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Robinson v. Macy's

United States District Court, S.D. New York

December 5, 2014

ODETTE ROBINSON, Plaintiff,
v.
MACY'S AND LOCAL 1-S RWDSU, Defendants

Odette Robinson, Plaintiff, Pro se, East Orange, NJ.

For Macy's, Defendant: David H. Ganz, LEAD ATTORNEY, Bertone Piccini LLP, Hasbrouck, NJ; Thomas N. Ciantra, Cohen, Weiss & Simon, L.L.P., New York, NY.

For Macy's Union, Defendant: Thomas N. Ciantra, LEAD ATTORNEY, Cohen, Weiss & Simon, L.L.P., New York, NY.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE

Colleen McMahon, United States District Judge.

In June 2014, pro se plaintiff Odette Robinson (" Plaintiff"), a former employee of defendant Macy's, brought this action against her former employer, Macy's, and the union that represented her as a Macy's employee, Local 1-S RWDSU (" Local 1-S, " and together with Macy's, " Defendants") (sued here as " Macy's Union").[1] Plaintiff's pro se complaint alleges that both Macy's and the Union violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq . (" Title VII") in connection with her employment. Plaintiff's Complaint alleges that both Defendants discriminated against her based on her race, age, national origin, and religion, and then retaliated against her when she complained about their discriminatory conduct.

Defendant Local 1-S moved under Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. It argues that Plaintiff never exhausted its administrative remedies against the Union, which was never served with notice of her EEOC charge. Furthermore, it argues that Plaintiff's alleged duty of fair representation claim is time-barred.

For the following reasons, Defendant's motion is denied.

BACKGROUND

Complaint

Plaintiff has filed a form complaint for employment discrimination on a form provided by the Clerk's Office in this district. (ECF No. 1 (" Compl.")). This form complaint provides a plaintiff with boxes to check in order to set forth a claim of employment discrimination.

In her Complaint, Plaintiff names both Macys' and her Union as defendants. She does not discriminate between them when assigning blame for misconduct. As against " Defendants" she has checked the box asserting claims for race (black), national origin (Jamaican), age (DOB 12-03-68), and religious (Christian) discrimination pursuant to Title VII. Compl. at 1, 3. Plaintiff checked the following boxes describing the allegedly discriminatory conduct of Defendants: " termination of my employment, " " failure to promote me, " " unequal terms and conditions of my employment, " and " retaliation." Id. at 2-3. Plaintiff alleged that the discrimination began sometime in late 2007 or early 2008, and continued throughout the four years of her employment, until she was fired in early 2012. Id. at 3.

Plaintiff has attached to her Complaint, and included by reference, the paperwork relating to her dealings with the Equal Employment Opportunity Commission (" EEOC"), which includes: (1) Plaintiff's EEOC Intake Questionnaire (Plaintiff's Affirmation in Opposition to Motion, Exhibit 1, dated June 26, 2012 (ECF No. 23 (" Intake Questionnaire")); and (2) Plaintiff's EEOC " Dismissal and Notice of Rights" letter, dated March 27, 2014. (Compl., Exhibit 1 (" Notice of Right to Sue letter")).

Factual Background

In December of 2007, Macy's hired Plaintiff as a floor salesperson. Compl. at 3. Macy's allegedly recruited Plaintiff from another company, promising Plaintiff a higher salary. Id. However, Macy's purportedly lied about the increase in pay, denied Plaintiff the amount of pay she requested, and stated that Plaintiff was receiving the maximum amount of pay Macy's paid for employees in Plaintiff's position. Id.

Approximately two months later, Macy's hired another individual of a different race and national origin in a role similar to Plaintiff's. Id. Macy's paid this individual an hourly wage $2.50 higher than Plaintiff's hourly wage. Id.

Plaintiff alleged that she was continually harassed, spoken to in derogatory terms, and denied access to union assistance by Macy's, and, as a result of Plaintiff filing a grievance with Local 1-S, Macy's denied Plaintiff a promotion to the position of " Counter Manager." Id. Plaintiff further alleged that Local 1-S did not defend Plaintiff when she sought their assistance. Id.

