Summary
finding a claim of national-origin discrimination adequately stated based on allegations that the defendant did not provide the foreign-born plaintiff with opportunities provided to employees who were not foreign-born
Summary of this case from Benitez v. Tyson Fresh Meats, Inc.Opinion
06 Civ. 2558 (KNF).
April 9, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
Stylianos Prokopiou ("Prokopiou") brings this action against the Long Island Rail Road Company ("LIRR"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"), alleging employment discrimination based on national origin. Before the Court is the defendant's motion to dismiss the complaint pursuant to: (i) Fed.R.Civ.P. 12(b)(2) and (5), for insufficient service of process; (ii) Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted; and (iii) Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, due to preemption of the plaintiff's claim by the Railway Labor Act, 45 U.S.C. §§ 151- 164 ("RLA"). By orders of the Court dated September 27, 2006, and October 24, 2006, the plaintiff was granted enlargements of time to respond to the instant motion, but failed to do so.
II. BACKGROUND
Prokopiou alleges he is employed as an electrician by LIRR's Maintenance of Equipment Department ("MED"), and has been working there since October 2000. Starting in 2004, he asserts, LIRR discriminated against him, on the basis of his Greek national origin, because he sought advancement within MED. According to Prokopiou, an electronics test was a prerequisite for advancement within MED. However, he was notified by his union, the International Brotherhood of Electrical Workers, that he would not be permitted to take the test due to a letter of understanding between the union and LIRR. Prokopiou maintains the letter of understanding provides that two conditions precedent must be satisfied in order for an employee to take the electronics test: an employee must (a) bid for a position in the Electronics Shop and (b) be awarded the position by MED, which makes its decision based on employee seniority.Prokopiou contends LIRR disregarded the letter of understanding and permitted employees who are not foreign-born to take the electronics test without satisfying the two conditions precedent to testing. Prokopiou complained to LIRR through his union representative; thereafter, LIRR agreed to administer the test to him. Prokopiou's electronics test was initially scheduled for October 16, 2004, but was cancelled by LIRR without warning or explanation. The test was rescheduled for November 20, 2004, but was cancelled by LIRR without warning or explanation. As of the date he filed the complaint with the Clerk of Court, Prokopiou had not been permitted to take the electronics test.
The plaintiff maintains that LIRR's preferential treatment of employees who are not foreign-born affected his status as an employee adversely and deprived him of employment opportunities because of his national origin. Prokopiou contends, the persons who engaged in discriminatory conduct against him held supervisory positions with LIRR and, despite the actual knowledge that its supervisors were acting in a "deleterious, discriminatory fashion to the detriment of other employees generally and plaintiff specifically," LIRR failed to take any remedial action. Moreover, Prokopiou asserts, "[a]s a direct and proximate result of the [LIRR's] discrimination on the basis of his accent, [he] suffered lost wages, benefits and lost employment opportunities (promotions)."
III. DISCUSSION
Subject Matter Jurisdiction — Fed.R.Civ.P. 12(b)(1)
Federal district courts have original jurisdiction of "all civil actions arising under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331. The Supreme Court has said that a case arises under federal law if "'a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law."Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2856 (1983). "The well-pleaded-complaint rule mandates that in assessing subject-matter jurisdiction, a federal court must disregard allegations that a well-pleaded complaint would not include-e.g., allegations about anticipated defenses." Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005) (citingRivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S. Ct. 921, 925 ["A defense is not part of a plaintiff's properly pleaded statement of his or her claim."]). In resolving a motion to dismiss for lack of subject matter jurisdiction, a court may consider evidence outside the pleadings. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "A case is properly dismissed for lack of subject matter jurisdiction under [ Fed.R.Civ.P. 12(b)(1)] when the district court lacks the statutory or constitutional power to adjudicate it." Id. A court may dismiss the complaint for lack of subject matter jurisdiction "only if it appears that the plaintiff can prove no set of facts that would support jurisdiction." United States v. Sforza, 326 F.3d 107, 110 (2d Cir. 2003).
Here, the plaintiff invoked Title VII as a ground for subject matter jurisdiction, alleging, in his complaint, that LIRR discriminated against him, based on his national origin, by not providing him the same employment advancement opportunities it provided to its other employees who are not foreign-born. The plaintiff's complaint alleges, sufficiently, a violation of a federal right created by Title VII. Accordingly, the Court has subject matter jurisdiction over the plaintiff's Title VII claim. However, Congress may divest a district court of subject matter jurisdiction by precluding a district court's review of a particular issue. See Whitman v. Dep't of Transp., ___ U.S. ___, 126 S. Ct. 2014, 2015 (2006); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 353 n. 4, 104 S. Ct. 2450, 2458 n. 4 (1984) ("congressional preclusion of judicial review is in effect jurisdictional").
