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finding that defendants bringing charges against plaintiffs for slander and racism against political opponents, reinstatement of those charges after an appeal of their dismissal, refusal to process one of the plaintiff's charges against defendant, and suspension and removal of one plaintiff from his position on the executive board did not plausibly allege a scheme to suppress dissent
Summary of this case from Kent v. N.Y. State Pub. Emps. Fed'nOpinion
03 CV 1312 (ARR)
August 26, 2003
Arthur Z. Schwartz Kennedy, Schwartz Cure, for the Plaintiff
David M. Glanstein O'Donnell, Schwartz, for Local Defendants
Joseph J. Vitale Cohen, Weiss Simon LLP, for International Defendants
OPINION AND ORDER
By complaint filed in this court on March 14, 2003, plaintiffs allege that defendants violated the free speech and due process rights secured to them as union members under federal labor law. Specifically, plaintiffs invoke the court's jurisdiction under Section 102 of Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 412, and Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Defendants have filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted in part and denied in part.
Plaintiffs initially filed the instant motion in the Southern District of New York on February 3, 2003. The action was transferred to this district by order dated March 12, 2003.
BACKGROUND
The complaint alleges the following facts, the truth of which the court assumes for the purpose of the instant motion.
Plaintiffs are all members of defendant Local 501, Transport Workers Union of America ("Local 501," or "the Local"), an affiliate of defendant Transport Workers Union of America ("TWU," or "the International"), The Local represents certain service and maintenance employees of American Airlines. Defendant Michael Chiofalo is president of Local 501. Defendant Sonny Hall is president of TWU.
In support of the instant motion, defendants Hall and TWU ("the International defendants") have not filed any submissions other than a memorandum stating that they "agree with, and join in," the arguments of Local 501 and Chiofalo ("the Local defendants"), and that dismissal of the complaint on the grounds advanced by the Local defendants will require dismissal of the complaint as to the International defendants as well. Int'l Mem. at 2. For ease of reference, in the instant opinion the court describes the motion submitted by Local 501 and Chiofalo simply as that of "defendants'." Of course, the court distinguishes among the defendants as appropriate with respect to the substance of the relevant law and facts.
In the six-year period prior to May 2002, John Buckley was president of Local 501. Plaintiff Jack Sullivan was secretary treasurer of the Local, plaintiff Dave Virella was its vice president, and plaintiff John Quinn was on the Local's executive board. During this period, plaintiffs John Kennedy and Vincent Argentina served as a shop stewards.
In October 2001, Sullivan ran for the position of international secretary treasurer of TWU. He ran against John Kerrigan, on a slate opposed to that of Sonny Hall, the incumbent president of TWU. Sullivan and his slate lost, "and engendered the wrath of Hall and Kerrigan." Compl. ¶ 9.
In approximately February 2002, Buckley announced he was retiring as president of the Local. Virella ran for the soon to be vacant position, on a slate with Sullivan and Quinn. Kennedy and Argentina were open supporters of the Virella-led slate, known as the "Experience Ticket." A slate led by Chiofalo, who at the time held no position in the Local, opposed the Experience Ticket.
A. Charges Against Virella, Sullivan, Kennedy, and Argentina
On or about April 20, 2002, Kennedy was brought up on charges by American Airlines for allegedly posting derogatory and racially offensive cartoons. On May 14, 2002, Chiofalo, the subject of some of the cartoons, filed internal union charges against Virella, Sullivan, Kennedy, and Argentina, alleging that they had posted "racial cartoons and other slanderous literature personally attacking Chiofalo's character" and that of another member of his election ticket, Albert Gil. Compl. ¶ 13. The charges were brought pursuant to the TWU constitution. Plaintiffs deny posting any of the cartoons, and assert that they were "only involved in putting up campaign literature." ID
In May 2002, prior to the election held that same month, the Local's executive board dismissed Chiofalo's charges because the alleged misconduct constituted protected speech under the LMRDA. Without notifying the charged parties, Chiofalo appealed the dismissal to the International.
In the May 2002 election, Chiofalo was elected president, and his slate won all of the other officer positions. However, Quinn and another member of the Experience Ticket were elected to the executive board.
On May 28, 2002, less than two weeks after the election, Kennedy, who had been suspended without pay, was terminated by American Airlines. On June 18, 2002, Chiofalo stated at a membership meeting that Kennedy was guilty of the charges brought by American, On June 20, Kennedy brought charges against Chiofalo for making "maliciously false reports" about him to the membership. Compl. ¶ 18. On June 22, 2002, American reinstated Kennedy to his position, without back pay, as part of a deal negotiated by Chiofalo. Kennedy objected to the settlement because of the waiver of back pay, but Chiofalo consummated the agreement nonetheless.
By letter received June 24, 2002, Chiofalo removed Kennedy from his position as shop steward. The next day, Kennedy appealed his removal to TWU. On August 2, 2002, the Local executive board notified Kennedy that it had declined to process his charges against Chiofalo. A few days later, Kennedy appealed this decision to TWU. On October 31, 2002, the TWU Committee on Appeals denied the appeal of Kennedy's removal as shop steward. That same day, the committee granted Chiofalo's appeal of the dismissal of the charges he had brought against Kennedy, Virella, Sullivan, and Argentina, and directed the Local to conduct a trial against them. On November 26, 2002, the appeals committee denied Kennedy's appeal of the executive board's refusal to process his charges against Chiofalo.
