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Bibi Nazeema Husain v. Smarte Carte Inc


May 2, 2011


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


Plaintiff Bibi Nazeema Husain ("plaintiff") brings this pro se action against her former employer Smarte Carte Inc. ("defendant"), alleging harassment, discrimination, and retaliation all due to plaintiff‟s union activity. (ECF No. 1, Compl. at 1.) Defendant moves to dismiss plaintiff‟s complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that plaintiff‟s claims are subject to the exclusive jurisdiction of the National Labor Relations Board (the "NLRB").*fn1 (See generally ECF No. 23, Def.‟s Mem. of Law in Supp. of Its Mot. to Dismiss Pl.‟s Compl. ("Def. Mem.").) Plaintiff did not oppose defendant‟s motion.*fn2

For the following reasons, defendant‟s motion to dismiss is granted.


According to plaintiff‟s complaint, plaintiff was hired by defendant on March 30, 2007. (Compl., "To Whom it May Concern" attachment ("Attachment") at 1.) Plaintiff alleges that between October 30 or 31, 2008 through her termination on April 15, 2010, she was subject to discrimination, harassment, and retaliation by defendant "due to [plaintiff‟s] signing for the union." (Compl. at 3 & Attachment at 1-6.) Specifically, plaintiff alleges that, as a result of her union activity, she (1) "became constant victim after being labeled of getting union on board;" (2) suffered "unfavorable treatment;" (3) was treated on unequal terms with respect to lunch break time; and (4) was asked to do things in violation of the Port Authority‟s Rules and Regulations. (Compl. at 4.)

On May 5, 2009, plaintiff filed a charge with the NLRB alleging violations of sections 8(a)(1), (a)(3) and (a)(4) of the National Labor Relations Act ("NLRA"), 28 U.S.C. §§ 151, et seq. (Kaye Aff., Ex. B, Pl.‟s May 5, 2009 NLRB Charge Against Employer ("Pl. May 5, 2009 NLRB Charge").) The charge specifically alleged that "[o]n or about February 9, 2009, [defendant] issue a written warning to [plaintiff] because of her activities on behalf of Local 74, United Service Workers Union, IUJAT," and that "[o]n or about February 20, 2009, [defendant] suspended and issued a written warning to [plaintiff] because of her activities on behalf of the Union, and because she gave testimony at a hearing before the NLRB." (Id.) On June 12, 2009, the NLRB dismissed plaintiff‟s charge after concluding that further proceedings were not warranted. (Kaye Aff., Ex. C, NLRB Dismissal Notice dated June 12, 2009.)

On December 21, 2009, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination, harassment, and retaliation "due to [plaintiff‟s] signing for the union." (Kaye Aff., Ex. D, Pl.‟s EEOC Charge, No. 520-2010-00683 ("Pl. EEOC Charge").) On February 16, 2010, the EEOC dismissed plaintiff‟s charge, finding that there was no evidence to "conclude that [plaintiff was] subjected to an adverse employment action motivated by discriminatory animus as defined by [EEOC] guidelines and federal law." (Kaye Aff., Ex. A, Compl., Dismissal and Notice of Rights dated February 16, 2010.)

Defendant terminated plaintiff‟s employment on April 15, 2010 (see Attachment at 6), and, on April 23, 2010, plaintiff commenced the instant action in the United States District Court for the Eastern District of New York, on a form complaint asserting claims of "harassment, discrimination, and being accused of getting [the] union on aboard [sic]." (Compl. at 1.)

Thereafter, on April 27, 2010, plaintiff filed a second charge with the NLRB, alleging that "[defendant] unlawfully terminated [plaintiff] because she had assisted the Union and engaged in other union and/or protected concerted activities," in violation of section 8(a)(3) of the NLRA. (Kaye Aff., Ex. E, Pl.‟s April 27, 2010 NLRB Charge Against Employer ("Pl. April 27, 2010 NLRB Charge").) Defendant represents that this retaliation charge is currently pending before the NLRB. (Def. Mem. at 2.)


I. Rule 12(b)(1) and Pro Se Submissions

Federal Rule of Civil Procedure 12(b)(1) allows a district court to dismiss a case for lack of subject matter jurisdiction if the court ""lacks the statutory or constitutional power to adjudicate [the case].‟" Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (quoting Makarova, 201 F.3d at 113). Indeed, it is well established that the plaintiff asserting subject matter jurisdiction has the burden of proving that jurisdiction exists by a preponderance of evidence when opposing a 12(b)(1) motion to dismiss. Luckett, 290 F.3d at 497 (citing Makarova, 201 F.3d at 113). In resolving a 12(b)(1) motion to dismiss, the court "must accept as true all material factual allegations in the [complaint]," but will not draw from the pleadings inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). In deciding the question of subject matter jurisdiction, the district court is free to refer to evidence outside the pleadings. Luckett, 290 F.3d at 496-97 (citing Makarova, 201 F.3d at 113).

A court must liberally construe a pro se litigant's papers when considering a motion to dismiss under Rule 12(b)(1). See, e.g., Melnitzky, 2007 WL 1159639, at *6; Jones v. Nat'l Commc'n and Surveillance Networks, 409 F.Supp.2d 456, 465-66 (S.D.N.Y. 2006). As plaintiff is proceeding pro se, the court will construe plaintiff‟s submissions liberally "to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal citation and quotation marks omitted).

