Opinion
22-CV-10238 (LTS)
08-28-2023
JARED BOGGS, Plaintiff, v. CITYWIDE MOBILE RESPONSE, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, appearing pro se, brings this action against his employer, Citywide Mobile Response. By order dated December 7, 2022, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff Jared Boggs filed this complaint using the Court's general complaint form. He invokes the court's federal question jurisdiction, and in the section of the form that asks Plaintiff which of his federal constitutional or federal statutory right have been violated, he writes, “Fair labor law, Libel, Harassment with intent to cause duress and emotional distress.” (ECF No. 2 at 2.)
The Court quotes the complaint verbatim. All spelling, punctuation, and grammar are as in the original.
Plaintiff alleges that the events giving rise to his claim occurred at “1624 Stillwell Ave,” and that the events occurred from “4/13/22 - current.” (Id. at 5.) He alleges the following,
Citywide Mobile Response did tell Jared Boggs, over a recorded line that he would be abandoning a patient in the care of a physician if he did not transport that patient.
Citywide did violate Jared Boggs right to privacy by confronting him about a sensitive matter in front of coworkers to make him feel ashamed of what he had felt.
Citywide did attempt to deny Jared's union rights for a hearing w/ his union rep while deducting union dues from his check.
Citywide did fabricate a story to make Jared look bad or otherwise intimidate Jared from seeking counsel or bringing Litigation.(Id. at 5-6.)
Plaintiff asserts that he has suffered “Emotional distress, aggravation, court costs, therapy, occupational rehabilitation” as a result of Defendants' actions, and he seeks “$120,000 total for all charges.” (Id. at 6.)
DISCUSSION
A. Hybrid § 301/Duty of Fair Representation Claim
Because Plaintiff sues his employer, claiming that it attempted to deny him the right to a hearing with his union representative, his complaint may be construed as asserting a “hybrid § 301/duty of fair representation (“DFR”)” claim. This type of claim arises under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, which governs the employer's duty to comply with the collective bargaining agreement, and under the National Labor Relations Act, which implies the union's duty of fair representation. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983); see also Price v. Int'l Union, United Auto. Aerospace & Agric. Implement Workers, 795 F.2d 1128, 1134 (2d Cir. 1986) (union's duty of fair representation is implied from § 9(a) of the NLRA, 29 U.S.C. § 159(a), specifically). To state a hybrid Section 301/DFR claim, a plaintiff must allege “both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union members.” White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001) (citing DelCostello, 462 U.S. at 16465). The employee may sue the union or the employer, or both, but must allege violations on the part of both regardless of which entities he chooses to sue. Id. at 179.
The limitations period on a hybrid Section 301/DFR action is six months, see DelCostello, 462 U.S. at 169, which begins to run when the employee knew or should have known of the breach of the duty of fair representation, see Cohen v. Flushing Hosp. & Med. Ctr., 68 F.3d 64, 67 (2d Cir. 1995); King v. New York Tel. Co., 785 F.2d 31, 33 (2d Cir. 1986).
A union has a duty to fairly represent employees subject to the collective bargaining agreement. See Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67 (1991). A court's review of a union's representation of its members is highly deferential, and a court is not to substitute its judgment for that of a union. Id. at 78. Instead, the duty of fair representation is limited to avoiding conduct that is “arbitrary, discriminatory, or in bad faith.” Id. at 67. “A union's actions breach the duty of fair representation ‘only if the union's conduct can be fairly characterized as so far outside a wide range of reasonableness that it is wholly irrational or arbitrary.'” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45 (1998) (citation omitted).
A union's duty of fair representation is not breached where the union fails to process a meritless grievance, fails to process a grievance due to error in evaluating its merits, Cruz v. Loc. Union No. 3, 34 F.3d 1148, 1153-54 (2d Cir. 1994), engages in mere negligent conduct or errors in judgment, Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43-44 (2d Cir. 1989), or decides not to arbitrate a grievance, Vaca v. Sipes, 386 U.S. 171, 191-92 (1967) (finding individual employee does not have “absolute right” to arbitration and discussing negative consequences of system where individuals could compel arbitration). This wide range of reasonableness gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong. Biberaj v. Pritchard Indus., Inc., 859 F.Supp.2d 549, 560 (S.D.N.Y. 2012).
Plaintiff's allegations are insufficient to state a hybrid Section 301/DFR claim. Plaintiff provides few facts to support his legal claims, and those do not give rise to an inference that his employer or union acted in a manner that could be characterized as arbitrary, discriminatory, or in bad faith. Plaintiff also does not allege any facts suggesting that Defendant or Plaintiff's union breached the collective bargaining agreement.
The Court grants Plaintiff leave to amend his complaint to provide any available facts that support a hybrid Section 301/DFR claim against Citywide Mobile Response and/or Plaintiff's union.
B. Employment Discrimination
Because Plaintiff alleges that his employer violated his rights, the Court construes the allegation as Plaintiff seeking to assert an employment discrimination claim.
Plaintiff does not, however, provide any facts suggesting a cause of action under any of the antidiscrimination statutes that prohibit employers from mistreating an individual because of the individual's protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee's protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
At the pleading stage in an employment discrimination action, a plaintiff must plausibly allege that the employer took adverse employment action against him, and that his race, color, religion, sex, national origin, age, or disability was a motivating factor in the employment decision. See e.g. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. at 87.
Furthermore, as a precondition to filing an action for employment discrimination, a plaintiff must first file a timely charge with the Equal Employment Opportunity Commission (EEOC) and obtain a notice of right to sue. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(e); see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146 (2d Cir. 2012). Generally, a plaintiff must commence a civil action within ninety days of receipt of notice of dismissal or termination of proceedings by the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984). Although equitable considerations may apply under specified circumstances - such as when Plaintiff has received inadequate notice from the EEOC, where affirmative misconduct on the part of a defendant lulled the Plaintiff into inaction, or if Plaintiff has relied on the court's assurances, id. at 151-52 - “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants,” id. at 152.
The time limits, however, are not jurisdictional and, therefore, are subject to equitable tolling. See Morgan, 536 U.S. at 113 (citing Zipes v. Trans. World Airlines, Inc., 455 U.S. 385, 393 (1982)). Dismissal may be appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal under 28 U.S.C. § 1915(d) on statute of limitations grounds); Baker v. Cuomo, 58 F.3d 814, 818-19 (2d Cir. 1995) (sua sponte dismissal is “appropriate if it appears from the face of the complaint that the action is barred . . . by the statute of limitations”), vacated in part on other grounds, 85 F.3d 919 (2d Cir. 1996).
Equitable tolling of the statute of limitations is “only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal quotation marks, alteration, and citations omitted). To obtain the benefit of equitable tolling, a plaintiff must show (1) that he acted with reasonable diligence during the time period tolled, and (2) that extraordinary circumstances justify the application of the doctrine. Id.
Here, the complaint is bereft of any facts showing that Plaintiff was mistreated or retaliated against because of a protected characteristic. Moreover, it is unclear whether Plaintiff has taken steps to file a charge of discrimination with the EEOC, and therefore any discrimination claim Plaintiff may wish to assert may be untimely.
C. New York Legal Assistance Group
Plaintiff may consider contacting the New York Legal Assistance Group's (“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. It cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit. A copy of the flyer with details of the clinic is attached to this order.
D. Leave to Amend
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid hybrid Section 301/DFR claim or an employment discrimination claim, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each person or entity he names as a defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-10238 (LTS). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).