On June 26, 2012, Plaintiff filed an Intake Questionnaire with the EEOC, alleging that she was discriminated against by Macy's, Local 1-S, and Carol's Daughter, the company whose cosmetics Plaintiff sold at Macy's. Intake Questionnaire at 5. Plaintiff alleged she was discriminated against based on her race, national origin, and religion, and was retaliated against by Macy's after filing two grievances against Macy's with Local 1-S. Id. at 2, 7.

In the Intake Questionnaire, Plaintiff described the actions taken against her by Defendants, and why she believed those actions were discriminatory.

Macy's hired Plaintiff on December 20, 2007, for the position of Beauty Advisor/Sales Associate for the Carol's Daughter sales counter. Id. at 5. Prior to accepting the position of Beauty Advisor/Sales Associate, Plaintiff negotiated with Macy's in an attempt to obtain a Counter Manager position. Id. Macy's denied Plaintiff that position, stating that there were no Counter Manager positions available in the cosmetics department. Id. Plaintiff alleged that this was a lie. Plaintiff questioned a member of Macy's management, supervisor Cynthia Lewis, and was told that if she wanted to obtain the Counter Manager position she would have to " work [her] way up." Id. Another Macy's employee, human resources supervisor Michelle White, also denied Plaintiff's request for the Counter Manager position.

Approximately 1-2 months later, Macy's hired Robin Martin, an employee of a different race and national origin than Plaintiff, to a similar Beauty Advisor/Sales Associate position. Id. at 2, 5. Macy's allegedly discriminated against Plaintiff on the basis of race because Plaintiff was paid less money per hour than Martin. Id. at 5. Martin received a higher pay rate ($14.50 per hour) than Plaintiff ($12.00 per hour), after both Michelle White and Cynthia Lewis informed Plaintiff that Plaintiff was getting paid the highest possible rate per hour. Id. at 5.

For approximately the following year and half, Plaintiff worked as a Sales Associate for Carol's Daughter. Id. at 6. Plaintiff alleged that she excelled in the Sales Associate role, where she was recognized for numerous outstanding achievements, and for breaking sales records. Id. Additionally, Plaintiff trained newly hired employees, coached and developed other employees, and " managed the department." Id.

During this time, however, Plaintiff alleged she experienced various " discriminatory attacks." Id. at 7. Plaintiff alleged she received derogatory comments from Macy's employees about her Jamaican heritage, including comments about her accent and the way she dressed. Id. Plaintiff further alleged that Macy's employees commented on her religious " head wraps, " stating that the head wraps did not look good and chased customers away, and questioned Plaintiff for wearing the head wraps. Id.

Macy's continued to deny Plaintiff the Counter Manager position, and instead hired another person named Donna Fennell to fill that role. Id. Once Fennell was hired, Plaintiff alleged that Fennell contributed towards the discriminatory attacks on Plaintiff. Plaintiff alleged that because she can speak in tongues, a " gift" used for spiritual purposes in her religion, Fennell called her the devil. Id. at 7. Furthermore, in November of 2011, Fennell complained to the Macy's human resources team, and to Edwin Batista, a representative for Carol's Daughter, that Plaintiff physically pushed her. Id. at 2, 6.

Plaintiff alleged that Fennell lied about the incident. Moreover, when Plaintiff submitted her own complaints about Fennell to Albania Gonzales, a human resources manager in the Macy's cosmetics department, and Local 1-S, her complaint " fell on deaf ears." Id. at 6. Plaintiff filed two grievances with Local 1-S but allegedly received no help from the union. Id. at 7.

On November 30, 2011, Macy's suspended Plaintiff, and, on February 17, 2012, Macy's fired Plaintiff. Id. at 1, 6.

On page one of the Intake Questionnaire, Plaintiff states that she was discriminated against by Macy's, and, on page five of the Intake Questionnaire, Plaintiff states that she was discriminated against by Local 1-S and non-party Carol's Daughter. Id. at 1, 5.

