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TAND v. SOLOMON SCHECHTER DAY SCHOOL OF NASSAU COUNTY

July 14, 2004.

LOREE TAND, Plaintiff,
v.
SOLOMON SCHECHTER DAY SCHOOL OF NASSAU COUNTY, Defendant.



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 Rule 56.

I. BACKGROUND

  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.

  II. DISCUSSION

  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 Cir. 1999)).

  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 ...


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