On January 9, 2003, Kennedy, Virella, Sullivan, and Argentina received notice that a trial was scheduled for January 31, 2003. Later in January, but before the date scheduled for trial, Plaintiffs Kennedy and Virella wrote letters to the Local asking how the charges against them could proceed in light of the free speech provision of the LMRDA, 29 U.S.C. § 411(a)(2). As of February 3, 2003, the date the complaint in this action was filed in the Southern District of New York, the Local still planned on pursuing the charges.
B. Removal of John Quinn from the Executive Board
As mentioned, Quinn had been on the Local's executive board, an elective position, for six years prior to May 2002. Quinn was elected in 1996 on a slate that included Sullivan, and he supported Sullivan and the slate he ran on in their 2001 election contest with TWU President Hall and Secretary Treasurer Kerrigan, As also mentioned, Quinn was reelected to the executive board in May 2002.
In July 24, 2002, Quinn was advised by Local 501 Secretary Treasurer Gil and Second Vice President Pasquale Albarella that he was suspended from his office and would receive within five days a written statement of the reasons why. Although the TWU Constitution requires that officers being suspended receive such a statement within five days, Quinn had not received a statement on July 30, 2002, six days later. Consequently, Quinn wrote to Kerrigan seeking reinstatement. In his reply, Kerrigan wrote that it was not clear whether Quinn had in fact been suspended, and told Quinn to file a complaint with the Local 501 executive board.
On August 1, 2002, before Quinn could communicate with the board, he received an unsigned letter from the board informing him that he had been suspended at the board's July 31, 2002 meeting, about which Quinn had not been notified. The charges were mostly general, and did not provide Quinn with notice of when, where, and how he had violated the TWU Constitution. On August 5, 2002, Quinn wrote to Kerrigan again, requesting his intervention. On August 8, 2002, Quinn wrote to Local 501 Recording Secretary Victor Gonzalez asking for a more specific statement of the charges against him.
Quinn appeared at a rescheduled hearing on September 3, 2002, but no one was present. The hearing was rescheduled for September 16, 2002, a date well beyond the deadline for such hearings set by the TWU Constitution. At the hearing, at which the entire executive board was present, Quinn was told that he was there "to explain [his] conduct" to the board. Compl. ¶ 36. However, Quinn was not given any more specificity than previously regarding the charges against him. Although Secretary Treasurer Gonzalez questioned Quinn for an hour, the executive board presented no evidence in Quinn's presence, and refused even to tell him when and by whom he had been suspended from office.
On September 19, 2002, Quinn again appealed to Kerrigan, complaining that the charges and hearing had violated his due process rights under Articles XIX and XX of the TWU Constitution. Specifically, Quinn wrote that he had not gotten advance notice of the charges, and that no witnesses or documents had been presented at the hearing. That same day, Quinn's attorney, Arthur Schwartz, wrote to Hall to remind him of the union's due process obligations. Quinn's appeal to Kerrigan was acknowledged on October 8, 2002, but as of the filing of the complaint, had not been ruled upon. Schwartz's letter never received a response.
On October 2, 2002, Local 501 notified Quinn that he had been removed from office. As of the filing of the complaint on February 3, 2003, Quinn remained out of office. As a result, he was "unable to participate in the deliberations of the Local 501 Executive Board and unable to represent the members who elected him." Tr. 39.
C. Additional Allegations
The complaint alleges that the Sonny Hall "and/or another officer" of the International knew about each of the foregoing actions, and that Hall, Kerrigan, or other officers of the International "either approved, condoned or ratified" each of these actions. Compl. ¶ 40. The complaint also alleges, under the heading "Scheme to Suppress Dissent," the following: "Each of the aforedescribed actions of the officers and Executive Boad was part of a series of acts designed to suppress free speech by the members of Local 501, and retaliate against political opponents of Chiofalo and Hall." Compl. ¶ 41.
D. Causes of Action, Procedural History, and Post-Filing Events
The complaint alleges three causes of action. First, plaintiffs allege that the removal of Quinn from the executive board, and Kennedy from the position of shop steward, violated their free speech rights under Section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2). Second, plaintiffs allege that the processing of charges against Sullivan, Kennedy, Virella, and Argentina violated their free speech rights under the same provision of the LMRDA. Finally, the complaint alleges that defendants violated Quinn's rights under the TWU constitution by removing him from the executive board without providing him with fair notice of the charges against him or with a fair hearing. The complaint seeks $250,000 in damages per plaintiff, as well as punitive damages. The complaint also seeks a temporary restraining order, preliminary injunction, and permanent injunction prohibiting Local 501 from conducting a disciplinary trial on Chiofalo's charges against Virella, Sullivan, Kennedy, and Argentina. Additionally, the complaint seeks a preliminary and permanent injunction ordering Local 501 to reinstate Quinn to the executive board and Kennedy to the position of shop steward.
