Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Southern District of New York

March 28, 2003


The opinion of the court was delivered by: Denise Cote, United States District Judge


In his proposed amended complaint, plaintiff Joseph Marrero ("Marrero") asserts that defendants Local 74 of the Service Employees International Union ("Local 74") and Richard Bennardo ("Bennardo") violated his rights under N.Y. Exec. Law § 296 ("the New York Human Rights Law") and deprived him of his rights guaranteed by 42 U.S.C. § 1983 ("Section 1983") when they failed to represent him fairly at grievance hearings because of his Puerto Rican ancestry. Defendants oppose plaintiff's motion to amend on the grounds of futility. For the following reasons, plaintiff's motion to amend is denied.

Procedural History

Plaintiff's original complaint was filed in New York State Supreme Court, County of the Bronx, on July 24, 2002. Local 74 and Bennardo were listed as defendants. Plaintiff also named as defendants the City of New York, the New York City Board of Education ("Board of Education"), and John Sullivan ("Sullivan"), Marrero's supervisor at the time of his termination. After removal to this Court, defendants Local 74 and Bennardo filed a motion to compel a more definite statement. See Rule 12(e), Fed.R.Civ.P. The motion was denied on November 15, 2002, with the "understanding that plaintiff will either dismiss his claim against [Local 74 and Bennardo], or serve an amended complaint." A discovery schedule was also set on November 15, 2002, with discovery due to end in April 2003. Plaintiff filed an amended complaint on December 10, in which Local 74 and Bennardo were not named as defendants. By letter to the Court dated December 13, plaintiff sought leave to amend the complaint once again to reassert a claim against Local 74 and Bennardo, and was given leave to file a motion to amend the complaint. Plaintiff filed the present motion on January 3, 2003.

Plaintiff Marrero's Proposed Amended Complaint

Although plaintiff captions both of his claims in his proposed amended complaint as "AGAINST ALL DEFENDANTS," he fails to name either Local 74 or Bennardo in them, only alleging discrimination by the City of New York and the Board of Education through Sullivan. In the first claim, brought under the New York Human Rights Law, plaintiff only cites Section 296(1)(a), which pertains to discrimination by employers or licensing agencies.

It is Section 296(1)(c) that prohibits a labor organization from discriminating in any way against its members on the basis of race, creed, color, or national origin. In his second claim, plaintiff alleges that he was "deprived of his civil and constitutional rights guaranteed [sic] 42 U.S.C. § 1983 and 42 U.S. [sic] Sec. 1343" when he was terminated based solely on his national origin and this in turn deprived him of "Due Process and Equal Protection of the Laws as guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution." There is no Section 1343 in Title 42 of the U.S. Code. 28 U.S.C. § 1343 confers jurisdiction on federal district courts to redress a violation of rights guaranteed by 42 U.S.C. § 1983.

The following facts are as asserted in plaintiff's proposed amended complaint. Marrero identifies himself as being of Hispanic/Puerto Rican ethnicity. Local 74 is a duly incorporated union in the City of New York representing public school custodians. Bennardo is an officer of Local 74.

In 1995, Marrero began employment as a custodian at Public School 103 ("PS 103") at Carpenter Avenue in the Bronx. In 1997, he was arrested for criminal possession of a weapon in the third degree, and was dismissed from his employment one and a half weeks later. He was acquitted of the charge in March of 1999, and subsequently resumed working at PS 103. After a "campaign of petty acts of harassment and minor criticisms focusing on excessive lateness and absences," he was twice suspended and his employment was terminated once again.*fn1

Marrero makes three allegations against Local 74 and Bennardo. First, he alleges defendants failed to secure him back pay for the time between the first termination of his employment and his reinstatement.

Second, Marrero points to proceedings at the grievance hearing about his job tenure.*fn2 There, Marrero was told by Bennardo that he had heard Marrero didn't want his job back. When Marrero denied this, Bennardo "failed totally to advise and represent" him, stating there was nothing he could do for Marrero when Marrero stated he wanted to confront those who said he didn't want his job back. Based on this instance, plaintiff asserts that Local 74 and Bennardo "failed totally, to fairly and adequately represent Mr. Marrero, all in violation, and in discrimination, of the plaintiff's Hispanic/Puerto Rican ancestry."

Last, Marrero asserts that in March of 1997 and at the time of the second termination, he attended "at least 10" grievance hearings "of 2-3 hours," for which he was not compensated by the Board of Education, and defendants "again, acting in discrimination of the plaintiff, and his Puerto Rican ancestry, failed to compensate Mr. Marrero for these meetings when everyone who went to such meetings was paid, in particular, Caucasian employees."

Marrero avers that he was "subject to unfair and disparate treatment by reason of his national original [sic]," and therefore has suffered mental distress and trauma. He seeks compensatory and punitive damages, attorney's fees, reasonable medical expenses, two years' back pay, and reinstatement to his job.

