Opinion
99 Civ. 10150(KMW)
February 7, 2001
ORDER
This is the fourth complaint filed by plaintiff in connection with her employment dispute with Hilton Hotels Corp. ("Hilton"), which operates the Waldorf-Astoria Hotel ("Waldorf") in Manhattan. Plaintiff now claims that New York Hotel Motel Trades Council, Local 6 ("the Union") breached its duty of fair representation to her in her claims against Hilton. Plaintiff also sues for reinstatement and damages from Hilton as a result of Hilton's alleged bad faith in entering into a settlement agreement with her. Defendants have moved to dismiss the claims under Federal Rule of Civil Procedure 12(c). For the reasons stated below, the Court dismisses plaintiff's claims against all defendants.
The Court need not reach defendant Hilton's alternative request for summary judgment.
I. FACTS
The facts are drawn from the opinions in Strassberg I and Strassberg III (see infra) and are provided for background purposes. As described below, the Court relied only on certain specific documents and pleadings in reaching its decision.
Plaintiff was a cocktail waitress at the Waldorf from about 1973 until June, 1992, when she allegedly suffered an on-the-job injury and ceased working. Under the terms of plaintiff's collective bargaining agreement, plaintiff had reinstatement rights for six months and preferential hiring rights for a further 18 months; plaintiff did not return to the Waldorf within that time. In December 1994, plaintiff applied for, but did not receive, a position due to open January, 1995. Plaintiff filed an EEOC Discrimination claim over this denial, as well as a grievance under the collective bargaining agreement.
In June, 1995, plaintiff entered into a Voluntary Settlement Agreement ("Settlement Agreement") whereby plaintiff would provide medical certification of her ability to work and would withdraw both the grievance and the EEOC complaint, and defendant would hire plaintiff as a cocktail waitress beginning in July, 1995. Plaintiff submitted the medical certification but did not withdraw the EEOC complaint. Defendant did not hire plaintiff as a cocktail server, but did offer her a position as a room service order taker, a position plaintiff declined.
B. Plaintiff's Litigation History
Plaintiff sued the Waldorf-Astoria and Hilton Hotels, which operates the Waldorf, alleging that defendants' failure to rehire plaintiff violated the Americans with Disabilities Act (ADA). ("Strassberg I") The District Court granted partial summary judgment on this claim, see Strassberg v. Hilton Hotels Corp., No. 95 Civ. 6235, 1997 WL 531314 (S.D.N.Y. Aug. 28, 1997), and a jury rendered a verdict against plaintiff on the remaining claims. The Second Circuit affirmed the grant of summary judgment, and denied plaintiff's attempt to revive a breach of contract claim against defendants for breach of the Voluntary Settlement Agreement. See Strassberg v. Hilton Hotels Corp., 173 F.3d 846, 13, 1999 WL 220143 (2d Cir. 1999) (unpublished disposition).
On February 13, 1997, plaintiff sued several employees of the Waldorf-Astoria in state court, alleging fraud and tortious interference with contractual relations; plaintiff based these allegations on the alleged breach of the Voluntary Settlement Agreement. See Strassberg v. Long, No. 97-102564 (N.Y.Sup.Ct.) ("Strassberg II"). The Court understands this matter to be pending before the state court.
On September 8, 1998, Plaintiff sued Hilton in state court, alleging that Hilton breached the Voluntary Settlement Agreement and claiming violations of New York state and New York City discrimination statutes; Hilton removed this action to the Southern District of New York, where Judge Baer dismissed plaintiff's claims on statute of limitations grounds. See Strassberg v. Hilton Hotels Corp., No. 99 Civ. 0683, 1999 WL 605467 (S.D.N.Y. Aug. 11, 1999), aff'd 216 F.3d 1073 (2d Cir. 2000) (unpublished disposition) ("Strassberg III"). Plaintiff has filed a petition for certiorari to the United States Supreme Court.
New York Hotel Motel Trades Council, Local 6 ("the Union"), filed a grievance on behalf of plaintiff, objecting to the Waldorf's failure to rehire plaintiff. This grievance was denied on November 6, 1995 by the Impartial Chairman. The Union moved for reconsideration of this decision on November 13, 1995. (see Affidavit of Stephen F. O'Beirne, Exh. 13.)
C. The Present Action
The Court understands plaintiff's complaint to contain two claims: (1) that the Union breached its duty of fair representation by its "perfunctory" grievance on her behalf after the failure of the Waldorf to reinstate her under the terms of the Voluntary Settlement Agreement (Compl. ¶ 9) and did so intentionally, discriminatorily, deceitfully and dishonestly (Compl. ¶ 16); and (2) that Hilton breached its contract to reinstate plaintiff under the Voluntary Settlement Agreement and did so in bad faith. (Compl. 8, 22-23.) The Court considers defendants' motions for judgment on the pleadings on these claims in reverse order.
