United States District Court, E.D. New York
CARL B. STRAKER Plaintiff,
METROPOLITAN TRANSIT AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, and TRANSPORT WORKERS UNION OF GREATER NEW YORK, LOCAL 100, Defendants.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
Pending before the Court are two motions challenging the
amended complaint of plaintiff Carl B. Straker ("Straker"), who
principally alleges procedural improprieties arising from the
handling of a mandatory drug test to which he was subjected. First, defendant New York City Transit Authority
("NYCTA") moves "for a judgment pursuant to Rule 12(b)(1), (5),
and (6), and Rule 12(c) of the Federal Rules of Civil Procedure
dismissing the amended complaint on the ground that plaintiff has
failed to allege facts which could support any federal claim or
state a cause of action." [NYCTA]'s Notice of Motion to Dismiss
at 1. Second, defendant Transit Workers Union of Greater New
York, Local 100 ("TWU") moves to dismiss pursuant to Fed.R. Civ.
P. 12(b)(6). With respect to NYCTA's motion to dismiss, the Court
(1) grants the motion as to Counts I and II but sua sponte
grants leave to amend Count II, and (2) denies the motion as to
Counts III and IV but sua sponte directs that Straker file a
more definite statement as to Count III pursuant to Fed.R. Civ.
P. 12(e). With respect to TWU's motion to dismiss Count V, the
Court construes Straker's claim as alleging a cognizable state
law claim, retains supplemental jurisdiction over the claim, and
denies TWU's motion to dismiss.
Though named by Straker as a defendant, Metropolitan Transit
Authority has not appeared as a party. NYCTA volunteers that
"[p]laintiff's claims against Metropolitan `Transit' Authority
should be dismissed given that no such organization exists."
Memorandum of Law in Support of [NYCTA's] Motion to Dismiss at
18. Straker does not contend otherwise. Although NYCTA concedes
that an organization by the name of "Metropolitan
Transportation Authority" exists, the Court's docket does not
contain an affidavit of service on Metropolitan Transportation
Authority. The Court sua sponte dismisses Metropolitan Transit
Authority as a party. See Block v. First Blood Assoc., 691 F. Supp. 685, 697 (S.D.N.Y. 1988) ("nonexistent" parties "should be
considered sham parties . . . against whom no cause of action can
NYCTA's and TWU's motions are evaluated pursuant to
Fed.R.Civ. P. 12(b)(6).*fn1 In considering a motion to dismiss for
failure to state a claim upon which relief can be granted, the
Court accepts as true the plaintiff's factual allegations and
draws all reasonable inferences in favor of the non-moving party.
See Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz,
290 F.3d 476, 479 (2d Cir. 2002). In addition to the allegations
contained within the complaint, the Court "may consider facts set
forth in exhibits attached as part of the complaint," Chance v.
Armstrong, 143 F.3d 698, 700 n. 1 (2d Cir. 1998), as well as
"any statements or documents incorporated in it by reference."
Int'l Audiotext Network, Inc. v. Am. Tel. & Tel.Co.,
62 F.3d 69, 72 (2d Cir. 1995) (citation omitted).
"Dismissal is not appropriate `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.'" Chance, 143 F.3d at 701. "This rule applies with
particular force where the plaintiff alleges civil rights
violations[.]" Id. (citation omitted). "Because the complaint
must allege facts which confer a cognizable right of action, `the
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims.'" DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003)
Straker's Amended Complaint ("Amend. Compl.") alleges that he
worked for NYCTA since 1987 and as a train operator since 1992.
On January 23, 2002, he appeared for an annual physical
examination; part of that examination required him to provide a
urine sample for mandatory drug testing. Straker did not provide
a sample; he alleges that he was physically unable to comply
because of a flare-up of his herpes genitalis.
NYCTA construed his non-compliance as a "refusal" and
terminated him. Before it did so, however, NYCTA referred Straker
to several physicians to determine whether he suffered from a
medical condition that rendered him unable to provide the
required sample; by and large, those physicians concluded that
there was no medical basis to excuse Straker's failure to
urinate. Broadly stated, Straker alleges that in referring his
case to the various physicians for evaluation, NYCTA failed to
follow drug testing regulations promulgated by the Department of
Transportation ("DOT Guidelines"), and that several of those
physicians conspired with NYCTA to deprive him of his civil
rights on account of his African-American race.
