The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This action arises out of claims by Loree Tand ("Tand" or the
"plaintiff") that her former employer Solomon Schechter Day
School of Nassau County ("Solomon Schechter" or the "defendant")
terminated her employment in violation of the collective
bargaining agreement that governed Tand's employment (the "CBA"
or the "Agreement"). Presently before the Court is a motion by
Solomon Schechter to dismiss the complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R. Civ.
P.") for failure to state a claim upon which relief can be
granted, or alternatively, for summary judgment pursuant to
The facts are taken from the complaint unless otherwise noted.
Sometime in 1999, Tand commenced employment at Solomon Schechter
as a faculty member. Effective from July 1, 2001 through June 30,
2005, the CBA was in place between Solomon Schechter and the
United Teachers Association of Solomon Schechter Day School of
Nassau County, NEA/NY (the "Teachers Association"), the labor
union recognized by Solomon Schechter as the representative of
its employees, including Tand
The complaint states that according to Article V(b) of the CBA,
"faculty members . . . were to receive oral and written notice of
non-reappointment no later than April 1st, of the third year
or any successive year of service at [the] school." Compl. 6.
The 2002-2003 school year was to be Tand's fourth year of
employment at Solomon Schechter. According to the terms of the
CBA, Tand was to receive a base salary of $36,855. In addition to
her base salary, Tand was entitled to additional compensation for
coaching athletics in the sum of $11,200.
By April 1, 2002, Tand did not receive notice of
"non-reappointment." Thereafter, in a letter dated April 8, 2002,
Solomon Schechter informed the plaintiff that her reappointment
as a full-time teacher at Solomon Schechter was approved for the
2002-2003 school year. Subsequently, on August 21, 2002, Tand met
with the administration of Solomon Schechter and was informed
that due to budgetary restraints, she would not be employed for
the 2002-2003 school year.
The complaint alleges that the August 21, 2002 notification of
non-reappointment was untimely under the terms of the CBA and
therefore constituted a breach of the Agreement.
On October 27, 2003, the plaintiff commenced the present action
in the Supreme Court, Nassau County. In this action, the
plaintiff seeks damages in the amount of $48,055, representing
the salary she was to earn during the 2002-2003 school year. On
November 19, 2003, the defendant removed the action to the Court
pursuant to 28 U.S.C. 1441 and 1446(a).
The defendant now moves to dismiss the claims pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief can be
granted, or alternatively, for summary judgment. In support of
its motion, the defendant argues that: (1) the plaintiffs claims
are pre-empted by section 301 of the Labor Management Relations
Act, 29 U.S.C. 185, ("LMRA" or the "Act") and barred by the
Act's six-month statute of limitations; and (2) the plaintiffs
claims are covered by the CBA and as such, the defendant was
compelled to use the contractual grievance and arbitration
remedies provided for in the Agreement.
A. Rule 12(b)(6) Standard
The Court should not dismiss the complaint pursuant to
Rule 12(b)(6) unless it appears "`beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.'" Goldman v. Belden, 754 F.2d 1059, 1065
(2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
2 L.Ed.2d 80, 78 S.Ct. 99 (1957)); see also King v. Simpson,
189 F.3d 284, 287 (2d Cir. 1999); Bernheim v. Litt,
79 F.3d 318, 321 (2d Cir. 1996). In deciding the motion the Court must
determine whether the complaint on its face is legally
sufficient. Goldman, 754 F.2d at 1067. In doing so, the Court
must accept the allegations of the complaint as true and construe
all reasonable inferences in favor of the plaintiff. See Tarshis
v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citing Desiderio
v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d
In deciding a Rule 12(b)(6) motion a court may consider "only
the facts alleged in the pleadings, documents attached as
exhibits or incorporated by reference in the pleadings and
matters of which judicial notice may be taken. . . ." Samuels v.
Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993);
Tarshis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell,
Inc., 945 F.2d 40, 44 (2d Cir. 1991)).
Here, the defendant's Reply Memorandum of Law in Further
Support of the Motion to Dismiss the Complaint includes facts
relating to another employee that were not included in the
complaint. Def. Reply Mem. of Law 4. The Court declines to
covert their motion to one for summary judgment in order to
consider the material. See Fonte v. Bd. of Managers of Cont'l
Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (stating that a
court has the choice of converting a Rule 12(b)(6) motion to one
for summary judgment in order to consider material outside the
pleadings but must afford all parties an opportunity to submit
supporting material). The Court also notes that the defendant did
not follow the ...