United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
Alfred Gonzalez was fired by his employer, Defendant New York
City (the “City”), for alleged prolonged and
unexcused absences. After his termination, Gonzalez brought
this action against the City and Defendant District Council
37, AFSCME, AFL-CIO, Social Service Employees Union Local 371
(the “Union”), of which Gonzalez was a member. As
against the Union, Gonzalez's complaint alleges a breach
of the duty of fair representation and a violation of his due
process rights. Because the Court lacks subject matter
jurisdiction over Gonzalez's claim for breach of the duty
of fair representation and Gonzalez does not have a viable
underlying due process claim against the City upon which to
predicate a conspiracy claim, the Union's motion for
summary judgment is GRANTED.
is a former New York City employee. Defendant's Local
Rule 56.1 Statement (“Def. 56.1”), Dkt No. 60,
¶ 1 (citing First Amended Complaint (“FAC”),
Dkt No. 21, ¶ 9). He was fired by the City in March
2015. See March 12, 2015 Termination Letter, Ex 1 to
FAC, at 16; March 2, 2015 Termination Letter, Ex. 2 to FAC,
at 20. Gonzalez was a permanent civil service
employee entitled to certain statutory due process rights
under New York State Civil Service Law section 75
(“Section 75”). Affidavit of Anthony Wells
(“Wells Aff.”), Dkt No. 58, ¶ 10.
time of his discharge, Gonzalez was a member of the Union.
Def. 56.1 ¶ 11 (citing Wells Aff., ¶ 9). The Union
is a public employee labor organization. Id. ¶
4 (citing Wells Aff. ¶¶ 2-4; FAC ¶ 11).
Because Gonzalez was a member of the Union, he was covered by
its collective bargaining agreement (the “CBA”)
with the City. Id. ¶ 11 (citing Wells Aff.
¶ 9); see CBA, Ex. A to Wells Aff., Dkt No.
58-1. The CBA provides for a grievance procedure under which
Union members like Gonzalez can raise claims that wrongful
disciplinary action was taken against them by the City. Def
56.1 ¶ 12 (citing Wells Aff. ¶¶ 10-11).
According to the CBA, to submit a claim under the grievance
procedure outlined in the CBA, employees must waive their
right to submit their claims in other judicial or
administrative fora, including under Section 75. CBA at 46.
Employees can obtain judicial review of adverse disciplinary
determinations under article 78 of New York's Civil
Practice Law and Rules (“Article 78”).
See MTD Op. at 12 (citing Locurto v. Safir,
264 F.3d 154, 175 (2d Cir. 2001)).
filed his complaint on March 12, 2018, Dkt No. 1, which he
amended on June 21, 2018, Dkt No. 21. Gonzalez alleges that
the Union and the City conspired to terminate him without due
process and to deprive him of the due process that the
CBA's grievance procedures were designed to provide. FAC
¶¶ 31-42. Gonzalez alleges that he contacted the
Union shortly after receiving a termination letter from the
City. Id. ¶¶ 23, 26-28. From March 2015 to
May 2017, Gonzalez alleges that Union officials assured him
that they would appeal his termination. Id.
¶¶ 26-28, 31. In August 2017, after years of
inaction, Gonzalez alleges that he brought an improper
practice case against the Union and the HRA before the Board
of Collective Bargaining (the “BCB”).
Id. ¶ 31. Gonzalez alleges that in response to
that case, the Union decided not to appeal Gonzalez's
termination. Id. Gonzalez also alleges that the
Union had him sign blank grievance forms and presented
fraudulent documents in the BCB case. Id. ¶ 36.
alleges that he waived his right to a Section 75 proceeding
to proceed on the false assumption the disciplinary
procedures in the CBA would be followed by the Union and the
City. Id. ¶¶ 56-57. Therefore, because
Gonzalez allegedly received neither a fair process under the
CBA nor a Section 75 proceeding, Gonzalez alleges that he did
not receive adequate due process before his termination.
Id. ¶ 58.
FAC, Gonzalez asserts three claims for relief. First,
Gonzalez asserts that the City and the Union violated his due
process rights when they allegedly allowed him to be
terminated from his permanent civil service position without
a hearing. Id. ¶¶ 59-67. Second, Gonzalez
alleges that the grievance procedures provided for in the CBA
did not provide due process and, as a result, he claims that
the Union and the City violated his due process rights as
guaranteed by the Fourteenth Amendment. Id.
¶¶ 68-78. Finally, Gonzalez asserts that the City
will violate his due process rights by sharing his personnel
records with potential future employers. Id.
¶¶ 79-83. The Court also construes Gonzalez's
FAC as raising a claim for the breach of the duty of fair
representation against the Union under section 301(a) of the
Labor Management Relations Act of 1947
(“LMRA”). See Id. ¶ 33.
City moved to dismiss the claims against it in Gonzalez's
complaint on August 3, 2018. Dkt No. 36. The Court granted
the City's motion to dismiss the claims against it in the
Motion to Dismiss Opinion. Dkt No. 47. The Court dismissed
Gonzalez's first two claims for relief against the City
because Gonzalez failed to avail himself of an Article 78
proceeding, which would have been an adequate
post-deprivation remedy. MTD Op. at 12-14. The Court
dismissed Gonzalez's third claim for relief because the
claim did not assert an injury in fact as required to allege
a justiciable case or controversy. Id. at 14-15.
Court granted Gonzalez leave to replead his third claim.
Id. at 16. However, the Court determined that any
amendment would be futile as to Gonzalez's first and
second claims. Id. That was because “Gonzalez
did not pursue an Article 78 proceeding” and was
therefore “precluded from asserting due process
claims.” Id. Consequently, the Court denied
Gonzalez leave to replead his first and second claims for
relief. Id. Gonzalez sought to appeal that
determination on January 22, 2019. Dkt No. 48. However, on
June 26, 2019, the Second Circuit determined that it lacked
jurisdiction over Gonzalez's appeal because the Motion to
Dismiss Opinion was not a “final order as contemplated
by 28 U.S.C. § 1291.” Dkt No. 64 (citing
Petrello v. White, 533 F.3d 110, 113 (2d Cir.
2008)). Gonzalez has not taken advantage of the opportunity
to replead his third claim against the City.
Union filed its motion for summary judgment on April 4, 2019.
Dkt No. 57. In its memorandum of law, the Union argues that
the duty of fair representation claim must be dismissed
because the Court lacks subject matter jurisdiction over the
claim. Defendant's Memorandum of Law in Support of its
Motion for Summary Judgment (“Mem.”), Dkt No. 59,
at 3. The Union also argues that Gonzalez's due process
claims must be dismissed because it is not a state actor and
therefore cannot be liable for due process violations.
Id. at 4. Gonzalez filed his opposition on May 9,
2019. Dkt No. 61. The Union did not file a reply. Dkt No. 63.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.'”
(quoting former Fed.R.Civ.P. 56(c))). A genuine dispute
exists where “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party, ”
while a fact is material if it “might ...