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Howell v. 1199 Union

United States District Court, S.D. New York

January 16, 2015


Kenneth Howell, Plaintiff, Pro se, Bronx, N.Y. USA.

For Brenda Mundy, Defendant: David Mark Slutsky, Vanessa Flores, LEAD ATTORNEYS, Levy Ratner, P.C., New York, N.Y. USA.


ANALISA TORRES, United States District Judge.

Plaintiff pro se, Kenneth Howell, brings this action against 1199SEIU United Healthcare Workers East[1] (" 1199 Union"), Estela Vasquez, 1199 Union's Executive Vice President, and Brenda Mundy, an 1199 Union organizer (collectively, " Defendants"). Construing the complaint liberally, Howell alleges that Defendants breached their duty of fair representation and violated Title VII of the Civil Rights Act of 1964. Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is GRANTED.


Howell worked for over twenty years at Montefiore Medical Center (" Montefiore"). Pl. Aff. in Opp'n at 9, ECF No. 23. In connection with his employment, he served as a member and delegate of 1199 Union, a labor organization that represents New York City hospital employees. Id. On January 30, 2013, Montefiore fired Howell. Compl. at 4, ECF No.2.

On February 27, 2013, 1199 Union--acting on Howell's behalf--and Montefiore management attended a " third step grievance meeting" to resolve Howell's claim that he was wrongfully discharged. Pl. Aff. in Opp'n at 64, ECF No. 23-1. About two weeks later, after considering the evidence proffered by the parties, the hearing officer found that Howell violated the following hospital regulations: " VII-I Medical Center Rules [and] Regulations, " " VII-20 Maintaining a non-violent workplace, " and " VI-3 Management of Disruptive Conduct." Id. at I, ECF No. 23-2. On this basis, the officer denied Howell's termination complaint. Id.

Howell sought to process his grievance further. But, on March 19, 2013, 1199 Union notified Howell that it declined to arbitrate his case. Flores Decl. Ex. 3 at 3, ECF No. 25-3. A month later, the Chapter Hearing and Appeals Board agreed with the Union's conclusion. Flores Decl. Ex. 4 at 2, ECF No. 25-4. In a June 20, 2013 letter to 1199 Union, Howell decried its determination not to pursue arbitration. Pl. Aff. in Opp'n at 35, 40, ECF No. 23-1. Nonetheless, on July 10, 2013, the Hearings and Appeals Board of the Health System Division upheld the decision, explaining that arbitration would be futile. Flores Decl. Ex. 1 at 2, ECF No. 25-1; see also Compl. at 3.

Meanwhile, on March 25, 2013, Howell filed an unfair labor practice charge with the National Labor Relations Board (" NLRB"). Flores Decl. Ex. A at 2, ECF No. 20. He asserted that " [s]ince on or about March 22, 2013, [1199 Union], by its officers, agents[, ] and representatives, has failed and refused to fully process [Howell's] termination grievance . . . from Montefiore . . . for reasons that are arbitrary, discriminatory[, ] or otherwise unlawful." Id. On May 17, 2013, the NLRB dismissed Howell's allegations, finding, in relevant part, that " [t]here was no evidence presented that the Union's decision not to proceed to arbitration was based on any arbitrary or unlawful consideration." Flores Decl. Ex. 3 at 3. On June 6, 2013, the NLRB Office of Appeals denied Howell's appeal. Flores Decl. Ex. B at 3, ECF No. 20.

Seven months later, on January 8, 2014, Howell commenced this action. Compl. at 1. He alleges that 1199 Union, Vasquez, and Mundy " deliberately" and " maliciously" failed to provide fair representation during his termination proceedings. Compl. at 3; Pl. Aff. in Opp'n at 5. Howell claims that Defendants colluded with Montefiore management by " turn[ing] a blind eye" to Howell's reports of " past documented physical abuse, " " unfair managerial behavior, " and " racial bias[]." Pl. Aff. in Opp'n at 4, 9. Mundy " did not get witness statements in writing nor summon[] any witnesses to give testimony" during the grievance proceedings. Compl. at 3. In addition, she " deliberately withheld witness documentation." Id. Vasquez, for her part, " aided and abetted" Mundy's " intentional mishandling" of the case. Id.

Howell claims Defendants' unfair labor practices, reprisal, and discrimination resulted in his termination and loss of pay. Compl. at 2. In this action, he seeks " full reinstatement" to 1199 Union, as well as reimbursement for lost wages and medical bills. Id. at 10. Finally, Howell requests immediate job placement within another union medical facility. Id.


I. Standard of Review

To survive a motion to dismiss, a complaint " must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A court must accept allegations contained in the complaint as true and draw all reasonable inferences in the non-movant's favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

A court will " liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). " The policy of liberally construing pro se submissions is driven by the understanding that '[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Although courts are " obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [courts] cannot invent factual allegations that he has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). The pleadings must still contain factual allegations that raise a " right to relief above the speculative level." Twombly, 550 U.S. at 555.