On page four of the Intake Questionnaire, Plaintiff signed and dated the Intake Questionnaire, and checked " Box 2, " which states:

I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above. I understand that the EEOC must give the employer, union, or employment agency that I accuse of discrimination information about the charge, including my name. I also understand that the EEOC can only accept charges of job discrimination based on race, color, religion, sex, national origin, disability, age, genetic information, or retaliation for opposing discrimination.

Id at 4.

The EEOC Charge was dismissed, and a Notice of Right to Sue letter was issued to Plaintiff by the EEOC. The EEOC closed its file on Plaintiff's charge because:

Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

The Notice of Right to Sue letter is addressed to Plaintiff, signed by an EEOC District Director, and copied to Christine Hughes, Senior Counsel at Macy's. Copies were not sent either to Local 1-S or to Carol's Daughter, although Plaintiff named them in her charge.

The Instant Motion

On October 14, 2014, Local 1-S moved to dismiss Plaintiff's Title VII claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Union's lawyer assigned three grounds for the motion: (1) Plaintiff failed to file a charge against Local 1-S, and, therefore, did not exhaust her administrative remedies (Def.'s Mem. at 3; Def.'s Reply Mem at 1); (2) the EEOC failed to serve Local 1-S with Plaintiff's charge, and failed to name Local 1-S in, and serve Local 1-S with, Plaintiff's Notice of Right to Sue letter (Def.'s Reply Mem. at 1); and (3) Plaintiff did not plead a cognizable Title VII discrimination claim against Local 1-S (Def.'s Reply Mem. at 2).

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). '" Labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do, '" rather, a plaintiff must plead " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 555). Therefore, unless a plaintiff's well-pleaded allegations have " nudged [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.

Pro se complaints are held to less stringent standards than those drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Thus, while pro se complaints must contain sufficient factual allegations to meet the plausibility standard, we should look for such allegations by reading pro se complaints with " special solicitude" and interpreting them to raise the " strongest [claims] that they suggest ." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (emphasis in original). Nevertheless, the court should dismiss a pro se complaint where the plaintiff has clearly failed to meet the minimum pleading requirements. See Kinsey v. Bloomberg, No. 12-Civ-8936, 2014 WL 630670, at *3 (S.D.N.Y. Feb. 18, 2014).

DISCUSSION

I. Plaintiff's did not assert an age discrimination claim against Local I-S.

On Plaintiff's Complaint, Plaintiff checked the box entitled " age, " indicating that she wished to assert an age discrimination claim against Defendants. See Compl. at 3. However, Plaintiff did not check the box titled " Age Discrimination in Employment Act of 1967, 29 U.S.C. § § 621-634" and there are no age-related discrimination allegations in the Complaint.

Although checking a box, or failing to check a box, does not necessarily control the scope of Plaintiff's Complaint, Plaintiff did not provide any explanation or description supporting her age discrimination claims in any document submitted to the record, including the Intake Questionnaire. Therefore, to summarize, I find the true nature of Plaintiff's Complaint to allege discrimination claims based on Plaintiff's race, national origin, and religion, not based on Plaintiff's age. See Wilson v. N.Y.C. Police Dept., No. 09-CV-2632, 2011 WL 1215031, at *9 (S.D.N.Y. Feb. 4, 2011).

Even if I interpreted the Complaint to include an age discrimination claim, I would dismiss that claim because Plaintiff did not present it to the EEOC in the Intake Questionnaire and, thus, did not exhaust the administrative remedies available to her. See Dixon v. Krasdale Foods, Inc., No. 13-CV-3045, 2013 WL 6334439, at *3 (S.D.N.Y. Dec. 4, 2013). Moreover, Plaintiff's age discrimination claim cannot be saved by the " reasonably related" exception, which allows a Plaintiff to pursue a claim that was not presented to the EEOC where the claim is " reasonably related" to the claims that were brought before the agency, because age discrimination claims, of the type alleged by Plaintiff, are not reasonably related to the race, national origin, and religion discrimination claims Plaintiff did present to the EEOC. See Tanvir v. N.Y.C. Health & Hospitals Corp., 480 Fed.Appx. 620, 621 (2d Cir. 2012); Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 2005); Dahbany-Miraglia v. Queensboro Cmty. Coll., No. 03-CV-8052, 2004 WL 1192078, at *5 (S.D.N.Y. May 27, 2004) (claims premised on entirely different types of discrimination are not considered reasonably related); Burrell v. City Univ. of New York, 995 F.Supp. 398, 407-08 (S.D.N.Y. 1998).