RLA Preclusion
LIRR contends Prokopiou's Title VII claim is preempted by RLA because it "depends on the analysis or interpretation of the terms of a collective bargaining agreement." Federal preemption derives from the Supremacy Clause. See U.S. Const. art. VI, cl. 2. It is invoked when federal law supersedes state law. See Clean Air Markets Group v. Pataki, 338 F.3d 82, 87 (2d Cir. 2003). Prokopiou has not made any state-law claims. Therefore, the defendant's assertion, that the plaintiff's Title VII claim is subject to "preemption," is erroneous.
Whether one federal statute takes precedence over another is a question of preclusion and does not implicate the Supremacy Clause. See Lennon v. Finegan, 78 F. Supp. 2d 258, 259 (S.D.N.Y. 2000) ("The preemption doctrine does not govern questions relating to the compatibility of two or more federal laws."). A finding that one federal statute is precluded by another is strongly disfavored by courts "absent express manifestations of preclusive intent" from Congress.Sforza, 326 F.3d at 111. Therefore, "[t]o overcome the presumption against preclusion, defendants must demonstrate a clear congressional intent to preclude, or a positive repugnancy between the two federal statutes." Id.
RLA's purpose is, in part, to establish mandatory administrative procedures for resolving labor disputes in the railroad industry "concerning rates of pay, rules, or working conditions," as well as disputes "growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." 45 U.S.C. § 151a;see Atchison, Topeka Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562-63, 107 S. Ct. 1410, 1414 (1987). Disputes growing out of the interpretation or application of agreements covering rates of pay, rules, or working conditions are considered "minor" disputes. See Hawaiian Airlines, Inc., 512 U.S. at 252-53, 114 S. Ct. at 2244. Disputes "involving the interpretation or application of existing labor agreements" are minor disputes. Id. at 256, 114 S. Ct. at 2245. Disputes that "involve duties and rights created and defined by the CBA [collective bargaining agreement]" are minor disputes, subject to RLA arbitration. Id. at 258, 114 S. Ct. at 2247.
However, "the RLA's mechanism for resolving minor disputes does not [preclude] causes of action to enforce rights that are independent of the CBA." Id. at 256, 114 S. Ct. 2246; see Buell, 480 U.S. at 564-65, 107 S. Ct. at 1415. "Notwithstanding the strong policies encouraging arbitration, 'different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.'" Id. at 565, 107 S. Ct. at 1415 (quotation omitted). In determining whether a claim or right is independent of the applicable collective bargaining agreement, a court may look at the specific relief sought by the plaintiff.See Trans World Airlines, Inc. v. Sinicropi, 887 F. Supp. 595, 606 (S.D.N.Y. 1995). "If [the] specific right is generated from a source outside of the collective bargaining agreement, a party may employ an alternative available mechanism to vindicate it. If, however, the specific right owes its existence solely to the terms of the collective bargaining agreement, the RLA arbitration mechanism must be the exclusive vehicle for vindication of that right." Id.
Courts are divided over whether RLA precludes a railroad employee from prosecuting a Title VII claim in a court. Some have found that RLA precludes an employee from litigating in a court claims brought pursuant to federal civil rights statutes, including Title VII. See e.g., Crayton v. Long Island R.R., No. 05 CV 1721, 2006 WL 3833114, at *4-5 (E.D.N.Y. Dec. 29, 2006) (applying the test articulated in Brown v. Illinois Central R.R. Co., 254 F.3d 654 [7th Cir. 2001] to preclude a Title VII claim when a dispute is substantially dependent upon an analysis of the terms of a collective bargaining agreement); Parker v. Metro. Transp. Auth., 97 F. Supp. 2d 437, 445-48 (S.D.N.Y. 2000) (precluding Americans with Disabilities Act ["ADA"] and Age Discrimination in Employment Act claims because determination of dispositive issues required the court to interpret collective bargaining agreement); Moss v. Norfolk Western Ry. Co., No. 02-74237, 2003 WL 21817127, at *5 (E.D. Mich. July 22, 2003) (precluding a disparate treatment race-discrimination claim because it required the court to interpret the collective bargaining agreement's regulations regarding discipline);Everette v. Union Pacific R.R., No. 04 C 5428, 2006 WL 2587927, at *4 (N.D. Ill. Sept. 5, 2006) (finding preclusion because resolution of the plaintiff's Title VII claim will require the court to define the parties' duties under a collective bargaining agreement).
