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Von Maack v. 1199SEIU United Healthcare Workers East

United States District Court, S.D. New York

November 7, 2014



P. KEVIN CASTEL, District Judge.

Plaintiff Dorota Von Maack, proceeding pro se, brings this action against her union, 1199SEIU United Healthcare Workers East ("1199" or "the Union"), which she styles "1199 Local SEIU."[1] She alleges violations of a host of federal and state laws, but the essence of her 77-page complaint is that 1199 violated its duty of fair representation by conspiring with her former employer to have her terminated and failing properly to grieve her termination. She also claims that 1199 discriminated against her on the basis of her race. 1199 now moves to dismiss Von Maack's complaint. For the following reasons, the motion is granted and the complaint dismissed.


The following facts are taken from the complaint and its 84 exhibits, and are accepted as true for the purposes of this motion. From November 2004 to August 11, 2011, Von Maack, a long-standing member of 1199, was employed as a pharmacist by Wyckoff Heights Medical Center ("Wyckoff"), in Brooklyn. (Compl. ¶¶ 9.1, 13.) Early on, Von Maack began to feel discriminated against by her supervisor, Joseph Rumore, Wyckoff's pharmacy director. For instance, she was assigned physically demanding and hazardous work without the help usually given to Rumore's "favorite male employees, " (Compl. ¶¶ 13.2, 15.2), required to work five days a week while others worked only four (Compl. ¶ 13.1), not allowed to take as much vacation as other employees (Compl. ¶ 15.6), and required to cover for Rumore's favorite employees while they left their posts for coffee breaks or to visit family members who worked on other floors (Compl. ¶¶ 15.7, 17). She was also denied benefits and bonuses she was entitled to under the Union's collective bargaining agreement ("CBA"). (Compl. ¶ 15.1.) Finally, she alleges that prolonged exposure to chemotherapy chemicals in the pharmacy's ill-ventilated sterile room caused her to contract lung disease. (Compl. ¶ 9.10.) She wrote multiple letters to 1199 and Wyckoff officials about these issues, and raised them in union and departmental meetings, but to no avail. (Compl. ¶ 16.)

In June 2009, after returning from a four-day hospitalization for her lung disease, Rumore (who suggested that her absence was due to a ski vacation) scheduled Von Maack "to work as the only pharmacist on duty in the whole hospital." (Compl. ¶ 20.) She reported the incident in the pharmacy "communication book." (Id.) This displeased Rumore, who requested a July 16 meeting with her. (Id.) Von Maack was scheduled to prepare chemotherapy medications at the requested time for the meeting and refused to "abandon[]" her patients. (Id.) On July 17, she was given a disciplinary notice and suspended for three days. (Id.; Compl. Ex. 20.) On July 21, when she reported back for work, Rumore, "apparently in order to intimidate [her] even more, " ordered a security guard to escort her off the premises. (Compl. ¶ 21.) Von Maack filed a grievance request letter with 1199, but 1199 did not initiate a grievance. (Id.) In early August, six of Von Maack's coworkers sent two letters to Wyckoff s director of human resources protesting Von Maack's ejection from the hospital, but these went unanswered. (Compl. ¶¶ 23-24; Compl. Exs. 22, 23.)

In spring 2010, Von Maack, in order to draw attention to what she considered to be the hazardous conditions in the pharmacy sterile room and to combat what she saw as the current delegate's preferential treatment of certain employees, attempted to put her name on the ballot for union delegate. (Compl. ¶ 27.) Despite obtaining the number of required signatures and being assured that she had met all the requirements for candidacy, she was never listed on the ballot. (Compl. ¶¶ 27-28.)

In November and December 2010, Von Maack and a coworker met with 1199 officials at the Union's headquarters and managed to schedule a meeting at the pharmacy with Coraminita Mahr, a vice-president of 1199. (Compl. ¶¶ 33, 35.) The meeting took place on February 10, 2011. (Compl. ¶ 37.) A number of issues were discussed, including differential treatment of employees, bonuses, the distribution of holidays, and health conditions in the sterile room, but the meeting led to no improvements. (Id.)

On July 5, 2011, Von Maack was again suspended, this time for five days, and warned that similar conduct in the future would result in her termination. (Compl. ¶ 38; Compl. Ex. 34.) The suspension resulted from three incidents in May and June, with respect to which Von Maack maintains she did nothing wrong. (Compl. Ex. 36.) Von Maack describes one of these incidents as an "entrapment, " in that Rumore reprimanded her for failing to follow a policy that Rumore only implemented after the fact. (Compl. ¶ 38.) A grievance process was initiated, and a formal grievance meeting took place on August 2. (Compl. ¶ 45.) According to Von Maack, though, "[t]hree minutes into the meeting, when [she] started to explain the whole situation, everybody in the room got up and left room without saying one word." (Id.) The grievance was denied on August 9, (Compl. Ex. 82, last page), and the suspension was not further grieved to arbitration. (Compl. ¶ 45.)