Straker alleges that he and his union filed a grievance, which
was arbitrated over the course of three days before the Tripartite Arbitration
Board ("TAB"). Straker testified before the TAB, as did a number
of other individuals. On January 11, 2003, the TAB issued a
twenty-three page Opinion and Award, a copy of which is appended
to Straker's Amended Complaint as Exhibit A, finalizing Straker's
termination. After observing initially that the applicable
Collective Bargaining Agreement provided that "[r]efusal to take
[mandatory drug] test(s) . . . will be deemed an admission of
improper use of Controlled Substances or Drugs and will result in
dismissal from service[,]" Amend. Compl., Ex. A (Opinion and
Award) at 3, the TAB determined that Straker "was not a credible
witness" and rejected his arguments that the urine testing and
review procedures had been violated. Amend. Compl. at ¶¶ 47-48;
Ex. A at 3-23.
Straker initiated his action on April 10, 2003. His complaint,
as amended, alleges four causes of action against NYCTA (Counts I
through IV) and one against TWU (Count V).*fn2
Count I alleges that by failing to follow the DOT Guidelines
regarding testing protocols, NYCTA "violated 42 U.S.C. § 1983 in
that it deprived plaintiff of his job without procedural due
process[.]" Amend. Compl. at 20.
Count II alleges that NYCTA, "together with physicians Harris
M. Naglar, M.D. and Avram M. Nemetz, M.D., engaged in conduct
calculated to support a finding that plaintiff `refused' to render a urine sample" because of
Straker's race, thereby "violat[ing] 42 U.S.C. § 1985(3) in that
[NYCTA] subjected plaintiff to invidious, racially discriminatory
conduct by deviating from [the DOT guidelines] and by disclosing
plaintiff's medical condition to plaintiff's colleagues,
supervisors, management and the Department of Labor Relations."
Id. at 21.
Count III alleges "[t]hat the contractual relationship between
[NYCTA] and Affiliated Physicians [the group of doctors to whom
NYCTA referred Straker's case] facilitated [NYCTA's] material
representations to the [TAB] regarding plaintiff's `refusal,'
[and] that the misrepresentations were offered to the [TAB] with
the expectation that the misrepresentations would be relied upon.
Plaintiff was injured in that he was deprived of employment and
its emoulments, for a period of ten months violating
42 U.S.C. § 1983." Id. at 22.
Count IV alleges that Straker "is a qualified person suffering
from disability as set forth in the Rehabilitation Act of
1973[;]" that he "suffered from a debilitating illness and was
handicapped within the meaning of the statute[;]" that he "was
qualified as a train operator[;]" and that "he was discharged
under the pretext that he refused to give a urine specimen but
was discharged because of his handicap." Id.
Count V alleges that a TWU representative, James Mahoney,
approached one of Straker's physicians and "instruct[ed] the
doctor not to cooperate" with Straker during the arbitration
proceedings. Id. at ¶ 87. By so doing, TWU "attempted to and
did seriously undermine plaintiff's defense as well as the
arbitration process[,]" id. at 22-23, thereby "breach[ing] its duty of fair representation before the
[TAB]" in violation of "federal labor law." Id.
A. Count I: Due Process/Violation of DOT Guidelines
Straker alleges that NYCTA did not follow DOT Guidelines
testing protocols, thereby "depriv[ing him] of his job without
procedural due process[.]" Amend. Compl. at 20. NYCTA is a
government agency of the City of New York; Straker, therefore, is
a governmental employee. See Epter v. New York City Transit
Auth., 216 F. Supp. 2d 131, 137 (E.D.N.Y. 2002) (NYCTA is a
governmental agency); Donnelly v. McLellan, 889 F.Supp. 136,
140 (D. Vt. 1995) (noting that "the New York City Transit
Authority has been held to be an agency of the City of New York
by a variety of courts and for a broad range of statutory
In Board of Regents of State Colleges v. Roth, 408 U.S. 564
(1972), the Supreme Court declared that "[t]he requirements of
procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment's protection of liberty
and property." If a protected property or liberty interest is
"implicated, the right to some kind of prior hearing is
paramount." Id. at 570-71.
