Opinion
00-CV-0399
December 15, 2000
Gina M. Grogan, Holland Patent, NY, Plaintiff, pro se.
Craig M. Atlas, Esq., Ferrara, Fiorenza, Larrison, Barrett Reitz P.C. East Syracuse, NY, Attorneys for Defendants.
Steven A. Crain, Esq., Nancy E. Hoffman General Counsels, Albany, Ny, Attorney for Defendants Civil Service Employees Association, Inc., Toth, and Herbert.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
March 8, 2000, pro se plaintiff Gina Grogan ("Grogan" or plaintiff) commenced the instant action against the defendants pursuant to the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 401 et seq. and the First Amendment to the United States Constitution. On April 7. 2000, following review of her original complaint on her application to proceed in forma pauperis, she was directed to file an amended complaint. Grogan filed an amended complaint on April 25, 2000.
The defendants now move to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and 12(b)(6) for failure to state a claim. Plaintiff opposes and cross-moves for entry of default judgment against all defendants. Oral argument was heard on October 13, 2000, in Utica, New York. Decision was reserved.
II. FACTS
The Court has reviewed all of the pleadings and attachments thereto; the moving papers and attachments thereto; and considered the clarifications and additions to the foregoing made by plaintiff at oral argument. The following are the relevant facts in this case stated in the light most favorable to Grogan as the non-movant.
Pro se plaintiff Grogan was hired as a food service worker by defendant Holland Patent Central School District ("the District") on December 15, 1993. She was represented in this position by defendant Civil Service Employees Association ("CSEA"). In November 1996, she filed an unsigned grievance over the responsibilities of her position. Specifically, plaintiff felt that she was being given responsibilities outside of her job title. On December 3, 1996, Peter Schram ("Schram"), president of the CSEA bargaining unit at the District, filed a formal grievance with the District on Grogan's behalf. As a result of the filing of this grievance, she was subjected to retaliation and harassment in the workplace by her supervisors, co-workers, and defendant Anthony J. Barretta ("Supt. Barretta"), the district superintendent. Grogan alleges that as a result of this harassment, she was forced to resign on February 12, 1997. On February 13, 1997, CSEA informed Grogan that it had withdrawn the formal grievance which it had filed on her behalf. On that date, Schram also inquired of Robert Nole, a business official of the District, as to whether plaintiff could withdraw her resignation. Shortly thereafter, plaintiff attempted to withdraw this resignation, but the District refused to allow her to do so. On February 25, 1997, Barretta submitted plaintiff's resignation to the Board of Education to be acted upon. By letter dated March 26, 1997, plaintiff learned that the Board of Education had formally accepted her resignation.
Grogan objected to the handling of her grievance by Schram and by defendant Richard A. Toth ("Toth"), who was a Labor Relations Specialist with CSEA. On March 24, 1997, she filed an improper practice charge with the New York State Public Employees Relations Board ("PERB") against both CSEA and the District. After she filed this charge, she was contacted by Toth, who asked her to meet with defendant William A. Herbert ("Herbert"), an attorney for CSEA. Schram and plaintiff met with Herbert on April 13, 1997. At this meeting, Herbert indicated to her that if she withdrew her charge against CSEA, it would agree to represent her in her charge against the District. As a result, plaintiff sent a letter on April 14, 1997, to the administrative law judge who was hearing her improper practice charge, withdrawing her charge against CSEA. After she dismissed her charge against CSEA, the union undertook representation of her in the PERB proceeding against the District. This representation is also the subject of the claims in this action. She was ultimately unsuccessful in this PERB proceeding, as well as an Article 78 proceeding in state court seeking her reinstatement.
In addition to the foregoing, Grogans claims are also based upon her allegations that on October 2, 1997, Supt. Barretta disparagingly referred to the PERB and Article 78 proceedings during a meeting with union officers, and that the minutes of this meeting, including his remarks, were improperly distributed to all District employees.
