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Dorcely v. Wyandanch Union Free School Dist.

September 25, 2007


The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM AND ORDER - - On Union Defendants' Motion to Dismiss (doc. #34)

Presently before the Court is a dismissal motion filed by Defendants Wyandanch Teachers' Association and Peter Noto (the "Union Defendants") pursuant to Federal Rules of Civil Procedure 12(b)(6).*fn1 For the reasons stated below, the Union Defendants' Motion to Dismiss is GRANTED.


Plaintiff, an adult male of Haitian national origin, was employed by the Wyndanch Union Free School District (the "District") from September 2, 2003, until September 18, 2004, the date of his termination, as a school psychologist. (Compl. ¶¶ 4-5.) His first assignment in the District was the Milton L. Olive Middle School. He was subsequently re-assigned to the Dr. Martin Luther King, Jr. Elementary School before his termination. (Id., ¶ 46.) Plaintiff's Complaint asserts violations of Equal Protection and Due Process pursuant to 42 U.S.C. § 1983; violations of Titles VI and VII on account of his race, national origin, and color, and in retaliation for engaging in protected activity; and violations of the First Amendment pursuant to 42 U.S.C. § 1983. With regard to the Union Defendants, Plaintiff alleges:

168. Defendant WTA [i.e., the Wyandanch Teachers' Association], as plaintiff's duly certified representative engaged in a patter [sic] and practice of discriminatory treatment of plaintiff by treating him differently than similarly situated white members by failing to advise him of his rights and failure to challenge unwarranted disciplinary actions and working conditions on his behalf, despite his numerous request [sic] that the union intercede. 169. Defendant union violated plaintiff's equal protection rights, pursuant to Section 1983. * * *

172. Defendant Noto, treated plaintiff differently than white employees by failing to advocate on his behalf and failing to respond to his many requests for assistance in countering the numerous unwarranted disciplinary measures and lack of observations and evaluations, on account of his race and national origin, all in violation of Section 1983. 173. Defendant Noto failed to file grievances on plaintiff's behalf with respect to the lack of observations and evaluations and the recommendation to terminate his employment, all on account of his race and national origin, in violation of Section 1983. (Id., ¶¶ 168-69, 172-73; see also Letter from Harriet A. Gilliam, Esq., to Hon. Denis R. Hurley, U.S. Dist. Judge, E.D.N.Y. (June 28, 2006) (doc. #4) (stating that "the only claims against the union defendants [are] under Section 1983 as set forth in the Fifthteen [sic] and Sixteenth Causes of Action" and "there is no Title VII claim against the union defendants").) These claims are based on the asserted facts that:

Plaintiff made numerous complaints to defendant Noto, requesting that the union intervene with respect to the adverse employments conditions he had experienced . . . since his first day . . . with respect to the unwarranted reprimands and harassment he was receiving ever since his reassignment . . . . Plaintiff also notified the defendant WTA of his requests to defendant Noto for assistance, which also failed to respond. . . . Neither Noto, nor the WTA took any action on plaintiff's behalf to advocate for his rights or to even question administration on the way plaintiff was being treated, while they had taken such action upon behalf of white employees. (Id. at ¶¶ 61-62; see also id. at ¶ 66.) In lieu of an answer, the Union Defendants filed the Motion to Dismiss now under consideration. First, the Union Defendants argue that Plaintiff's § 1983 causes of action against them, i.e., the Fifteenth and Sixteenth Causes of Action, must fail because they are not state actors acting under color of state law. Second, the Union Defendants aver that Plaintiff's so-called "duty of fair representation" ("DFR") claim is barred by the applicable six-month statute of limitation.

In opposition to the Union Defendants' Rule 12(b)(6) argument, the Plaintiff argues that he has "sufficiently allege[d] specific details as to union's actions and omissions in the context of its public function as a public employee's [sic] union governed by the laws of the State of New York." (Pl.'s Opp'n Mem. at 6.) He further asserts that since the Court imposed a stay of discovery, he "cannot determine the extent to which the union may have acted jointly with the school defendants . . . ." (Id. at 7.) Finally, Plaintiff would have the Court discount the Union Defendants' reliance on Mehroff v. William Floyd Union Free School District, 2005 WL 2077292 (E.D.N.Y. Aug. 22, 2005), as distinguishable from the instant case. As to the Union Defendants' DFR statute of limitations argument, Plaintiff disavows any DFR claim. Plaintiff states he "has alleged a violation of his constitutional rights of equal protection and due process relative to the union defendants' discriminatory treatment of him based on his race and national origin, (Pl.'s Opp'n Mem. at 7), and that "contrary to union defendants' assertions, there is no allegation of breach of duty of fair representation." (Id. at 3).*fn2


I. Standard of Review

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). In Bell Atl. Corp. v. Twombly, -- U.S.--, 127 S.Ct. 1955 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41 (1957) that "a complaint should not be dismissed for failure to state a claim 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." Id. at 45-46. The Twombly Court stated that this language "is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." 127 S.Ct. at 1969. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 1274.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotation marks omitted).

The Second Circuit has stated that Twombly does not require a universally heightened standard of fact pleading, but "instead requir[es] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). In other words, Twombly "'require[s] enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., -- F.3d --, No. 06-3128-CV, 2007 WL 2471805, at *2 (2d Cir. Sept. 4, 2007) (quoting Twombly, 127 S.Ct. at 1974)).*fn3 As always, the Court must "accept[] ...

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