Opinion
05 Civ. 1535 (DAB) (KNF).
January 26, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, Jerome McKoy ("McKoy"), brought this action pro se (" McKoy II") against John E. Potter ("Potter"), the Postmaster General of the United States, the United States Postal Service ("USPS") and the National Association of Letter Carriers AFL-CIO ("NALC" or the "Union") (collectively "defendants") alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 17 ("Title VII"), the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961- 1968, and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201- 219. McKoy's claims arise from events occurring while he was employed by USPS from 1997 until his termination in February 2000. McKoy contends USPS and NALC, the plaintiff's union, conspired to discriminate against him based on his race, committed fraud, in order to deprive him of his job and overtime wages, and terminated him from his employment unlawfully.
The plaintiff filed this action naming William J. Henderson, former Postmaster General, as a defendant. However, John E. Potter became the Postmaster General on June 1, 2001, and he is the proper defendant. Under Fed.R.Civ.P. 25(d), John E. Potter is automatically substituted as defendant.
Before the Court are separate motions by the defendants to dismiss the plaintiff's complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. USPS contends the plaintiff's FLSA and Title VII claims should be dismissed based on the doctrine of res judicata. Moreover, it contends the plaintiff's RICO claims are barred by the applicable statute of limitations and the doctrine of sovereign immunity.
NALC contends the plaintiff's claims against it are barred by the doctrine of res judicata and, in any event, are meritless. The plaintiff opposes the defendants' respective motions.
II. BACKGROUND
On June 10, 1999, McKoy received a Notice of Removal from USPS, for continuous use of unauthorized overtime. The following month, McKoy requested an appointment with a USPS Equal Employment Opportunity ("EEO") counselor. At that time, McKoy alleged his supervisors discriminated against him, based upon his race and that the alleged discrimination was the basis for the notice. McKoy agreed to resolve the controversy by participating in a mediation proceeding. On September 1, 1999, in the presence of a mediator, the parties settled the dispute arising out of the plaintiff's discrimination allegation. A provision in the parties' settlement agreement stated that "[the] agreement constitute[d] a full and final settlement of all issues arising out of the subject matter." Moreover, McKoy agreed to withdraw "[his discrimination] complaint without further appeal through the EEO process."
Independent of the EEO proceeding, McKoy filed a grievance with his employer, pursuant to the applicable collective bargaining agreement, concerning the June 10, 1999 Notice of Removal. An arbitrator who heard the grievance upheld USPS' determination to dismiss McKoy from its employ. McKoy was terminated from his employment with USPS on February 28, 2000.
On March 25, 2000, McKoy filed a formal EEO complaint based on his contention that USPS had terminated his employment wrongfully, in retaliation for his complaint of discrimination. In September 2000, McKoy's EEO complaint of retaliation was dismissed as moot. On appeal to the Equal Employment Opportunity Commission ("EEOC"), it was determined that McKoy's retaliation complaint was properly dismissed, for failure to state a claim.
On March 8, 2001, the plaintiff commenced an action in the United States district court against the defendants (" McKoy I"). He alleged the defendants violated Title VII, based on theories of wrongful termination and "disparate treatment." McKoy alleged further that USPS violated the Federal Tort Claims Act. The plaintiff also claimed that NALC breached its collective bargaining agreement with USPS and the duty of fair representation it owed to him. Moreover, McKoy alleged that NALC deprived him of his due process and equal protection rights under the Fifth and Fourteenth Amendments to the Constitution in its handling of the grievance-arbitration procedure. McKoy's complaint included factual allegations concerning events that occurred during May 1997, September 1997 and the period March 1999 through January 2000, while he was employed by USPS. See McKoy v. Henderson, No. 01 Civ. 1984 (SHS) (GWG) (S.D.N.Y. filed March 8, 2001). USPS sought summary judgment, while NALC moved for judgment on the pleadings.
On September 30, 2002, the assigned district judge issued an order adopting the report and recommendations of the magistrate judge to whom the matter had been referred, and granted USPS' motion for summary judgment and NALC's motion for judgment on the pleadings. The court held that the plaintiff's Title VII claims against USPS were barred by the parties' September 1, 1999 settlement agreement. The court also held that claims brought by McKoy against USPS, under the Federal Tort Claims Act, based on alleged racial discrimination, could not be sustained because, as a matter of law, Title VII is the only vehicle through which federal employees alleging employment discrimination may obtain redress. The court noted that the plaintiff's claim concerning a breach of the applicable collective bargaining agreement, was time-barred, and had to be dismissed. In addition, the court found that the collective bargaining agreement contained no provision authorizing a covered employer, like McKoy, to bring an action against the Union for breaching the collective bargaining agreement. Therefore, based on that ground also, the breach of collective bargaining agreement claim, that had been asserted against the Union and USPS, had to be dismissed. Furthermore, the court also found that since NALC was not a state actor, the constitutional claims McKoy made against it could not be maintained, as a matter of law. McKoy appealed the district court's determination to the Second Circuit Court of Appeals, unsuccessfully. Thereafter, he petitioned the United States Supreme Court for certiorari, unsuccessfully.