Furthermore, " [w]hen a plaintiff alleges a union's breach of its duty of fair representation, the 'complaint[] should be construed to avoid dismissal[].'" Kavowras v. New York Times Co., 328 F.3d 50, 54 (2d Cir. 2003) (quoting Czosek v. O'Mara, 397 U.S. 25, 27, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970)); see also Eatz v. DME Unit of Local Union No. 3 of Int'l Broth. of Elec. Workers. AFL-CIO, 794 F.2d 29, 34 (2d Cir. 1986) (" [W]hen an action involves a union's duty of fair representation, the Supreme Court advises the lower courts . . . to construe complaints so as to avoid dismissals and to give plaintiffs the opportunity to file supplemental pleadings unless it appears beyond doubt that a good cause of action cannot be stated.").

II. Documents Considered

Generally, on a Rule 12(b)(6) motion, a district court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that the plaintiff knew about and relied upon. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). Nonetheless, " the mandate to read the papers of pro se litigants generously makes it appropriate to consider [ pro se plaintiffs'] additional materials." Gadson v. Goord, No. 96 Civ. 7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997); see also Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in opposition to defendant's motion to dismiss).

Accordingly, the Court considers the factual allegations in Plaintiff's opposition papers--including his surreplies, see ECF Nos. 27, 29, 31--to the extent that they are consistent with the complaint's allegations. See Munoz-Nagel v. Guess, Inc., No. 12 Civ. 1312, 2013 WL 1809772, at *1 n.1 (S.D.N.Y. Apr. 30, 2013) (considering " the factual allegations contained in Plaintiff's opposition papers, including her surreply, " in deciding the motion to dismiss). Moreover, the Court takes judicial notice of the relevant NLRB and 1199 Union decisions. See Fed.R.Evid. 201(b)(" The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."); Kavowras, 328 F.3d at 57 (holding that the district court properly considered plaintiff's NLRB charge in deciding the motion to dismiss).[2]

III. Claims Against 1199 Union

A. Breach of Duty of Fair Representation Claim

First, Howell alleges that 1199 Union breached its duty of fair representation. The National Labor Relations Act, 29 U.S.C. § 151 et seq., imposes a duty on unions to fairly represent its members in grievances against an employer. See United Parcel Serv. Inc. v. Mitchell, 451 U.S. 56, 76 n.9, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). A breach occurs " when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). 1199 Union moves to dismiss this claim as time-barred.

It is well-settled that the statute of limitations for unfair representation claims is six months. 29 U.S.C. § 160(b); see DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Accrual occurs " no later than the time when plaintiffs knew or reasonably should have known that such a breach had occurred, even if some possibility of nonjudicial enforcement remained." Santos v. Dist. Council of New York City & Vicinity of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 619 F.2d 963, 969 (2d Cir. 1980). And, generally, the bringing of an NLRB charge establishes actual knowledge of the breach. See Kavowras, 328 F.3d at 55.

Here, Howell's claim accrued--at the latest--on the date he filed his NLRB charge: March 25, 2013. By this time, 1199 Union had represented Howell at the third step grievance meeting and had notified Howell of its decision not to arbitrate his case. In his NLRB charge, Howell alleged that 1199 Union and its representatives failed " to fully process" his termination grievance " for reasons that are arbitrary, discriminatory[, ] or otherwise unlawful." Thus, by March 25, 2013, Howell knew that an alleged breach of duty had occurred. But Howell did not file this lawsuit until January 8, 2014, more than nine months after the limitations clock began to run. Because Howell waited over six months to sue 1199 Union after he possessed knowledge of the purported violation, his claim is untimely.[3]

In challenging 1199 Union's motion, Howell contends that the clock did not start ticking until July 10, 2013, " the date of the last letter of decision [he] received" denying arbitration. Pl. Aff. in Opp'n at 13. Not so. The Second Circuit has held that " the time of accrual should [not] be deferred until it is clear that none of the internal union mechanisms will achieve success." Santos, 619 F.2d at 969; see also Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 164 (2d Cir. 1989) (" We cited the federal policy favoring prompt resolution of disputes in holding that the plaintiff could not wait until all such remedies were exhausted . . . . [W]hile . . . a breach at only one level of union organization does not preclude all possibility that efforts at other levels might eventually achieve success, [the breach was] sufficiently serious to make ultimate compliance unlikely." (internal quotation marks and citations omitted)); King v. New York Tel. Co., 785 F.2d 31, 34 (2d Cir. 1986) (recognizing that unfair representation claims accrue " even if some possibility of nonjudicial enforcement remained"). Indeed, " [o]nce a plaintiff learns of his union's breach of its duty of fair representation, the union's subsequent failure to actually represent the plaintiff[] cannot be treated as a continuing violation that preclude[s] the running of the limitations period." Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995) (internal quotation marks omitted).[4]

1199 Union first notified Howell that it declined to arbitrate his grievance on March 19, 2013. This decision was affirmed by the Chapter Hearing and Appeals Board a month later. Howell's filing of his NLRB charge on March 25, 2013, coupled with his June 20, 2013 letter to 1199 Union, confirms that he was aware of the Union's decisions well before July 10, 2013. The clock cannot be tolled until Howell exhausted all his internal union remedies. See Engelhardt v. Consol. Rail Corp., 756 F.2d 1368, 1370 (2d Cir. 1985) (" [T]he union's activity (or lack thereof) since the agreements were entered into does not constitute a continuing violation, thus tolling the six-month statute of limitations.").