II. Plaintiff filed an EEOC charge against Local 1-S and exhausted the administrative remedies available to her.

Under Title VII, " a litigant must exhaust available administrative remedies in a timely fashion" as a prerequisite to gaining access to the federal courts. Briones v. Runyon, 101 F.3d 287, 289 (2d Cir.1996); see also Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001). The exhaustion requirement provides the agency with notice of an employee's complaint and the opportunity to investigate the matter and take remedial action, where necessary. Stewart v. INS, 762 F.2d 193, 198 (2d Cir. 1985). " The purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Miller v. Int'l Tel & Tel Corp., 755 F.2d 20, 26 (2d Cir. 1985).

A plaintiff may not file an action in federal court until the administrative EEOC process has been completed and fully exhausted. See 29 C.F.R. § 1614.110. " Such exhaustion requires that the claimant present to the pertinent administrative agency...all claims that [she] will seek to pursue in court." Dixon v. Krasdale Foods, Inc., No. 13-CV-3045, 2013 WL 6334439, at *3 (S.D.N.Y. Dec. 4, 2013). Obtaining a right-to-sue letter from the EEOC is a statutory prerequisite to commencing a federal suit under Title VII and the ADEA, and " such a requirement applies with equal force to pro se litigants." Benardo v. Am. Idol Prods., Inc., No. 10-CV-6487, 2010 WL 4968177, at *2 (S.D.N.Y. Dec. 6, 2010); see Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 522-26 (2d Cir. 1996). Accordingly, if a plaintiff fails to properly exhaust available administrative remedies, he is barred from seeking relief in federal court. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).

Local 1-S argues that the Intake Questionnaire does not constitute a " charge" filed with the EEOC. Local 1-S further argues that even if the Intake Questionnaire is a charge, Plaintiff did not file that charge against Local 1-S, and, thus, Plaintiff did not exhaust the administrative remedies available to her. However, Local 1-S 's arguments fail.

Title VII's implementing regulations provide: " A charge shall be in writing and signed and shall be verified." 29 C.F.R. § 1601.9. Title VII does not define the term " charge." See Brown v. City of New York, No. 1 l-CV-3789091, 2013 WL 3789091, at *7 (S.D.N.Y. July 19, 2013). However, under 29 C.F.R. 1601.12, " a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of."

Plaintiff's Intake Questionnaire was a sufficient charge with the EEOC under federal regulations. It identified the parties involved and described the actions complained of, and, therefore, 'provided the EEOC with the information required by the relevant regulations, ' Price v. City of New York, 797 F.Supp.2d at 219, 226 (E.D.N.Y. 2011) (quoting Holowecki, 552 U.S. at 402).

In Brown v. City of New York, No. 11-CV-3789091, 2013 WL 3789091, at *7-8 (S.D.N.Y. July 19, 2013), Judge Engelmeyer discussed when an intake questionnaire is deemed a " charge" for purposes of Title VII:

In Federal Express Corp. v. Holowecki, the Supreme Court was faced with the similar question of whether an intake questionnaire filed with the EEOC could be deemed a " charge" under the Age Discrimination in Employment Act of 1967 (" ADEA"). 552 U.S. 389, 398-99, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008). Applying Skidmore deference, the Court approved the EEOC's interpretive position, holding: " In addition to the information required by the regulations, ... if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee." That is, " the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes." Id.
In so holding, the Court cautioned that, despite similarities between the EEOC enforcement mechanisms for ADEA claims and other statutes enforced by the EEOC--such as Title VII--" employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination...even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case." Nevertheless, courts in this Circuit have, since Holowecki, examined the implementing regulations of Title VII and found that the standard announced in Holowecki for determining what is a " charge" is also reasonably applied to Title VII.
Significantly, since Holowecki was decided, the EEOC has modified its form Intake Questionnaire--as the Supreme Court suggested it might--to facilitate the determination whether such a questionnaire, in any particular case, constitutes a charge. Specifically, " the EEOC has changed the [Intake Questionnaire] to require a claimant to clearly express his or her intent by checking one of two boxes, thereby 'forc[ing] claimants to decide whether their questionnaire is a request for the agency to take remedial action, such that courts can objectively determine whether each questionnaire is a charge of discrimination or merely a request for further information."

