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Joseph v. Terrence Cardinal Cooke Health Care Center

April 1, 2008


The opinion of the court was delivered by: John G. Koeltl, District Judge


The plaintiff, Marie C. Joseph, brings this action for breach of the collective bargaining agreement, defamation, and breach of the duty of fair representation. The action was originally filed in New York State Supreme Court, New York County, no earlier than September 17, 2007. The defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1331 and 1441 because the dispute arises under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The defendants, Terrence Cardinal Cooke Health Care Center ("TTC"), 1199 SEIU New York's Health and Human Services Union ("1199 SEIU"), and Nieva Bolinas, now move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the claims as time-barred. For the reasons stated below, the motion to dismiss is granted.


In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atlantic Corp., 127 S.Ct. 1955, 1974 (2007); see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).

"Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted . . . ." Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989); see also Fezzani v. Bear, Stearns & Co., Inc., 384 F. Supp. 2d 618, 630 (S.D.N.Y. 2004) ("[I]t is proper to dismiss claims when it is apparent from the complaint and documents referenced therein that they are barred by the applicable statute of limitations.") (citation omitted).

In deciding the motion, the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiffs' possession or the plaintiffs knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).


The plaintiff, a certified nurses' aide, was an employee of TCC and a member of 1199 SEIU from September 2002 to October 2004. (Compl. ¶¶ 6, 12.) On or about October 9, 2004, the plaintiff agreed to work an overtime shift the following day from 7:00 a.m. to 3:00 p.m., in addition to her regularly scheduled shift from 3:00 p.m. to 11:00 p.m. (Id. ¶¶ 7, 8.) On October 10, 2004, the plaintiff reported to work at TCC at 7:02 a.m. Remembering that she had not turned off her gas stove in her apartment, the plaintiff called her apartment and received no answer. The plaintiff then attempted to call her supervisor, Nieva Bolinas, but ultimately did not reach her. After notifying a security guard of her situation, the plaintiff left TCC to turn off the gas stove. (Id. ¶ 8.)

On October 13, 2004, TCC held a meeting with the plaintiff. A union delegate from 1199 SEIU also attended the meeting. The plaintiff learned that she had been suspended and that she should not return to work. (Id. ¶¶ 11, 12.) On October 28, 2004, TCC notified the plaintiff by mail that her employment had been terminated effective October 13, 2004. (Id. ¶ 14.)

On December 16, 2004, TCC held a grievance hearing to address 1199 SEIU's challenge to TCC's termination of the plaintiff pursuant to the collective bargaining agreement between TCC and 1199 SEIU. The plaintiff was present and was represented by 1199 SEIU. (Id. ¶ 41.) TCC denied the plaintiff's grievance and 1199 SEIU determined that the plaintiff's claim should not be arbitrated. (Id. ¶ 41.) The Chapter Hearing and Appeals Board ("Chapter Board") affirmed the decision not to arbitrate on February 9, 2005, and the Division Hearings and Appeals Board affirmed that decision. (Id. ¶¶ 42-43.) The plaintiff was notified of this final decision by letter dated April 21, 2005, which stated:

After reviewing all information presented by you, it is concluded that there is virtually no likelihood of succeeding at arbitration. . . . [T]he decision in this matter is final. . . . We hope you understand that the union cannot effectively pursue the many meritorious grievances that arise if it is unduly burdened with cases that have no realistic prospect of success. (Def.'s Affirmation in Opp. Ex. B.; Compl. ¶ 44.)

By a summons and verified complaint dated September 17, 2007, the plaintiff brought four causes of action in New York State Supreme Court, New York County. She alleged that: (1) she was discharged by TCC "without just cause" in violation of her employment agreement with TCC; (2) TCC placed a message to health care providers stating that the plaintiff had been terminated for cause; (3) in order to justify the plaintiff's termination, Bolinas made a false report that the plaintiff arrived late to work on October 10, 2004, because the train was late; and (4) 1199 SEIU breached its duty of fair representation in failing to arbitrate the plaintiff's grievance.


The plaintiff's first and fourth causes of action form a "hybrid claim" as recognized by the United States Supreme Court in DelCostello v. Teamsters, 462 U.S. 151, 164 (1983). Such a claim alleges that the employer breached a collective bargaining agreement in violation of ยง 301 of the LMRA, and that the union breached its duty of fair representation, a duty implied in the structure of the National Labor Relations Act ("NLRA"). Id. Ordinarily a union employee asserting grievances against an employer must exhaust the remedies provided in the collective bargaining agreement. Id. at 163-64. However, if a union's "discriminatory, dishonest, arbitrary, or perfunctory" decision prevents the employee from invoking certain remedies, this breach of the duty of fair representation should not bar the employee from ...

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