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Robert Pilchman v. American Federation of

September 29, 2011

ROBERT PILCHMAN, PLAINTIFF,
v.
AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO, DISTRICT COUNCIL 37 LEGAL SERVICES, INC., DC 37, AND BROOKLYN LIBRARY GUILD LOCAL 1482 DEFENDANTS.



The opinion of the court was delivered by: Wood, U.S.D.J.:

OPINION & ORDER

Plaintiff Robert Pilchman ("Pilchman") brings this action against the American Federation of State, County, and Municipal Employees, AFL-CIO ("AFL-CIO"), New York District Council of AFSCME Municipal Local Unions, Council 37 of the American Federation of State, County, and Municipal Employees ("DC 37"), and its local affiliate, Brooklyn Library Guild Local 1482 (collectively, "the Union"),*fn1 for (1) breach of the duty of fair representation, and (2) breach of the collective bargaining agreement between the Union and Pilchman's employer, the Brooklyn Public Library ("the Library"). Pilchman's claims are based on the Union's alleged failure to properly represent him in three separate grievances that Pilchman brought against the Library, one in November 2008 and two in March 2010.

The Union moves to dismiss both claims for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), and for failure to join a required party, pursuant to Federal Rule of Civil Procedure 12(b)(7) ("Rule 12(b)(7)"). Pilchman opposes the motion and requests leave to file a Third Amended Complaint.

For the following reasons, the Court GRANTS the Union's motion to dismiss and DENIES Pilchman's request for leave to file a Third Amended Complaint.

I. Background*fn2

Pilchman is an employee of the Library. (Compl. ¶ 11.) He is also a dues-paying member of Brooklyn Library Guild Local 1482, which represents employees of the Library's branches. (Compl. ¶ 10.) Brooklyn Library Guild Local 1482 is one of 56 unions that comprise DC 37, New York City's largest public-employee union. DC 37 is a member of the AFL-CIO.

A.November 2008 Grievance

In or about November 2008, Pilchman filed a grievance ("November 2008 Grievance") with the Union, alleging that the Library "fail[ed] to provide [him] with due process in his appeal of a promotion." (Compl. ¶ 16.) On or about May 18, 2009, Pilchman met with three Union employees to discuss his grievance: Eileen Muller, Brooklyn Library Guild President ("Muller"); Phyllis Streeter, Council Representative of DC 37's Professional Division ("Streeter"); and Steven Sykes, Senior Assistant General Counsel of DC 37 ("Sykes"). (Compl. ¶ 15.) During that meeting, Sykes told Pilchman that "the union would not allow the Library to retaliate against him." (Compl. ¶ 17.)

After some months, the Union and the Library negotiated a settlement agreement, which Pilchman signed and mailed to Sykes on September 23, 2009. (Compl. ¶ 18; Declaration of Nelson M. Stern in Opp. to the Mot. to Dismiss ("Stern Decl.") Ex. 5.) On October 2, 2009, Sykes sent Pilchman an email to confirm receipt of the signed agreement, in which he wrote,"[p]lease let me know if you want me to forward the settlement to the Library." (Compl. ¶ 19; Stern Decl. Ex. 5.) On April 19, 2010, Pilchman emailed Sykes and asked, "I don't recall the mentioning about actually forwarding any settlement to the library -- did we decide on this?" Sykes replied on April 20, 2010, stating: "Subsequent to our email correspondence below and after numerous conversations with both you and your private attorney you instructed me to forward the settlement agreement to the Library. I did so and the agreement was fully executed in January 2010." (Stern Decl. Ex. 5.)*fn3 Pilchman now alleges that he did not authorize Sykes to forward the agreement. (Compl. ¶ 20.)

B.March 2010 Grievances

While resolution of the November 2008 Grievance was pending, Pilchman applied for another promotion. On December 18, 2009, he submitted an application for the position of Library Information Supervisor at a different branch of the Library. (Compl. ¶ 25.) Pilchman interviewed for the position on January 13, 2010 and was notified six days later that another applicant had been selected because "he was better suited for the position." (Id.) On January 25, 2010, Pilchman appealed the Library's decision by emailing Dionne Mack Harvin, Executive Director of the Library ("Mack Harvin"). (Id.) According to the Library's Policy and Procedure Manual, "[e]ach appellant shall be granted a hearing before the Director within 15 work days after such appeal." (Id.; Compl. Ex. 3, at 5.) However, Pilchman did not receive a response to his email, other than a "read receipt," an automatic email notification stating that his email had been received, until February 24, 2010, twenty-two business days after submitting his appeal. (Compl. ¶ 25.) An appeals hearing was held before Mack Harvin on March 3, 2010. (Id.) The following day, Mack Harvin issued a letter in which she refused to reverse the hiring decision. (Id.)

On February 23, 2010, while his appeal was pending, Pilchman was given an unsatisfactory service rating "[f]or the first time in his 12 year career." (Compl. ¶ 21.) The following day, he received an email notifying him that, as a result of the rating, he could not apply for another promotion for one year. (Compl. ¶ 25, Ex. 1, at 4.) On or about March 2, 2010, Pilchman sent an email to the Library's Board of Trustees, in which he disputed his service rating and stated that "Dionne Mack-Harvin has apparently has[sic] a pattern of behavior with Orthodox Jewish employees/communities." (Compl. ¶ 25, Ex. 1, at 5.) Pilchman also stated that one of the two supervisors responsible for the rating "admitted that . . . Pilchman received the rating that he did because he appealed" the Library's decision to select another candidate for Library Information Supervisor. (Id.)