II. THE STANDARD FOR JUDGMENT ON THE PLEADINGS
In considering a Rule 12(c) motion for judgment on the pleadings, the Court applies the same standard as on a Rule 12(b)(6) motion to dismiss, see Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), and merely "determine[s] whether the complaint itself is legally sufficient," Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985), accepting as true its factual allegations, see Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 88 (2d Cir. 1999). All inferences are drawn in favor of the non-moving party. See Moore v. PaineWebber, Inc., 189 F.3d 165, 169 (2d Cir. 1999). The complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
In deciding a motion for judgment on the pleadings, the Court may look only to "the factual allegations in plaintiffs' amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1992).
III. HILTON HOTEL'S MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff sues for reinstatement as a cocktail waitress pursuant to the Settlement Agreement as well as for damages. Plaintiff alleges that defendant's "position with respect to the interpretation of the Agreement was discriminatory and in bad faith . . . and therefore in breach of her contractual rights" and that defendant had determined not to reinstate plaintiff at the time it entered into the Voluntary Settlement Agreement. (Compl. ¶¶ 22-23.) Hilton moves to dismiss these claims as barred by the doctrine of res judicata. For the reasons stated below, the Court grants this motion.
Res judicata mandates that a "final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Res judicata applies to "litigation of any claim for relief that was available in a prior suit between the same parties or their privies, whether or not the claim was actually litigated." Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The critical test is whether the claims arise from a common nucleus of operative facts. See Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000). In the Second Circuit, res judicata requires a showing that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action. Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345-46 (2d Cir. 1995).
Although res judicata is an affirmative defense typically pled in the defendant's answer under FRCP 8(c), when the "relevant facts are shown by the court's own records," however, and the court takes judicial notice of these records, the defense may be upheld on a motion to dismiss without requiring an answer.
See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); see also Shuttlesworth v. Birmingham, 394 U.S. 147, 157 (1969) (taking judicial notice of related case between same parties). The Court hereby takes judicial notice of the records in Strassberg I and Strassberg III.
The first two requirements are easily met. Plaintiff and Hilton were both parties in both Strassberg I and Strassberg III, and each of these decisions involved "an adjudication on the merits." Strassberg I was decided in part by summary judgment and in part by a jury verdict, and was affirmed on appeal; plaintiff's petition for certiorari does not diminish the preclusive effect of this judgment. See Huron Holding Co. v. Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941) (appeal does not "detract" from finality of judgment); Chariot Plastics, Inc. v. United States, 28 F. Supp.2d 874 (S.D.N.Y. 1998). Strassberg III was dismissed statute-of-limitations grounds, which is considered "on the merits" under New York law and thus given preclusive effect by a federal court. See EFCO Corp. v. U.W. Marx, Inc., 124 F.3d 394, 399 (2d Cir. 1997).
The final requirement for res judicata is that the claims asserted in the subsequent action were, or could have been, raised in the prior action. Plaintiff could have raised her breach of contract claim in both Strassberg I and Strassberg III. The complaint in Strassberg I alleged that Hilton failed to reinstate her in contravention of the terms of the Settlement Agreement and thus "repudiated and materially breached" the agreement, (Strassberg I Compl. ¶¶ 14-16), and the Complaint in Strassberg III similarly asserted that Hilton breached the Settlement Agreement. (Strassberg III Compl. ¶¶ 3-8.) In both suits, a breach of contract claim arose from the same nucleus of operative facts as plaintiff's other claims against Hilton: the failure of Hilton to honor the Settlement Agreement and reinstate plaintiff. See Waldman, 207 F.3d at 108. Because the breach of contract claim could have been litigated in the earlier suits, it is now barred by res judicata and must be dismissed. See Irish Lesbian and Gay Organization, 143 F.3d 638, 644 (2d Cir. 1998).
Moreover, plaintiff attempted to revive her breach of contract claim on appeal in Strassberg I. The Second Circuit ruled the attempt untimely, but found that the Complaint arguably did raise a breach of contract claim. See 1999 WL 220143, at *2.
IV. THE UNION'S MOTION FOR JUDGMENT ON THE PLEADINGS
The Union seeks judgment on the pleadings dismissing plaintiff's breach of duty of fair representation claim on statute of limitations grounds. To decide this motion, the Court must determine the length of the applicable statute of limitations and the date on which this period accrued.
