Opinion
11 Civ. 0414 (KBF) 11 Civ. 3236 (KBF)
04-12-2012
CYNTHIA TOMPKINS, Plaintiff, v. LOCAL 32BJ, SEIU and ALLIED BARTON SECURITY SERVICES, Defendants. CYNTHIA TOMPKINS, Plaintiff, v. ALLIED BARTON SECURITY SERVICES, Defendant.
MEMORANDUM & ORDER
:
Pro se plaintiff Cynthia Tompkins ("Tompkins" or "plaintiff") brings two lawsuits--one filed on January 18, 2011, against her employer and her union for, respectively, breaching a collective bargaining agreement and breaching a duty of representation (Case No. 11 Civ. 0414) ("Tompkins III") and the other filed on May 4, 2011, against her employer for discrimination and retaliation on the basis of gender, race and a disability (Case No. 11 Civ. 3236) ("Tompkins IV").
Tompkins III is a so-called "hybrid" action brought by plaintiff against her employer, defendant AlliedBarton Security Services, LLC ("Allied") for breaching a collective bargaining agreement in violation of Section 301 of the Labor Management Relations Act ("Section 301") and against Service Employees International Union, Local 32BJ (the "Union") for breaching its duty of fair representation.
In Tompkins IV, plaintiff alleges that Allied discriminated and retaliated against her on the basis of her gender and race in contravention of Title VII of the Civil Rights Act of 1964 ("Title VII") and on the basis of a disability in contravention of the Americans with Disabilities Act of 1990 (the "ADA").
Now pending are defendants' motions to dismiss the complaints in both actions pursuant to Federal Rule of Civil Procedure 12(b)(6) and defendant Allied's motions for attorney's fees, expenses, and an injunction to prevent plaintiff from filing further lawsuits. As an initial matter, because Allied answered the complaint in Tompkins IV (Dkt No. 7), this Court construes its motion to dismiss in that case as one for judgment on the pleadings under Rule 12(c). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Nonetheless, for the reasons set forth below, the motions to dismiss and for judgment on the pleadings are GRANTED and the motions for attorney's fees and expenses and to enjoin plaintiff from bringing further litigation are DENIED.
Plaintiff has also brought a motion to amend her complaint, which attaches a proposed amendment, in Tompkins IV. Due to the futility of plaintiff's proposed amended complaint, as further discussed below, that motion is DENIED. However, this Court will allow plaintiff to replead certain claims where there is an "indication that a valid claim might be stated." See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). BACKGROUND
Tompkins is a 52-year old African-American female, currently employed as a security guard by Allied and, in that capacity, is represented by the Union. (Tompkins IV Compl. at 4.) At Allied, Tompkins is supervised by Jeff Bermudez ("Bermudez"), a Hispanic male. (Tompkins III Am. Compl. at 15; Tompkins IV Compl. at 4.) Plaintiff alleges that Bermudez has discriminated and retaliated against her on the basis of her race, gender and a "mental health" disability. (See e.g., Tompkins IV Compl. at 2-5.) Her allegations are based on: a failure to promote, unequal terms and conditions of employment and a hostile work environment. (Id. at 2-3.) Plaintiff also asserts that defendant's alleged mistreatment of her was retaliatory. (Id.)
Tompkins's allegations under Title VII and the ADA against Allied concern the failure to promote her from a "Level I" guard to a "Level II" guard (which, according to her complaint, entails higher pay and being assigned to preferential work sites), being transferred to an "ACS Facility" after being found asleep on duty, being denied her preferred work schedules (that would, inter alia, include weekends off), delays in being assigned to new work sites after Allied lost the contracts to provide security at her former work sites, her removal (or attempted removal) from a work site by Bermudez in April 2011 and Bermudez's alleged treatment of her in a harassing and disrespectful manner. (Id. at 4-5.) Plaintiff's amended complaint in Tompkins III asserts similar, albeit more general, allegations against Allied and states that the Union failed to protect her rights vis-à-vis her employer's discriminatory conduct. (Tompkins III Am. Compl. at 13, 21.)
These are not the first lawsuits that plaintiff has filed against one or both of these defendants regarding some of the same allegations. They are instead the third and fourth. In Tompkins v. Allied Barton Security Services, No. 09 Civ. 1954 ("Tompkins I"), plaintiff brought claims under Title VII and the Equal Pay Act of 1963, alleging, inter alia, that she was discriminated against, based on her race and gender, by Allied when she was: removed from her work site after having been found sleeping on the job, refused a promotion to a Level II guard position, faced a hostile work environment and unequal terms and conditions of employment. Tompkins v. Allied Barton Sec. Servs., No. 09 Civ. 1954, 2010 WL 3582627, at *3-12 (S.D.N.Y. Aug. 2, 2010) adopted by Tompkins v. Allied Barton Sec. Servs., No. 09 Civ. 1954, 2010 WL 3582621 (S.D.N.Y. Sept. 13, 2010). Adopting a Report and Recommendation by Magistrate Judge Cott, the court in that case granted Allied's motion for summary judgment. Tompkins v. Allied Barton Sec. Servs., 2010 WL 3582621, at *3.
