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Dupree v. Local 32BJ

August 30, 2010


The opinion of the court was delivered by: John Gleeson, United States District Judge


On April 26, 2010, Dennis J. Dupree filed this pro se complaint alleging that the defendants discriminated against him on the basis of his race, color and age. In June 2010, the New York City Department of Housing Preservation and Development ("HPD") and the Local 32 BJ (the "Union") moved to dismiss Dupree's complaint. Dupree did not file a written opposition to the motions, but rather argued in opposition orally at the argument held before me on August 26, 2010. For the reasons stated below, the defendants' motions are granted.


The following facts are drawn from Dupree's pro se complaint and documents attached to and incorporated by reference in that complaint, and are assumed to be true for the purposes of this motion.

On or about March 15, 2000, Dupree began working as a resident superintendent at a property located at 320 Sterling Street in Brooklyn, New York owned by the HPD. In a letter dated June 9, 2008, Dupree was notified that the Urban Homesteading Assistance Board ("UHAB")-Sterling Street Housing Development Fund Corporation ("HDFC") would be the new owner of the Sterling Street property. Compl. at 25. The letter invited Dupree to apply for continued employment at the property. Id. In a letter dated July 11, 2008, the new property management company, Del-Mar Management Services, informed Dupree that his employment would be terminated as of August 13, 2008. Compl. at 23. In addition, Dupree was directed to "vacate [his] apartment on or before [his] termination date." Id.

On or about July 28, 2008, Dupree filed two complaints with the Union alleging he had been improperly terminated and that he was owed five days of back pay. Compl. at 31, 115. On July 28, 2008, Dupree was notified by two Union representatives that he could not proceed to arbitration with his claims because he "did not have a contract." Compl. at 33, 116.

On August 7, 2008, Dupree filed an unfair labor practices charge against the Union, HDFC and Del-Mar Management Services with the National Labor Relations Board ("NLRB"). On September 24, 2009, Administrative Law Judge ("ALJ") Steven Fish recommended that Dupree's complaint be dismissed in its entirety. Compl. at 134.

On or about October 4, 2009, Dupree filed an administrative charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Compl. at 15-19. On October 21, 2009, Dupree filed a complaint with the New York State Division of Human Rights ("SDHR") alleging that the Union had discriminated against him. Compl. at 20-21. On December 11, 2009, the EEOC issued Dupree a right-to-sue letter. Compl. at 8, 11.


A. Motions to Dismiss -- Standard of Review

Motions to dismiss pursuant to Rule 12(b)(6) test the legal, not the factual, sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, 'the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998))). The standards for reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)are the same. See Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (setting forth both standards).

Accordingly, I must accept the factual allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam), and draw all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

In its recent decision in Iqbal, the Supreme Court offered district courts additional guidance regarding the consideration of motions to dismiss under Rule 12(b)(6). Citing its earlier decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court explained:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the ...

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