United States District Court, S.D. New York
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, Cohen, Weiss & Simon, L.L.P., New York, NY.
MEMORANDUM ORDER DENYING MOTION FOR RECONSIDERATION
Colleen McMahon, United States District Judge.
On January 12, 2015, plaintiff pro se Odette Robinson filed a notice of motion for reconsideration of this court's decision dismissing without prejudice her complaint as against the defendant Union. The court filed that decision on December 5, 2014. Pursuant to Local Rule 6.3 of this court, a litigant who seeks reconsideration must file her motion within 14 days after entry of the court's original decision -- which, in the case of this particular decision, was December 19, 2014. No Federal Rule of Civil Procedure or other exception to the Local Rule applies in this instance. Ms. Robinson's motion is, therefore, untimely.
However, Ms. Robinson appears to misconstrue what the court did -- indeed, she asks for an explanation of the decision, although it is easily enough understood.
The court dismissed Ms. Robinson's Title VII claim against the Union without prejudice because the document that served as the complaint did not include any factual basis for her assertion that the Union did not fairly represent her on the basis of some factor prohibited by Title VII. I explained that it is not enough for a plaintiff to assert " I am a member of a protected class; my Union did not fairly represent me in a dispute with my employer; the reason must have been the fact that I am a member of a protected class." Rather, a plaintiff (even a pro se plaintiff) must plead some facts from which a juror could infer that the reason she was not fairly represented was her race, her gender, her religion, her national origin - some factor prohibited by Title VII.
Most important, I gave plaintiff permission to file an amended complaint and to include in that complaint facts from which a juror could conclude that the Union declined to represent her fairly for some illegal reason -- as opposed, say, to its assessment that her complaint lacked merit.
Plaintiff's motion for reconsideration includes a page that ends with the legend: " NO FAIR REPRESENTATION: AND IT WAS DISCRIMINATORY." Unfortunately, that page does not plead any fact from which a juror could conclude that the Union did not fairly represent plaintiff for a reason banned by Title VII -- her race, national origin, religion, gender. It outlines the facts from which plaintiff concludes that the Union did not represent her at all, let alone fairly -- but none of those facts suggests that the reason the Union did not properly handle her complaint was her race, national origin, religion or gender. Plaintiff has no viable claim for breach of the duty of fair representation that is not based on Title VII discrimination, because the statute of limitations on any such claim is six months (see December 5 Decision at page 19), and that limitations period expired early in 2013. If she cannot allege any facts tending to suggest that the Union ignored her grievance because of her race, national origin or religion, then plaintiff's claim against the Union will be dismissed with prejudice.
Plaintiff has until January 30, 2015 to file an amended complaint, adding to her existing complaint facts from which a trier of fact could conclude that the Union's motive for handling her grievances the way that it did was a forbidden factor. Again, it is not enough for plaintiff simply to say, " The Union mishandled my grievances and did not represent me fairly; that was discriminatory." She has to explain why, and how she knows that, it was discriminatory. Conclusory allegations are insufficient.
The motion for reconsideration having been denied, the Clerk of Court should remove the motion at Docket #27 from ...