"To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it." Id. at 577.
Thus, an at-will employee does not have a protected property
interest in his or her continued employment. See Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.
2002) ("Employees at will have no protectable property interest
in their continued employment"). "But a protectable property
interest may arise in a situation where an employee may be
removed only for cause. Indeed, in this circuit, a person may
possess a protected interest in public employment if contractual
or statutory provisions guarantee continued employment absent
`sufficient cause' for discharge or he can prove a de facto
system of tenure." Id. See also Horvath v. Westport Library
Ass'n, 362 F.3d 147, 151 (2d Cir. 2004) ("There is no question
that `[a] public employee who has a right not to be fired without
`just cause' . . . has a property interest in her employment that
qualifies for . . . protections of procedural due process.'")
As for the liberty interest, "[a] person's interest in his or
her good reputation alone, apart from a more tangible interest,
is not a liberty . . . interest sufficient to invoke the
procedural protections of the Due Process Clause or create a
cause of action under § 1983." Patterson v. City of Utica,
370 F.3d 322, 329-30 (2d Cir. 2004). "Loss of one's reputation can,
however, invoke the protections of the Due Process Clause if that
loss is coupled with the deprivation of a more tangible interest,
such as government employment." Id. at 330. In the case of
government employees, a deprivation of a liberty interest without
due process of law arises "when an alleged government defamation
occurs in the course of dismissal from government employment.
This type of claim is commonly referred to as a `stigma-plus'
Straker has not alleged that he possessed a protected property
interest. However, based on (1) his many years of service with NYCTA and
his apparent expectation of continued employment, and (2) those
provisions within the applicable collective bargaining agreement
that afford aggrieved employees the right to arbitrate adverse
employment actions, the Court assumes, arguendo, that Straker
has a protected property interest.*fn3 Further, although
Straker has not alleged that he was stigmatized in the course of
his termination, the Court will assume, arguendo, that he was.
Nonetheless, Straker's procedural due process claim, whether
based on a property or liberty interest, or both, fails.
A government employee who has a property interest in his or her
continued employment or a liberty interest to be free of
termination without stigma is entitled to "`oral or written
notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of
the story,' before he is subjected to the loss of employment."
Munafo v. Metro. Transp. Auth. 285 F.3d 201, 212 (2d Cir. 2002)
(citation omitted). Straker has not alleged that he was deprived
of adequate notice, an explanation of the NYCTA's evidence
against him, or an opportunity to be heard. To the contrary,
Straker's Amended Complaint alleges that he was notified of the
action that was taken against him, that he was given an
explanation, that he was afforded an opportunity to present
evidence on his behalf, and that he availed himself of that
opportunity by, inter alia, testifying before and presenting evidence to the TAB.
Accordingly, pursuant to Fed.R. Civ. P. 12(b)(6), Count I is
dismissed. Because Straker's own pleadings conclusively
demonstrate that he was afforded all process due him, there is no
point in permitting Straker an opportunity (even though he has
not sought one) to amend his Amended Complaint. See Local 802,
Associated Musicians of Greater N.Y. v. Parker Meridien Hotel,
145 F.3d 85, 89 (2d Cir. 1998) (citing futility as grounds for
denying leave to amend).
B. Count II: 42 U.S.C. 1985(3)/Conspiracy
Straker alleges that NYCTA, in violation of § 1985(3),
conspired with Doctors Naglar and Nemetz to deprive him of his
employment on account of his race.
"The four elements of a § 1985(3) claim are: (1) a conspiracy;
(2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of equal protection of the laws,
or of equal privileges and immunities under the laws; (3) an act
in furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right of a
citizen of the United States." Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
"Furthermore, the conspiracy must also be motivated by `some
racial or perhaps otherwise class-based, invidious discriminatory
animus behind the conspirators' action.'" Id. (citation
NYCTA contends that Straker has not pled any facts that support
his claim of racial discrimination. In response, Straker argues
the Court should draw an inference of race-based discrimination because he was terminated
despite (1) his exemplary employment record, (2) the expert
medical testimony he presented to the TAB that his herpes
genitalis prevented him from urinating on command, and (3) the
absence of any allegation by NYCTA that he had used controlled
substances. The Court agrees with NYCTA that the factors Straker
cited do not permit a reasonable inference of racial
discrimination. The issue is whether a bald allegation of racial
discrimination that is factually unsupported and wholly
conclusory can survive a motion to dismiss.
Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), provides
the appropriate starting point. There, the United States Court of
Appeals for the Second Circuit had affirmed the Rule 12(b)(6)
dismissal of the plaintiff's national origin and age
discrimination claims because the plaintiff had not pled facts
sufficient to constitute a prima facie case of discrimination
under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). In so doing, the court noted that "[i]t is well settled
in this Circuit that a complaint consisting of nothing more than
naked assertions, and setting forth no facts upon which a court
could find a violation of the Civil Rights Acts, fails to state a
claim under Rule 12(b)(6)." Swierkiewicz v. Sorema, N.A.,
5 Fed. Appx. 63, 64 (2d Cir. Mar. 12, 2001) (unpublished).
"[G]rant[ing] certiorari to resolve a split among the Courts
of Appeals concerning the proper pleading standard for employment
discrimination cases[,]" Swierkiewicz, 534 U.S. at 510, the
Supreme Court unanimously held that a plaintiff alleging
employment discrimination need not plead facts constituting a
prima facie case under the McDonnell Douglas framework.*fn4 Reasoning that "[t]he
prima facie case under McDonnell Douglas . . . is an
evidentiary standard, not a pleading requirement[,]" id. at
510, and that "imposing the Court of Appeals' heightened pleading
standard in employment discrimination cases conflicts with
Federal Rule of Civil Procedure 8(a)(2)[,]" id. at 512, the
Court concluded that an employment discrimination complaint "must
contain only `a short and plain statement of the claim showing
that the pleader is entitled to relief.'" Id. at 510, 512.
"Such a statement must simply `give the defendant fair notice of
what the plaintiff's claim is and the grounds upon which it
rests.'" Id. at 512. The Court noted that "with limited
exceptions" for example, when the Federal Rules require
pleading with greater particularity, as with averments of fraud
or mistake under Rule 9(b) "Rule 8(a)'s simplified pleading
standard applies to all civil actions[.]" Id. at 513.
Although Swierkiewicz rejected a "heightened" pleading
standard for employment discrimination claims, as well as all
other claims (except those subject to a statutorily-imposed
stricter pleading standard), it did not address the standard
for assessing claims that simply assert conclusory allegations
unaccompanied by any factual support; on that discrete issue, a split amongst the circuit
courts existed pre-Swierkiewicz and continues to exist.
Prior to Swierkiewicz, the Second Circuit had always adhered
to the proposition that conclusory allegations were subject to
dismissal under Rule 12(b)(6), regardless of the nature of the
claim. As for non-discrimination claims, see, e.g., De Jesus v.
Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996)
(Sherman Act and civil RICO: "A complaint which consists of
conclusory allegations unsupported by factual assertions fails
even the liberal standard of Rule 12(b)(6)"); Polur v. Raffe,
912 F.2d 52, 56 (2d Cir. 1990) (§ 1983 conspiracy to convict
plaintiff of criminal contempt: "It is incumbent on a plaintiff
to state more than conclusory allegations to avoid dismissal of a
claim predicated on a conspiracy to deprive him of his
constitutional rights."). As for discrimination claims, see,
e.g., Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001) (sex
discrimination: "`[B]ald assertions and conclusions of law' are
not adequate, and `a complaint consisting [only of] naked
assertions, and setting forth no facts upon which a court could
find a violation of the Civil Rights Acts, fails to state a claim
under Rule 12(b)(6)'") (citation omitted); Yusuf v. Vassar
College, 35 F.3d 709, 713 (2d Cir. 1994) (racial and sex
discrimination: "[A] complaint consisting of nothing more than
naked assertions, and setting forth no facts upon which a court
could find a violation of the Civil Rights Acts, fails to state a
claim under Rule 12(b)(6)").