Pursuant to Federal Rule of Evidence 201(b), the Court takes judicial notice of--and may consider on these motions--court documents related to plaintiff's past lawsuits against defendants. See Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (noting that the court may take judicial notice of court documents); Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) ("The practice of taking judicial notice of public documents is not new."); World Wrestling Entm't, Inc. v. Jakks Pac., Inc., 425 F. Supp. 2d 484, 508 n.16 (S.D.N.Y. 2006) (Where defendants argue plaintiff's claim was barred by res judicata, "the Court properly can take judicial notice of the filings . . . in the [earlier] action.").
Then, in Tompkins v. AlliedBarton Security Services, et al., No. 09 Civ. 8466 ("Tompkins II"), plaintiff brought claims alleging violations of Title I of the Labor Management Reporting and Disclosure Act, by Allied, the Union and a predecessor union. Tompkins v. Local 32BJ, SEIU, et al., No. 09 Civ. 8466, 2011 WL 797706 (S.D.N.Y. Feb. 1, 2011) adopted by Tompkins v. Local 32BJ, SEIU, et al., No. 09 Civ. 8466, 2011 WL 797708 (S.D.N.Y. Mar, 27, 2011); Tompkins v. Allied Int'l Union, No. 09 Civ. 8466, Report and Recommendation (S.D.N.Y. Sept. 7, 2010) adopted by Tompkins v. Local 32BJ, SEIU, No. 09 Civ. 8466, Order (S.D.N.Y. Sept. 28, 2010). Her complaints against Allied focused on their failure to promote her to a "Level II" position, while she claimed that the Union and its predecessor, inter alia, never provided her "any of the benefits." (Tompkins II Am. Compl. at 3.) The claims against Allied were dismissed on collateral estoppel and res judicata grounds based on Tompkins I, see Tompkins v. Local 32BJ, SEIU, et al., 2011 WL 797706 at *3, adopted by Tompkins v. Local 32BJ, SEIU, et al., 2011 WL 797708 at *1, and the claims against the Union, which the court also construed as a breach of the duty of fair representation claim, were dismissed because plaintiff failed to make any allegations of a breach from which the court could construe "unreasonable or arbitrary behavior" by the Union, Tompkins v. Allied Int'l Union, No. 09 Civ. 8466, Report and Recommendation at 8 (S.D.N.Y. Sept. 7, 2010) adopted by Tompkins v. Local 32BJ, SEIU, No. 09 Civ. 8466, Order at 1 (S.D.N.Y. Sept. 28, 2010). DISCUSSION
I. Standard of Review
On a motion to dismiss a complaint under Rule 12(b)(6), the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008). See also Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). "The standard applicable to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) also applies to a Rule 12(c) motion for judgment on the pleadings." Nogbou v. Mayrose, 400 F. App'x 617, 619 (2d Cir. 2010) (summary order).
Despite the well-established rule in this Circuit that pro se complaints are to be liberally construed and interpreted to raise "the strongest arguments they suggest," see Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006), a pro se plaintiff must still, to survive a motion to dismiss or a motion for judgment on the pleadings, plead enough facts to state a claim to relief that is plausible on its face. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Okoh v. Sullivan, No. 11-1303-cv, 2011 U.S. App. LEXIS 25117, at *2-3, 2011 WL 6318226 (2d Cir. Dec. 19, 2011) (summary order). This must be "more than an unadorned, the-defendant-unlawfully-harmed me accusation;" a claim will only have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
II. Title VII
A. Res Judicata
"Under the doctrine of res judicata, or claim preclusion, [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." Overview Books, LLC v. United States, 438 F. App'x. 31, 33 (2d Cir. 2011) (summary order). "Res Judicata will bar subsequent litigation if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action." Id. (internal quotation marks omitted). "[I]n considering whether claims asserted in a subsequent suit were, or could have been, raised in a prior proceeding, courts look to whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first." Greenwich Life Settlements, Inc. v. ViaSource Funding Grp., LLC, 742 F. Supp. 2d 446, 454 (S.D.N.Y. 2010) (internal quotation marks omitted) (citing Monahan v. New York City Dep't of Corr., 214 F.3d 275, 289 (2d Cir. 2010)).
Here, Tompkins I and Tompkins II resulted in final judgments on the merits by a court of competent jurisdiction and involved Tompkins and Allied (i.e., the plaintiff and defendant in Tompkins IV). Those prior cases also entailed some of the same issues and transactions that form the basis of plaintiff's allegations here--namely, plaintiff's claims that she was denied a promotion to a Level II guard position (and thus denied the ability to make higher pay and work at her preferred work sites) and was improperly transferred to an "ACS facility" after being found sleeping at work.
