The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Sharon Gorenflo ("plaintiff") brings suit pursuant to the Labor Management Relations Act ("LMRA"), § 301, as amended 29 U.S.C. § 185, against the following defendants: Penske Logistics, LLC ("Penske"); Mark Cole, Logistics Center manager for Penske; Barbara Miletics, Human Resources Representative for Penske; Thomas Quinn, a commercial truck driver employed at the same facility as was plaintiff; Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (the "Union"); Joseph Svingala, the Union's Vice President; and Michael Hitchcock, New York area representative for the Union. Plaintiff additionally asserts in her complaint that her claims are also brought pursuant to 42 U.S.C. §§ 1981 and 1983. Because plaintiff has not pled any allegations of racial discrimination or action under color of law, plaintiff's suit will be converted to a LMRA claim sua sponte, and her §§ 1981 and 1983 claims will be dismissed to the extent they are asserted.
Plaintiff asserts three causes of action in her complaint. First, plaintiff alleges breach of contract against defendants Penske and the Union for disciplining and eventually terminating her without just cause in violation of the Collective Bargaining Agreement (the "CBA") between the Union and Penske. Second, plaintiff brings a breach of contract claim for the wrongful termination of employment without just cause in violation of the CBA against all defendants. Third, plaintiff alleges defendants Svingala, Hitchcock, and the Union breached their duty of fair representation owed pursuant to the CBA.
Defendants Penske, Cole, Miletics, and Quinn (hereinafter referred to collectively as "defendants") move to dismiss all claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants contend that New York State's election of remedies doctrine bars plaintiff from bringing her suit in federal court because she previously filed a complaint before the New York State Division of Human Rights. Alternatively, defendants Cole, Miletics, and Quinn argue that the claims against them must be dismissed because they were not signatories to the CBA, and in any event, plaintiff failed to make timely service upon them within 120 days of the filing of her complaint as required by the Federal Rules of Civil Procedure. Plaintiff opposes defendants' motion. Defendants Svingala, Hitchcock, and the Union have not filed motions in relation to plaintiff's claims. Accordingly, plaintiff's third cause of action is not presently at issue.
Oral argument was heard on November 21, 2008. Decision was reserved.
Plaintiff was employed as a Commercial Driver's License-Class A ("CDLA") truck driver for Penske from April 2, 2006 until her termination on March 1, 2008. During that time, plaintiff was the only gay female CDLA truck driver within the company. Plaintiff alleges she was subject to repeated acts of discrimination and harassment as a result of her gender and sexual orientation upon her assignment to the delivery route for George Weston Bakeries ("Weston) in October of 2006.
On September 12, 2007, plaintiff was suspended for ten days without pay after being accused of misconduct. The nature of the accusations changed several times, and plaintiff immediately filed a union grievance challenging the suspension. The accusations were later found to be unsubstantiated, and plaintiff was told she would be paid five days back pay for the ten day suspension. In response, plaintiff informed her Union that she wished to arbitrate her grievance so that she be paid for each of the ten days she was suspended. Plaintiff alleges the Union refused to proceed to arbitration and ordered her to sign a statement indicating her agreement to be paid for only five days back pay. Plaintiff refused to sign any statement.
On October 11, 2007, plaintiff met with Investigator Robert Ferry of the New York State Division of Human Rights (the "DHR") to discuss the filing of a complaint for the remaining five days of pay and other workplace related issues. On January 10, 2008, plaintiff was disciplined as a result of allegations made by Weston employees that she drove her tractor-trailer without hooking up her safety lights and left the loading door to Weston's facility unlocked. Plaintiff alleges her possession of the Weston door key at the time in question demonstrates it was physically impossible for her to leave the door unlocked as the door's unique locking mechanism requires her to re-lock the door before the key may be removed. Plaintiff also challenges the accusation as to her safety lights because the witness admits he cannot identify her. After plaintiff learned that Penske would not dismiss the disciplinary charges and that such charges could form a basis for her termination, she filed another grievance with her Union challenging the charges.
On January 24, 2008, plaintiff received a follow-up letter as a final warning that further customer dissatisfaction with her performance would result in her immediate termination. On February 28, 2008, plaintiff was again informed that Weston was dissatisfied with her performance. Plaintiff alleges she was never provided with a reason for Weston's dissatisfaction. As noted above, she was terminated on March 1, 2008.
On March 26, 2008, plaintiff filed a complaint with the DHR alleging unlawful discrimination and a hostile work environment in violation of the New York Human Rights Law and breach of the duty of fair representation owed by plaintiff's Union pursuant to the CBA. Plaintiff named the same defendants in her DHR complaint as are named in her federal suit with exception to Weston and Weston's Distribution Manager, Christopher Corlyon, who were named only in plaintiff's DHR complaint.
A. Motion to Dismiss Pursuant to ...