(internal citations omitted).

Plaintiff's Intake Questionnaire, like the plaintiff's intake questionnaire in Brown, reflects the changes the EEOC made after Holowecki . Intake Questionnaire at 4; see Brown, 2013 WL 3789091, at *8. Not only did Plaintiff check Box 2 on the Intake Questionnaire form, Plaintiff attached additional pages to the Intake Questionnaire detailing the Defendants' alleged discriminatory acts. Plaintiff clearly intended for the EEOC to " take remedial action." Federal Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008).

In fact, the EEOC must have understood it was Plaintiff's intention to take action because the EEOC issued Plaintiff a Dismissal and Notice of Rights letter " based upon its investigation " of Plaintiff's claims.

Plaintiff's submissions, taken as a whole and examined from the point of view of an objective observer, are a clear attempt to activate the agency review process. See Brown, 2013 WL 3789091, at *9. In light of these facts, the Court finds that Plaintiff's Intake Questionnaire constitutes a charge filed with the EEOC.

Finally, Defendant argues that even if the Intake Questionnaire is a sufficient charge, Plaintiff did not file the charge against Local 1-S. Local 1-S's argument is without merit. Plaintiff expressly stated in the Intake Questionnaire that she was discriminated against by Local 1-S, and sufficiently detailed the alleged discriminatory conduct. Plaintiff has met all the requirements necessary to exhaust her administrative remedies against Defendant Local 1-S and survive a 12(b)(6) motion to dismiss.

III. Plaintiff Did All She Had to the Exhaust Her Administrative Remedies, so the EEOC's failure to serve Local 1-S with the EEOC charge and Notice of Right to Sue letter does not prevent Plaintiff from maintaining this action against Local 1-S.

Local 1-S argues that because the EEOC did not send it either notice that a charge of discrimination had been filed against it, or notice of the EEOC Dismissal and Notice of Rights letter, Plaintiff failed to exhaust her administrative remedies as against the Union and is therefore barred from maintaining this lawsuit against it. In other words, Local 1-S asks this Court to hold that the EEOC's failure to fulfill certain statutory duties prejudices Plaintiff's ability to maintain a Title VII discrimination action. The weight of authority, however, is to the contrary.

In order to exhaust her administrative remedies, Plaintiff was required to file a charge with the EEOC. See 42 U.S.C. § 2000e-5 (b), (f). As discussed in Part I, supra, Plaintiff fulfilled this requirement when she filed the Intake Questionnaire with the EEOC. That is all Plaintiff needs to do in order to exhaust -- file a charge in which she names the parties against whom she is seeking to obtain relief. She did so, and she named, inter alia, " Macy's Union" as one of the three Respondents.

After Plaintiff filed the charge with the EEOC, the EEOC is obliged to send a notice and copy of the charge to the respondents of the charge, in this case Macy's and Local 1-S, within ten days after the filing of the charge. 29 C.F.R. § 1601.14(a). Additionally, when the EEOC issued Plaintiff the Dismissal and Notice of Rights letter, it was obliged to issue the letter to " all parties." 29 C.F.R. § 1601.28(a)(1).

In this case, the EEOC did not send notice of the charge to the Union. Reading plaintiff's intake questionnaire, I can understand why -- at best, it appears to allege a discrimination claim only against Macy's, and a breach of the duty of unfair representation claim, over which the EEOC lacks jurisdiction (unless the complainant alleges that the reason the Union breached its duty was some factor covered by Title VII) against the Union. However, Plaintiff did name the Union as a respondent; it should, therefore, have been served.