Plaintiffs brought the instant complaint, together with a motion for a preliminary injunction, in the Southern District of New York on February 3, 2003. It is undisputed that the following day, Chiofalo withdraw his charges against Virella, Sullivan, Kennedy, and Argentina. It is also undisputed that on March 27, 2003, Quinn was reinstated, with full back pay, to his position on the executive board. In light of these developments, plaintiffs agreed in a letter to the court dated April 15, 2003, that their claims for injunctive relief were moot except for Kennedy's prayer for reinstatement to the position of shop steward.
DISCUSSION
I. Legal Standard on a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)Under Rule 12(b)(6), a case should be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson. 355 U.S. 41, 45-46 (1957). As it decides a defendant's motion to dismiss, "the court must accept as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Hamilton Chapter of Alpha Delta Phi. Inc. v. Hamilton Coll., 128 F.2d 59, 63 (2d Cir. 1997). The central question is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court deciding a motion to dismiss may consider only the allegations of the complaint itself, together with any documents attached to it or explicitly incorporated by reference therein, as well as any "documents that plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citations omitted).
II. 29 U.S.C. § 411(a)(2)
A. Generally
"The LMRDA was enacted to encourage democratic self-governance in unions and to curb widespread abuses and corruption among union leadership." Maddalone v. Local 17. United Bhd. of Carpenters Joiners of Am., 152 F.3d 178, 183 (2d Cir. 1998) (citing Franza v. Int'l Bhd of Teamsters. Local 671. 869 F.2d 41, 44 (2d Cir. 1989)). Section 101(a)(2) of the LMRDA "guarantees to union members the right to `meet and assemble freely . . . and to express any views arguments, or opinions' concerning candidates and union policies." Id. (quoting 29 U.S.C. § 411(a)(2)). This provision "protects union members from direct interference with union membership rights in retaliation for their expression of opinions concerning union activities." Id.(citing Cotter v. Owens. 753 F.2d 223, 228 (2d Cir. 1985)). Section 102 of the LMRDA provides a right of action in federal district court for violations of Section 101. See 29 U.S.C. § 412; Maddalone. 152 F.3d at 183.
B. Plaintiffs' Second Claim
Plaintiffs Virella, Sullivan, Kennedy, and Argentina allege that the processing of charges against them for defamation violates their free speech rights under 29 U.S.C. § 411(a)(2). It is well-established that this provision protects members from retaliation for statements concerning union matters, even when the statements amount to libel or slander. See Petramale v. Local 17 of Laborers Int'l Union of N. Am., 736 F.2d 13, 17 (2d Cir. 1984) ("We have adopted the view that union meetings, especially those involving election matters or disputes between rival factions within the union, such as those in the instant case, can be fraught with tension and even sparked with `vitriol and calumny,' . . . and that leeway for the expression of strongly held views in emotional terms, even when they amount to slander, must be afforded union members.") (quoting Salzhandler v. Caputo. 316 F.2d 445, 450 n. 7 (2d Cir. 1963)).
In the instant motion, defendants do not dispute that the campaign speech of Virella et al. was protected. Instead, defendants argue that the plaintiffs' claim fails because they have not alleged that they were "fined, suspended, expelled or otherwise disciplined" within the meaning of the LMRDA. 29 U.S.C. § 411(a)(5). Additionally, defendants argue that because Chiofalo initiated the charges when he was a regular member, and not a union official, his actions were not those of the union. Accordingly, defendants argue, these actions do not fall within the scope of the LMRDA. The court rejects both of defendants' contentions.
Defendants' argument that plaintiffs have not alleged that they were disciplined within the meaning of the LMRDA is largely a straw man. In their opening memorandum, defendants rely on cases interpreting 29 U.S.C. § 411(a)(5) as requiring some form of punishment before a claim under that provision will lie. See Breininger v. Sheet Metal Workers Union Int'l Ass'n Local Union No. 6, 493 U.S. 67, 91 (1989) (holding that the term "otherwise disciplined" does not include "all acts that deterred the exercise of rights protected under the LMRDA, but rather [means] only punishment authorized by the union as a collective entity to enforce its rules"); Schermerhorn v. Local 100. TWU, 91 F.3d 316, 326 (2d Cir. 1996) (holding that formal reprimands constituted actionable discipline within the meaning of § 411(a)(5)); Galke v. Duffy, 645 F.2d 118, 120 (2d Cir. 1981) (holding that administrative reclassification of employee's seniority status was not discipline);Camporeale v. Airborne Freight Corp., 732 F. Supp. 358, 366 (E.D.N.Y.) (holding that union's action on plaintiff's grievance, and its failure to pursue arbitration on his behalf, did not constitute discipline within the scope of § 411(a)(5)), aff'd, 923 F.2d 842 (2d Cir. 1990). However, as plaintiffs point out, their claim is not a wrongful discipline or due process claim under § 411(a)(5), but a free speech claim under § 411(a)(2). As the Second Circuit recently reaffirmed, "[t]he free speech and due process rights guaranteed by the LMRDA are distinct from one another, and it is well established that a union member may bring a suit to redress a violation of § 101(a)(2) free speech rights even if no due process violation is shown." Maddalone. 152 F.3d at 183 (citing, inter alia, Finnegan v. Leu, 456 U.S. 431, 439 (1982)); see also, e.g., Cotter. 753 F.2d at 226 ("Section 609 bars `discpline' of a union member for exercising rights guaranteed by the Act. Section 102 provides independent authorization for challenging a Title I violation."); Estenich v. Heenan, 878 F. Supp. 43, 46 (E. D. Pa. 1995) ("[T]he case law . . . recognizes the distinction between: (a) actions brought pursuant to § 609 of the LMRDA, which require plaintiffs to show that they were unlawfully `disciplined' by their union; and (b) actions brought pursuant to § 102 of the LMRDA, which require plaintiffs to demonstrate that their protected rights were `infringed.'").