Other than in cases statutorily requiring a heightened pleading
standard, the United States Courts of Appeals for the Seventh and
District of Columbia Circuits took a different position pre-Swierkiewicz. As for non-discrimination
claims, see, e.g., S. Austin Coalition Cmty. Council v. SBC
Communs., Inc., 274 F.3d 1168, 1171 (7th Cir. 2001) (antitrust:
"[C]ourts must follow the norm that a complaint is sufficient if
any state of the world consistent with the complaint could
support relief. It is not necessary that facts or the theory of
relief be elaborated") (internal citations omitted); Sinclair v.
Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) (Omnibus Crime
Control and Safe Streets Act of 1968: "The Federal Rules of Civil
Procedure do not require a claimant to set out the precise facts
on which the claim is based"); see also 5A Wright & Miller at
592 ("under the framework of the rules, plaintiff is not required
either to disclose the facts underlying his claim or to limit the
issues he wishes to raise until after he has had an opportunity
to engage in discovery"). As for discrimination claims, see,
e.g., Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)
(race discrimination: "Because racial discrimination in
employment is `a claim upon which relief can be granted,' this
complaint could not be dismissed under Rule 12(b)(6). `I was
turned down for a job because of my race' is all a complaint has
to say."); Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1115 (D.C. Cir. 2000) (race discrimination: "[W]e agree with the
conclusion reached by Judge Easterbrook in Bennett: `Because
racial discrimination in employment is `a claim upon which relief
can be granted,' . . . `I was turned down for a job because of my
race' is all a complaint has to say' to survive a motion to
dismiss under Rule 12(b)(6).").
Not surprisingly, these courts have adhered to their respective
precedents post-Swierkiewicz. As for non-discrimination claims,
see, e.g., Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (§ 1983 claim alleging unlawful seizure
of plaintiff's property: "Rule 8 does not require or permit
district judges to require fact pleading"); Walker v.
Thompson, 288 F.3d 1005, 1008 (7th Cir. 2002) (§ 1983 claim by
prisoner alleging retaliation by prison officials: cases "which
say that `conclusory allegations' of conspiracy, or allegations
that fail to mention an overt act, are not enough to withstand a
motion to dismiss cannot be squared with . . . Swierkiewicz");
Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040-41
(D.C. Cir. 2003) (challenging redistricting under Voting Rights
Act of 1965: "[D]ismissal under Rule 12(b)(6) was improper. . . .
A Rule 12(b)(6) motion is intended to test the legal sufficiency
of the complaint"). As for discrimination claims, see, e.g.,
Shah v. Inter-Continental Hotel Chi. Operating Corp.,
314 F.3d 278, 282 (7th Cir. 2002) (national origin discrimination: "The
plaintiff is not required to plead facts or legal theories or
cases or statutes, but merely to describe his claim briefly and
simply."); Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004)
(religious discrimination: "Indeed, all that a Title VII
complaint has to say to survive dismissal under Rule 12(b)(6) is:
`The plaintiff was terminated from his job because of his
In addressing a racial discrimination claim, the Ninth Circuit
has recently joined the Seventh and D.C. Circuit courts. See
Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir. 2004) ("The
district court[`s] . . . conclu[sion] that the Complaint was
inadequate . . . because it included `only conclusory allegations
of racial discrimination, and . . . fail[ed] to allege any fact
or facts constituting either direct or circumstantial evidence of
discrimination' . . . is inconsistent with Swierkiewicz's
willingness to `allow lawsuits based on conclusory allegations of discrimination to go
forward'") (citation omitted). Prior to Swierkiewicz, the Ninth
Circuit had held that conclusory allegations were insufficient to
withstand a Rule 12(b)(6) motion. As for non-discrimination
claims, see, e.g., Price v. State of Hawaii, 939 F.2d 702, 708
(9th Cir. 1991) (alleging violation of public land trust:
"[C]onclusionary allegations, unsupported by facts, [will be]
rejected as insufficient to state a claim under the Civil Rights
Act"); as for discrimination claims, see, e.g., Williams v.
O'Neill, 2001 WL 1491173 at **2 (9th Cir. 2001) (disability
claim: Plaintiff "failed to allege facts supporting his
conclusory allegations that Defendants were discriminating and
retaliating against him").
