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Ricardo Llanos v. the Brookdale University Hospital and

March 2, 2011


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


On April 19, 2010, Plaintiff Ricardo Llanos filed this action against the Brookdale University Hospital and Medical Center ("Brookdale"), Sodexho Marriot Health Care Services ("Sodexho"), and Service Employees International Union Local 1199 AFL-CIO (the "Union"). Plaintiff alleges that, pursuant to Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. §185, Brookdale wrongfully terminated him in violation of the Collective Bargaining Agreement ("CBA"), and that the Union violated the CBA and breached the duty of fair representation. Plaintiff further alleges the Union and Sodexho violated his civil rights under 28 U.S.C. § 1343. Brookdale, Sodexho, and the Union move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim.


Plaintiff alleges that Brookdale employed him as a "floating housekeeper" in its housekeeping department. (Compl. ¶ 15.) Plaintiff further alleges that Brookdale hired Sodexho as an independent contractor to perform cleaning services. (Compl. ¶¶ 16-18.) Plaintiff alleges that Brookdale delegated its duty to supervise employees to Sodexho and that Brookdale‟s delegation of duties was not "included in the Collective Bargaining Agreement and was not ratified by the" union membership. (Compl. ¶ 18.)

Plaintiff further alleges that, on April 7, 2009, Peter Ortiz, an employee of Sodexho, witnessed Plaintiff "urinating in the "trash area‟ behind Brookdale Hospital." (Compl. ¶ 22.) Ortiz reported the incident to Lloyd Bailey, another employee of Sodexho, and Bailey directed Ortiz to fire Plaintiff. (Compl. ¶¶ 22-23.) Ortiz sent Plaintiff a letter on Brookdale letterhead stating that Plaintiff was terminated. (Compl. ¶ 24.)

Plaintiff further alleges that, upon information and belief, Brookdale and the Union knew that Bailey "harbored and harbors animous and resentment towards plaintiff stemming from Bailey‟s bitter and acrimonious divorce, of April 7, 2003, from plaintiff‟s wife‟s sister." (Compl. ¶ 35.) Plaintiff alleges that, upon information and belief, Bailey‟s current wife was transferred to the housekeeping department where she performs the duties Plaintiff formerly performed. (Compl. ¶¶ 36-37.)

Plaintiff alleges that the Union advised Plaintiff that it received notice of Plaintiff‟s final written termination from Brookdale and that, if Plaintiff believed that he had grounds to grieve the action, he should submit a request. (Compl. ¶ 45.) Plaintiff did not describe the grievance process, nor did he submit a copy of the CBA as an exhibit to the complaint. However, it appears that, like many other collective bargaining agreements, there is a multi-step process where the employee is able to present the grievance to the union in order for the union to determine whether it believes that arbitration is appropriate.

Plaintiff alleges that he submitted a request, and a "Step One" hearing was conducted on May 27, 2009. (Compl. ¶ 47.) Plaintiff further alleges that a "Step Two" proceeding was conducted on July 1, 2009 before "Chapter Hearing and Appeals Board of Brookdale Hospital." (Compl. ¶ 48.) The Union Contract Administrator informed Plaintiff that the Chapter Hearing and Appeals Board decided that the case should not be submitted for arbitration. (Compl. ¶ 49.) Plaintiff advised the Union that he wished to appeal the decision. (Compl. ¶ 50.) The Union informed Plaintiff that "The Division Board has determined to uphold the decision of the Union not to arbitrate." (Compl. ¶ 51.)

Plaintiff asserts that, by relinquishing its supervisory duties under the CBA, Brookdale violated the CBA. (Compl. ¶ 30.) Plaintiff also contends that, by failing to challenge Plaintiff‟s termination and refusing to arbitrate, the Union "violated plaintiff‟s rights under" the CBA and breached its duty of fair representation. (Compl. ¶¶ 31, 52.) Plaintiff further contends that Sodexho and the Union violated Plaintiff‟s civil rights pursuant to 28 U.S.C. § 1343.


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). A plaintiff‟s obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of a cause of action‟s elements will not do. Twombly, 550 U.S. at 555.

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). The court may only consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff‟s possession or that the plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).



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