Schermerhorn also involved claims under § 411(a)(2) claim, id. at 323, but defendants cite only to the section of the opinion discussing the plaintiffs' § 411(a)(5) claim.
In their reply brief, defendants retreat from their reliance on § 411(a)(5), but nevertheless continue to assert, without citing to any authority, that even claims under § 411(a)(2) require a showing of some form of punishment or, at the very least, a disciplinary trial "where punishment may result." Local Reply at 4. Defendants argue that the mere scheduling of a disciplinary trial that is never actually held presents "no likelihood that a member's rights will be chilled or impaired" and is thus inactionable as a matter of law. Id. The requirement that a disciplinary trial actually be held can be inferred, defendants argue, from the fact that the Second Circuit cases relied on by plaintiff all involved union members who had in fact been tried and disciplined. See Schermerhorn, 91 F.3d at 316; Petramale, 736 F.2d at 16; Salzhander, 316 F.2d at 446.
Though it is true that the plaintiffs in each of above cited cases were actually disciplined for their protected speech, none of these cases purports to make such discipline a requirement for Section 101(a)(2) free speech claim. Indeed, such a requirement would run afoul of the case law recognizing that a cause of action for infringing rights under Section 101(a)(2) does not depend on a showing of discipline. Of course, as the cases in question illustrate, a showing of actual discipline is sufficient to establish liability under Section 101(a)(2). However, the cases do not imply that such discipline is the only form of infringement actionable under the provision. On the contrary, the Second Circuit's broad construction of union members' free speech rights under the LMRDA, based on Congress's remedial purposes in enacting the law, would be undermined by such a narrow reading of the statute. See, e.g., Salzhandler, 316 F.2d at 451 ("The Congress has decided that it is in the public interest that unions be democratically governed and toward that end that discussion should be free and untrammeled and that reprisals within the union for the expression of views should be prohibited.").
Moreover, the Second Circuit's opinion in Schermerhorn offers at least some direct support the proposition that the mere initiation of retaliatory disciplinary proceedings can form the basis of a free speech claim. Although the plaintiffs in Schermerhorn had been the subject of numerous charges, see Schermerhorn v. Local 100. TWU. No. 92 Civ. 4801 (LAP), 1995 WL 608304, at *5 (S.D.N.Y. Aug. 17, 1995) (jury finding no. 35), they were found guilty and disciplined for only two sets of charges, id. at *6 (jury finding no. 38). In upholding liability on plaintiffs' § 411(a)(2) claim, the Second Circuit gave no indication that defendants' liability depended on, or was limited to, the actual imposition of discipline based on the two sets of charges. See Schermerhorn. 91 F.3d at 323. In fact, the Court approved of a jury instruction stating, "[W]here discipline is sought against a union member for both speech and conduct as part of one charge . . . the charged party's free speech rights under LMRDA have been violated." Id.(emphasis added). The district court opinion affirmed in Schermerhorn was even more explicit on this point. See Schermerhorn. 1995 WL 608304, at *6 ("When a union official, acting in that capacity, seeks to have a member or fellow elected officer disciplined for exercising a free speech right, that official violates said member's rights under § 411(a)(2). . . . An officer may be held liable for violating § 411(a)(2) merely by bringing a charge, even if the member is acquitted or his conviction is reversed on appeal within the union.") (citations omitted).