In Tompkins II, Magistrate Judge Ellis found that "the issue of whether Tompkins was entitled to be classified as a Level II guard was fully and fairly litigated in [Tompkins I]" and, accordingly, recommended dismissal of plaintiff's claims raising that issue as barred by the doctrines of collateral estoppel and res judicata. Tompkins v. Local 32BJ, SEIU, et al., 2011 WL 797706, at *3. For the same reasons as stated by Magistrate Judge Ellis (and adopted by Judge Stein), plaintiff's allegations related to Allied's failure to promote her to a Level II guard position here are barred by the doctrine of res judicata. As is Tompkins's claims related to her transfer to an ACS Facility after being found sleeping at work, which the court granted summary judgment on in favor of Allied in Tompkins I. Tompkins v. Allied Barton Sec. Servs., 2010 WL 3582627, at *5 adopted by Tompkins v. Allied Barton Sec. Servs., 2010 WL 3582621, at *1. These claims are DISMISSED with prejudice.
Plaintiff's allegations related to other alleged discriminatory acts--i.e., the denial of requested work schedules, the delay in work assignments between transfers and harassing and disrespectful treatment--may also be barred by the doctrine of res judicata. Res judicata applies "not only as to all matters litigated and decided . . . but as to all relevant issues which could have been but were not raised and litigated in the suit." Nemaizer v. Baker, 793 F.2d 58, 60 (2d Cir. 1986). It appears that the allegations regarding plaintiff's work schedule, delay in work between site transfers and allegations of disrespectful behavior by Bermudez "involv[e] the same transaction," "the same evidence," and the same "essential" facts that were subject to the final determinations in her previous lawsuits and thus barred by the doctrine of res judicata. See Hasenstab v. City of New York, 100 F.3d 942 (2d Cir. 1996).
Nonetheless, it is unclear what plaintiff is attempting to relitigate and what parts of plaintiff's claims are predicated on acts that have occurred subsequent to those complained of in her past lawsuits against Allied (and involve a distinct transaction). Plaintiff provides the Court with few dates with which to resolve this question. Under these circumstances, and in light of plaintiff's pro se status, plaintiff will have the opportunity to address the parameters of her Title VII claims, which this Court has not already found are clearly barred by the doctrine of res judicata, in an amended complaint. If plaintiff elects to submit an amended complaint, the Court instructs her that she may not include allegations that were or could have been raised earlier; and that any facts plead must include sufficient detail (such as dates) from which this Court can deduce whether those allegations are directed towards those same transactions that were the basis of her lawsuits in Tompkins I and Tompkins II.
B. Failure to State a Claim
Plaintiff's Title VII claims that were not plainly litigated in Tompkins I and Tompkins II still fail because they do not state a claim upon which this Court can grant plaintiff relief.
Claims of employment discrimination brought pursuant to Title VII are analyzed under the familiar burden-shifting approach set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Under this framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination, and must demonstrate (1) membership in a protected class; (2) qualifications for the position; (3) an adverse employment action, and (4) circumstances giving rise to an inference of discrimination. Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
However, the McDonnell-Douglas test is "an evidentiary standard, not a pleading requirement." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002). An "employment discrimination plaintiff need not plead a prima facie case of discrimination" on this motion; instead, as long as the complaint gives the defendant "fair notice" of the plaintiff's claim, "the grounds upon which it rests" and "indicate[s] the possibility of discrimination and thus present[s] a plausible claim for disparate treatment," the complaint satisfies Federal Rule of Civil Procedure 8(a) and may not be dismissed for failure to state a cause of action. Boykin v. KeyCorp, 521 F.3d 202, 214-16 (2d Cir. 2008).
Here, plaintiff's claims of discrimination and retaliation present no plausible claim for relief.
1. Unequal Terms and Conditions of Employment
Plaintiff alleges that, compared to other Hispanic security guards, she was denied favorable work schedules and she was forced to miss multiple days of work when Allied stopped providing services at the locations at which she was working. (See Tompkins IV Compl. at 4.) These allegations do not state a plausible claim upon which relief may be granted.
First, plaintiff does not identify any "adverse employment action." As the Court of Appeals for the Second Circuit has stated:
To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly material responsibilities or other indices . . . unique to a particular situation.Sank v. City Univ. of New York, No. 10 Civ. 4975, 2011 WL 5120668, at *8 (S.D.N.Y. Oct. 28, 2011) (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)).
Here, plaintiff states that she requested, but did not receive, a "weekend schedule," while two Hispanic guards did. (Tompkins IV Compl. at 4.) Plaintiff nowhere alleges that the "weekend schedule" was anything more than her preferred schedule--i.e., she does not allege that she suffered any material loss of wages or other benefits. Plaintiff's claim based on receiving a less desirable work schedule than other Hispanic guards therefore fails to state a claim. See e.g., Guglietta v. Meredith Corp., 301 F. Supp. 2d 209, 215 (D. Conn. 2004) (gathering cases; "Based on th[e] plethora of authority, this Court holds that Plaintiff did not suffer an adverse employment action when Defendant required that she transfer to another shift, which transfer would have caused no diminution in salary or benefits; the job responsibilities would have remained the same; the proposed transfer was in no way a demotion; nor was the proposed position one that was materially less prestigious, due to the continuation of responsibilities.")