Meanwhile, Von Maack's health continued to deteriorate. In late 2010, Von Maack told Rumore about her lung disease and asked him not to schedule her for duty in the sterile room on consecutive days, but Rumore refused, even though he had acceded to similar requests from other employees. (Compl. ¶ 31.) In December 2010, Von Maack was diagnosed with bronchiectasis and pneumonia. (Compl. ¶¶ 31, 36; Compl. Exs. 30, 32.) On July 19, 2011, with the help of a lawyer provided by 1199, Von Maack filed a worker's compensation claim. (Compl. ¶ 43.)

Von Maack's discharge, on August 11, 2011, was precipitated by an incident on July 30. (Compl. Ex. 40.) On that day, a Saturday, the pharmacy was understaffed, and Von Maack claims to have been too busy to accept a shipping delivery containing medications. (Compl. ¶ 9.5.9.) Despite the fact that accepting deliveries was a pharmacy technician's job, and that a technician and another pharmacist were present that day, Von Maack was blamed for the refusal, and for letting the delivery driver wander the pharmacy unsupervised in search of someone else to accept the delivery. (Id.; Compl. Ex. 6 p. 3.) Von Maack alleges that the technician who was present later admitted to her that she had set her up at Rumore's request. (Compl. ¶¶ 9.5.9, 57.) She also suggests that her firing was a "retaliatory act" (Compl. ¶ 53): on August 5, Von Maack had submitted a safety and health hazard notice to the Occupational Safety and Health Administration ("OSHA") about the conditions in the sterile room. (Compl. ¶ 50; Compl. Ex. 39.) On August 12, Von Maack filed a retaliatory termination complaint with OSHA. (Compl. ¶ 67.)

1199 grieved Von Maack's discharge to arbitration, which took place on April 11, 2012. (Compl. ¶ 62.) But Von Maack complains that, rather than representing her fairly, 1199 conspired with Wyckoff to "prearrange the arbitration." (Compl. ¶ 58.) She claims that she was told by 1199's lawyer not to say anything at the arbitration (Compl. ¶ 9.5.1), that 1199 turned away a coworker who was going to testify on her behalf (Compl. ¶ 9.5.2), that 1199 failed to use exculpatory evidence that she provided (Compl. ¶ 9.5.6), and that it failed to protest when Wyckoff introduced Von Maack's prior suspensions. (Compl. ¶ 9.5.7.) She also asserts that the arbitration took place much later than it should have under the terms of the CBA, resulting in her complaints with various federal agencies being time-barred. (Compl. ¶ 9.3.)

The arbitrator issued a decision on April 30, 2012. (Compl. Ex. 6.) He concluded that "[i]f [Von Maack] had a clean disciplinary record, then the circumstances that arose on July 30, 2011 would not justify terminating her employment, " but that, since Von Maack was on notice that "further... recalcitrance could jeopardize her job, " there was just cause for her discharge. (Id. pp. 18-19.)

Following the arbitration, Von Maack turned to federal and state agencies for help, but with limited success. OSHA does not appear to have acted on her complaints. (Compl. ¶¶ 73-79.) Charges filed with the National Labor Relations Board ("NLRB") against Wyckoff and 1199 were dismissed, and those dismissals were sustained on appeal. (Compl. ¶ 94.) Von Maack filed a complaint against 1199 with the New York State Division of Human Rights ("NYSDHR"), which was also dismissed (Compl. ¶ 117; Dorn Decl. Ex. H), and the dismissal of her Title VII claims was sustained by the Equal Employment Opportunity Commission ("EEOC"). (Compl. Ex. 1.) She has not been successful in obtaining worker's compensation for her lung disease. (Compl. ¶¶ 102-113.) She has succeeded, however, in obtaining unemployment benefits. Her right to these was affirmed on June 28, 2013 by the New York Unemployment Insurance Appeal Board, which described the incident that led to Von Maack's discharge as "an isolated instance of poor judgment." (Compl. Ex. 4.)

On June 22, 2013, through counsel, Von Maack filed a complaint against Wyckoff in New York Supreme Court, alleging a violation of section 741 of the New York Labor Law, which prohibits retaliatory action against certain health employees who disclose practices that "constitute[ ] improper quality of patient care."[2] N.Y. Lab. Law § 741(2)(a). On March 13, 2014, the Supreme Court dismissed the complaint, concluding that Von Maack was not the type of ...

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