The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Stacey Miles commenced this action on March 21, 2007, and filed an amended complaint ("Amended Complaint") on August 21, 2007, against defendants Baruch College, City University of New York ("Baruch"), Professional Staff Congress/City University of New York ("PSC"), a labor union, Kathleen Waldron, officially in her capacity as President of Baruch and individually, Nathaniel Charny, officially in his capacity as PSC's Legal Affairs Director and individually, and Debra Bergen, officially in her capacity as PSC's Director of Contract Administration and individually, alleging that: (1) Baruch breached its contract with plaintiff, by first transferring and then terminating plaintiff; (2) Baruch and Waldron failed to provide procedural due process, pursuant to the New York State Constitution, Article I, §§ 1 and 8, by denying her a pre- or post-termination hearing; (3) Baruch and Waldron failed to provide procedural due process, pursuant to the United States Constitution, Amendment XIV, as made applicable to Baruch and Waldron by 42 U.S.C. § 1983, by denying her a pre- or post-termination hearing; (4) Baruch violated plaintiff's free speech rights, pursuant to the New York State Constitution, Article I § 6, by retaliating against her for reporting improper governmental action; (5) Baruch and Waldron violated plaintiff's free speech rights, pursuant to the United States Constitution, Amendment I, as made applicable to them by 42 U.S.C. § 1983, by retaliating against her for reporting of improper governmental action; (6) Baruch and Waldron violated the United States Constitution, Amendment XIII, as protected by and made applicable to them by 42 U.S.C. § 1981; (7) Baruch violated N.Y. Civil Service Law § 75(b), by retaliating against her for reporting of improper governmental action; (8) PSC, Charny and Bergen breached their fiduciary duty to plaintiff in failing and refusing to represent plaintiff in her grievances with Baruch; (9) PSC, Charny and Bergen breached their duty of fair representation to plaintiff in failing and refusing to represent plaintiff in her grievances with Baruch;*fn1 (10) PSC violated 42 U.S.C. § 1981. Plaintiff seeks damages, reinstatement, back pay and front pay, attorney's fees, and costs. Now before the Court are defendants Baruch's, Waldron's, PSC's, and Bergen's motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.*fn2 For the reasons set forth below, defendants' motions are granted.
The following facts are taken from the pleadings in this action and the parties' submissions in connection with this motion. For the purposes of defendants' Rule 12(b)(6) motions, the facts alleged in the Amended Complaint are assumed to be true.
Plaintiff is a black female resident of New York who was employed by Baruch during the time period relevant to this action. Baruch is a senior college within the City University of New York ("CUNY") system,*fn3 located at One Bernard Baruch Way, New York, New York.*fn4 PSC is a labor union with its principal place of business at 61 Broadway, New York, New York, 10006. Kathleen Waldron was, during the relevant time period, and is the President of Baruch. Nathaniel Charny was, during the relevant time period, PSC's Legal Affairs Director. Debra Bergen was, during the relevant time period, PSC's Director of Contract Administration.
Between August 1991 and November 2006, plaintiff was employed by Baruch College in two capacities, first as an Assistant to the Higher Education Officer and later as a Higher Education Assistant.*fn5 The terms and conditions of plaintiff's employment were set out in a written contract, the Collective Bargaining Agreement ("CBA"), the terms of which included employment of plaintiff for biennial appointments. Among other benefits included in the CBA was membership in PSC. Plaintiff's employment was also subject to the Personnel Rules and Regulations of the City of New York and New York Civil Service Law.
Over the course of her sixteen years at Baruch College, plaintiff was employed without incident and received satisfactory performance reviews.
At some point during her employment, plaintiff discovered alleged financial improprieties and illegal personnel practices at Baruch and reported them in writing to Kathleen Waldron. Shortly thereafter, on October 20, 2006, an unnamed agent of Baruch requested that plaintiff transfer to another position. Plaintiff refused and communicated her refusal in writing to her superiors. Shortly afterwards, Baruch terminated plaintiff's employment. No hearing was held before or after plaintiff's discharge, though a meeting was held at which plaintiff, a friend who was not an attorney, and an attorney for Baruch were present; plaintiff's union representative was not at the meeting, although PSC was copied on the letter scheduling the meeting. PSC also refused to receive, accept and process plaintiff's grievance relating to the proposed transfer and discharge after plaintiff requested representation by the union.
Defendants Baruch and Waldron
A. Lack of Subject Matter Jurisdiction
I turn first to these defendants' argument that the Court lacks subject matter jurisdiction, "since dismissal of an action for lack of subject matter jurisdiction will render all other accompanying defenses and motions moot." Amalgamated Cotton Garment & Allied Industries Retirement Fund v. Youngworld Stores Group, Inc., 2001 WL 314650, at *2 (S.D.N.Y. Mar. 30, 2001); see also Magee v. Nassau County Medical Center, 27 F. Supp.2d 154, 158 (E.D.N.Y. Nov. 13, 1998).
A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). When a defendant moves to dismiss a cause of action pursuant to Rule 12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). For purposes of such a motion, "the allegations in the complaint are not controlling ... and only uncontroverted factual allegations are accepted as true." Id. "All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact-finding by the district court." Id. at 1584. Both the movant and the pleader are permitted to use affidavits and other pleading materials to support and oppose such a motion. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
1. Claims for Damages Against Defendants Baruch and Waldron (Official Capacity)
Defendants Baruch and Waldron, in her official capacity, argue that plaintiff's federal claims are barred by the Eleventh Amendment. Under the Eleventh Amendment's grant of sovereign immunity,*fn6 "non-consenting States may not be sued by private individuals in federal court." Bd. of Trustees v. Garrett, 531 U.S. 356, 363 (2001).*fn7 "This bar exists whether the relief sought is legal or equitable." Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990) (quoting Papasan v. Allain, 478 U.S. 265, 276 (1986)). That immunity extends "not only to a state, but also to entities considered 'arms of the state.'" McGinty v. New York, 251 F.3d 84, 95 (2d Cir. 2001). The bar also applies to state officers sued for damages in their official capacities. Chinn v. City University of New York Sch. of Law, 963 ...