Other courts have recognized that a union's retaliatory use of disciplinary procedures may violate § 411(a)(2) even when no discipline ultimately results. See Ruocchio v. United Transp. Union. Local 60. 181 F.3d 376, 383 (3d Cir. 1999) (permitting claim under § 411(a)(2) to go forward even where plaintiff was reinstated and his conviction vacated on appeal); Mallick v. Int'l Bhd. Elec. Workers. 644 F.2d 228, 234 (3d Cir. 1981) (reversing district court's entry of judgment for defendants because the disciplinary charges had been dismissed or overruled); DeCarlo v. Salmone, 977 F, Supp. 617, 624 (W.D.N.Y. 1997) (defendants "violated [plaintiff's] free speech rights under Section 101(a)(2) by charging and prosecuting him for slander and libel, despite the fact that the charges ultimately were dismissed"). Although in each of these cases the charges were dismissed after a trial, the courts' holdings do not depend on this fact. Rather, the cases rely on and stand for the broader proposition, applicable to instant case, that a union violates § 411(a)(2) when it invokes its disciplinary machinery to punish members for expressing their views. See Ruocchio. 181 F.3d at 386 ("Harm to free speech rights . . . is not measured solely in economic terms, nor must concrete punishment be meted out to confer standing to sue. The right to speak one's views freely is so fundamental that the spectre of punishment . . . is injurious as well.") (quoting Mallick, 644 F.2d at 235) (emphasis added); Mallick, 644 F.2d at 236 ("The goal of union democracy, achieved through the expression of opposing viewpoints, would be difficult to realize if members felt deterred from expressing their opinions by the prospect of disciplinary proceedings.") (emphasis added); DeCarlo. 977 F. Supp. at 624 ("That [the] charges were dismissed does not eliminate the fact that DeCarlo may have suffered humiliation and degradation associated with the charges, as well as anxiety over possible punishment, for nearly a full year. Such experiences surely are antithetical to a policy that purports to ensure freedom to express `any views, arguments or opinions.'"). What matters in assessing the viability of a claim under § 411(a)(2), then, is not whether a plaintiff has alleged a narrow category of harm, but whether he has alleged conduct by the union that, if true, would affect his ability or his willingness to exercise his right to free speech. As the Third Circuit stated in Ruocchio. actionable injury depends "not on the extent of union reprisal but, rather, on the harm visited in non-economic terms via the chill on, and deterrence of, the right to expression." Ruocchio. 181 F.3d at 386 n. 13.
In light of the foregoing, the court concludes that plaintiffs have stated a claim for violation of their free speech rights under § 411(a)(2). The complaint alleges that defendants, in retaliation for plaintiffs' clearly protected right to express their views on an upcoming union election, sought to have plaintiffs disciplined for defamation. Despite their seemingly obvious legal infirmity, these charges, initially brought in May 2002, were still pending at the time the complaint in this action was filed, more than eight months later. Although the charges were dropped after the filing of the complaint, it is a reasonable inference at this stage of the litigation that the threat of punishment hanging over plaintiffs' heads for many months could have had "a substantial chilling effect on plaintiffs' and other unions members' exercise of their free speech rights." Ruocchio.181 F.3d at 386. If plaintiffs prove that this was indeed the case, they will have shown that their right to "express any views, arguments, or opinions," including their views "upon candidates in an election of the labor organization," 29 U.S.C. § 411(a)(2), was "infringed." 29 U.S.C. § 412.
Defendants also argue that the charges are inactionable as a matter of law because Chiofalo brought them when he was a member, and therefore they do not constitute actions of the union or its officers. While this argument might have some force, at least with respect to Chiofalo's individual liability, if Chiofalo had not been elected president of the Local soon after bringing the charges, his election renders the issue irrelevant, at least for purposes of the instant motion. Although it does not explicitly spell out Chiofalo's actions after his election, the complaint reasonably permits the inference that Chiofalo continued to pursue the charges, or at least allowed them to go forward, even after his election. The court must at this stage presume that this action, or inaction, was no longer simply that of a member, but that of a union officer wielding official power. Likewise, the court cannot at this point accept defendants' suggestion that the Local's sole role in the disciplinary proceedings was the "purely ministerial" one of scheduling of the trial at the behest of the International. Local Mem. at 8. Read fairly, and as a whole, the complaint permits the inference of greater culpability for the Local, which, after all, was under the direction of Chiofalo for almost all of the relevant period. Of course, the respective roles of all of the parties will not be known until after discovery. At this stage, however, plaintiffs have alleged enough to state a claim. Accordingly, defendants' motion to dismiss plaintiffs' second cause of action is denied.
The reasonableness of this inference is bolstered by the February 4, 2003 letters to plaintiffs informing them that the charges had been dismissed. These letters, which defendants themselves ask the court to consider in deciding the instant motion, state that "Brother Chiofalo informed the Local 501 Executive Board that he has decided to withdraw his charges against you." Local Ex. A. That Chiofalo was apparently in control of whether or not the charges went forward suggests that his role in the disciplinary process extended beyond his mere filing of the charges as a member. Chiofalo's apparent ability to terminate the disciplinary proceedings similarly weakens defendants' argument that Local 5Ol's sole function in the disciplinary process was to follow the International's order to schedule the trial.
Moreover, it is not certain as a matter of law that the Local would escape liability even if its role were purely ministerial. Defendants cite no authority on this point.
C. Plaintiffs' First Claim
Plaintiffs Quinn and Kennedy allege that their removal from their respective positions in the union violated their free speech rights under § 411(a)(2). Defendants move to dismiss this claim on the grounds that plaintiffs do not allege a loss of their membership rights, as opposed to the mere loss of their positions in the union. Defendants further argue that plaintiffs have not adequately alleged a scheme to suppress dissent so as to come within an exception to the general rule that removal from office does not violate the membership protections of § 101(a)(2). See Cotter. 753 F.2d at 229.