However, the majority of courts considering this issue have held that RLA does not preclude an employee from prosecuting a Title VII or other federal civil rights claim in a court, and that such a claim(s) does not constitute a "minor dispute." See,e.g., Bates v. Long Island R.R. Co., 997 F.2d 1028, 1034 (2d Cir. 1993) (claim under § 504 of the Rehabilitation Act not precluded because "[w]hen an employee's statutory civil rights have been violated, arbitration should not be the sole avenue for protection, unless Congress has so specified."); D'Amato v. Long Island R.R. Co., No. 99 Civ. 1797, 2001 WL 563569, at *3 (S.D.N.Y. May 24, 2001) (finding no preclusion because the plaintiff's ADA rights arise independently of the collective bargaining agreement and his ADA claim is not a "minor dispute");Adams v. N.J. Transit Rail Operations, No. 97 Civ. 430, 97 Civ. 1269, 97 Civ. 1270, 2000 WL 224107, at *8-9 (S.D.N.Y. Feb. 28, 2000) ( 42 U.S.C. § 1981 and Title VII claims not precluded because they are not "minor disputes"); Norman v. Missouri Pacific R.R., 414 F.2d 73, 81-83 (8th Cir. 1969) (finding no preclusion of Title VII claim because racial discrimination in employment practices is not confined exclusively to remedies contained in RLA and noting that Congress did not intend to make railroads immune from Title VII liability for discrimination in employment); Felt v. Atchison, Topeka Santa Fe Ry. Co., 60 F.3d 1416, 1419-20 (9th Cir. 1995) (finding no preclusion because Title VII rights, which the collective bargaining agreement never expressly referenced, exist independently of the collective bargaining agreement and the plaintiff's Title VII claim could not be resolved conclusively by consulting that agreement).
LIRR contends the Court lacks subject matter jurisdiction because Prokopiou's Title VII claim is precluded by RLA. It asserts the plaintiff's Title VII claim is a "minor dispute," since it cannot be resolved "without [construing] the collective bargaining agreement and [the] letter of understanding between the defendant and [the]union," and, as such, the claim is precluded from review by the Court. The letter of understanding between the union and LIRR, entitled "Electronics Shop Qualification Test," sets forth the procedure to be followed when an unqualified electrician makes a bid for a position in the defendant's Electronics Shop. Prokopiou does not allege that he satisfied the prerequisites for taking an electronics test, as required by the letter of understanding. He asserts that LIRR allowed other employees, who do not share his national origin, to take the test without satisfying the requirements set forth in the letter of understanding. The thrust of Prokopiou's Title VII claim is that, notwithstanding the letter of understanding, LIRR has given "preferential treatment [to] other employees," who are not foreign-born, and by doing so "has adversely affected [his] status and deprived him of employment opportunities because of his national origin." In essence, Prokopiou seeks from the Court an order directing LIRR to "afford [him] the same opportunities for [employment] advancement as [those afforded to] other employees [who are not foreign-born]."
The plaintiff's right to be free from employment discrimination based on national origin is an independent statutory right grounded in Title VII and does not emanate from the letter of understanding adopted by his union and his employer. The plaintiff's statutory right to pursue his claim in a judicial forum arises out of Title VII and is independent of the contractual rights conferred either by the relevant collective bargaining agreement or the letter of understanding. The plaintiff alleges LIRR engaged in discriminatory conduct because it afforded opportunities for employment advancement to employees who are not foreign-born that it denied to him because of his national origin. No need exists for the Court to interpret or apply the letter of understanding in order to assess whether LIRR's conduct was discriminatory. Moreover, the plaintiff does not seek, as a remedy, that the Court direct LIRR to comply with the express provisions of the letter of understanding. He seeks the same opportunities for employment advancement LIRR gives to other employees who are not foreign-born, notwithstanding the terms and conditions of the letter of understanding. The plaintiff's Title VII claim does not "grow out of" an interpretation or application of the letter of understanding. It arises out of the alleged discriminatory conduct he attributes to his employer. Accordingly, the Court finds that the plaintiff's Title VII claim is not a "minor dispute," as that phrase is used in RLA, and he is not precluded by RLA from presenting that claim in this court for resolution.