Plaintiff's allegation that she was forced to transfer work sites and, as a result, missed days from work, when Allied lost its contract at her previous work sites also does not amount to an adverse employment action. "Transfers unaccompanied by material diminutions in pay or status, or material changes in responsibility, have been held insufficient to constitute adverse employment actions." Ifill v. United Parcel Serv., No. 04 Civ. 5963, 2005 WL 736151, at *3 (S.D.N.Y. Mar. 29, 2005). Plaintiff states that Allied placed her at a new site within "days" after she was transferred. (Tompkins IV Compl. at 4.) This delay is not an adverse employment action. See e.g., Tompkins v. Allied Barton Sec. Servs., 2010 WL 3582627, at *5 (citing Warren v. N. Shore Univ. Hosp. at Forest Hills, 268 F. App'x 95, 98 (2d Cir. 2008) (delay in employee's transfer does not constitute adverse employment action)).
Plaintiff's claim related to her having to miss days from work as a result of transfers fails for an additional reason--it does not plausibly suggest that any decision was made under circumstances giving rise to an inference of discrimination on the basis of her gender or race. Plaintiff alleges that the two times she was forced to miss days of work were a result of Allied losing the contracts at her job sites, not race or gender-based discrimination. (Tompkins IV Compl. at 4.) "In assessing claims of employment discrimination . . . there must be a causal connection between the discrimination and a plaintiff's race or gender--namely, that the plaintiff was discriminated against "because of her race, gender or other protected characteristic." Williams v. Time Warner, 440 F. App'x. 7, 9 (2d Cir. 2011) (summary order). Plaintiff's allegations lack this causal connection and she therefore does not state a plausible cause of action.
Plaintiff's claims based on unequal terms and conditions of employment are DISMISSED without prejudice. Should plaintiff replead these allegations, she must pay particularly close attention to pleading facts from which this Court can infer (1) that Allied took an adverse employment action against her and (2) that the action occurred under circumstances giving rise to an inference of discriminatory intent.
2. Hostile Work Environment
In order to state a hostile work environment claim in violation of Title VII, "a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive, that is, the conduct creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of plaintiff's . . . characteristic protected by Title VII." See Jackson v. New York State Dep't of Labor, No. 09 Civ. 6608, 2012 WL 843631, at *4 (S.D.N.Y. Mar. 12, 2012) (quoting La Grande v. Decrescente Distrib. Co., 370 F. App'x. 206, 209 (2d Cir. 2010)).
Here, Tompkins does not allege harassment "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." See Gonzalez v. New York State Div. of Human Rights, No. 10 Civ. 98, 2011 WL 4582428, at *4 (S.D.N.Y. Sept. 29, 2011). Instead, plaintiff claims that she was generally "harassed" and treated with "disrespect." (Tompkins IV Compl. at 5.) That is not enough to state a hostile work environment claim. See Maisonet v. Metro. Hosp. and Health Hosp. Corp., 640 F. Supp. 2d 345, 349 (S.D.N.Y. 2009) ("Even if [plaintiff's] allegations of harassment and disrespect toward him and his daughters are true, they do not constitute an adverse employment action under Title VII.")
Plaintiff's hostile work environment claim is therefore DISMISSED without prejudice. If plaintiff repleads this claim in an amended complaint, she must, inter alia, allege facts that would tend to show that the harassment she endured was sufficiently severe or pervasive as to alter the conditions of her employment and create an abusive working environment.
3. Retaliation
Plaintiff alleges as well that the actions of her employer were in retaliation for protected activity. "In order to state a prima facie claim of retaliation under Title VII, a plaintiff must allege facts sufficient to plausibly suggest: '(1) that she participated in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her engaging in the protected activity and the adverse employment action.'" Sank, 2011 WL 5120668, at *9 (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)). In the context of retaliation claims, "an adverse employment action . . . is one that a reasonable employee would have found . . . materially adverse, which . . . means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 473 (S.D.N.Y. 2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69, 126 S. Ct. 2405, 165 L.Ed.2d 345 (2006)) (internal quotation marks omitted).
Plaintiff here makes multiple conclusory assertions that she was retaliated against. (See e.g., Tompkins IV Compl. at 5 ("I'm still presently being harassed discriminated and retaliated against by Jeff Bermudez who never treat Hispanic guards with such disrespect."; "I have requested Level-2 and weekends from Jeff Bermudez but he continues to discriminate and retaliate against me.") "[T]hese statements cannot be considered in assessing the plausibility of [Tompkins's] retaliation claim." Jiggetts v. New York City Dep't of Citywide Admin. Servs., No. 11 Civ. 1245, 2012 WL 231566, at *10 (S.D.N.Y. Jan. 6, 2012) adopted by Jiggetts v. New York City Dep't of Citywide Admin. Servs., No. 11 Civ. 1245, 2012 WL 614310 (S.D.N.Y. Feb. 27, 2012).