In contrast to the Seventh, Ninth, and D.C. Circuits, the First
and Eleventh Circuits have rejected the proposition that
Swierkiewicz should be understood as permitting a plaintiff to
assert mere conclusory allegations in support of a claim. In
Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61
(1st Cir. 2004), the First Circuit stated:
From [Swierkiewicz] we intuit that, in a civil
rights action as in any other action subject to
notice pleading standards, the complaint should at
least set forth minimal facts as to who did what to
whom, when, where, and why although why, when why
means the actor's state of mind, can be averred
generally. As we have said in a non-civil-rights
context, the requirements of Rule 8(a)(2) are minimal
but `minimal requirements are not tantamount to
nonexistent requirements.' . . . [I]n considering
motions to dismiss courts should continue to `eschew
any reliance on bald assertions, unsupportable
conclusions, and opprobrious epithets.'
Id. at 68. The Eleventh Circuit echoed this view in Jackson v.
BellSouth Telecommunications, 372 F.3d 1250
(11th Cir. 2004): "[W]hile Swierkiewicz made
clear that pleading a McDonnell Douglas prima facie case was
not necessary to survive a motion to dismiss, it did not even
remotely suggest that a pleading could survive dismissal when it
consisted of only the barest of conclusory allegations without
notice of the factual grounds on which they purport to be based."
Id. at 1270-71.
In Toussie v. Powell, 323 F.3d 178 (2d Cir. 2003), a case
brought under 42 U.S.C. § 1983 alleging conspiracy to deprive the
plaintiff of due process and equal protection, the Second Circuit
remarked in dicta that it did "not have occasion" to consider
whether its prior statement in Polur (that "[i]t is incumbent
on a plaintiff to state more than conclusory allegations to avoid
dismissal of a claim predicated on a conspiracy to deprive him of
his constitutional rights") "remain[ed] valid in light of
[Swierkiewicz]." Id. at 185 n. 3. The court noted that in
Walker, Judge Posner had "argued that Second Circuit cases,
including Polur . . . `cannot be squared with . . .
Swierkiewicz.'" Id. (citing Walker, 288 F.3d at 1008).
Curiously, in Smith v. Local 819 I.B.T. Pension Plan,
291 F.3d 236, 240 (2d Cir. 2002), an ERISA case decided approximately
three months after Swierkiewicz and ten months before
Toussie, but not referenced in Toussie, the Second Circuit
specifically stated, without mention of Swierkiewicz, that
"[c]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss." Id. at 240.
Subsequent to Toussie, the Second Circuit rendered an
instructive decision in Wynder v. McMahon, 360 F.3d 73 (2d Cir.
2004). There, an African-American New York State Police Officer asserted a race discrimination claim
alleging, inter alia, that he "was required to perform tasks
involving manual labor that white counselors were not required to
perform[,]" that "he was made to stand facing a picture depicting
a Civil War battlefield and a Confederate flag, thereby being
subjected to racial animus[,]" and that "the denial of his
promotion was in retaliation for complaining to the internal
affirmative action officer and the EEOC about such discriminatory
acts[.]" Id. at 79. After concluding that the plaintiff's
complaint was "sufficient to meet the lenient pleading standard
of Rule 8[,]" id. at 80, the court cautioned:
That is not to say, of course, that all aspects of
the complaint will ultimately survive dismissal. For
one thing, there is a critical distinction between
the notice requirements of Rule 8(a) and the
requirement, under Rule 12(b)(6), that a plaintiff
state a claim upon which relief can be granted.
Although, reading the complaint carefully, the
individual defendants can discern which claims
concern them and which do not, the complaint accuses
all of the defendants of having violated all of the
listed constitutional and statutory provisions. As a
result, a series of 12(b)(6) motions to dismiss would
lie to permit each particular defendant to eliminate
those causes of action as to which no set of facts
has been identified that support a claim against
Id. at 80 (original emphasis). The final sentence supports the
notion that if directly confronted with the issue, the Second
Circuit would join the First and Eleventh Circuits, as does this
Court, and conclude that when a heightened pleading standard is
not required (as with Straker's allegation of race
discrimination), a claim that does not contain any supporting
factual allegations cannot withstand a Rule 12(b)(6) motion.
