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Esther Olabopo, Pro Se v. 1199 Seiu

March 29, 2011


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


Pro se*fn1 plaintiff Esther Olabopo initiated this action against 1199 SEIU Homecare Employees Pension Fund ("Fund") pursuant to the Employee Retirement Income Security Act ("ERISA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). On May 27, 2010, Defendant moved for summary judgment on the ERISA claim and to dismiss the Title VII claims. For the reasons that follow: (1) Defendant's motion for summary judgment is granted as to Plaintiff's ERISA claim; (2) Defendant's motion to dismiss Plaintiff's Title VII claims is also granted, but the claims are dismissed without prejudice. The Clerk of the Court is directed to hold the closure of this case in abeyance for thirty days. Plaintiff has leave to file an amended complaint (as to the Title VII claims only) that is consistent with this Order by April 28, 2011. Plaintiff's failure to file an amended complaint by that date will result in a dismissal with prejudice.


The Fund is a defined benefit pension plan, administered to comply with the provisions of ERISA. (Def.'s 56.1 Stmt. ¶ 3.) The Fund provides pension and disability benefits to covered Union members in accordance with written Plan Documents. (Id. ¶ 4.) Participating Union employers finance the benefits through contributions on behalf of their employees, pursuant to the terms of individual collective bargaining agreements. (Id. ¶ 5.) Therefore, not all Union employers contribute to the Fund. (Id. ¶ 5.) A Union member only earns credit toward a pension when work is performed for a contributing employer. (SeeTHE 1199 HOME CARE EMPLOYEES PENSION PLAN Ex. B1 § 1.06 [hereinafter "PENSION PLAN"].) Contributing employers submit monthly reports to the Fund regarding the number of hours each Union employee works, and the Fund then allocates pension credits to those employees. (Def.'s 56.1 Stmt. ¶ 7.) When an employee retires, the cumulative number of pension credits earned determines eligibility for benefits.

The Plan calculates credits as follows:

Employment between January 1, 1992 through December 31, 2001 Hours of covered employment during calendar year Pension Credit 1,500 or more hours 1.000 From 1,250 to 1,499 hours .750 From 1,000 to 1,249 .625 From 750 to 999 hours .500 Under 750 hours 0 Employment between January 1, 2002 through the present Hours of covered employment during calendar year Pension Credit 1,000 or more hours 1.000 From 750 to 999 hours .750 From 500 to 749 hours .500 From 250 to 499 hours .250 Under 250 hours 0

Plaintiff is a Union member and Fund participant who worked for both contributing and non-contributing employers. (Def.'s 56.1 Stmt. ¶ 6.) To have qualified for pension benefits, Plaintiff must have earned 5 total years of pension credit, and at least one quarter (1/4) of a pension credit during the contribution period. (Id. ¶ 9; PENSION PLAN Ex. B1. § 3.13.) According to Defendant, and the documents submitted to the court, Plaintiff's hours worked, credits earned, and years of credited services are as follows:

Year Hours Worked Earned Credit 1999 549 0 2000 412 0 2001 0 0 2002 879 .75 2003 42 0 2004 0 0 2005 0 0 2006 0 0 2007 1284 1.00 2008 118 0 Total 1.75

On April 11, 2008, Plaintiff applied for pension benefits based on her employment from 1999 to 2008. (Def.'s 56.1 Stmt. ¶ 8.) On September 28, 2008, Defendant denied Plaintiff's application, finding that she had not earned enough pension credits. (Id. ¶ 9.) Plaintiff appealed that decision, which the Retirement Committee of the Fund denied on April 15, 2009. (Id. ¶¶ 10-14.) Plaintiff initiated this action on March 18, 2010, contesting the denial of pension benefits, alleging employment discrimination against a non-party employer, and claiming that the Fund violated its duty of fair representation.


1. Defendant's Motion to Dismiss

The Fund moves to dismiss Plaintiff's claims arising under Title VII pursuant to Federal Rule of Civil Procedure 12(b)(6). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). 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).

First, Plaintiff claims that United Healthcare, her former employer, discriminated against her on the basis of her race and/or national origin. This claim is dismissed because United Healthcare is not a party to this action. Second, Plaintiff claims that, after reporting to the Union that Stella Orten and Personal Touch terminated her, the Union "did not do anything about it." In order to state a Title VII claim against the Union for breaching its duty of fair representation, Plaintiff must allege, inter alia, that discriminatory animus motivated the Union's action (or inaction). See Carrion v. Local 32B-32J Serv. Employees Intern. Union, AFL-CIO, 2005 WL 659321, at *6 (S.D.N.Y. 2005) ("To establish a prima facie Title VII claim against a union for a breach of its duty of fair representation, a plaintiff must show that (1) the employer violated the collective bargaining agreement with respect to the plaintiff, (2) the union permitted the violation to go unrepaired, thereby breaching the union's duty of fair representation, and (3) there was some indication that the union's actions were motivated by ...

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