Plaintiff does point to one particular action as retaliatory: her removal from a work site in April 2011. (Tompkins IV Compl. at 4.) Plaintiff states that Bermudez removed her from her work site and that, after she complained to Allied's Human Resources Department, Bermudez was "forced [] to put [her] back at the site." (Id.) As pleaded, Bermudez's action was an attempt to remove plaintiff that was thwarted by the intervention of Allied's Human Resources Department at the request of plaintiff. An attempted adverse employment action is not an adverse employment action. See e.g., Bermudez v. City of New York, 783 F. Supp. 2d 560, 600-01 (S.D.N.Y. 2011) (an attempt to give a poor performance evaluation is not an adverse employment action); Merritt v. New York City Transit Auth., No. 06 Civ. 5548, 2008 WL 4508258, at *3 (E.D.N.Y. Sept. 30, 2008) (an attempt to terminate a plaintiff is not an adverse employment action).
Plaintiff also fails to state a claim for retaliation because she puts forth no facts to plausibly suggest a causal connection between protected activity and any adverse employment actions. Plaintiff must do both--i.e., put forth facts to plausibly suggest (1) an adverse employment action and (2) a causal connection between that adverse employment action and protected activity--should she choose to replead the retaliation claim. For now, the retaliation claim is DISMISSED without prejudice.
III. The ADA
Like plaintiff's Title VII claims, plaintiff's claims brought under the ADA do not pass muster: they are, at least in part, barred by the doctrine of res judicata and otherwise fail to state a claim.
A. Res Judicata
The fact that plaintiff did not previously assert a claim under the ADA is of no consequence to the res judicata doctrine: claims premised upon "new legal theories do not amount to a new cause of action so as to defeat the application of" res judicata. Ningbo Prods. Imp. & Exp. Co., Ltd. v. Eliau, No. 11 Civ. 650, 2011 WL 5142756, at *9 (S.D.N.Y. Oct. 31, 2011). Thus, to the same extent as this Court has now barred certain of plaintiff's claim brought under Title VII in accordance with the res judicata doctrine, those claims brought under the ADA are also DISMISSED with prejudice.
B. Failure to State a Claim
Plaintiff has also failed to state claims under the ADA for discrimination or retaliation for the same reasons that she did not state such claims under Title VII. See Platt v. Inc. Vill. of Southampton, 391 F. App'x. 62, 64 n.1 (2d Cir. 2010) (summary order) ("We analyze retaliation and discrimination claims under the ADA and Title VII under the same burden-shifting framework established by the Supreme Court in McDonnell Douglas). The ADA claims fail for the additional reasons that plaintiff has not pleaded (1) a disability under the ADA, (2) any hint of discriminatory animus related to a disability or (3) a causal link between an adverse employment action and a protected activity related to a disability.
1. Discrimination
"To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) her employer is subject to the ADA; (2) she has a disability within the meaning of the ADA; (3) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she suffered an adverse employment action because of her disability." Martinez v. RZB Fin. LLC, No. 10 Civ. 4214, 2010 WL 4449031, at *3 (S.D.N.Y. Nov. 5, 2010). Though, like plaintiff's claim under Title VII, plaintiff does not need to establish a prima facie case; instead, "[t]o withstand a motion to dismiss [plaintiff] must assert a facially plausible claim that gives fair notice to Defendant of its basis." Id. at *4.
Here, plaintiff's complaint does not give fair notice of a claim brought under the ADA because it does not allege a disability under the ADA. "Merely pleading that one has an impairment is insufficient; rather, one must show that one's impairment 'substantially limits' a 'major life activity.'" Akinfaderin v. W.P. Carey & Co. LLC, No. 11 Civ. 3184, 2011 WL 6961403, at *3 (S.D.N.Y. Dec. 28, 2011) (quoting Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 195, 122 S. Ct. 681, 690, 151 L. Ed. 2d 615 (2002)). At base, plaintiff's complaint does not contain facts that plausibly suggest that she has a disability; thus, she fails to state a claim for discrimination under the ADA. See e.g., id. (citing Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 146-47 (2d Cir. 2002)).
Moreover, plaintiff does not allege that she suffered any adverse employment action because of her disability or provide any facts that plausibly suggest discriminatory animus related to a disability. Accordingly, plaintiff's claims that she suffered discrimination as a result of a disability fail. See e.g., Smith v. Reg'l Plan Ass'n, Inc., No. 10 Civ. 5857, 2011 WL 4801522, at *6 (S.D.N.Y. Oct. 7, 2011). The ADA discrimination claims are DISMISSED without prejudice to replead. An amended ADA claim must contain facts that plausibly suggest (1) a disability and (2) an adverse employment action that occurred as a result of a disability.