In Smith v. American President Lines, Ltd., 571 F.2d 102, 107, n.8 (2d Cir. 1978), the Second Circuit, in dicta, briefly discussed how the EEOC's failure to provide notice of a charge to Title VII respondents would impact an Title VII claimant's ability to maintain an action in federal court:

The third charge was assigned a file number but was not served and no notice of it was given [to respondent] until March 8, 1973 although 42 U.S.C. § 2000e-5(e) has a ten day notice requirement. It is clear that if Smith were held to have timely filed charges with the EEOC, the omission on the part of that agency to notify defendants would not bar [claimant's] suit.

(internal citations omitted). That holding precludes acceptance of the Union's argument.

The majority of circuit courts agree, having either held, or suggested, that the EEOC's failure to comply with its statutory duty of providing notice to Title VII respondents does not prejudice a plaintiff's ability to maintain a Title VII claim against those respondents in federal court. See Pizio v. HTMT Global Solutions, 555 Fed.App'x 169, 175 (3d Cir. 2014)(" While [the notice of charge was not served within ten days on the person against whom the charge was made]...the fault lies with the agency, not [claimant], since it is the Commission who " shall serve respondent."); Jones v. U.P.S., Inc., 502 F.3d 1176, 1185 (10th Cir. 2007) (" it is the EEOC's, not the plaintiff's, duty to provide the charged party with notice within ten days after a charge is filed...a plaintiff should not be penalized for the EEOC's negligence in handling a charge."); Edelman v. Lynchburg College, 300 F.3d 400, 401 (4th Cir. 2002) (" Once a valid charge has been filed, a simple failure by the EEOC to fulfill its statutory duties regarding the charge does not preclude a plaintiff's Title VII claim."); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 (11th Cir. 2001) (" any deficiency in the EEOC's performance of its duties should not adversely affect a plaintiff's right to sue."); Watson v. Gulf and Western Industries, 650 F.2d 990, 992 (9th Cir. 1981) (" The EEOC's failure to serve the charge on [respondents] does not interfere with [claimant's] rights."); Thornton v. East Texas Motor Freight, 497 F.2d 416, 424 (6th Cir. 1974) (" service of the EEOC charge upon the named defendants is not a jurisdictional prerequisite to institution of an action in the District Court."); see also Equal Employment Opportunity Commission v. Burlington Northern, Inc., 644 F.2d 717 (8th Cir. 1981) (EEOC's failure to serve employer with notice of charge of discrimination within ten days of receipt of charge from aggrieved party is not absolute or automatic bar to EEOC enforcement action.); White v. Dallas Indep. Sch. Dist., 581 F.2d 556, 562 (5th Cir. 1978) (en banc) (" We think that the EEOC's failure to follow its own regulations sufficiently misled [claimant] and that their mistakes should not redound to her detriment.").

I thus conclude that the EEOC's failure to serve notice upon Local 1-S of Plaintiff's charge, and Plaintiff's Dismissal and Notice of Rights letter does not doom her ability to pursue a Title VII discrimination claim against the Union in this court.

The only question that remains is whether Plaintiff has managed to plead such a claim against the union.

IV. The Union's Motion to Dismiss is Granted, With Leave to Replead.

" A union owes a duty of fair representation to those on whose behalf it acts." Agosto v. Correctional Officers Benev. Ass'n., 107 F.Supp.2d 294, 303 (S.D.N.Y. 2000). " This duty derives 'from the union's statutory role as exclusive bargaining agent.'" Id. (quoting Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 74, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991); see also Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

" The duty of fair representation requires a union to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Agosto, 107 F.Supp.2d at 303 (internal quotations and citations omitted). " A union breaches this duty when its actions are 'arbitrary, discriminatory, or in bad faith.'" Id. (quoting Vaca, 386 U.S. at 190). The actions of a union " are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational." Id. (internal quotation omitted). " The duty of fair representation applies to all union activity, and in all instances in which a union is acting in its representative role." Id. (internal quotations and citations omitted).

