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August 9, 2005.


The opinion of the court was delivered by: COLLEEN McMAHON, District Judge

Plaintiff Joseph F. LaFauci sues St. John's Riverside Hospital (Park Care Pavilion); Pamela LaFrance, who is the Hospital's Vice President for Human Resources; an entity he identifies in the caption as "1199 National Benefit Fund (Union);" Patrick Forde, an organizer for the 1199 Service Employees International Union (SEIU) (hereinafter "1199" or "the Union"), and Maria Kercado, a Vice President of 1199. LaFauci, a member of 1199, was employed at St. John's for two years and four months. He was then fired — according to LaFauci, because he was disabled; according to the Hospital, because he was repeatedly insubordinate.

Defendants "1199 National Benefit Fund (Union)," Patrick Forde, and Maria Kercado have moved to dismiss the complaint as against them. That motion is granted.

  Background Mr. LaFauci began working for St. John's as a Counselor in the Hospital's in-patient Alcohol and Substance Abuse program on July 16, 2001. (Complaint ("Cplt."), at 3.) On November 14, 2003, LaFauci was terminated. (Cplt., at 19.)

  As a result of his termination by St. John's, LaFauci lost his health coverage. LaFauci is distressed about the loss of his health benefits because he has been extremely ill for well over a decade. LaFauci is co-infected with HIV and Hepatitis C and has cirrhosis of the liver. (Cplt., at 11.) In an April 2004 letter, Dr. David Rubin wrote that LaFauci was also suffering from depression and a wasting syndrome, which "contribut[ed] to his poor functional status." (Cplt., at 14.) LaFauci is currently on the waiting list for a liver transplant at New York-Presbyterian Hospital. (Cplt., at 4, 11.)

  LaFauci objected to his termination and filed a grievance. Hospital administrative staff, LaFauci, and a representative of 1199, held a grievance meeting on January 14, 2004. (Cplt., at 18.) The Union recommended that St. John's rescind LaFauci's termination and allow him to resign instead. The Union also requested compensation for Mr. LaFauci from the date of termination to the date of his grievance hearing. (Cplt., at 19.)

  On January 16, 2004, Pamela LaFrance mailed LaFauci a response to the grievance meeting and indicated that LaFauci's termination would stand. (Id.) She also forwarded a copy of her response to Patrick Forde of Local 1199 Union. (Cplt., at 18, 20.) LaFrance's response indicated:
Mr. LaFauci was terminated for inappropriate behavior/insubordination Nov. 14, 2003, when over a two week period, October 22 to November 8, he repeatedly refused to comply with a new procedure for client pick-up, demonstrating and vocalizing anger. Mr. LaFauci had been repeatedly counseled on the necessity of following departmental procedures in the past. He had also been repeatedly counseled on the impropriety of yelling and cursing in the workplace. Mr. LaFauci further demonstrated his anger during the grievance hearing which was terminated when he threatened his Department Head, Clinical Supervisor and the Vice President for Human Resources.
(Cplt., at 19.)

  LaFauci asked the 1199 Chapter Hearing and Appeals Board to arbitrate his claim, but the Board refused. He then appealed to the Hearings and Appeals Board of the Health Systems Division of 1199, which upheld the decision of the lower board. On May 27, 2004, Eustace Jarrett sent a letter to LaFauci indicating that the Board had reviewed the documents he provided and "concluded that there is virtually no likelihood of succeeding at arbitration." (LaFauci Exh. B, at 10.)

  The Instant Complaint

  Mr. LaFauci is a pro se plaintiff, asserting a number of claims against five defendants. I must, therefore, construe the allegations in his pleading liberally. In trying to make sense of his claims, I have taken into account both LaFauci's written complaint and statements about his claims that he made at the Rule 16 conference held before this Court on May 6, 2005.

  LaFauci alleges that the Hospital Defendants (St. John's and LaFrance) violated Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Family Medical Leave Act of 1993, by ending his employment and by failing to accommodate his disability. LaFauci also placed a checkmark next to the word "retaliation" on his form complaint, but he fails to specify a factual basis for such a claim. The Hospital Defendants have denied these allegations. As against the persons I will call the Union Defendants, La Fauci asserts two claims. First, he maintains that the entity he calls "1199 National Benefit Fund (Union)" was "grossly negligent" in not maintaining his health coverage, because it failed to offer him COBRA benefits after his employment was terminated and failed to pay his health premiums, which he could not afford. Second, he claims that the Union and its named officers breached their duty of fair representation ("DFR") by failing to take his case to arbitration.

  At the outset, I note that there is a problem with the identification of one of the Union Defendants. Plaintiff purports to sue an entity called "1199 National Benefit Fund (Union)." But 1199 SEIU (the Union) and The 1199 National Benefit Fund (Fund) are two entirely different entities. The Fund is the Union's non-profit welfare trust fund, but it is a separate organization from the Union. Thus, there really is no "1199 National Benefit Fund (Union)."

  At the Rule 16 conference, I was advised that plaintiff has served process on the Union and has not effected service on the National Benefit Fund. It is, therefore, the Union that is moving to dismiss, since the Fund is not yet a party to this action.

  Standard of Review

  Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint that fails to state a claim upon which relief can be granted. The standard of review on a motion to dismiss is heavily weighted in favor of the plaintiff. The Court is required to read a complaint generously, drawing all reasonable inferences from the complaint's allegations. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972). "In ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, the court is required to accept the material facts alleged in the complaint as true." Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The Court must deny the motion "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." Stewart v. Jackson & Nash, 976 F.2d ...

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