III. STANDARD OF REVIEW A. Fed.R.Civ.P.12(B)(6) Motion To Dismiss
Because the defendants Rule 12(b)(6) motions are granted, the Rule 12(b)(1) motions will not be Specifically addressed. However, it does not appear that plaintiff can prove a set of facts which would provide federal subject matter jurisdiction.
In deciding a Rule 12(b)(6) motion, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint 'unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Pro se complaints, however, are held to "less stringent standards than formal pleadings drafted by lawyers," and are to be construed liberally on a motion to dismiss. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Boddie v. Schnieder, F.3d 857, 860 (2d Cir. 1997). Thus, a pro se complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Hughes v. Rowe, 449 U.S. 5, 10 (1980) (internal quotation marks and citation omitted).
IV. DISCUSSION A. Defendants' Motion to Dismiss
Grogan's amended complaint must be dismissed. Even under the more liberal rules of constructbn applicable to the pleadings of pro se litigants, she has not stated a claim upon which relief can be granted.
Grogans constitutional claim is more appropriately pled under Section 1983, 42 U.S.C. § 1983, because "a direct action under the Constitution can be maintained only where no other 'equally effective or adequate' remedy exists." Lombard v. Board of Educ. of City of New York, 784 F. Supp. 1029, 1034 (E.D.N.Y. 1992) (citing Carlson v. Green, 446 U.S. 14, 18-19(1980); Gleason v. McBride 715 F. Supp. 59. 62 (S.D.N.Y. 1988)). Accordingly, her constitutional claims under that statute will be analyzed to determine if she has pled, or might be able to plead, any viable claims.
Grogan's claimed First Amendment violation appears to be predicated upon the theory that her filing of a grievance concerning her working conditions constituted protected speech under the First Amendment, and that the School Defendants (The District, Supt. Barretta, and Rood), and apparently the Union Defendants (CSEA, Toth, and Herbert) as well, retaliated against her for this protected speech.
The facts alleged by Grogan do not support a First Amendment, or any other constitutional, claim. In order for her to plead a claim that she was retaliated against for the exercise of First Amendment rights, she must plead two essential elements: (1) that the conduct at issue was protected speech, and (2) that "the protected speech must have played a substantial part in the employer's adverse employment action, i.e., that the adverse action would not have occurred but for the employee's protected actions." Ezekwo v. N.Y.C. Health Hospitals Corp., 940 F.2d 775, 780-81 (2d Cir. 1991). It is clear beyond doubt that she has not, nor can she, satisfy the first element of this test.
Plaintiff's grievance related to her job duties, not to any matters of public concern. As such, her claims based on this grievance do not state a claim for relief under the First Amendment See, e.g., Connick v. Myer, 461 U.S. 138, 147 (1983) (holding that "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."); Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134, 143 (2d. Cir. 1993) (holding that plaintiff failed to state First Amendment claim based on retaliation for purely personal grievance); Peele v. New York City Dept of Soc. Serv., 1995 WL 728478, "6 (S.D.N Y 1995) (holding that "plaintiff's retaliation claim, based on union grievances that fail to address matters of public concern, does not state a claim in this court"). Accordingly, she has not alleged retaliation for any constitutionally protected right.
Moreover, to the extent that she might attempt to state a constitutional claim based on Supt. Barretta's October 2, 1997, comments regarding her grievance during a meeting with union officers, and/or the improper distribution of the minutes of this meeting, including his remarks, to all District employees, this claim must also fail. While courts have held that public employees have a liberty interest in not being defamed by their public employers, thereby preventing them from obtaining other government employment, Strasburger v. Board of Educ., Hardin Cty. Comm. Unit Sch. Dist. No. 1, 143 F.3d 351, 355-56 (7th Cir. 1998), plaintiff has failed to allege publication by the Superintendent of any stigmatizing and defamatory information that would support this theory. Id.