Conceptually, the Court believes that there is a distinction to
be drawn between "fair notice of what the plaintiff's claim is" and "the
grounds upon which it rests[,]" Swierkiewicz, 534 U.S. at 512;
conclusory allegations cannot satisfy the latter. Count II, which
contains no facts supporting the grounds upon which Straker's
claim of race discrimination rests, must therefore be dismissed.
Pursuant to Fed.R. Civ. P. 15(a), "leave (to replead) shall be
freely given when justice so requires[.]" Schlesinger Inv.
P'ship v. Fluor Corp., 671 F.2d 739, 743 (2d Cir. 1982)
(citation omitted). Straker has not requested leave to amend any
of his claims. "[A] district court has no duty to instruct
plaintiffs that they may move to amend their complaint and, at
least in counseled cases, cannot abuse its discretion by failing
to sua sponte grant leave to amend." Oparaji v. City of N.Y.,
1998 WL 432988 at **2 (2d Cir. April 21, 1998) (citing Am.
Express Co. S'holder Litig. v. Robinson, 39 F.3d 395, 401 (2d
Cir. 1994)); see also Anatian v. Coutts Bank (Switz.) Ltd.,
193 F.3d 85, 89 (2d Cir. 1999) ("the district court was not obliged
to grant plaintiffs leave to amend their complaint. While we
recognize that leave to amend should be freely granted . . . we
will not `deem it an abuse of the district court's discretion to
order a case closed when leave to amend has not been sought'")
Nevertheless, the Court may sua sponte grant leave to amend.
See 6 Wright and Miller at 521-22 ("the court, on its own
initiative, may require the parties to amend to avoid
dismissal"). The Court's discretion is "broad[,]" and "its
exercise depends upon many factors, including undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of
amendment, etc." Local 802, Associated Musicians of Greater
N.Y., 145 F.3d at 89 (citing Foman v. Davis, 371 U.S. 178, 182
(1962)); see also Ricciuti v. New York City Transit Authority,
941 F.2d 119, 123 (2d Cir. 1991) (liberal policy regarding leave
to amend applies with "particular strictness" to allegations of
civil rights violations).
Considering all the circumstances, the Court, in the exercise
of its discretion, sua sponte will afford Straker the
opportunity to amend Count II of his Amended Complaint.
C. Count III: 42 U.S.C. § 1983/Contractual Relationship
Count III is vague and unclear. As best the Court can discern,
it alleges that the mere existence of a contractual relationship
between NYCTA and the group of doctors who evaluated Straker
entitles him to relief under § 1983 because that contract was
necessary to or assisted in the alleged violation of his civil
If an allegation or defense is so unclear or vague that the
opposing party cannot reasonably be expected to respond, a party
may move for a more definite statement under Fed.R. Civ. P.
12(e), which provides, in relevant part:
If a pleading to which a responsive pleading is
permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive
pleading, the party may move for a more definite
statement before interposing a responsive pleading.
See also Swierkiewicz, 534 U.S. at 514 ("If a pleading fails to
specify the allegations in a manner that provides sufficient
notice, a defendant can move for a more definite statement under
Rule 12(e) before responding."). See generally 5 Wright and
Miller at 577-80 (1990).
Although NYCTA has not moved for a more definite statement, the
Court may order one on its own initiative. See Alston v.
Parker, 363 F.3d 229, 234 (3rd Cir. 2004) ("The Defendants, or
the District Court on its own initiative, [could] have sought a
more definite statement to resolve any ambiguity or vagueness.");
Bennett, 153 F.3d at 518 ("a district court should keep the
case moving if the claim is unclear, by requiring a more
definite statement under Rule 12(e)"). Because NYCTA cannot
reasonably be expected to respond to Count III in its present
form, the Court sua sponte directs Straker to provide a more
definite statement as to that Count.
Count IV: Rehabilitation Act
The elements of a Rehabilitation Act claim are: (1) the
plaintiff is an individual with a disability within the meaning
of the act; (2) an employer covered by the statute had notice of
the employee's disability; (3) the employee could perform the
essential functions of the job at issue with or without
reasonable accommodation; and (4) the employee suffered an
adverse employment action because of his or her disability. Roda
v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d
NYCTA argues that Straker has not pled facts establishing that
he is an "individual with a disability" under the Rehabilitation Act. As
with the ADA, "an individual with a disability" under the
Rehabilitation Act is one who "(i) has a physical or mental
impairment which substantially limits one or more of such
person's major life activities; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impairment."
