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Dennis v. Local 804

May 27, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge*fn1


Plaintiff Clive Dennis ("Dennis") filed a Complaint against Defendants United Parcel Service Inc. ("UPS") and Local 804 L.B.T. Union ("Union") that principally brought claims against UPS alleging race/national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, New York State Human Rights Law ("NYSHRL") and the New York City Administrative Code. The Complaint alleged a single cause of action against the Union for unfair representation. Dennis alleges that the legal representation that the Union provided in connection with an arbitration proceeding relating to Dennis's grievance against UPS was so deficient as to have been discriminatory in itself. In an Opinion and Order dated November 20, 2008 ("November 20 Order"), this Court granted UPS's motion to dismiss all claims against it pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Union has now likewise filed a motion to dismiss Dennis's claim against it.*fn2 For the reasons set forth below, the Union's motion is granted.


The facts of this case were discussed at length in the November 28 Order, and familiarity therewith is presumed. See Dennis v. United Parcel Serv. Inc., No. 07 Civ. 9754 (HB), 2008 WL 4945634, at *1-3 (S.D.N.Y. Nov. 20, 2008). The facts are repeated here only to the extent they are relevant to the Union's instant motion to dismiss.

Dennis began to work for UPS in 1990; his employment was governed by a collective bargaining agreement ("CBA") between UPS and the Union. Complaint ¶¶ 6, 14. Following termination of his employment as a package truck driver at UPS in June 2005, Dennis filed his first charge of discrimination with the New York State Division of Human Rights ("NYSDHR") against UPS in February 2006. See UPS's Answer Ex. 1. Ultimately, the parties settled the matter, and Dennis's employment was reinstated in exchange for his release of all claims against UPS that arose before April 13, 2006. See UPS's Answer Ex. 2. Thereafter, on October 6, 2006, UPS dispatched Dennis to pick up and deliver three packages. Complaint ¶ 20. Dennis alleges he picked up the packages, but upon return to his truck, he found it blocked by another vehicle. Id. ¶¶ 21-22. Dennis left the packages on the street unattended while he proceeded to "run around" looking for the driver to have him move his vehicle. Id. ¶ 22. While he stepped away from the packages, one of them went missing. Id. ¶ 23.

Following an investigation of the incident, UPS terminated Dennis's employment on October 19, 2006. UPS's Answer Ex. 4. The Union challenged the termination on Dennis's behalf and an arbitration proceeding commenced under the CBA; Dennis was permitted to continue to work while the arbitration proceeding was pending. UPS's Answer Ex. 5. On January 7, 2007, the arbitrator held that UPS had "just cause" to terminate Dennis's employment. UPS's Answer Ex. 4. The arbitrator's decision detailed the investigation UPS had conducted after the incident with the packages, the testimony of numerous witnesses, and the contents of the surveillance tape that had captured Dennis's actions on the day of the incident. Id. After hearing Dennis's testimony and the testimony of the witnesses and reviewing the record, the arbitrator found overwhelming evidence of Dennis's dishonesty. Id. Under the terms of the CBA, dishonesty was a ground for dismissal; accordingly, on January 15, 2007, as a result of the arbitrator's decision, UPS terminated Dennis's employment. UPS's Answer Ex. 6. After filing yet another charge against UPS with the NYSDHR and receiving a notice of right to sue, Dennis filed his Complaint in this action on November 2, 2007. He was represented by counsel at the time he filed his Complaint, but has been proceeding pro se since June 2, 2008.


Initially it should be noted that the Union's motion does not state explicitly whether it seeks dismissal pursuant to Rule 12(b)(6) or Rule 12(c) of the Federal Rules. However, motions under these two provisions are governed by the same legal standard. In re Ades & Berg Group Investors, 550 F.3d 240, 243 n.4 (2d Cir. 2008) (citing Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)). Thus, to survive a motion to dismiss under either Rule 12(b)(6) or Rule 12(c), a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of a motion to dismiss, a court must accept the facts alleged in the complaint as true, even if doubtful in fact, and draw all reasonable inferences in favor of the nonmoving party. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008); United Res. Recovery Corp. v. Ramko Venture Mgmt., 584 F. Supp. 2d 645, 651 (S.D.N.Y. 2008). However, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). In deciding a motion to dismiss, the Court must apply 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). This standard requires "factual allegations sufficient 'to raise a right to relief above the speculative level.'" Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008) (quoting Twombly, 550 U.S. at 555).


There is a true dearth of factual allegations relating to the Union contained in Dennis's Complaint. The extent of the allegations involving the Union's alleged wrongdoings are as follows: that the Union "breached its collective bargaining agreement with plaintiff by unfairly representing plaintiff at the arbitration hearing in this matter," Complaint ¶ 30; and that the Union's "unfair representation was so pervasive and purposefully done to aid defendant UPS's discrimination against the plaintiff because of his color . . . and national origin," id. ¶ 31. The single cause of action alleged against the Union is denoted as "Unfair Representation." As the Second Circuit has recognized, "[w]hen a union moves to dismiss an action against it, federal labor policy requires courts to construe liberally allegations that the union breached the duty of fair representation owed to its members." Eatz v. DME Unit of Local Union No. 3 of the Int'l Bhd. of Elec. Workers, AFL-CIO, 749 F.2d 29, 30 (2d Cir. 1986). Accordingly, this Court will interpret the Complaint to have asserted all possible claims that it can reasonably be interpreted to have asserted. Here, Dennis may have asserted two possible claims:

(1) a "hybrid" claim for unfair representation under section 301 of the National Labor Relations Act, 29 U.S.C. § 185; or

(2) a free-standing claim against the Union for breach of its duty of fair representation.*fn3

A. Statute of Limitations

Before reaching the merits of these claims, it should be noted (although the Union did not argue as much in its motion) that Dennis's unfair representation is time-barred, and should be dismissed on that basis alone.*fn4 In its seminal case DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 (1983), the U.S. Supreme Court held that the applicable statute of limitations for hybrid claims under § 301 is the six-month limitations period set forth in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Id. at 171; see also Marrero v. City of N.Y., 02 Civ. 6634 (DLC), 2003 U.S. Dist. LEXIS 4664, at *10 (S.D.N.Y. Mar. 31, 2003). The Second Circuit subsequently held that "[d]ue to the undeniable resemblance and substantial overlap between unfair labor practices and breaches of the duty of fair representation, [it] read[s] DelCostello to require that the § 10(b) six-month limitations period also be applied to unfair representation claims standing alone." Eatz, 794 F.2d at 33; Ali v. New York City Transit Auth., 96 CV 2655 (SJ), 1998 U.S. Dist. LEXIS 19351, at *6-7 (E.D.N.Y. Nov. 6, 1998). A cause of action alleging breach of the duty of fair representation accrues when the plaintiff knows or reasonably should know that a breach of that duty has occurred. Eatz, 794 F.2d at 33; Hussein v. Sheraton N.Y. Hotel, 100 F. Supp. 2d 203, 207 (S.D.N.Y. 2000). Where an arbitration proceeding is held, the claim accrues when the arbitrator issues his or her decision or the arbitration proceeding is otherwise closed. See Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 163 (2d Cir. 1989); Ruffolo v. Bevona, 96 Civ. 3223 (PKL), 1997 U.S. Dist. LEXIS 2109, at *6-9 (S.D.N.Y. Mar. 3, 1997). Here, Dennis's claim against the Union for unfair ...

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