2. Retaliation
Plaintiff has not identified a protected activity related to a disability, an adverse employment action suffered as a result of a disability or a connection between a protected activity and an adverse employment action; nor has she provided this Court with any facts from which it could infer an ADA retaliation claim. As such, plaintiff has not sufficiently pleaded a retaliation claim under the ADA and this claim is DISMISSED without prejudice to replead. See Reg'l Plan Ass'n, 2011 WL 4801522, at *6.
IV. Motion for Leave to Amend
On December 12, 2011, plaintiff submitted a motion for leave to file an amended complaint in Tompkins IV. "Pursuant to Federal Rule of Civil Procedure 15(a)(2), leave to amend should be freely given when justice so requires. . . . However, a court should not grant a plaintiff right to amend when such amendment would be futile." Vecchione v. Dep't of Educ. of New York City, No. 10 Civ. 6750, 2012 WL 1075831, at *1 (S.D.N.Y. Mar. 28, 2012) (alterations and internal quotation marks omitted). "An amendment is futile when it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Id. (citing Riccuiti v. New York City Transit Auth., 941 F.3d 119, 123 (2d Cir. 1991))(alterations and internal quotation marks omitted).
Plaintiff's proposed amendment would not withstand a motion to dismiss for the reasons her original complaint does not withstand a motion for judgment on the pleadings. Although plaintiff does not need to allege each element of a prima facie claim, "the facts alleged at the very least must 'indicate the possibility' that she was" discriminated and retaliated against on the basis of race, gender and disability "as she marked on the form complaints she submitted through the Pro Se office." Jackson v. New York State Dep't of Labor, 709 F. Supp. 2d 218, 229 (S.D.N.Y. 2010). Plaintiff's proposed amendment does not do this and her motion to submit her amended complaint in Tompkins IV (Dkt No. 14) is therefore DENIED.
As this Court has stated, in light of plaintiff's pro se status, she will be afforded the opportunity to replead her Title VII and ADA claims and cure the defects in her complaint.
V. Hybrid "Section 301/Duty of Fair Representation" Claim
In order to establish a hybrid Section 301/Duty of Fair Representation claim, plaintiff must show "(1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-à-vis the union members." da Costa v. Union Local 306, No. 08 Civ. 2470, 2009 WL 3076077, at *3 (S.D.N.Y. Sept. 25, 2009) (quoting White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001)).
Plaintiff alleged in her original complaint that Allied breached the CBA when (1) she was discriminated and harassed, (2) Allied failed to make her a Level II guard (and thus did not place her at Level II work sites or pay her Level II wages), (3) she was forced to miss days from work when she was transferred to a different work site and provided her with a work schedule that she found "less favorable;" with regard to the Union, plaintiff generally alleged that it failed to represent her in these complaints. (Tompkins III Compl. at 3.) Plaintiff amended her complaint on March 8, 2011, and added allegations that she did not receive (and the Union did not sufficiently represent her with regard to) paid vacations, sick leave or holidays. (Tompkins III Am. Compl. at 13.)
A. Res Judicata
Tompkins I and Tompkins II reached final decisions on the merits, involved Allied, Union and Tompkins (Allied and Tompkins only in the case of Tompkins I), and relied on some of the same claims brought in Tompkins III. In plaintiff's prior lawsuits, plaintiff alleged, or could have alleged, that she was improperly denied a promotion to a Level II guard position, that she did not receive certain benefits or job security and that the Union failed to represent her in these matters. See Tompkins v. Allied Barton Sec. Servs., No. 09 Civ. 1954, 2010 WL 3582627, at *9 adopted by Tompkins v. Allied Barton Sec. Servs., 2010 WL 3582621, at *2; Tompkins v. Allied Int'l Union, No. 09 Civ. 8466, Report and Recommendation at 7-8 adopted by Tompkins v. Local 32BJ, SEIU, No. 09 Civ. 8466, Order at 1-2. To the extent that plaintiff's claims stem from the same transaction at issue in her prior lawsuits they are DISMISSED with prejudice. Even if plaintiff is asserting a hybrid claim against Allied and the Union that is based on a new transaction, the claim would fail for the additional reasons set forth below.
B. Statute of Limitations
The statute of limitations for a hybrid action is six months and begins to run when the employee knew or should have known of the breach of the duty of fair representation. See e.g., Cooper v. AlliedBarton Sec. Servs., 422 F. App'x. 33, 34 (2d Cir. 2011) (summary order). "Once a plaintiff learns of his union's breach of its duty of fair representation, the union's subsequent failure to actually represent the plaintiff cannot be treated as a continuing violation that precludes the running of the limitations period." Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995).
Whereas plaintiff here filed her original complaint on January 18, 2011, her claims are time barred to the extent that she knew or reasonably should have known of a breach of the duty of representation by the Union prior to July 18, 2010. In Tompkins III, plaintiff alleged in an amended complaint, signed by plaintiff on March 29, 2010, that she "complained about not getting paid Level-2 Guard salary . . . to local 32BJ, SEIU reps." (Tompkins II Am. Compl. at 3.) In the same amended complaint, plaintiff alleged that she did not receive the benefits owed to her as a member of the Union. (Id.) Thus, March 29, 2010, is the latest possible date that plaintiff can claim she learned of the Union's alleged breach--at least with respect to the Level II guard position and certain undefined "benefits."