The text of the minutes which were distributed to all District employees stated as follows: Bob Nole and Tony Barrette reviewed the history of the pending cases from the district's perspective. The facts are as follows. A cafeteria employee filed a grievance. The grievance proceeded through the stages up to the Superintendent's level, at which time it was withdrawn by CSEA. Subsequently, the employee resigned her position in writing, effective immediately upon receipt of the resignation. The employee attempted to withdraw her resignation a week later and claimed that she was being harassed by district employees. The district investigated; no substantiation of her claim was found, and her resignation was acted on. The employee filed an improper labor practice against the CSEA and the Holland Patent Central School District. Subsequently, the CSEA was dropped as a participant in the improper labor practice and the CSEA joined with the employee in the improper labor practice against the district. In addition, a lawsuit was filed claiming that the resignation was not legally accepted by the district and that the district had acted in an arbitrary and capricious manner. The legal case and hearings are both set for October. The facts as stated in the minutes of the meeting essentially mirror those stated in Grogan's amended complaint. The distribution of these minutes cannot, under any conceivable set of circumstances, constitute a cognizable Constitutional injury to Grogan.
Furthermore, to the extent that her constitutional claims are pled against the Union Defendants, as opposed to the School Defendants, such claims must also fail because the Union Defendants are not state actors. In order to recover damages for a deprivation of constitutional rights, Grogan is required to prove adverse state action — i.e., that: (1) a person acting under color of state law retaliated against her (2) because of [her] exercise of rights guaranteed by the Constitution or federal laws." Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000). See also Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987).
In the instant case, plaintiff has failed to plead any conduct on the part of the Union Defendants which might constitute state action. See Dunn v. County of Erie, 1993 WL 427455 (W.D.N.Y. 1993) ("CSEA is a private union and the fact that it has a collective bargaining agreement with the state is insufficient, without more, to establish state action.") (citing, e.g. Jackson v. Temple Univ., 721 F.2d 931, 933 (3d Cir. 1983)). The substance of Grogan's allegations against CSEA is that CSEA did not adequately represent her in the prior proceedings before the PERB and in state court. Plaintiff has not alleged any facts demonstrating that CSEA acted "under color of state law." See McGovern v. Local 456, International Bhd. of Teamsters, 107 F. Supp.2d 311, 317 (S.D.N.Y. 2000) (union not "state actor as a result of mere negotiation of collective bargaining agreement with county). Accordingly, plaintiff will not be able to state a constitutional claim against these defendants.
2. LMRDA Claim
Plaintiff also sues both defendants under Section 411 of the LMRDA. 29 U.S.C. § 411. That section, titled the "Bill of Rights of Members of Labor Organizations," regulates the relationship between a union and its members. Section 412 provides that
The amended complaint also invokes 29 U.S.C. § 529. Section 529 provides that it is "unlawful for any labor organization, . . . or any employee thereof to fire, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter." This section does not confer any right of action against an employer, Hayes v. Consolidated Service Corp., 517 F.2d 564, 566 (1st Cir. 1975), and is inapplicable in a case such as this where there is no allegation that CSEA took any disciplinary action whatsoever against Grogan.
Section 411 contains various provisions intended to safeguard the rights of union members as against the union. For example, Section 411(a)(1) provides that
[e]very member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organizations constitution and bylaws.29 U.S.C. § 411(a)(1).
Section 411(a)(2) provides that members of labor organizations have a right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting. . . .29 U.S.C. § 411(a)(2).
Section 411(a)(5) states that No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined . . . by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.29 U.S.C. § 411(a)(5) (emphasis added).
In addition, Section 411(a)(3) regulates the manner in which unions may increase the rates of dues and initiation fees of its members. Section 411(a)(4) protects the right of union members to sue in court and to commence administrative proceedings. Neither subsection appears to be at issue in this case.
Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a [federal court] for such relief (including injunctions) as may be appropriate.29 U.S.C. § 412.