On February 8, 2005, the plaintiff initiated this action alleging violations of RICO, Title VII and FLSA, as well as a constitutional claim, stemming from his tenure, as an employee, with USPS. Specifically, McKoy alleges that: (1) USPS failed to pay him overtime wages, in violation of FLSA; (2) USPS and NALC conspired to terminate his employment, in violation of RICO; and (3) USPS and NALC violated Title VII, based on theories of disparate treatment and wrongful discharge.
Although the plaintiff's 81-page amended complaint includes citations to dozens of statutes and constitutional amendments, when read liberally, it appears that his claims are based on the three statutes noted above and that the constitutional claim is really a reconfigured challenge to the termination of his employment by USPS and the circumstances that led to his termination.
III. DISCUSSION
The pleadings of a pro se litigant are to be construed liberally by a court. Those pleadings are to be read "to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Accordingly, the Court has applied this standard in reviewing the plaintiff's amended complaint and the submissions he has made in opposition to the defendants' respective motions to dismiss. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) [citations omitted]).
Subject Matter Jurisdiction
As noted above, USPS' motion to dismiss is made pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. When a litigant makes a dismissal motion under Fed.R.Civ.P. 12(b)(1) and on other grounds "the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency Inc. v. Alabama Ins. Guarantee Assoc., 896 F.2d 674, 678 (2d Cir. 1990) (internal quotation and citation omitted).
USPS alleges the court lacks subject matter jurisdiction over the RICO claim made against it because sovereign immunity bars a civil RICO action against the United States, its agencies and employees. Therefore, according to USPS, absent a waiver of sovereign immunity, USPS, a government agency, cannot be sued in a civil RICO action. Hence, USPS seeks relief pursuant to Fed.R.Civ.P. 12(b)(1). However, Congress waived sovereign immunity for USPS, through the enactment of the Postal Reorganization Act of 1970, which permits the agency to sue and be sued in its official name. See 39 U.S.C. § 401(1). Accordingly, USPS may be sued under the civil RICO statute. See Miller v. Gould, No. 89 C 5676, 1990 WL 70543, at *2 (N.D. Ill. May 17, 1990). The court has jurisdiction over the civil RICO claim made against USPS, and USPS is not entitled to the relief it seeks based on its Fed.R.Civ.P. 12(b)(1) motion. Failure to State a Claim
USPS also contends the plaintiff's RICO claim is not timely and, therefore, this too provides an appropriate basis upon which the court may rely in dismissing that claim. For reasons that appear infra, that persuade the Court that the doctrine of res judicata bars the plaintiff's RICO claim, the Court finds that it is unnecessary to reach the timeliness issue and no analysis of that issue will be made.
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Woodford v. Cmty. Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). Furthermore, the court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
"[I]t is well settled that a court may dismiss a claim on res judicata or collateral estoppel grounds on a Rule 12(b)(6) motion." Sassower v. Abrams, 833 F. Supp. 253, 264 n. 18 (S.D.N.Y. 1993). When a motion to dismiss is premised on the doctrine of res judicata a court is permitted to take judicial notice of and consider the complaints and the record generated in both actions without having to convert the motion to dismiss into a summary judgment motion. See Scherer v. Equitable Life Assurance Society of U.S., No. 01 Civ. 10193, 2004 WL 2101932, at *6 (S.D.N.Y. Sept. 21, 2004). "[C]ourts routinely take judicial notice of documents filed in other courts, again not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings."Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). Here, the Court takes judicial notice of the complaint and the record generated in McKoy I, as well as the determinations reached in the trial and appellate courts in connection with that action.
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." St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424) (internal quotation marks omitted).