Here, plaintiff's allegations do not provide this Court with enough facts to determine whether the allegations concern a new alleged breach (within the six month statute of limitations period) of the CBA by Allied and of the duty of representation by the Union or are wholly time barred. To the extent that plaintiff's allegations concern a breach that she knew, or should have known of, beyond the six month statute of limitations period, they are time barred and therefore DISMISSED with prejudice. Even if it were not time barred, the hybrid action still fails to state a claim upon which relief may be granted.
C. Failure to State a Claim
To prevail on a hybrid Section 301/duty of fair representation claim, plaintiff must prove both that Allied breached the CBA and that the Union breached its duty of fair representation; failure to prove one means that plaintiff's hybrid claim cannot succeed. See e.g., Nicholls v. Brookdale Univ. Hosp. and Med. Ctr., 204 F. App'x. 40, 42 (2d Cir. 2006) (summary order) ("[W]e need not determine whether the [employer] breached the collective bargaining agreement . . . because [plaintiff] has failed to establish that the Union breached its duty of fair representation." (alterations omitted))
"A breach of the statutory duty of fair representation occurs . . . when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Kavowras v. New York Times Co., 328 F.3d 50, 54 (2d Cir. 2003). "Mere negligence, even in the enforcement of a collective bargaining agreement, is not enough to constitute a breach of this duty. Instead, arbitrary or bad-faith conduct . . . or substantial evidence of fraud, deceitful action or dishonest conduct . . . is required to show a breach of the duty of fair representation." Pilchman v. Am. Fed. of State, Cnty and Mun. Emps., No. 10 Civ. 4976, 2011 WL 4526455, at *7 (S.D.N.Y. Sept. 29, 2011) (internal quotation marks and citations omitted).
Here, plaintiff does not come close to asserting any facts that would suggest the Union breached its duty of fair representation. Plaintiff does not allege that the Union ever engaged in arbitrary, discriminatory or bad faith conduct, or provide any factual support that would suggest as much. In fact, plaintiff's claims that the Union breached its duty of representation regard either claims that she has previously litigated (e.g., failure to promote to a Level II position) or vague claims for which plaintiff does not allege that she ever filed a grievance for (e.g., "Local 32BJ SEIU does not represent security guards of Allied Barton"). (See Tompkins III Am. Compl. at 15, 21.) Plaintiff does not "remotely approach the onerous standards of irrationality, unlawfulness or deceit necessary to state a claim for the breach of the duty of fair representation." Pilchman, 2011 WL 4526455, at *8 (internal quotation marks and alterations omitted). Accordingly, plaintiff's hybrid claim against Allied and the Union is DISMISSED without prejudice to replead. An amended complaint by plaintiff in Tompkins III must (1) put forth allegations sufficient to state a hybrid Section 301/duty of fair representation claim that is plausible and (2) not barred by the res judicata doctrine or the six month statute of limitations for hybrid claims. VI. In Forma Pauperis Applications
"The ability to proceed in forma pauperis ("IFP") is a privilege provided for the benefit of indigent persons." Terry v. New York City Dep't of Corr., No. 10 Civ. 6197, 2012 WL 718555, at *2 (S.D.N.Y. Mar. 6, 2012) (internal quotation marks omitted) (quoting Cuoco v. U.S. Bureau of Prisons, 328 F. Supp. 2d 463, 467 (S.D.N.Y. Aug. 2, 2004)). In order to prevent abuse of the privilege, the IFP statute provides that "the court shall dismiss the case at any time if the court determines that . . . the allegation of poverty is untrue." Id. (quoting 28 U.S.C. § 1915(c)(2)(A)).
Here, in support of her requests to proceed in forma pauperis, plaintiff stated in Tompkins III that she earns "$1,1.000." per month (Dkt No. 1), which this Court interprets as intending to mean $1,100 per month, and stated in Tompkins IV that she earns $1,400 per month (Dkt No. 1). These statements appeared in form declarations, which plaintiff signed under penalty of perjury, that contain the following language: "I understand that the Court shall dismiss this case if I give a false answer to any questions in this declaration."
Allied has submitted a copy of plaintiff's Payroll Check History, attached to a declaration in Tompkins IV, that shows plaintiff, in fact, earned an average of $2,572.33 gross pay per month, or $2,084.06 net pay per month, in the year prior to submitting her IFP application. (See Cheverko Decl. Ex. E.)
