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Alarcon v. CSEA Local 1000.830


September 28, 2010


The opinion of the court was delivered by: Dora L. Irizarry United States District Judge


DORA L. IRIZARRY, United States District Judge

Pro se Plaintiff Michael P. Alarcon brings this action against Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, sued hereunder as CSEA Local 1000.830 ("CSEA"), for violations of Title VII, ADEA, and ADA. Defendant moves to dismiss this action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.*fn1

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The pleading standard under Rule 8 does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A complaint does not "suffice if it tenders "naked assertion[s]‟ devoid of "further factual enhancement.‟" Id. (quoting Twombly, 550 U.S. at 557). On a Rule 12(b)(6) motion, the Court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002).

Plaintiff‟s complaint fails to state a claim for violations of Title VII, ADEA, or ADA. A labor union may be held jointly liable with an employer under federal antidiscrimination laws for discriminating against a member, knowingly acquiescing in the employer‟s discrimination, or inducing the employer to discriminate. See 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456, 1473 (2009) (citation omitted). Plaintiff has provided little factual background to support his allegations of discrimination, and the information that is provided is indecipherable. For example, the complaint states, "Nassau County Dpt. of Park Recreation Museums. Never Had Union Shop Stewards. On Parks Violated Seniority Anti-Discrimination Program. Out of title work. Grievance Health and Safety All Violations Covers by AFL-CIO." (Compl. ¶ 8.) In a letter addressed to the court and attached to the Complaint, plaintiff describes the procedural history of his complaints against the union, and refers to various allegations, including being assigned to inappropriate work and not receiving compensation for work he has done. He also makes the conclusory statement that the delays in "settling this matter" and his physical disability "lead[] me to believe that I am being discriminated against because of Hispanic origin." (Compl. at 6.) However, plaintiff has not alleged any facts in support of these conclusory allegations.

While the instant complaint fails to set forth a cause of action, and could be dismissed at this juncture, in an abundance of caution, plaintiff is granted thirty (30) days from the date of this Order, i.e., by October 28, 2010, to file an amended complaint. Should plaintiff elect to file an amended complaint, plaintiff is directed to comply with Rule 8 of the Federal Rules of Civil Procedure.

Plaintiff is advised that any amended complaint he files will completely replace the original complaint. The amended complaint must be captioned, "Amended Complaint," and shall bear the same docket number as this Order. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. If plaintiff fails to amend his complaint by October 28, 2010, as directed by this Order, and/or the amended complaint fails to correct the deficiencies of the instant complaint, the complaint will be dismissed. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).


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