The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The plaintiff, Leon Wilson, brings this action against the defendants, American Postal Workers Union, AFL-CIO, Local 51 ("Local 51") and the United States Postal Service ("USPS"), asserting claims arising out of the USPS's failure to promote the plaintiff to "Career Employee" status. The USPS now brings this motion to dismiss the action for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.*fn1
As explained below, the plaintiff has withdrawn the claims against the USPS that the USPS argued should be dismissed for lack of jurisdiction under Rule 12(b)(1). That leaves only the motion of the USPS to dismiss for failure to state a claim under Rule 12(b)(6).
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); See Arista Records LLC v. Lime Grp. LLC, 532 F. Supp. 2d 556, 566 (S.D.N.Y. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility 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, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider 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, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (quoting Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47--48 (2d Cir. 1991); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).*fn2
The relevant facts, as alleged by the parties, are undisputed unless otherwise noted. The plaintiff is an employee of the USPS who was assigned to the Westchester Processing and Distribution Center ("WPDC") of the USPS in 1999. (Am. Compl. ¶¶ 9-11; Pl.'s Decl. ¶ 2.) The plaintiff was initially employed as a "Casual Employee", a position that did not afford the plaintiff union rights. (Am. Compl. ¶¶ 9, 13; Pl.'s Decl. ¶ 2.) The plaintiff took and passed the entry level exams for the clerk and mail handler positions. (Am. Compl. ¶ 12; Pl.'s Decl. ¶ 3.) He was subsequently placed on two waiting lists for these positions, along with similarly situated employees. (Pl.'s Decl. ¶ 3.)
In 2002, the plaintiff's employment status was upgraded to that of a "Transitional Employee." (Pl.'s Decl. ¶ 3.) This new employment status allowed the plaintiff to become a union member and to be covered by the 2000-2006 American Postal Workers Union Collective Bargaining Agreement ("CBA") between Local 51 and the USPS. (Pl.'s Decl. ¶ 3.) The plaintiff did subsequently join and become a fee paying member of Local 51. (Am. Compl. ¶ 13; Pl.'s Decl. ¶ 3.) As a "Transitional Employee," the plaintiff was also a member of the bargaining unit that was represented by Local 51. (Am. Compl. ¶ 13.) However, "sometime" in 2005, the USPS eliminated its Transitional Employee Program, which downgraded the plaintiff's employment status back to a Casual Employee. (Am. Compl. ¶ 13; Pl.'s Decl. ¶ 4.) At that time, the plaintiff was no longer union member and the USPS alleges that he was no longer covered by any CBA.
Between 2005 and 2010, the plaintiff alleges that he contacted Local 51 several times regarding promotion off of the waiting list. (Pl.'s Decl. ¶ 4.) He asserts that he was assured by Union Representative Joseph Terriciano and Plant Manager Grace Dilpy that he would be hired but he was at the bottom of the waiting list and would have to wait until his name was reached. (Pl.'s Decl. ¶ 4.) Accordingly, the plaintiff took no action at that time.
In November 2010, the plaintiff alleges that he learned from a co-worker, Lorna Chambers, that all of the other co-workers who were similarly situated to him on the mail handler and clerk waiting lists were selected to become career employees while the plaintiff was the only one who was not selected. (Pl.'s Decl. ¶ 5.) Additionally, the plaintiff alleges that he learned that Local 51 and WPDC management had formed a committee that made the decision to single the plaintiff out for nonappointment from both waiting lists because the plaintiff had raised safety concerns and because he is a Black Panamanian. (Pl.'s Decl. ¶ 5.)
The plaintiff alleges that he contacted the President of Local 51 within 14 days of learning this information, seeking assistance, and seeking to file a grievance alleging that he should have been appointed from the USPS waiting list during the period between 2002 and 2005. (Pl.'s Decl. ¶ 6.) Local 51 declined to assist the plaintiff. (Pl.'s Decl. ¶ 6.)
The plaintiff's amended complaint seeks damages and retroactive promotion for violations of Section 9(a) of the National Labor Relations Act ("NLRA"), 29 U.S.C.A. § 159(a); Section 301(c) of the Labor Management Relations Act ("LMRA"),
29 U.S.C.A. § 185; and Section 1208(b) of the Postal Reorganization Act ("PRA"), 39 U.S.C.A. § 1208(b). The plaintiff alleges that the USPS breached the CBA by failing to promote him based on discriminatory and whistleblowing reasons. (Am. Compl. ¶ 28.) The plaintiff also alleges that Local 51 breached its duty of fair representation owed to the plaintiff pursuant to Section 9(a) of the NLRA. The ...