II. Preemption of Claims Brought Under the NLRA

The NLRB has exclusive jurisdiction over claims of unfair labor practices under sections 7 and 8 of the NLRA. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244-45 (1959); Sullivan v. Am. Airlines Inc., 424 F.3d 267, 277 (2d Cir. 2005). Consequently, "[w]hen an activity is arguably subject to section 7 or section 8 of the [NLRA], the states as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board."*fn4 Garmon, 359 U.S. at 245.

Plaintiff‟s complaint, liberally construed, asserts claims arising exclusively under the NLRA. Although plaintiff does not cite a particular statute in her complaint, it appears that she is attempting to state a claim under section 8 of the NLRA, which provides in relevant part that: "[i]t shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title . . .(3) by discrimination in regard to . . . any term or condition of employment to encourage or discourage membership in any labor organization . . . (4) to discharge or otherwise discriminate against an employee because he [or she] has filed charges or given testimony under this subchapter . . ." 29 U.S.C. §§ 158(a)(1), (a)(3), (a)(4).

Indeed, the Attachment to plaintiff‟s form complaint details instances of discrimination, harassment, and retaliation, all of which plaintiff attributes to her union activity.*fn5 (See Compl., Attachment at 6 ("All the above incidences are clear indication of discrimination, harassment and retaliation due to my signing for the union.").) Further, as noted, in both of plaintiff‟s charges filed with the NLRB, she specifically asserted claims pursuant to section 8(a)(1), (a)(3) and (a)(4) of the NLRA. (See Pl. May 5, 2009 NLRB Charge; Pl. April 27, 2010 NLRB Charge.) Moreover, although plaintiff filled out a form complaint, which lists causes of action arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990, plaintiff did not check any of the corresponding boxes.*fn6 (See Compl. at 1.) Instead, below the list of available causes of action, plaintiff handwrote and starred "Harassment[], [d]iscrimination and being accused [of] getting union on aboard [sic]." (Id.)

Finally, the court has scoured plaintiff‟s filings before the NLRB, the EEOC, and before this court, but is unable to find any allegation even suggesting that plaintiff was harassed, discriminated, or retaliated against on the basis of her membership in any protected class (e.g. race, color, gender, religion, national origin, age, or disability), or any other indicia that this court has subject matter jurisdiction over plaintiff‟s claims. Thus, liberally construed, plaintiff‟s Complaint contains, at most, claims pursuant to section 8 of the NLRA. This court, however, lacks subject matter jurisdiction to entertain plaintiff‟s claims because the NRLB has exclusive jurisdiction over these claims. Accordingly, the complaint must be dismissed pursuant to Rule 12(b)(1). See Leslie-Ann Benjamin v. HHC, 07-CV-2487, 2009 WL 2959622, at *11 (E.D.N.Y. Sept. 11, 2009), aff'd, 394 Fed. App‟x 829 (2d Cir. Oct. 4, 2010) (holding, inter alia, that "the court lacks subject matter to entertain plaintiff's NLRA claims, as the National Labor Relations Board has exclusive jurisdiction over such claims" (citing Sullivan, 424 F.3d at 277)); Moore, 2008 WL 819049, at *8 ("To the extent plaintiff alleges he was discharged by [his employer] in retaliation for the grievances and NLRB complaint that he filed, his claim falls squarely within the purview of section 8 of the NLRA and therefore, exclusive jurisdiction must rest with the NLRB . . .."); Commer v. Am. Fed'n of State, County and Mun. Emps., 272 F. Supp. 2d 332, 339 (S.D.N.Y. 2003) aff'd, 390 F.3d 203 (2d Cir. 2004) ("To the extent that [plaintiff] intends to make a claim under the NLRA . . . that claim is dismissed because the Court does not have jurisdiction over actions under § 8 of the NLRA. The NLRA preempts state and federal court jurisdiction of conduct which is arguably prohibited under either § 7 or § 8 of the NLRA.").

III. Leave to Amend

Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint should be "freely given when justice so requires." Fed. R. Civ. P. 15(a). However, it is "well established that leave to amend a complaint need not be granted when amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) ("[M]otions to amend should generally be denied in instances of futility.")

In the present case, amendment to plaintiff‟s complaint would be futile. As explained above, all of plaintiff‟s allegations of discrimination, harassment, and retaliation relate to her union action, and thus must be resolved by the NLRB. This court accordingly does not have jurisdiction over the claims asserted in plaintiff‟s complaint. Moreover, plaintiff has not alleged or suggested that she could allege any other facts that would establish that she suffered a wrong over which this court would have jurisdiction. See, e.g., Peterec-Tolino v. New York, 364 Fed. App‟x 708, 711 (2d Cir. Feb. 8, 2010) (affirming a district court‟s decision to dismiss a pro se complaint sua sponte without leave to amend where court found amendment would be futile because plaintiff could not sue in federal court for the federal claims he asserted in his complaint, nor had plaintiff "alleged or suggested that he could allege any other facts that would establish that he suffered a wrong that could be remedied in federal district court"); see also HHC, 2009 WL 2959622, at *11 (denying leave to amend with respect to plaintiff‟s NLRA claims because the court lacked subject matter jurisdiction over such claims and any asserted amendments would be futile). Thus, plaintiff‟s complaint is hereby dismissed without leave to amend.


For the foregoing reasons, defendant‟s motion to dismiss pursuant to Rule 12(b)(1) is granted and plaintiff‟s complaint is dismissed with prejudice. The Clerk of Court is respectfully requested to enter judgment accordingly and to close this case.

By May 4, 2011, the defendant shall serve a copy of this Memorandum & Order with the plaintiff and file certificate of service on ECF.


KIYO A. MATSUMOTO United States District Judge Eastern District of New York

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