In Finnegan. the Supreme Court held that the discharge of appointed officials by the newly elected union president, the opponent of whom the appointed officials had supported in the election, did not violate § 411(a)(2). Finnegan, 456 U.S. at 440-41. The court reasoned that in enacting the free speech provisions of the LMRDA, "Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president's freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers." Id. at 442 (emphasis in original).
Two exceptions exist to the "general rule" of Finnegan "that status as a union employee or officer is not a membership right within a union and is not protected by the LMRDA." Maddalone. 152 F.3d at 184. The first was recognized in Sheet Metal Workers' Int'l Ass'n v. Lynn. 488 U.S. 347 (1989), in which the Supreme Court held that the retaliatory removal from office of an elected, as opposed to an appointed, official could violate § 411(a)(2). The court found that removal of an elected official directly frustrated "the LMRDA's basis objective: to ensure that unions [are] democratically governed, and responsive to the will of the union membership as expressed in periodic elections." Id. at 354 (citation and internal quotation marks omitted). The court further found that "the potential chilling effect on Title I free speech rights is more pronounced when elected officials are discharged. Not only is the fired official likely to be chilled in the exercise of his own free speech rights, but so are the members who voted for him." Id at 355.
The Second Circuit has long recognized an additional exception to the general rule "where the removal of a union officer was part of [a] purposeful and deliberate attempt . . . to suppress dissent within the union." Maddalone. 152 F.3d at 184 (citing Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973); Cotter. 753 F.2d at 229). "To fall within this exception, a plaintiff must present clear and convincing proof that her dismissal was part of a series of oppressive acts by the union leadership that directly threaten the freedom of members to speak out." Id. (citations and internal quotation marks omitted). "In such cases — rare though they may be — the question is whether an action against the official is merely an isolated act of retaliation for political disloyalty or is instead part of a purposeful and deliberate attempt to suppress dissent within the union." Franza. 869 F.2d at 45.
Applying the foregoing rules, it is clear that the alleged retaliatory removal of Quinn, an elected official, constitutes actionable conduct under Lynn. The complaint alleges that in retaliation for Quinn's exercise of his membership right to oppose Hall and Chiofalo, by supporting rival candidates and by running for office himself, defendants removed him from his elected position on vague and highly suspicious charges. His removal thus engendered precisely the twin evils identified in Lynn: the denial to the union members of the "representative of their choice," and the likely chilling of both Quinn and his supporters' exercise of their free speech rights. Lynn. 488 U.S. at 355. Defendants argument that Quinn has not alleged a loss of any membership rights is thus not well taken: Lynn makes clear that when an elected officer "pa[ys] the price for the exercise of his membership rights" by being removed from his post, the removal itself violates the LMRDA. Id at 354-55; see also Messina v. Local 1199. SEIU. Nat'l Health Human Serv. Employees Union. AFL-CIO. 205 F. Supp.2d 111, 121 (S.D.N.Y. 2002) ("As plaintiff was an elected official, the removal of plaintiff as a delegate raises the concerns expressed in Lynn that the retaliatory removal of an elected official (as opposed to an appointed official) not only chills the free speech rights of the removed official as a member and as an official, but also deprives the membership of their choice for elective office and sends a message to members that they speak against the leadership only at their peril.").
As for Kennedy, plaintiffs assert in their memorandum of law that both Kennedy and Quinn were "elected officers." PI. Mem. at 13. In their memorandum, defendants assert that Kennedy was appointed. The complaint is silent on this issue, and nothing alleged permits an inference that the shop steward position was an elected one. If anything, the complaint's silence on this critical issue suggests an inference that the position was not elective. Consequently, the court is unable to credit plaintiffs' assertion in their memorandum, and must therefore adjudicate the instant motion under the assumption that Kennedy was not an elected official.See, e.g., Roffman v. City of New York. No. 01 Civ. 8601 (AGS), 2002 WL 31760245, at *5 n. 5 (S.D.N.Y. Dec. 10, 2002) ("[T]his Court may not give credence to a characterization of the facts that differs from facts alleged in the complaint.).
If Kennedy was indeed an elected official, it will be easy enough for plaintiffs to file an amended complaint saying so.
Thus Kennedy's free speech claim based on his removal from office may go forward only if the dismissal was part of a "purposeful and deliberate attempt to suppress dissent within the union." Franza. 869 F.2d at 45. Defendants argue that plaintiffs' "bare allegation of a scheme to suppress dissent" is insufficient to survive a motion to dismiss because it "fail[s] to plead any facts demonstrating such a scheme existed." Local Reply at 5; see also Local Mem. at 13 ("Plaintiffs . . . do not plead any facts demonstrating how dissent within Local 501 has been stifled by Quinn or Kennedy's removals from office or otherwise."). Defendants further argue that the court is not bound by the complaint's own legal characterization of the events it alleges. See In re American Exp. Shareholder Litig., 39 F.3d 395, 400 n. 3 (2d Cir. 1994) ("[C]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss."). Defendants argue, in other words, that just because the complaint asserts that the specific incidents alleged constitute a scheme to suppress dissent, the court need not accept this label in determining the instant motion.