Failure to Serve Process — Fed.R.Civ.P. 12(b)(5)
LIRR contends that, on July 15, 2006, Prokopiou mailed a copy of the complaint to it requesting that it waive service of the summons. LIRR contends further it did not sign the waiver of service Prokopiou sent to it and has not been served formally with the summons and complaint. Moreover, according to the defendant, the time for the plaintiff to effect service, pursuant to Fed.R.Civ.P. 4(m), has elapsed and LIRR's failure to sign the waiver of service cannot be considered good cause for Prokopiou's failure to serve the summons and complaint in a timely manner. Consequently, LIRR maintains, Prokopiou's complaint should be dismissed, pursuant to Fed.R.Civ.P. 12(b)(2) and (5), due to his failure to serve process.
Under the Federal Rules of Civil Procedure, lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2), and insufficient service of process, Fed.R.Civ.P. 12(b)(5), are separate defenses and separate grounds upon which a court may rely in dismissing a complaint. "[O]btaining personal jurisdiction and making service of process, although closely related, are not synonymous." Albert Levine Associates, Inc. v. E.H. Hudson, 43 F.R.D. 392, 393 (S.D.N.Y. 1967).
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff Co., Ltd., 484 U.S. 97, 104, 108 S. Ct. 404, 409 (1987). "[T]he proper provision to challenge 'the mode of delivery or the lack of delivery of the summons and complaint'" is Fed.R.Civ.P. 12(b)(5). Bellis v. Tokio Marine and Fire Ins. Co., No. 93 Civ. 6549, 2002 WL 193149, at *15 (S.D.N.Y. Feb. 7, 2002) (quotation omitted). Where the sufficiency of service of process is challenged, the plaintiff bears the burden of proving its adequacy. See Preston v. New York, 223 F. Supp. 2d 452, 466 (S.D.N.Y. 2002). "[I]n considering a motion to dismiss pursuant to [Fed.R.Civ.P.] 12(b)(5) for insufficiency of [service of] process, a Court must look to matters outside the complaint to determine whether it has jurisdiction." Darden v. Daimlerchrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).
Fed.R.Civ.P. 4(d) provides that a corporation receiving from a plaintiff notice of the commencement of an action and a request for waiver of service of a summons, has a duty to avoid having the plaintiff incur the costs associated with serving the summons. Service upon a corporation from which a waiver has not been obtained and filed must be effected in a manner prescribed by Fed.R.Civ.P. 4(h) or 4(e)(1). Fed.R.Civ.P. 4(e)(1) provides that service may be effected pursuant to the law of the state in which the district court is located. Although New York's Civil Practice Law and Rules ("CPLR") authorize service of process upon a corporation by first-class mail, such service is only effective when the defendant signs and returns to the plaintiff an acknowledgment of receipt of service within 30 days from the date of receipt. See CPLR § 312-a.
Here, LIRR did not waive service of the summons, pursuant to Fed.R.Civ.P. 4(d), and it did not sign and return to the plaintiff an acknowledgment of receipt of service, pursuant to CPLR § 312-a. Prokopiou has not presented any evidence to the Court to prove that he effected service upon the defendant properly. Therefore, in the absence of LIRR's waiver, return and acknowledgment of receipt of service or a showing by the plaintiff that he effected service properly within the period prescribed by Fed.R.Civ.P. 4(m), the Court finds that the plaintiff's service of process was insufficient. When a plaintiff has failed to effect service properly within 120 days after filing a complaint, or has failed to show good cause for that failure, a court may, in the exercise of its discretion, dismiss the plaintiff's complaint. See Fed.R.Civ.P. 4(m).
However, "[t]he mere lapse of time between the date of filing of the complaint and the date of effective service does not cause the complaint to abate." Grammenos v. Lemos, 457 F.2d 1067, 1071 (2d Cir. 1972). A district court may enlarge the time for service even absent good cause shown. See Henderson v. United States, 517 U.S. 654, 658 n. 5, 116 S. Ct. 1638, 1641 n. 5 (1996) (citing Advisory Committee's Notes on 1993 Amendments to Fed. Rule Civ. P. 4). Such an enlargement is appropriate where, as here, the applicable statute of limitations for filing a Title VII claim would bar the plaintiff from refiling his complaint. See Tomney v. Int'l Ctr. for the Disabled, No. 02 Civ. 2461, 2003 WL 1990532, at *5-6 (S.D.N.Y. Apr. 29, 2003). The defendant failed to show, and the Court does not perceive, that prejudice would result from the delay caused by perfecting service. Therefore, the Court directs the plaintiff to effect service properly within 30 days of the date of this order.
IV. CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss is denied, and the plaintiff must effect service properly, within the period noted above.SO ORDERED.