges that she was wrongfully terminated from her position as a Member Services Representative of the New York City District Council of Carpenters Welfare Fund, the New York City District Council of Carpenters Pension Fund, the New York City District Council of Carpenters Annuity Fund, the New York City District Counsel of Carpenters Scholarship Fund, and the New York City District Council of Carpenters Vacation Fund (the "Funds"). Defendants move to dismiss pursuant to Fed.R. Civ. Pro. 12(b)(6)
Plaintiff filed her complaint with the assistance of counsel on October 19, 2001, completing service on February 22, 2002. Earlier, however, on January 10, 2002, Plaintiff's counsel requested an adjournment of the initial pretrial conference to allow time for Plaintiff to retain new counsel. The Court granted this request on January 14, 2002, and adjourned the conference from January 18, 2002 to March 1, 2002.
On February 27, 2002, Plaintiff's counsel informed the Court that Plaintiff was still interviewing prospective attorneys and requested a second adjournment to allow her time to retain new counsel. Based on this information, the Court granted a second adjournment of the conference from March 1, 2002 to April 26, 2002. Shortly thereafter, in an Order dated March 4, 2002, the Court directed Plaintiff to notify the Court by March 29, 2002 whether she had retained counsel or was going to proceed with her action pro se. (Mar. 4, 2002 Order). Plaintiff submitted a letter to the Court dated March 29, 2002 in which she informed the Court that she had "not retained counsel," but was "actively attempting to do so."
On April 16, 2002, Defendants filed their motion to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.Pro. 12(b)(6). That same day, Plaintiff's counsel informed the Court that Plaintiff still had not retained new counsel and requested that he and his firm be relieved as Plaintiff's attorney. On April 19, 2002, Plaintiff's attorney repeated his application to be relieved as counsel. Pursuant to these requests, the Court ordered that unless Plaintiff objected on or before May 8, 2002, counsel's application would be granted. (Apr. 24, 2002 Order) Plaintiff did not object to this Order and has since proceeded pro se.
To date, Plaintiff has not submitted an opposition or any other response to Defendants' April 16, 2002 motion to dismiss. While she did attend a pre trial conference before Magistrate Judge Gorenstein on July 24, 2002, she has not contacted the Court in any way since that appearance. In January of 2003, this Court advised Plaintiff that if she did not respond to the pending motion to dismiss, the Court would consider the motion unopposed. (Jan. 23, 2003 Order). Plaintiff has not responded to this Order. Indeed, it has now been almost a year since the motion to dismiss was filed, and the Court has received neither opposition papers nor any other correspondence from the Plaintiff that might indicate that she intends to respond to the motion to dismiss. The Court, therefore, considers Defendant's motion unopposed.
Under Fed.R.Civ.P. 12(b)(6), a court may "dismiss a claim on the basis of a dispositive issue of law," Neitzke v. Williams, 490 U.S. 319, 326 (1989), by examining the legal sufficiency of the claim as opposed to the evidence underlying the factual issues, De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996). That said, however, a "complaint may be dismissed only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Paulemon v. Tobin, 30 F.3d 307, 309 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Therefore, when deciding a motion to dismiss, a court must accept all allegations made in a complaint as true, Barnett v. International Business Machines, 885 F. Supp. 581, 585 (S.D.N.Y. 1995). It must also construe the complaint liberally, especially when a plaintiff is proceeding pro se. Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).*fn1
The complaint alleges the following. Plaintiff began work for the Funds in February of 1988 in Internal Auditing, after which she became a Member Services Representative in 1994. (Compl. ¶ 27). As a Member Services Representative, Plaintiff assisted union members and retirees in obtaining their employee benefits. (Compl. ¶ 27). In 1999, several retirees (the "MAC-OUT Plaintiffs") filed a lawsuit against the Funds, claiming damages for allegedly improper changes to their health insurance benefits.*fn2 (Compl. at ¶ 35). In the spring and summer of 1999, Plaintiff assisted these plaintiffs by meeting with them and giving their counsel documents. She claims that she met with the plaintiffs and counsel at least ten and three times, respectively. (Compl. ¶ 36). She also asserts that she met with the New York State Department of Labor five times in connection with its investigation into alleged mismanagement of the Funds. (Compl. ¶ 37).
Later, on September 2, 1999, Plaintiff confided her concerns about the management of the Funds to Michael Forde, the Business Manager of Local 608 and a leading candidate for Executive Secretary/Treasure of the District Council. In this conversation, she told him that she had met with both the New York Department of Labor and the MAC-OUT plaintiffs who were suing the Funds. (Compl. ¶ 41, 42). Plaintiff alleges that shortly thereafter, on September 8, 1999, there was a meeting of the Funds' trustees in regards to the administration of the funds and that, at or around 5:00 p.m. that day, she observed Forde and Defendant Dunford, a Union Designated Trustee of the Funds, "speaking quietly and in close quarters." (Compl. ¶ 8, 43, 44). She claims that they saw her looking at them and that they "glared back at her in an intimidating manner." (Compl. ¶ 43, 44). Plaintiff believes that they were talking about her conversation with Forde from the previous week as well as the "status of her employment." (Compl. ¶ 45). The next day, September 9, 1999, Plaintiff was "let go," with the explanation that her department was being "revamped". (Compl. ¶ 46). Plaintiff states that she continued to work for several days thereafter, but was asked to remain at home for two days when the Trustees would be in the building as they did not want to see her there. (Compl. ¶ 47). Plaintiff asserts that she "ceased working at the Funds on September 17, 1999, but continued to receive her salary until on or about October 20, 1999." (Compl. ¶ 48)
Plaintiff alleges that, in fact, the department was not revamped and that the only other person that was fired was also fired in retaliation for his cooperation with the New York State Department of Labor and the United States Department of Justice. (Compl. ¶ 50). Plaintiff asserts that she was terminated by Defendants in "retaliation for her communications and cooperation with the New York State Department of Labor" in violation of § 510 of ERISA, 29 U.S.C. § 1140, and that she was also terminated in retaliation for her cooperation and future cooperation as a witness for the plaintiffs in violation of 42 U.S.C. § 1985 (2).
Section 501, 29 U.S.C. § 1140, provides in ...