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United States District Court, S.D. New York

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 plaintiff's possession or that the plaintiff knew of and relied on in bringing suit. See Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).


  The APWU argues that this action should be dismissed because Blake failed to exhaust her administrative remedies by filing a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC), as prescribed by Title VII. See 42 U.S.C. § 2000e-5(e)(1). "A complainant must file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court under Title VII." Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999) (citing 42 U.S.C. § 2000e-5(f)(1)). Filing a charge with the EEOC "serves to notify the charged party of the alleged violation and also brings the party before the EEOC, making possible effectuation of [Title VII]'s primary goal of securing voluntary compliance with its mandates." Id. (quoting Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981)). The timely filing of a discrimination charge with the EEOC within the time prescribed by Title VII, 42 U.S.C. § 2000e-5(e), is not a jurisdictional prerequisite to the commencement of a Title VII action in federal court. See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982); Francis v. City of New York, 235 F.3d 763, 767 (2d Cir. 2000). Rather, it is a condition precedent and "like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes, 455 U.S. at 393.

  Once the EEOC or authorized state agency issues the complainant a right to sue letter, "a civil action may be brought against the respondent named in the charge." 42 U.S.C. § 2000e5(f)(1). A private Title VII action may be brought only against the party named in the EEOC charge. See Vital, 168 F.3d at 619. "Because these charges generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements," the Second Circuit recognized an "identity of interest" exception to this rule in Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). The exception "permits a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge." Id. Four factors determine whether this exception applies:

(1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Id. at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)). In Johnson, the Court determined that dismissal was appropriate because application of these factors showed no identity of interest between the named party and the unnamed party, and the latter had not received notice of the charge against it. See id. at 210-11.

  Blake does not dispute that she failed to file an EEOC complaint against the APWU. Her EEO charge was against the USPS and not the APWU and her right to sue letter was therefore similarly limited. Because the APWU was not named in either instrument, Blake cannot bring a Title VII action against the APWU. See 42 U.S.C. § 2000e-5(f)(1); Vital, 168 F.3d at 619. When one considers the four factors that control the "identity of interest" exception, at least three weigh in favor of dismissal.*fn2 First, Blake was fully aware of the APWU's role at the time she filed her EEO complaint against the USPS and when she filed the investigative affidavit in support of that complaint. In a letter dated September 13, 2001 and addressed to William Smith, President of the Local Union, Blake recounted alleged discriminatory practices by at least one APWU shop steward. (Attached Ex. 2 to Blake's Affirmation in Opp'n to APWU's Mot. to Dismiss) In the investigative affidavit, she detailed the same activity by the APWU stewards as well as the APWU's conduct of the arbitrations. Second, the interests of the APWU and the USPS are sufficiently disparate that the APWU's participation would be necessary to voluntary conciliation with the EEOC. Third, Blake has not alleged that the APWU told her that the APWU and the USPS were one and the same or that her relationship with the APWU somehow required the USPS's participation; nor does either logic or the record so suggest. See Vital, 168 F.3d at 620; Hussein v. Waldorf Astoria, Hotel, Rest. and Club Employees and Bartenders Local #6, No. 99-1652, 2000 WL 16928, at *5 (S.D.N.Y. Jan. 11, 2000); Johnson v. District Council of Carpenters of New York City and Vicinity, AFL-CIO, No. 91-7961, 1995 WL 567426, at *2-3 (S.D.N.Y. Sept. 25, 1995). Further, as in Johnson and Vital, there is no indication that the unnamed party had notice of a Title VII charge against it. Blake has not alleged anything otherwise to support an argument of waiver, estoppel, or equitable tolling of the EEOC filing requirement.

  What Blake has presented as a Title VII claim can perhaps be read, consistent with liberal pleading standards for pro se plaintiffs, as a claim of breach of the duty of fair representation pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. However, such a claim would be barred by the six-month statute of limitations applicable to such actions. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 172 (1983); Carrion v. Enter. Ass'n, Metal Trades Branch Local Union 638, 227 F.3d 29, 32 (2d Cir. 2000). A claim of breach of the duty of fair representation accrues "when the union member `knew or reasonably should have known that [a breach of the duty of fair representation] had occurred.'" Kavowras v. New York Times Co., 328 F.3d 50, 55 (2d Cir. 2000) (quoting Santos v. Dist. Council of New York City and Vicinity of United Bhd. of Carpenters and Joiners of Am., AFL-CIO, 619 F.2d 963, 969 (2d Cir. 1980)); McNair v. NYC Health & Hospital Co., 160 F. Supp.2d 601, 605 (S.D.N.Y. 2001). According to this rule, the limitations period began, at the latest, on November 6, 2002, when the arbitrator issued his decision upholding Blake's permanent removal. See Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 163-64 (2d Cir. 1989) (starting accrual period on date of arbitral decision upholding plaintiff's discharge). On an even earlier date, Blake recounted the events constituting her unfair representation claim in the investigative affidavit supporting her EEOC charge, which she filed on July 11, 2002. (Compl. Ex. H at 5) That the USPS's EEO office did not issue Blake a right to sue letter until June 23, 2003 makes no difference because the APWU was not named as a respondent in the letter or in the EEO charge. Because she did not file the instant claim until October 1, 2003 — almost 11 months after the date of the arbitration decision upholding her removal — a breach of duty of fair representation claim would be time-barred. Blake has offered no facts, and we can discern none from our own review of the record, that justify tolling the statute of limitations under the doctrine of equitable estoppel or of equitable tolling. See Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 49-50 (2d Cir. 1985); Heins v. Potter, 271 F. Supp.2d 545, 553-54 (S.D.N.Y. 2003).*fn3

  Accordingly, Blake's claim against the APWU must be dismissed for failure to exhaust administrative remedies. The APWU's other arguments for dismissal need not be addressed. * * *

  For the reasons set forth above, the complaint is dismissed as to the APWU.


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