The court fully agrees with defendants that the specific facts alleged in the complaint do not add up to a scheme to suppress dissent as that concept has been defined. In Maddalone. the Second Circuit noted that it has "allowed such claims to go forward where the removal of an officer or employee stemmed from longstanding and well-documented patterns of harassment and intimidation." Maddalone. 152 F.3d at 184 (citingSchonfeld. 477 F.2d at 904 (long history of intra-union conflict);Cotter. 753 F.2d at 229-30 (fifteen-year history of litigation between dissident group and leadership)). The court stated, however, that even conduct spanning several months could fall within the exception where such conduct comprised "organized attempts by the defendants to prevent union members . . . from expressing their views." Id. (citing Johnson v. Kay.860 F.2d 529, 537 (2d Cir. 1988)). In Johnson, the conduct at issue consisted of physical threats, attempts to block communications between a union president and her supporters, the planned disruption of meetings, and the seizure of the union building. See Johnson. 860 F.2d at 537. These actions, which the defendants had allegedly coordinated and planned, were of such a "nature, intensity and extent" as to "strongly tend to chill union members who desired to exercise their rights in a fashion disapproved of by [defendants]." Id. In Maddalone. the conduct alleged involved the removal of an employee pursuant to an order of the district council president that "every member who had participated in . . . protest demonstrations should be taken off his job"; an attempt to intimidate a union member who had filed disciplinary charges against a member of the union leadership; and frequent actions by representatives of the union president to "disrupt meetings and prevent opposition candidates from speaking to suppress criticism" of the president.Maddalone. 152 F.3d at 185. Significantly, the court in Maddalone noted that these allegations presented a "close case." Id. at 184.
By contrast, courts have not hesitated to dismiss claims of unlawful schemes where the allegations, even if proven, did not meet the high standard governing such claims. See, e.g., Rodriguez v. Int'l Bhd. of Teamsters. AFL-CIO. No. 98 Civ. 8849 (JSR), 1999 WL 816182, at *3 (S.D.N.Y. Oct. 13, 1999) (allegations that defendant "failed to call frequent membership meetings, denied members requests to discuss union business at [a single] meeting, refused to permit a vote on a petition to end [defendant's] trusteeship, and attempted to secure membership signatures in a petition expressing support for the trusteeship" fell "well below the level" of suppression required by the Second Circuit);Local 1150 Int'l Bhd. of Teamsters v. SantaMaria, 162 F. Supp.2d 68, 85 (D. Conn. 2001) (dismissing complaint based on "political machination directed against an officer qua officer, with no alleged or inferrable effect on members' rights"); cf. Messina. 205 F. Supp.2d at 122-23 (plaintiff stated a claim where, for more than a year and a half, in retaliation for her having written a letter on behalf of seventy members opposing the union leadership, she received multiple notices of unspecified disciplinary charges, she was removed as an elected delegate on several other occasions, and the union ignored repeated complaints of improper conduct toward her and other members).
The removal of Kennedy and Quinn, and the single set of charges against Virella et al., simply do not rise to the level a scheme to suppress dissent. The complaint does not allege or imply that these incidents were part of a "longstanding and well-documented pattern of harassment and intimidation." Maddalone. 152 F.3d at 184. Indeed, plaintiffs confirm in their memorandum of law that the alleged scheme spanned only "several months." PI. Mem. at 14. To constitute actionable misconduct, therefore, the alleged scheme would have to be such a "nature, intensity and extent" as to represent a powerful affront to members' free speech rights. Although, as mentioned, some chilling of such rights may be inferred from the removal of Quinn from office, and although the charges against Virella et al. constitute an attack on their rights as members, plaintiffs do not allege that their rights as members were otherwise violated, or that the actions alleged had significant reverberations among the membership at large. In sum, the facts alleged in the complaint do not constitute such "extreme circumstances" as are required for the invocation of the exception to the general rule of Finnegan. Cotter. 753 F.2d at 288.
More importantly, in light of the procedural posture of this case, nothing in the complaint suggests that the incidents alleged are merely representative of other incidents in a broader scheme. Beyond the specific allegations, the complaint includes a boilerplate, single-sentence allegation that "each of [defendants'] acts was part of a series of acts designed to suppress free speech." The court is well aware that "a complaint that complies with the Federal Rules of Civil Procedure cannot be dismissed on the ground that it is conclusory or fails to allege facts." In re Public Offering Sec. Litig., 241 F. Supp.2d 281, 323 (S.D.N.Y. 2003) (citation and quotation marks omitted). See generally Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002) (reaffirming minimal requirements of notice pleading). That said, the court need not accept as true the complaint's assertions concerning the "legal status of the defendants' acts." In re American Exp., 39 F.3d at 400 n. 3; see also Womack v. United Serv. Employees' Union. Local 616. No. C 98-0507, 1999 WL 219738, at *2 (N.D. Cal. Apr. 8, 1999) ("[A] court [deciding a motion to dismiss] need not accept as true . . . conclusory legal allegations cased in the form of factual allegations."). Here, plaintiffs fail to include any allegations, even conclusory ones, suggesting that plaintiffs have been aggrieved, and members' rights threatened, by other incidents besides the few alleged. This failure leads the court to read the assertion that each of the acts alleged was part of a scheme to suppress dissent as a legal conclusion about those acts, rather than as an additional factual allegation positing those acts as mere exemplars of a larger pattern.