29 U.S.C. § 705(20)(B). NYCTA correctly contends that merely
having a medical condition does not make one disabled for the
purposes of the Act. It also correctly observes that Straker has
not identified the major life activity that his herpes condition
Straker alleged that he "is a qualified person suffering from
disability as set forth in the Rehabilitation Act of 1973[;]"
that he "suffered from a debilitating illness and was handicapped
within the meaning of the statute[;]" that he "was qualified as a
train operator[,]" and that "he was discharged under the pretext
that he refused to give a urine specimen but was discharged
because of his handicap." Amend. Compl. at 22. Though short on
detail, Count IV is a far cry from the wholly unsupported
allegation of racial discrimination of Count II. The Court
concludes that Straker has pled sufficient facts to put NYCTA on
fair notice of the nature of his claim. See Wynder,
360 F.3d at 79 (describing "fair notice" as "that which will enable the
adverse party to answer and prepare for trial, allow the
application of res judicata, and identify the nature of the case
so that it may be assigned the proper form of trial") (citing
Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
Accordingly, NYCTA's motion with respect to Count IV is denied.
E. Count V: Duty of Fair Representation Count V alleges that in violation of "federal labor law[,]" TWU
"breached its duty of fair representation before the [TAB]" when
a TWU representative approached one of Straker's physicians and
"instruct[ed] the doctor not to cooperate" during the arbitration
proceedings. Id. at 22-23.
Straker's allegations do not give rise to any cognizable
federal claim. For purposes of federal law, breach of the duty of
fair representation is governed by the Labor Management Relations
Act ("LMRA"). The LMRA, however, does not vest federal district
courts with subject matter jurisdiction over claims by public
employees against their unions for breach of the duty of fair
representation. See Ayres v. Int'l Bhd. of Elec. Workers,
666 F.2d 441, 444 (9th Cir. 1982) ("We hold that section 301(a) of
the Act does not grant this court jurisdiction over the claims of
an individual employed by a political subdivision of a state.");
Cunningham v. Local 30, Internat'l Union of Operating Eng'rs,
AFL-CIO, 234 F. Supp. 2d 383, 395-96 (S.D.N.Y. 2002) (collecting
However, as TWU concedes, "[a] labor organization representing
public sector employees in New York State has a duty of fair
representation under the New York Public Employees' Fair
Employment Act, § 209-a(2)(C)." Defendant TWU's Memorandum of Law
in Support of Motion to Dismiss the Complaint, at 3. See also
Cunningham, 234 F. Supp. 2d at 395 ("New York courts have
recognized a [state law] duty of fair representation owed by
public sector unions.") (citations omitted); Schmitt v.
Hicksville UFSD No. 17, 606 N.Y.S.2d 761, 762 (2d Dep't 1994)
("In order to establish a claim for breach of the duty of fair
representation in violation of Civil Service Law § 209-a(2), it
is necessary to show that the union's conduct was arbitrary, discriminatory,
or in bad faith").
Although Straker has not stated a federal claim, Count V will
be construed as stating a cognizable state law claim. His failure
to cite the correct source of his claim the New York statute
is not fatal. See Wynder, 360 F.3d at 77 (observing that the
Federal Rules' liberal pleading standards "do not permit
dismissal for `failure in a complaint to cite a statute, or to cite the correct one. . . . Factual allegations
alone are what matters.'") (citation omitted). Because Count V
survives (albeit under a different theory), TWU's motion to
dismiss the Count is denied; the Court will retain supplemental
jurisdiction over the state law claim, which perdures. See
28 U.S.C. § 1367(a).
Metropolitan Transit Authority is dismissed as a party. NYCTA's
motion to dismiss is granted as to Counts I and II, with leave to
amend Count II within thirty days of the date of this Memorandum
and Order, and denied as to Counts III and IV; as to Count III,
Straker shall file a more definite statement within thirty days
of the date of this Memorandum and Order; otherwise the Court
will sua sponte dismiss the claim. Since the Court retains
supplemental jurisdiction over Straker's state law unfair
representation claim in Count V, TWU's motion to dismiss that
claim is denied.