However, employers are not liable under Section 412. The Second Circuit has held that "the LMRDA regulates only the relationship between the Union and its members and not that between an employer and his employees." Thompson v. New York Cent. R.R. Co., 361 F.2d 137, 145 (2d Cir. 1966). See also Hayes, 517 F.2d at 566; Duncan v. Peninsula Shipbuilders Ass'n, 394 F.2d 237 (4th Cir. 1968); Fanning v. United Scenic Artists, Local 829 of Brotherhood of Painters, Decorators, and Paperhangers of America, 265 F. Supp. 523 (S.D.N.Y. 1966). Therefore, the LMRDA claims against the School Defendants must be dismissed.
As to the Union Defendants, the LMRDAS Bill of Rights "is addressed to the regulation of the internal affairs of the Union, insuring to members equal rights and freedom of speech in the conduct of union affairs, and due process in [union] disciplinary proceedings." Abrams v. Carrier Corp. 434 F.2d 1234, 1250 (2d Cir. 1970). Plaintiff has alleged no set of factual circumstances that would support a LMRDA claim against the Union Defendants, such as union interference with speech critical of union, or adverse action by the union against Grogan. Again, it appears that the entire substance of her complaint against the Union Defendants is that they did not adequately represent her in her grievance with the District. Assuming this to be true, the mere failure of a union to provide adequate representation does not constitute a violation of the LMRDA. See Gilmore v. Local 295, International Bhd. of Teamsters, 798 F. Supp. 1030, 1042 (S.D.N Y 1992)("While LMRDA requires that a union member be afforded due process in union disciplinary proceedings, it does not provide protection against the union's breach of its duty to represent a member in arbitration hearings with the employer.") (citingHogan v. United Bhd. of Carpenters and Joiners of America, 704 F.2d 641, 644-645 (1st Cir. 1983); Bass v. International Bhd. of Boilermakers, 630 F.2d 1058, 1062-1063 (5th Cir. 1980)). Moreover, it appears beyond doubt that Grogan will not be able to plead such a violation; Accordingly, the Union Defendants' motion to dismiss plaintiff's LMRDA claims must be granted.
B. Cross-Motion For Default Judgment
Plaintiff's cross-motion for default judgment is denied. Plaintiff's theory is that the defendants defaulted when they failed to answer her amended complaint within twenty days of service. However, all defendants waived personal service pursuant to Federal Rule of Procedure 4(d). Rule 4(d)(3) provides that "[a] defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the waiver of service was sent."
In this case, requests for waiver of service were sent to all defendants by the U.S. Marshals Service in Syracuse, New York, on June 16, 2000. The School District defendants returned their waivers on July 5, 2000, well within thirty (30) days, which is the minimum time period prescribed by Federal Rule of Civil Procedure 4(d)(F) and was the time prescribed on the waiver form. The Union Defendants did not return their waivers until Juiy 17, 2000. The thirtieth day after June 16, 2000, was July, 16, 2000. However, because July 16, 2000, fell on a Sunday, the Union Defendants' waivers did not have to be mailed until the following day under Federal Rule of Civil Procedure 6(a) which provides, in relevant part, that
in computing any period of time prescribed or allowed by these rules, . . . the day of the act, event, or default prom which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, . . . in which event the period runs until the end of the next day which is not one of the aforementioned days.
Accordingly, the Union Defendants' waiver of service on July 17, 2000, was timely. Because all defendants executed timely waivers of service in this case, all defendants had until August 15, 2000, to move under Rule 12 or to answer plaintiff's amended complaint. The instant motions were filed by the School Defendants on August 4, 2000, and by the Union Defendants on August 10, 2000. Therefore, defendants did respond to plaintiff's amended complaint within the time period prescribed by law and were not in default. Accordingly, plaintiff's cross-motion for default judgment must be denied.
IV. CONCLUSION
After careful consideration of the submissions of the parties; the relevant parts of the record, and the applicable law, it is hereby
ORDERED that
1. Plaintiff's cross-motion for default judgment is DENIED; and
2. Defendants' motions to dismiss the amended complaint are GRANTED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.