The Union offers numerous exhibits for consideration under the rule declared in Brass that the Court may consider documents "in plaintiff's possession or of which plaintiffs had knowledge and relied on in bringing suit" in deciding a motion to dismiss. See 987 F.2d at 150. In deciding the Union's motion, however, the Court needs to consider only the Settlement Agreement, which was attached to the Complaint, and two documents that plaintiff referenced in her Complaint: (1) the November 6, 1995 arbitration decision (Compl. ¶ 10); and (2) the November 13, 1995 Letter from Vincent Pitta to Impartial Chairman Philip Ross (Compl. ¶ 11). See International Audiotext Network v. ATT, 62 F.3d 69, 72 (2d Cir. 1995); Okoampa-Ahoofe v. Johnson Higgins, No. 99 Civ. 5820, 2000 WL 1471552, *1 n. 2 (S.D.N.Y. Sept. 29, 2000).
A. The Statute of Limitations Period
The Complaint alleges that "the union, from June 8, 1995, intended to deprive [plaintiff] of her contractual rights, discriminated against her for forbidden reasons, intentionally sabotaged the grievance, acted perfunctorily, fraudulently, deceitfully and dishonestly." (Compl. ¶ 16.) Plaintiff claims that these acts constituted a breach of the Union's duty of fair representation. Under well-settled labor law, this type of claim is governed by the six-month statute of limitations period set out in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (b). See DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 155 (1983) (applying § 10(b) period to hybrid action against employer and union); Phelan v. Local 305, 973 F.2d 1050, 1060 (2d. Cir. 1992) (applying DelCostello to stand-alone breach of duty of fair representation claim against union). Consequently, plaintiff is bound by a six-month statute of limitations period in this case.
B. The Accrual of the Limitations Period
The limitations period begins to run when a plaintiff knows or reasonably should know that the union has breached its duty of fair representation. See Flanigan v. IBT, Truck Drivers Local 671, 942 F.2d 824, 827 (2d Cir. 1991) (citing Santos v. District Council of New York City and Vicinity of United Bhd. of Carpenters and Joiners of Am., 619 F.2d 963, 969 (2d Cir. 1980)). When the breach of duty of representation claim is premised on inadequate representation at a grievance, a plaintiff is deemed to have knowledge of the breach at the time of the adverse decision. See Ghartey v. St. John's Queens Hospital, 869 F.2d 160, 165 (2d Cir. 1989); Corr v. MTA Long Island Bus, 27 F. Supp.2d 359 (E.D.N Y 1998). Moreover, the limitations period accrues when "the plaintiff could first have successfully maintained a suit." Flanigan, 942 F.2d at 827 (quoting Santos v. District Council of New York City, 619 F.2d 963, 969 (2d Cir. 1980). Plaintiff's Complaint alleges that the Union "made a perfunctory grievance" (Compl. ¶ 9), and "intentionally sabotaged the grievance." (Compl. ¶ 16.) Because plaintiff is charged with knowledge of such breaching action at the time of the adverse decision, the statutory period began to run on November 6, 1995, and expired over three years before the filing of this action. Although plaintiff alleges that the Union also breached its duty by adjourning the reconsideration hearing from January 6, 1996 until mid-1999 and then abandoning its prosecution (Compl. ¶¶ 12-14), such continuing failure to represent does not toll the statute of limitations. See Flanigan, 942 F.2d at 827 (collecting cases).
Plaintiff seeks to avoid this result by arguing that the Union had a duty to file a "new grievance" in light of evidence concerning Hilton's bad faith that did not come to light until November 15, 1996, when Hilton Director of Labor Relations Enrico J. Sansone submitted an affidavit in Strassberg I, and that the Union "abandoned" this "new" grievance "within six (6) months of the commencement of this action." (see Affirmation of Eric A. Klein in Opposition ¶¶ 2-5.) This argument is without merit.
As an initial matter, plaintiff's argument is inconsistent with the plain language of her Complaint, which alleges that the Union breached its duty in July, 1995 and calls for back pay from that date. Moreover, even if, arguendo, a new grievance was warranted, plaintiff cannot succeed for two reasons. First, plaintiff's argument that this new claim falls within the statutory period relies not on some Union action regarding the new claim, but on the alleged "abandonment" of the old claim; the Complaint alleges no breach of duty relating to this new claim. Second, even if the Union had a duty to file a new grievance in 1996, plaintiff "reasonably should have known" that the Union had failed to file a new grievance, and thus breached its duty, long before March, 1999. See Ghartey v. St. John's Queens Hospital, 869 F.2d 160, 165 (2d Cir. 1989) ("Where a union refuses or neglects to assist a union member . . . a breach of duty by the union is apparent to the member at the time she learns of the union action or inaction about which she complains." (internal citations omitted)). For these reasons, the Court finds that plaintiff's claim against the Union is barred by the applicable statute of limitations and must be dismissed.
V. CONCLUSION
Because the Court finds that plaintiff's claims against the Union are barred by the applicable statute of limitations and that plaintiff's claims against Hilton are barred by res judicata, the Court hereby dismisses all of plaintiff's claims, and thus dismisses this suit. The Clerk of Court is directed to close this case. All pending motions are deemed moot.
SO ORDERED.