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October 6, 2004.


The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Barbara Blake, suing pro se, alleges that her former union, the American Postal Workers Union, AFL-CIO ("APWU"), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2004). Pursuant to Fed.R. Civ. 12(b)(5) and (6), the APWU moves to dismiss Blake's claim. For the reasons set forth below, the APWU's motion is granted.


  What follows is a brief summary of the facts in this case as set forth in Blake's complaint, response to the APWU's motion to dismiss, and attached exhibits. A more detailed account appears in this court's Opinion and Order dated April 15, 2004, dismissing plaintiff's claims against the Postmaster General John E. Potter and United States Postal Service ("USPS") for unfair labor practices and for vacature of the November 6, 2002 arbitration decision upholding Blake's removal from the USPS. See Blake v. Potter, No. 03-743, 2004 WL 830072, at *1-2 (S.D.N.Y. Apr. 15, 2004).

  On August 18, 2001, Blake, then an employee of the USPS, was involved in a physical and verbal altercation with Carlos Figueroa, a co-worker. (Addendum to Compl. at 4) As a result of the altercation, the USPS placed both employees on off-duty status. (Id. at 4-5) On October 22, 2001, while she was on off-duty status, Blake filed a charge of discrimination against the USPS with the Office of Equal Employment Opportunity (EEO) Compliance and Appeals, the USPS's internal equal employment opportunity office, alleging discrimination based on Blake's race and sex, and in retaliation for previous complaints she had lodged with the EEO office. (Id. at 4; Compl. Ex. G) She eventually filed an affidavit supporting the EEO complaint on July 11, 2002. (Compl. Ex. H) On November 23, 2001, the USPS issued Blake a letter of removal, effective January 11, 2002, permanently removing her from her USPS position because of her altercation with Figueroa. (Addendum to Compl. at 5) Figueroa was not permanently removed from his job. (Id.) Both Blake and Figueroa were members of the APWU. (Id.)

  On November 28, 2001, the APWU and USPS held an arbitration hearing to determine whether Figueroa's placement on off-duty status was proper. (Id. at 5) During this hearing, the APWU represented that Blake was the aggressor in the altercation. (Id. at 6) On January 19, 2002, the arbitrator found that Figueroa's off-duty placement was justified but that he should have been returned to work as soon as possible because Blake bore major responsibility for the altercation. (Id. at 5)

  The USPS and APWU held an arbitration hearing on February 28, 2002, to determine whether Blake's placement on off-duty status was appropriate. (Id. at 7) The arbitrator eventually referred Blake's case to another hearing to review Blake's permanent removal from the USPS. (Id.)

  The APWU scheduled this second arbitration originally for June 18, 2002. (Compl. Ex. L) Blake became dissatisfied with the APWU's representation in the first hearing, and requested on June 6 that outside counsel be allowed to represent her in lieu of the APWU at the APWU's expense. (Attached Ex. B to Blake's Affirmation in Opp'n to APWU's Mot. to Dismiss, at 3) On June 11, the APWU removed the hearing from the arbitration calendar in light of Blake's requests. (Id. at 4) Eventually, the APWU denied her request to pay her attorney, but on June 28 allowed her to retain outside legal counsel, Lloyd Somer, for the pending removal hearing. (Id. at 10) The APWU granted the request after Blake accepted two conditions in writing, whereby she agreed to (i) pay all costs and fees arising from Somer's representation, and (ii) waive "any and all claims" against the APWU and its officials "related to or in any way concerning this grievance." (Attached Ex. G to Blake's Affirmation in Opp'n to APWU's Mot. to Dismiss) Under the waiver, Somer agreed that (i) he would be representing the APWU at the arbitration hearing, (ii) he had a duty to provide Blake with fair representation, and (iii) he understood that Blake had waived any and all claims she might have against the APWU and its officials related to this grievance. (Id.)

  Somer represented Blake at the arbitration hearing, which was held on September 4 and 6, 2002. (Addendum to Compl. at 7) On November 6, 2002, the arbitrator upheld Blake's termination, concluding that Blake was the aggressor in the altercation with Figueroa and her reinstatement "would create an unreasonable and unwarranted risk for the safety of others."*fn1 (Attached Ex. 3 to Decl. of Robert L. Tunstall ("Tunstall Decl."), at 12)

  On June 20, 2002, while scheduling for the second hearing was pending, Blake filed a charge of unfair labor practices against the APWU with the National Labor Relations Board (NLRB), claiming that the APWU had taken "a position against [her] in her suspensions arbitration in February 2002 and failed and refused to properly represent [her] by taking her [removal hearing] off the arbitration calendar" because she had requested that the APWU pay for her outside counsel. (Compl. Ex. L) On August 13, 2002, the NLRB notified Blake that it refused to issue a complaint against the APWU because it concluded that the APWU had not violated the National Labor Relations Act either by its representation of Blake or by its temporary removal of her hearing from the arbitration calendar. (Attached Ex. C to Blake's Affirmation in Opp'n to APWU's Mot. to Dismiss) Blake appealed the NLRB's decision. (Id.) On December 10, 2002, Blake's appeal from that determination was denied. (Id.)

  On June 23, 2003, the USPS's Office of EEO Compliance and Appeals ultimately denied Blake's charge against the USPS and issued her a right to sue letter which allowed her to file a complaint against the USPS in federal court. (Compl. Ex. P) On October 1, 2003, Blake filed the instant action against the USPS and APWU, asking the court "to grant her permission to re-open" her original EEO charge and raise "new issues" arising from alleged discriminatory practices by both defendants. (Addendum to Compl. at 8)


  This court has subject matter jurisdiction pursuant to Title VII and 28 U.S.C. §§ 1331 & 1343. Dismissal of a claim is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Id. In deciding a motion to dismiss, this court may consider documents referenced in the complaint and documents that are in the ...

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