On March 11, 2010, Pilchman met with Muller, Streeter, and Maynard Anderson, Director of DC 37's Professional Division, to discuss the denial of his appeal and his unsatisfactory service rating. (Compl. ¶ 38.) At the meeting, Streeter asked Pilchman to explain the basis for his allegation to the Board of Trustees that Mack Harvin "ha[d] a pattern of behavior with Orthodox Jewish employees/communities." (Compl. ¶ 51.) Pilchman stated that "there was another employee (Orthodox Jewish) who apparently was unfairly fired by [Mack Harvin] earlier in her career." (Compl. ¶ 52.) Ultimately, the Union declined to grieve Pilchman's failed appeal of the promotion decision, and offered the following reasons for its decision: "none of the information [Pilchman] provided to the Union provides examples of retaliation by the Library" (Compl. ¶ 26); "there is no entitlement to a promotion" (Compl. ¶ 29); and "the Library fulfilled its legal obligation" when it explained to Pilchman that he was not offered the job because the selected candidate was better suited for the position. (Compl. ¶ 32.) The Union also declined to grieve Mack Harvin's delayed response to Pilchman's appeal, stating that it "was not able to determine whether or not . . . Mack Harvin was on vacation" when Mack Harvin received the appeal. (Compl. ¶ 36.)

The Union did, however, agree to grieve Pilchman's unsatisfactory service rating. (Compl. ¶ 40.) The Union "compos[ed] and submit[ted] a grievance paper," which Pilchman signed in Muller's presence on March 15, 2010. (Id.) Pilchman states that at the time he signed the grievance form, Muller showed him only the first page of the two-page document and failed to inform him that a second page existed. (Compl. ¶¶ 40-41.) In what appears to be a response to an inquiry from Pilchman, Sykes, who was not present at the time Pilchman signed the form but relied on Muller's version of the events, wrote a letter stating: "There is no requirement that all pages of a grievance form are signed. Moreover, Mr. Pilchman was shown both pages, and he read both pages, in the presence of his union representative, prior to signing the grievance." (Compl. ¶ 46.)

Pilchman also submitted a formal rebuttal of his service rating approximately two weeks after receiving the rating. (Compl. ¶ 28,Ex. 1.) The Union had informed the Library that Pilchman would submit the rebuttal within two weeks, "despite the long-standing protocol of having 30 days" to submit rebuttals. (Compl. ¶ 28.) At the time the Union submitted the instant motion, an appeal of Pilchman's service rating was scheduled for arbitration.

II. Legal Standards

A.Rule 12(b)(6) Motion to Dismiss Standard

In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009). If a plaintiff fails to "nudge[] [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570; see also Iqbal, 129 S.Ct. at 1950 ("Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" (quoting Fed. R. Civ. P. 8(a)(2)) (brackets in original)). The Court must accept as true all well-pleaded factual allegations in the complaint, and "draw[] all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006) (internal quotations omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949; see also Twombly, 550 U.S. at 555 (noting that a court is "not bound to accept as true a legal conclusion couched as a factual allegation") (internal quotation omitted).

B.What Documents May Be Considered

Although a district court's analysis of a motion to dismiss is confined to "the allegations contained within the four corners of [the] complaint," Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), a court may also examine "any written instrument attached to [the complaint] or any statements or documents incorporated in it by reference." Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). Moreover, the Court may consider documents not incorporated by reference if "the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint," id. at 153,provided that the plaintiff has notice of such documents. Cortec Indus. v. Sum Holding, L.P., 949 F.2d 42, 47-48 (2d Cir. 1991).

Pilchman has attached the following documents to his Complaint, all of which are also incorporated by reference: a copy of the rebuttal to his unsatisfactory service rating (Exhibit 1); a series of emails regarding Union representative Eileen Muller (Exhibit 2); and sections of the Library's Policy and Procedure Manual regarding promotions (Exhibit 3) and service ratings (Exhibit 4). The Court will consider these documents to the extent that they are relevant to disposing of the instant motion.

Pilchman has also submitted, by affidavit, eight exhibits containing email correspondence between himself and Union representatives. (See Stern Decl. Ex. 1-8.) Exhibits 1-4 and 6 contain emails that post-date the Second Amended Complaint and therefore could not have been relied upon at the time the Complaint was drafted. Since these documents are not "integral to the complaint," Chambers, 282 F.3d at 153, the Court will not consider them in deciding the motion.*fn4 Exhibits 7 and 8 contain communications that slightly pre-date the Second Amended Complaint, but they are neither referenced nor relied upon in it.*fn5 The Court will therefore exclude these documents from consideration. See id. ("[A] plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.") (emphasis in original). However, Exhibit 5 contains, in part, emails concerning the settlement of the November 2008 Grievance that are either directly quoted or incorporated by reference in all three versions of Pilchman's Complaint. (Compl. ¶¶ 19-20, 26, 29.)*fn6 Those emails may therefore be considered on this motion to dismiss.

The Complaint also incorporates by reference the Collective Bargaining Agreement ("CBA") and the agreement settling the November 2008 Grievance, both of which are attached to Defendants' motion to dismiss as Exhibits 2 and 3, respectively.*fn7 The Court will consider the contents of those ...


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