United States District Court, E.D. New York
June 3, 2004.
SHARON FLEMING PERRY, Plaintiff, -against- METROPOLITAN SUBURBAN BUS AUTHORITY a.k.a. MTA LONG ISLAND BUS and TRANSPORT WORKERS UNION, LOCAL 252, AFL-CIO Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
DECISION AND ORDER
This action arises out of claims by Sharon Fleming Perry (the
"plaintiff" or "Perry") that her former employer, the Metropolitan
Suburban Bus Authority a.k.a. MTA Long Island Bus (the "MSBA") wrongfully
terminated her employment as a bus operator in violation of the equal
protection and due process clauses of the Fourteenth Amendment; in
violation of 42 U.S.C. § 1981 ("Section 1981"); and that it conspired
with the Transport Workers Union, Local 252, AFL-CIO ("Local 252" or the
"Union") to deny the plaintiff her constitutional rights on the basis of
her race and gender in violation of 42 U.S.C. § 1985 ("Section 1985").
The plaintiff also alleges a cause of action under 42 U.S.C. § 1983 in
that Local 252 violated this plaintiff's due process and equal protection
rights. ("Section 1983").
Presently before the Court is a motion by the MSBA to dismiss the first
and third causes of action, namely the Section 1981 and Section 1985
claims, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. ("Fed.R. Civ. P."). Local 252 adopts the motion by the MSBA to
the extent that it seeks a dismissal of the Section 1985 cause of
A. Factual Background
The facts are taken from the complaint and are assumed to be true for
the purposes of this motion.
From October 12, 1993 until her termination on August 6, 2003, the
plaintiff was employed by the MSBA as a full time bus operator. During the time period
in question, the plaintiff was a member of Local 252, which is recognized
by the MSBA as the exclusive representative of certain employees
including the plaintiff for the purpose of collective bargaining
negotiations and the settlement of grievances. A collective bargaining
agreement between the MSBA and Local 252 was in force from December, 1999
through December, 2002 (the "CBA").
On August 19, 2002, the plaintiff suffered a heart related ailment.
About this time the plaintiff was diagnosed as having cardiomyapy and
pulmonary hypertension causing her to be absent from work on sick leave.
Pursuant to Article XII of the CBA ("Article XII"), if an employee is
out of work due to a heart related ailment, he or she must submit medical
certification of their ability to return to work. If the medical director
concurs with the findings that the employee is able to return to work,
the employee is permitted to resume his or her assignment. If an employee
is deemed unable to return to work by the employer's medical director,
the union and employer are to agree to send the employee to an impartial
doctor for a final determination as to the employee's condition at that
On December 4, 2002, Dr. Stern, the physician for the employer, cleared
the plaintiff to return to work. On January 30, 2003, Dr. Miller, the
MSBA's medical director, determined that the plaintiff was able to return
to work on January 31, 2003. Nevertheless, on February 13, 2003, the MSBA referred the plaintiff to Dr. Stern
for an independent medical examination. Dr. Stern reversed his previous
finding and determined that the plaintiff was not able to return to work
and was totally disabled. On March 12, 2003 and on April 23, 2003, Dr.
Lewis, the plaintiff's personal cardiologist, indicating in writing that
the plaintiff was fit to return to work. Dr. Lewis also submitted this
determination to the MSBA.
Based upon Dr. Stern's determination that she was unable to return to
work, the plaintiff sought permanent disability from the MSBA's insurance
carrier. In a letter dated May 8, 2003, the plaintiff learned that she
was denied permanent disability because her records and test results did
not indicate that she was unable to return to work. A copy of this letter
was provided to Dr. Miller. Despite the carrier's determination that the
plaintiff did not qualify for permanent disability, the MSBA insisted
that the plaintiff was unfit to resume her duties. On August 6, 2003, the
MSBA terminated her employment.
The plaintiff alleges that contrary to the procedures set forth in
Article XII, requiring that the plaintiff be referred to an impartial
physician agreed to between Local 252 and the MSBA, the MSBA made a
unilateral decision to refer the plaintiff to Dr. Stern. On the
plaintiff's behalf, the union filed a grievance and subsequently a demand
for arbitration regarding the employers unilateral referral of the
plaintiff to Dr. Stern. However, because she was never advised of the
grievance or the arbitration hearing, the plaintiff did not participate
in either proceeding. Furthermore, when the MSBA determined in June, 2003 to terminate the
plaintiff, Local 252 failed to inform the plaintiff that a Step I
grievance was scheduled for July 21, 2003 or that she could provide
documentation and/or witnesses to substantiate her claim that she could
resume her duties. Consequently, this grievance was held in the
plaintiff's absence. The MSBA determined that the plaintiff produced no
evidence to support her claim. Allegedly, the plaintiff did not learn
that the Step I grievance proceeding occurred until she received the
correspondence from MSBA dated July 24, 2003 advising the plaintiff that
her Step II grievance was scheduled for July 31, 2003. The plaintiff
reported for this grievance, which was denied. Thereafter, the plaintiff
requested arbitration. The plaintiff alleges that Local 252 has not
contacted her except to advise her that there was nothing further to be
The plaintiff alleges upon information and belief that Local 252
treated white employees more favorably than the plaintiff in terms of
advocating for their right to return to work from sick leave. The
plaintiff further alleges that Local 252 failed to contest the employer's
discriminatory actions against her causing her to be treated less
favorably than white employees with respect to her contractual rights and
her right to return to her duties following medical clearance. The
complaint alleges upon information and belief that there were white and
male employees who were similarly situated and who were permitted to
return to work. The plaintiff claims that she was approaching eligibility
"for vesting" at the time of her termination and the decision to terminate her was in
whole or in part done to preclude her from receiving certain entitlements
under the New York State Retirement Plan.