Under Title VII, it is unlawful for a labor union " to exclude or to expel from its membership, or otherwise discriminate against, any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1) (emphasis added). " It is well established that a union's breach of its duty of fair representation may subject it to liability under Title VII." Agosto, 107 F.Supp.2d at 303; see, e.g., Cooper v. Wyeth Ayerst Lederle, 106 F.Supp.2d 479, 2000 WL 973628, at *18 (S.D.N.Y. 2000); Gorham v. Transit Workers Union of Am., AFL-CIO, Local 100, NYCTA, No. 98 Civ. 313, 1999 WL 163567, at *3 (S.D.N.Y. Mar. 24, 1999), aff'd, 205 F.3d 1322 (2000); Nweke v. Prudential Ins. Of Am., 25 F.Supp.2d 203, 220 (S.D.N.Y. 1998). " For example, a labor union 'otherwise discriminate[s]' in violation of Title VII when it fails to represent one of its members in the grievance process because of that member's race, color, religion, sex, or national origin. Agosto, 107 F.Supp.2d at 303-04 (citing Goodman v. Lukens Steel, 482 U.S. 656, 667-69, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987)(emphasis added) (holding that union violated Title VII by following a policy of refusing to file grievable racial discrimination claims); Johnson v. Palma, 931 F.2d 203, 208 (2d Cir. 1991) (holding that a union violates Title VII when it fails to file a grievance alleging discrimination on the ground that the employer looks with disfavor on...such grievances"); Ross v. Comm. Workers of Am., Local 110, No. 91-CV-6367, 1995 WL 351462, at *6 (S.D.N.Y. June 9, 1995)).

" The duty of fair representation and Title VII plainly overlap in that they both prohibit discrimination; indeed, some courts essentially equate the two." Agosto, 107 F.Supp.2d at 304 (internal citations omitted). " Consequently, where a plaintiff claims that a union violated Title VII based on its failure to represent a member, courts in this Circuit generally incorporate the duty of fair representation as one of the elements of the alleged Title VII violation." Id.; see, e.g., Gorham, 1999 WL 163567, at *2; Nweke v. The Prudential Insurance Co. of Am., 25 F.Supp.2d 203, 220-21 (S.D.N.Y. 1998); Morris v. Amalgamated Lithographers of Am., Local One, 994 F.Supp. 161, 169 (S.D.N.Y. 1998); Ross, 1995 WL 351462, at *5.

Based on the foregoing, Agosto held that " all that is required to state a Title VII claim against a union is a breach of the duty of fair representation because of race, color, religion, sex, or national origin ." Agosto, 107 F.Supp.2d at 305 (emphasis added).

Local 1-S argues that Plaintiff did not state a cognizable claim of discrimination against Local 1-S because Plaintiff did not allege facts tending to show that the Union's refusal to grieve her claims with the employer was motivated by anything having to do with her race, national origin or religion, or that the Union was somehow engaging in retaliation because plaintiff exercised her rights under Title VII.

The strictures of Twombley/Iqbal are binding on all litigants, including pro se litigants. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While we must construe a pro se complaint liberally, Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008), and to raise the strongest arguments it suggests, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006), a pro se complaint is nonetheless subject to dismissal if it pleads no facts from which a trier could conclude that a party defendant violated the law. In a Title VII case, this means that a plaintiff -- even a pro se plaintiff -- cannot simply say, " I am (black/Jamaican/a Christian); my union refused to grieve my complaints against management; therefore the union must have made its decision because I am (black/Jamaican/a Christian). Ipse dixit pleading will not suffice; the plaintiff must plead some facts that, if credited by a jury, would give rise to the conclusion she wants the trier to draw -- namely, that the reason the union refused to grieve her complaints was because she was (black/Jamaican/a Christian), as opposed to one of the many perfectly legitimate reasons why a union would decide not to proceed with a particular grievance.

In this case, Plaintiff fails to allege a single fact from which one could conclude that the Union's decision was motivated by any factor forbidden by Title VII. Plaintiff pleads only that " the union didn't defend me when I...sought their help, " (Compl. at 3), and that she Local 1-S did not act on at least two grievances she filed. Assuming arguendo that this is true, there is not a single fact pleaded that would allow a trier of fact to conclude that the reason the Union did not act on her grievances was discrimination in violation of Title VII. The mere fact that Plaintiff is a member of a suspect class, without more, does not give rise to the inference that her race, her religion or her national origin motivated the Union's decision not to pursue her grievances.