Accordingly, Howell's unfair representation claim against 1199 Union is DISMISSED with prejudice. See Mandavia v. Columbia Univ., 912 F.Supp.2d 119, 135 (S.D.N.Y. 2012) (dismissing similar time-barred claim " with prejudice"), aff'd, 556 F.App'x 56 (2d Cir. 2014).

B. Title VII Claim

Construing the complaint liberally, Howell also charges 1199 Union with discriminating against him in violation of Title VII. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C. § 2000e et seq . " [A] union violates Title VII when it breaches its duty of fair representation because of race, color, religion, sex, or national origin." Agosto v. Corr. Officers Benev. Ass'n, 107 F.Supp.2d 294, 304 (S.D.N.Y. 2000). Individuals may bring Title VII claims in federal court only after filing a timely charge of employment discrimination with the Equal Employment Opportunity Commission (" EEOC") and receiving an EEOC right-to-sue letter. 42 U.S.C. § 2000e-5(e); see Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). Administrative exhaustion is an essential element of Title VII's statutory scheme, the purpose of which is to avoid unnecessary federal court action by " giv[ing] the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985).

Howell has not stated that he exhausted his remedies by filing an EEOC complaint. Nor has Howell alleged that he obtained or even attempted to procure a right-to-sue letter. Therefore, Howell has " failed to comply with the procedural requirements for filing a Title VII discrimination claim, " and there is no reason to equitably waive the requirement of a right-to-sue letter. Canty v. Wackenhut Corr. Corp., 255 F.Supp.2d 113, 117 (E.D.N.Y. 2003); see also Bey v. Welsbach Elec. Corp., No. 01 Civ. 2667, 2001 WL 863419, at *3 (S.D.N.Y. July 30, 2001) (dismissing Title VII discrimination claim because plaintiff " has not obtained a right-to-sue letter from the EEOC or the NYSDHR, and the complaint does not allege any attempt to procure such a letter"), aff'd, 38 F.App'x 690 (2d Cir. 2002); Nurse v. City of New York, 739 F.Supp. 811, 811-12 (S.D.N.Y. 1990) (" It was incumbent upon [plaintiff] to raise the failure of the EEOC to issue a letter, if indeed there was such a failure, prior to the commencement of her suit in federal court and therefore there exists no reason to toll or waive the statutory requirement.").

Howell's Title VII claim against 1199 Union is DISMISSED without prejudice. See Crisci-Balestra v. Civil Serv. Employees Ass'n, Inc., No. 07 Civ. 1684, 2008 WL 413812, at *6-7 (E.D.N.Y. Feb. 13, 2008) (dismissing Title VII and ADEA claims " without prejudice" because " it is conceivable that plaintiff has exhausted her administrative remedies, but simply failed to produce the necessary documentation or support for such exhaustion to the Court").

IV. Claims Against Vasquez and Mundy

In addition to suing 1199 Union, Howell has named union representatives Vasquez and Mundy as Defendants, alleging that they too " deliberately mishandled" his termination grievance. However, it is well-established that " [i]ndividual union members are immune from damages claims in suits for breach of the duty of fair representation." Rollins v. New York City Dep't of Educ., No. 05 Civ. 10482, 2008 WL 2736018, at *7 (S.D.N.Y. July 8, 2008); see also Morris v. Local 819, 169 F.3d 782, 784 (2d Cir. 1999) (per curiam) (" We now join the other circuits that have considered the issue and hold that 29 U.S.C. § 185(b) and the caselaw provide a shield of immunity for individual union members in suits for breach of the duty of fair representation."). Nor are individuals subject to liability under Title VII. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000).

Therefore, Vasquez and Mundy cannot be held personally liable for breaches of the duty of fair representation and violations of Title VII. Howell's claims against them are DISMISSED with prejudice. See Emmons v. City Univ. of New York, 715 F.Supp.2d 394, 410 (E.D.N.Y. 2010) (dismissing similar claims against individual defendants " with prejudice").


For the reasons stated above, Defendants' motion to dismiss the complaint is GRANTED in its entirety.

The Clerk of Court is directed to terminate the motion at ECF No. 18 and to mail a copy of this order and all unpublished decisions cited therein to Plaintiff pro se .


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