Plaintiffs themselves confirm this reading of the complaint. In their opposition to defendants' motion, plaintiffs state, "[P]laintiffs assert that the removal of Quinn, the removal of Kennedy and the processing of the Chiofalo charges amounted to a `series of oppressive acts by a union leadership that directly threaten the freedom of members to speak out.'" PI. Mem. at 14 (emphasis added). This statement makes perfectly clear that the complaint does not allege these three acts to be representative of the oppressive scheme, but rather that these three acts are the oppressive scheme. As explained, however, these acts do not satisfy the high standard contemplated by the Second Circuit. Plaintiffs are simply incorrect when they assert that their characterization of these actions "cannot be challenged, as a matter of law, on a motion to dismiss." Id. On the contrary, it is precisely the function of a motion to dismiss to test whether the allegations of the complaint demonstrate entitlement to relief. Because the allegations here, even if proven, would not entitle plaintiffs to relief, their claim must fail.
D. Plaintiffs' Third Claim
The complaint alleges that defendants' removal of Quinn from the executive board without fair notice of the charges against him and without a fair hearing violated Quinn's rights under the TWU Constitution. As defendants acknowledge, Section 301(a) of Labor Management Relations Act, 29 U.S.C. § 185(a), permits an individual union member to bring a lawsuit against the union for violations of the union constitution. See Woddell v. Int'l Bhd. of Elec. Workers. Local 71.502 U.S. 93, 103 (1991); see also Shea v. McCarthy. 953 F.2d 29, 31 (2d Cir. 1992). In seeking dismissal of this claim, defendants argue primarily that Quinn has pleaded violations of provisions protecting the rights of members, not officers. Defendants assert that "Quinn cites nothing to demonstrate that the provisions on which he relies are intended to protect union officers from suspension from office." Local Mem. at 15. In support of their position, defendants attach a copy of the relevant portion of the TWU Constitution. Local Ex. D.
In opposition to defendants' motion, plaintiffs also argue that defendants violated Kennedy's constitutional rights. However, the complaint itself contains no allegations concerning this claim, and explicitly names Quinn as the only member claiming a due process violation. Compl. ¶ 46. Accordingly, the allegation that Kennedy's constitutional rights were violated is not properly before the court, and need not be further addressed.
Defendants also argue, and plaintiffs concede, that claims for damages under Section 301 will not He against individual union officers.See Madden v. Int'l Ass'n of Heat Frost Insulators Asbestos Workers, 889 F. Supp. 707, 712-13 (S.D.N.Y. 1995). Because Quinn's claim for injunctive relief is moot, his claim under Section 301 proceeds only to the extent it seeks damages against the Local and the International.
Although the complaint itself alleges violations of Articles XIX, XX, and XXI, and does not appear to limit itself to claims under any one or two of these provisions, plaintiffs in their memorandum seem to rely solely on Articles XIX and XX. These provisions are entitled "Discipline" and "Trial of Members," respectively. Article XXI is entitled "Suspension of Local Officers." Defendants assert that Articles XIX and XX apply solely to disciplinary procedures against members, and that Article XXI is the exclusive provision governing suspension of union officers. Plaintiffs assert that the protections of Articles XIX and XX also apply to the processing of charges against officers. Needless to say, the court cannot resolve this factual dispute on a motion to dismiss. Further, it is clear from the face of Articles XIX and XX that, at least in some respects, they do apply to charges against officers.See Art. XIX, § 4 ("A member against whom charges have been filed may be suspended pending trial from any elective or appointive office or position he/she may hold. . . ."); Art. XX, § 7 ("If any officer of the Local Union is found guilty of the charges preferred against him/her, the Local Executive Board may remove him/her from office in addition to any other uniformly applied penalty it may impose. . . ."). By its terms, Article XXI governs only charges against a union officer "who fails or refuses to adhere to, or carry out, the instructions, directions, or decisions of the Local Executive Board or of the Local Union or of the International Executive Council, or who acts in violation of the Constitution." Art. XXI, § 1. At this stage of the litigation, the court simply cannot ascertain the interplay between these provisions, or their respective applicability vel non to the charges against Quinn. Indeed, the complaint itself alleges that the charges against Quinn were vague and unspecified, making resolution of which provision or provisions apply more difficult, and inappropriate, on defendants' motion.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted to the extent that plaintiffs' first cause of action is dismissed as to Kennedy. In all other respects, the motion is denied. The court notes that with the dismissal of Kennedy's claim that his removal from office violated the LMRDA, plaintiffs have no remaining claims for injunctive relief. The court also notes that the third cause of action may proceed solely against the Local and the International.
SO ORDERED.