For that reason, I am constrained to grant the Union's motion to dismiss the claim against it.

However, I do so without prejudice. " If a liberal reading of [a pro se] complaint gives any indication that a valid claim might be stated, a court should grant leave to amend at least once before dismissing it with prejudice." Williams v. Skyline Auto. Inc., 11 CIV. 8318 KBF, 2012 WL 1965334, at *3 (S.D.N.Y. May 24, 2012). While by no stretch of the imagination does the current pleading give any indication that a valid claim might be stated -- indeed, given the EEOC's conclusion that it did not appear that Macy's committed any violation of the antidiscrimination laws, it is easy to infer that the union reached the same conclusion -- I am going to give Plaintiff leave to amend her Complaint, so she can include allegations of fact (aside from the facts of her race, national origin and religion) that would, if proved, allow a reasonable juror to infer that the Union officials who declined to pursue her grievances or to " help" Plaintiff made those decisions for a reason that violates Title VII's prohibition against discrimination on the basis of race, national origin or religion. See Fed.R.Civ.P. 15(a). Plaintiff must file a new complaint, alleging specific facts, by January 9, 2015. Plaintiff is warned that, if all she does is allege that she is a member of various protected classes and the Union failed to grieve her matters, her complaint will be dismissed. She has to allege some fact that evidences discriminatory animus -- not by Macy's or its employees, or by the supplier whose products she sold, but by the Union and specifically the people who made the decisions not to pursue her grievances.

Local 1-S argues that granting Plaintiff leave to amend should be denied as leave is futile, because plaintiff's duty of fair representation claim is subject to a six-month statute of limitations, which long ago expired. But sadly for the Union, Title VII has proven an effective way around the short statute of limitations on duty of fair representation claims. Although the United States Supreme Court has held that the statute of limitations for breach of duty of fair representation claims is six months, see DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), Plaintiff brings her duty of unfair representation claim under Title VII, as opposed to the Labor Management Relations Act (" LMRA"), 29 U.S.C. § 185 (1947). Nweke v. The Prudential Insurance Co. of Am., 25 F.Supp.2d 203, 219 (S.D.N.Y. 1998); see 29 U.S.C. § 160(b) (1982); King v. New York Tel. Co., 785 F.2d 31, 33 (2d Cir. 1986). The statute of limitations for a Title VII claim is 90 days after receipt of a Notice of Right to Sue, 42 U.S.C. § 2000e-5(f)(1); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994); and, " The statute of limitations under Title VII -- not the six-month statute of limitations for breach of duty of fair representation -- controls." Nweke, 25 F.Supp.2d at 219; see Blaizin v. Caldor Store # 38, No. 97 Civ. 1604, 1998 WL 420775, at *2 (S.D.N.Y. July 27, 1998) (applying the Title VII statute of limitations period for claim that a union's failure to represent plaintiff on his grievance constituted an endorsement of plaintiff's employer's discriminatory actions in violation of Title VII); see also Morris, 994 F.Supp. at 171 (utilizing the statute of limitations period under Title VII to bar claim that the union retaliated against plaintiff for his activism and criticism of racial discrimination by the union).

Plaintiff's Notice of Right to Sue letter on was mailed to Plaintiff on March 27, 2014. Assuming that Plaintiff received the letter three days later, see Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525-26 (2d Cir. 1996), the statute of limitations on Plaintiff's Title VII claim began to run on March 30, 2014. Local 1-S did not challenge either the mailing date, or the date Plaintiff received the letter. This lawsuit was filed on June 27, 2014, which is within the statutory 90 day period.[2]

CONCLUSION

The motion is GRANTED but without prejudice and plaintiff has until January 9, 2015 to file an amended complaint. The Clerk of the Court is directed to remove Docket No. 16 from the Court's list of pending motions.


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