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Gonzalez v. City of New York

United States District Court, S.D. New York

January 13, 2020

ALFRED GONZALEZ, Plaintiff,
v.
CITY OF NEW YORK; and DISTRICT COUNCIL 37, AFSCME, AFL-CIO, SSEU LOCAL 371, Defendants.

          MEMORANDUM OPINION AND ORDER

          GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.[1] 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.

         I. BACKGROUND[2]

         Gonzalez 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.[3] 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”).[4] Affidavit of Anthony Wells (“Wells Aff.”), Dkt No. 58, ¶ 10.

         At the 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)).

         II. PROCEDURAL HISTORY

         Gonzalez 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.[5] 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.

         Gonzalez 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.

         In the 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”).[6] See Id. ¶ 33.

         The 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.

         The 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.

         The 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.

         III. LEGAL STANDARD

         Summary 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 ...


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