"A misrepresentation by a plaintiff as to his or her financial assets is not necessarily fatal to plaintiff's claims." Vann v. Horn, No. 10 Civ. 6777, 2011 WL 3501880, at *1 (S.D.N.Y. Aug. 9, 2011) (gathering cases). "However, dismissal is appropriate where a plaintiff 'misrepresents [his or] her financial arrangements in bad faith to obtain IFP status.'" Id. (quoting Cuoco, 328 F. Supp. 2d at 468). "Bad faith includes 'conceal[ing] a source of income in order to gain access to a court without prepayment of fees.'" Id. (quoting Cuoco, 328 F. Supp. 2d at 468). One of the factors that courts may look at in determining whether a plaintiff has acted in bad faith is their past experience taking advantage of proceeding IFP. Id. See also Shipman v. New York State Office of Persons with Developmental Disabilities, No. 11 Civ. 2780, 2012 WL 1034903, at *3 (S.D.N.Y. Mar. 26, 2012).
So that the Court can determine whether abuse of the IFP status has occurred here, plaintiff must respond (with the accompanying documents listed in the Conclusion) to Allied's allegation that she has misrepresented her income on her IFP application not later than 30 days from the date of this Memorandum and Order.
VII. Attorney's Fees and Expenses
Allied has requested in Tompkins III and Tompkins IV that this Court, pursuant to its inherent authority, impose sanctions upon Tompkins that include their costs and attorney's fees. "[A] district court has inherent authority to sanction parties appearing before it for acting in bad faith, vexatiously, wantonly, or for oppressive reasons." PSG Poker, LLC v. DeRosa- Grund, No. 06 Civ. 1104, 2009 WL 2474683, at *3 (S.D.N.Y. 2009) (quoting Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992)). Allied points not only to those lawsuits filed by Tompkins, but also lawsuits filed by others associated with plaintiff as vexatious. (Def. AlliedBarton Security Services, LLC's Br. in Supp. of its Mot. to Dismiss Pl.'s Compl. at 12 (11 Civ. 3236 Dkt No. 12).)
"In light of this Court's lack of information regarding [Tompkins's] financial circumstances, and in deference to h[er] status as a pro se party, this Court declines to award monetary sanctions at this time." See PSG Poker, 2009 WL 2474683, at *4. Allied's request is therefore DENIED without prejudice and with leave to renew. This Court may revisit this issue after plaintiff has had an opportunity to replead her complaints and clarify the discrepancies between her IFP applications and the Payroll Check History submitted by Allied.
VIII. Motion to Enjoin Further Vexatious Litigation
Another request for relief by Allied must also await further development in this matter: whether this Court should enjoin plaintiff from filing future lawsuit against AlliedBarton in federal and state court.
In deciding whether this step is warranted, courts consider the follow factors:
(1) the litigant's history of litigation an in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.Chandler v. Suntag, No. 11 Civ. 02, 2011 WL 2559878, at *9 (D. Vt. June 28, 2011) (quoting Safir v. United States Lines Inc., 792 F.2d 19, 23 (2d Cir. 1986)). "[C]ases in which injunctions of this type have been entered have generally involved plaintiffs with a history of filing numerous facially or factually frivolous lawsuits, often in the face of warnings about the baselessness of their actions." Santos v. Gen. Electric Co., No. 10 Civ. 6948, 2011 WL 5563544, at *20 (S.D.N.Y. Sept. 28, 2011) (gathering cases) adopted by Santos v. Gen. Electric Co., No. 10 Civ. 6948, 2011 WL 5563536 (S.D.N.Y. Nov. 15, 2011).
Allied points to, among other things, plaintiff's multiple filings asserting identical allegations and plaintiff's statement, made in her opposition brief in Tompkins IV, that she intends to file lawsuits in state court if she does not find relief in this forum (Affirmation of Cynthia Tompkins in Opp. at 2).
Without the benefit of plaintiff amending her complaint to clarify what precisely is being relitigated and what is not, this Court will not take this step at this time. Allied's motion to enjoin plaintiff from filing further lawsuits is therefore DENIED without prejudice and with leave to renew if/when an amended complaint is filed.
IX. Conclusion
As now stated, all of plaintiff's claims in Tompkins III and Tompkins IV are inadequate to withstand a motion to dismiss or a motion for judgment on the pleadings. Accordingly, defendants' motions to dismiss in Tompkins III and Allied's motion for judgment on the pleadings in Tompkins IV are GRANTED. Plaintiff shall be given 30 days to amend her complaints in these two actions should she choose to do so.
The Court also expresses serious concerns regarding possible misrepresentations of plaintiff's financial status. In all events, even in the absence of an amended complaint, this Court ORDERS that within 30 days plaintiff respond to Allied's allegations regarding her stated income in the declarations she has submitted in support of proceeding IFP. In connection with that response, the Court requires submission by plaintiff of her most recent pay stubs and tax returns for the past three years.
The Clerk of the Court is directed to terminate the motions at Docket Nos. 14 and 19 in Case No. 11 Civ. 414 and Docket Nos. 9 and 14 in Case No. 11 Civ. 3236 SO ORDERED. Dated: New York, New York
April 12, 2012
/s/_________
KATHERINE B. FORREST
United States District Judge