Defendants Local 74 and Bennardo oppose plaintiff's motion to amend his complaint on the grounds that permitting the amendment would be futile. They argue that plaintiff's claims are time-barred as a "quintessential [breach of the duty of fair representation] claim against a union" that is beyond the statute of limitations. Defendants also argue that plaintiff fails to state a claim because neither claim specifically mentions Local 74 or Bennardo and "there was no actor or action under color of state law."


Under Fed.R.Civ.P. 15(a), once a responsive pleading has been served, a party may amend its pleadings "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Rule 15(a), Fed.R.Civ.P. The Supreme Court has emphasized that a refusal to grant leave to amend must be justified by grounds such as undue delay or prejudice, bad faith, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). An amendment which seeks to include time-barred claims is futile. Middle Atlantic Utils. Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 385 (2d Cir. 1968). Amendment of a pleading will also be futile if the proposed claim would not survive a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); Ricciutti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999).

A. Marrero's New York Human Rights Law Claim

Marrero's discrimination claim under the New York Human Rights Law is based on a breach of the duty of fair representation.*fn3 State law claims are preempted, however, if they arise out of or are encompassed by a breach of the duty of fair representation. See Welch v. General Motors Corp., Buick Motor Div., 922 F.2d 287, 294 (6th Cir. 1990) (state law disability statute); Peterson v. Air Line Pilots Ass'n Int'l, 759 F.2d 1161, 1169 (4th Cir. 1985) (state laws against civil conspiracy, blacklisting, and interferences with a contractual relationship); Condon v. Local 2944, United Steelworkers of America, AFL-CIO, 683 F.2d 590, 595 (1st Cir. 1982) (state common law duty of care in conducting safety inspection); Agosto v. Correctional Officers Benevolent Assoc'n., 107 F. Supp.2d 294, 310 (S.D.N.Y. 2000) (New York Human Rights Law) (DLC); Rodolico v. Unysis Corp., 96 F. Supp.2d 184, 187-88 (E.D.N.Y. 2000) (same); Snay v. United States Postal Serv., 31 F. Supp.2d 92, 99 (S.D.N.Y. 1998) (same). But see Parker v. Metro. Transp. Auth., 97 F. Supp.2d 437, 448-49 (S.D.N.Y. 2000). Stated differently, state law claims are preempted if they attempt to impose obligations on a union that are subsumed by the duty of fair representation. Since Marrero's New York Human Rights Law claim imposes no new obligation on the union that is not already required by the duty of fair representation, and is in fact premised on this duty, it is preempted.

An unfair representation claim is governed by a six month statute of limitations. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 155 (1983); Phelan v. Local 305 of United Ass'n of Journeymen, 973 F.2d 1050, 1060 (2d Cir. 1992). The limitations period begins to run when a plaintiff knows or should know that the union breached its duty of fair representation. Flanigan v. Int'l Bhd. of Teamsters, 942 F.2d 824, 827 (2d Cir. 1991). Where a claim is premised on a breach of the duty of representation during the grievance process that is readily apparent to the union member, a plaintiff is deemed to have knowledge of the breach at the time he learns of the union action or inaction. Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 165 (2d Cir. 1989).

The proposed amended pleading does not include dates for many of the allegations that are central to the plaintiff's claims despite the fact that this very defect was a focus of the motion for a more definite statement that was addressed to the original complaint. Nonetheless, it is undisputed that Marrero learned of the failure to represent him no later than March 16, 2001, the date of his last grievance hearing. Since the original complaint was not filed until July 24, 2002, any claim for the breach of the duty of fair representation is time-barred.

B. Marrero's Section 1983 Claim

42 U.S.C. § 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . ."
42 U.S.C. § 1983 (2000). In order to state a claim under Section 1983, Marrero must allege that he was injured by either a state actor or a private party acting under color of state law. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002).

Labor Unions generally are not state actors. Id. Nor does Local 74's representation of public employees make it a state actor.*fn4 See id. (holding that a union for county employees is not a state actor). Marrero also fails to assert or even allege sufficient facts to support a conclusion that Local 74 or Bennardo acted under color of state law by conspiring with a state actor. Reading the proposed amended complaint broadly and assuming that Local 74 and Bennardo joined with the other defendants in discriminating against Marrero, it fails in this regard because a conclusory allegation that a private entity acted in concert with a state actor "does not suffice to state a § 1983 claim against a private entity." Id. at 324. Because the proposed amended complaint fails to state any facts to allege a required element of a Section 1983 claim — the presence of a state actor or action under color of state law — it would not survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P., and is therefore futile.*fn5


For the reasons stated, plaintiff Marrero's motion for leave to amend is denied.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.