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." ...