The plaintiff further claims, among other things, that the MSBA and
Local 252 violated Section 1985 by conspiring to deny the plaintiff the
opportunity for a grievance and an arbitration hearing on the issue of
the termination of her employment in violation of the equal protection
and due process clauses of the Fourteenth Amendment. She also contends
that the MSBA violated the plaintiff's rights under Section 1981 by
"subject[ing] [her] to different terms and conditions of employment than
white employees with respect to medical clearance for return to work."
Presently before the Court is a motion by the MSBA to dismiss these
causes of action pursuant to Rule 12(b)(6). Local 252 adopts the
arguments by the MSBA to the extent it seeks a dismissal of the Section
1985 cause of action.
A. The Standard of Review
A court may grant a Rule 12(b)(6) motion to dismiss for failure to
state a claim only when "`it appears beyond doubt that the plaintiff can
prove no set of facts in support of [her] claim which would entitle [her]
to relief.'" Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000),
abrogated on other grounds, Swierkiewicz v. Sorema N. A., 534 U.S. 506,
122 S.Ct. 992 (2002), (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)). The court must accept as true all of the
factual allegations set out in the complaint, draw inferences from those
allegations in the light most favorable to the plaintiff, and construe
the complaint liberally. See id. (citing Desiderio v. National Ass'n of
Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)).
B. As to the First Cause of Action
The plaintiff's first cause of action alleges that the MSBA and Local
252 "conspired to deny [the] plaintiff [of] her equal protection and due
process rights under the U.S. Constitution by denying [the] plaintiff the
opportunity for a grievance and arbitration hearing on the issue of her
ability to return to work and . . . on the issue of the termination of
her employment" in violation of Section 1985. (Compl. ¶ 41). MSBA
contends that this cause of action should be dismissed for failure to
state a claim because "the case law is clear that alleged deprivation of
rights created under Title VII cannot be the basis for a cause of action
under § 1985(3)." Defs. Mem. in Opposition at 4.
The MSBA's argument is misplaced. Not only does the complaint make no
mention of Title VII, but this cause of action essentially alleges a
conspiracy to violate the plaintiff's constitutional rights of due
process and equal protection in that she was denied a grievance and
arbitration proceeding because of her race and gender. Accordingly, the
MSBA's motion to dismiss the first cause of action for the reason
asserted is denied.
C. As to the Third Cause of Action The third cause of action alleges that the MSBA "violated the
plaintiff's rights under Section 1981 in that she was subjected to
different terms and conditions of employment than white employees with
respect to medical clearance for return to work." Compl. § 47. The MSBA
argues that under the rule in Jett v. Dallas Independent Sch. Dist.,
491 U.S. 701, S.Ct. 2702 (1989), where the plaintiff asserts a cause of
action under Section 1983, the plaintiff may not also advance a claim
under Section 1983. The Court agrees.
In Jett, the Supreme Court held that "the express `action at law'
provided by § 1983 for the `deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,' provides the exclusive
federal damages remedy for the violation of rights guaranteed by § 1981
when the claim is pressed against a state actor." Jett, 491 U.S. at 735;
see also Anderson v. Conboy, 156 F.3d 167, 176 n. 17 (2d Cir. 1998); see
also Roddini v. City Univ. of New York, No. 02 Civ. 4640, 2003 WL
435981, at *5 (Feb. 21, 2003) Accordingly, because the plaintiff's second
cause of action arises under Section 1983, the plaintiff's Section 1981
claim against the MSBA is dismissed.
Based on the foregoing, it is hereby
ORDERED, that the motion by the MSBA to dismiss the plaintiff's first
cause of action based on Section 1985 is DENIED; and it is further
ORDERED, that the motion by the MSBA to dismiss the plaintiff's third
cause of action based on Section 1981 is GRANTED, and it is further
ORDERED, that the parties are directed to contact United States
Magistrate Judge Arlene R. Lindsay forthwith to schedule the completion
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