"Whether or not the first judgment will have preclusive effect depends in part on whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether facts essential to the second were present in the first." Prime Management Co., Inc. v. Steinegger, 904 F.2d 811, 816 (2d Cir. 1990). "To ascertain whether two actions spring from the same 'transaction' or 'claim,' we look to whether the underlying facts are 'related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations." Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (citation omitted). New legal theories do not amount to a new cause of action so as to defeat the doctrine of res judicata. See e.g., id., at 110 ("[A] plaintiff cannot avoid the effects of res judicata by 'splitting' his claim into various suits, based on different legal theories with different evidence 'necessary' to each suit") (citation omitted).
"To prove the affirmative defense [of res judicata] a party must show 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." Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 285 (2d Cir. 2000).
Title VII Claims
In the instant case, the plaintiff's Title VII claim against USPS is barred by the doctrine of res judicata because the identical claim and its supporting facts were asserted by the plaintiff against the defendant USPS in McKoy I and the court handling that litigation decided the claim, on the merits, when it granted USPS' summary judgment motion concluding that McKoy's
Title VII claims were barred by the settlement agreement into which he entered with USPS on September 1, 1999. See, e.g., Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 714-15 (2d Cir. 1977) (summary judgment is dismissal on the merits for res judicata purposes).
In addition, "[a]s a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). The record before the Court is devoid of any facts that establish that the plaintiff filed a charge of discrimination with the EEOC against NALC. Having failed to satisfy that precondition to filing the instant Title VII claim against NALC, McKoy cannot obtain relief against NALC, in this action, based on his allegation that the Union violated rights secured to him by Title VII.
RICO and FLSA Claims
With respect to the plaintiffs' FLSA and RICO claims, it is undisputed that the same parties litigating McKoy II, litigated McKoy I, and that the McKoy I court decided the plaintiff's claims on their merits. Therefore, the doctrine of res judicata will bar McKoy from prosecuting the RICO and FLSA claims made in this action, if: (a) these claims arise from the same transaction(s) that gave rise to the plaintiff's claims in McKoy I and, thus, were or could have been raised in the prior litigation; (b) "the same evidence is needed to support [the] claims[;] and [c] facts essential to the second [action] were present in the first." Prime Management, 904 F. 2d at 815-816. The Court is mindful that "[i]t is this identity of facts surrounding the occurrence which constitutes the cause of action, not the legal theory" upon which a litigant has chosen to frame a complaint. Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992).
Here, McKoy's FLSA and RICO claims arise from USPS' decision to terminate his employment and the Union's subsequent representation of the plaintiff in challenging that decision. The facts asserted by the plaintiff in support of his claims are substantively the same as the facts asserted by him in McKoy I, and the evidence needed to establish those claims would be needed to establish the claims made in this action. The only difference between McKoy I and McKoy II, is that the latter action has been brought under new legal theories: FLSA and RICO, that were not advanced in the prior action, although they could have been because the relevant facts were known to McKoy at that time. Therefore, the Court finds that the FLSA and RICO claims made now involve the same transaction, or connected series of transactions, described in McKoy I. Absent new factual allegations, that could not have been asserted in the earlier litigation, the plaintiff's mere assertion of new legal theories, under which he might be entitled to relief, does not shield his FLSA and RICO claims from dismissal, pursuant to the doctrine of res judicata.
In addition, the Court notes that a labor union is not an "employer," as that term is used in FLSA, except in the circumstance where it actually employs a person. See 29 U.S.C. § 203(d). McKoy does not contend NALC employed him at any time pertinent to this action. Consequently, even if the doctrine of res judicata did not bar the plaintiff from bringing his FLSA claim before the court for adjudication, NALC could not be liable to him for violating FLSA.
Wrongful Discharge
McKoy contends he is entitled to relief through this action because he was wrongfully discharged by USPS. In doing so, the plaintiff makes citation to FLSA and Title VII. For the reasons discussed earlier in this writing, the doctrine of res judicata bars the plaintiff from advancing new legal theories against either of the defendants that could have been brought in the McKoy I litigation, but were not. McKoy challenged his discharge by USPS in McKoy I; he cannot do so again in this action. Moreover, since NALC was not his employer and was not named as a respondent by the plaintiff in any EEOC filing, the plaintiff's wrongful discharge claim, styled as a Title VII violation and a FLSA violation, cannot be made against the Union.
IV. RECOMMENDATION
For the reasons set forth above, the defendants' motions to dismiss the plaintiff's amended complaint, made pursuant to Fed.R.Civ.P. 12(b)(6), should be granted. Defendant USPS' motion to dismiss the amended complaint, because the court lacks jurisdiction, made pursuant to Fed.R.Civ.P. 12(b)(1), should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, United States District Judge, 500 Pearl St., Room 2510, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
SO ORDERED: