Opinion
01 Civ. 1984 (SHS) (GWG)
September 12, 2002
REPORT AND RECOMMENDATION
On March 8, 2001, plaintiff Jerome McKoy, proceeding pro se, filed a complaint in the Southern District of New York alleging that the defendants had deprived him of his civil rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Complaint at 1. In addition, McKoy claimed that both the United States Postal Service ("USPS") and defendant National Association of Letter Carriers, AFL-CIO ("NALC") violated the collective bargaining agreement applicable to his employment, including the procedures used to terminate him. Complaint, ¶ 8. Finally, he also alleged that the NALC violated its duty of fair representation and the due process clause. See id.; "Original Supporting Documents Submitted by Plaintiff (undated)."
Defendant, John E. Potter, Postmaster General of the United States Postal Service, moves for summary judgment dismissing the complaint. Separately, defendants NALC and Patrick McNally move for judgment on the pleadings. For the reasons stated below, the defendants' motions should be granted and the case should be dismissed.
I. BACKGROUND A. McKoy's Employment History
McKoy was hired by the USPS in June 1994 to serve as a city letter carrier. See Deposition of Jerome McKoy, dated Aug. 10, 2001 ("McKoy Dep."), at 7-8 (reproduced in Declaration of Russell M. Yankwitt, dated Mar. 1, 2002 ("Yankwitt Decl."), Ex. U). From 1994 to 1997, McKoy worked at the Planetarium Station of the USPS. See McKoy Dep. at 8-9. From January 1997 until his termination in February 2000, McKoy worked at the Old Chelsea Station of the USPS. See McKoy Dep. at 9-10.
B. McKoy's Early Disciplinary History
On January 24, 1995, McKoy received notice of a seven-day suspension for failing to follow mail collection procedures. See USPS 7 Day Suspension, dated Jan. 24, 1995, at 1 (reproduced in Yankwitt Decl. Ex. A); McKoy Dep. at 28-29. In response, McKoy filed a grievance under the applicable collective bargaining agreement ("CBA") on February 2, 1995.See USPS 7 Day Suspension, dated Jan. 24, 1995, at 2. As part of the grievance process, McKoy was represented by a NALC shop steward and the suspension was ultimately reduced to a Letter of Warning. See id.; McKoy Dep. at 29.
On July 25, 1995, McKoy received a Notice of Removal for: (1) failing to admit prior criminal convictions on his employment application (specifically, a felony conviction for robbery); (2) causing an accident by misjudging the clearance of his vehicle; and (3) operating a government vehicle without a license. See USPS Notice of Removal, dated July 25, 1995, at 1-2 (reproduced in Yankwitt Decl. Ex. B). There is no information available concerning any grievance procedure that led to McKoy's reinstatement. See Affidavit of Edward M. Risdell, dated Feb. 27, 2002, ¶ 5 (reproduced in Yankwitt Decl. Ex. W); Memorandum of Law in Support of Defendant Potter's Motion for Summary Judgment, dated Mar. 1, 2002, at 5 n. 3. Records do indicate, however, that this Notice of Removal was reduced to a 14-day suspension. See USPS Notice of Removal, dated Sept. 4, 1997, at 1 (reproduced in Yankwitt Decl. Ex. C).
McKoy received another Notice of Removal for being absent without official leave on September 4, 1997. See Notice of Removal, dated Sept. 4, 1997, at 1 (reproduced in Yankwitt Decl. Ex. C). Subsequently, with the assistance of his shop steward, McKoy filed a grievance, resulting in a reduction of his penalty to a Letter of Warning. See Step 1A/Pre-Arb Grievance Settlement, dated Oct. 29, 1997, at 1 (reproduced in Yankwitt Decl. Ex. D). The settlement contained a "strong notice that any further infractions of this nature will result in [McKoy's] removal." Id.
On June 19, 1998, McKoy received another Notice of Removal for "excessive lateness." USPS Notice of Removal, dated June 19, 1998, at 1 (reproduced in Yankwitt Decl. Ex. E). This Notice of Removal was rescinded after McKoy spoke with a USPS Equal Employment Opportunity ("EEO") Office Counselor. See McKoy Dep. at 57.
C. Issuance of the EEO Handbook
On June 30, 1998, McKoy received a USPS handbook entitled "What You Need to Know about EEO." See USPS Certificate of Receipt for Publication 133, dated June 30, 1998, at 1 (reproduced in Yankwitt Decl. Ex. F); McKoy Dep. at 47-48, 56. The handbook contains instructions on available procedures and remedies for grievances by USPS employees. Included in the handbook are instructions regarding the necessity of participating in a "precomplaint processing stage" before filing a EEO formal complaint. See What You Need to Know About EEO, dated Aug. 1995 ("EEO handbook"), at 4 (reproduced in Yankwitt Decl. Ex. F). The handbook describes the alternative dispute resolution process that may occur at the pre-complaint stage. Id. at 6. The handbook also sets forth the process for filing a formal complaint and the time limits for filing civil actions in federal court. See id. at 7-10.
D. The June 10, 1999 Notice of Removal
On June 10, 1999, McKoy received a Notice of Removal from the USPS for continuous use of unauthorized overtime. See USPS Notice of Removal, dated June 10, 1999 ("June 10 Notice"), at 1 (reproduced in Yankwitt Decl. Ex. G). The instant lawsuit relates to the termination that resulted from this notice. See Complaint, ¶ 8. The June 10 Notice listed six separate occasions, between March 1, 1999 and June 9, 1999, when McKoy had used unauthorized overtime. See June 10 Notice at 1. The notice states that McKoy failed to give an adequate explanation for his conduct on any of the occasions. See id.
On July 13, 1999, McKoy requested an appointment with a USPS EEO counselor. See USPS Information for Precomplaint Counseling, dated July 21, 1999, Informal No. 4A-100-0170-99, at 1 (reproduced in Yankwitt Decl. Ex. H). McKoy alleged that his supervisors, Elizabeth Schneyer and Frank Bosco, discriminated against him based upon his race and that this alleged discrimination was the reason for the June 10 Notice of Removal.See id. at 1-2. With the assistance of an EEO Counselor, McKoy completed an "Information for Precomplaint Counseling" form on July 21, 1999, leading to the "precomplaint" form being assigned an index number, 4A-100-0170-99. See id. at 1, 3; McKoy Dep. at 72.
After consultation with his shop steward, McKoy agreed to try to resolve the case through REDRESS, the USPS's alternative dispute resolution process for EEO complaints. See Agreement to Mediate, dated Sept. 1, 1999, at 1 (reproduced in Yankwitt Decl. Ex. I). The parties engaged in mediation and agreed to a settlement on September 1, 1999, in the presence of a mediator, Simeon Baum. See Settlement Agreement Form, dated Sept. 1, 1999 (the "Settlement Agreement") (reproduced in Yankwitt Decl. Ex. J). The agreement stated that, "[a]s a complete and final settlement" of their dispute "[t]he parties will work to open and maintain a good, respectful line of communications." See id. at 1. The agreement was signed by McKoy, Schneyer, Baum, and John Westcott, McKoy's union representative. See id. at 2. On the signature page, the agreement stated that, "[t]his agreement constitutes a full and final settlement of all issues arising out of the subject matter." See id. Additionally, the agreement's signature page stated that, "[b]y signing this agreement, the counselee withdraws this complaint without any further appeal of this allegation through the EEO process." See id. As a result of the settlement, no EEO investigation was initiated and McKoy's EEO Discrimination Precomplaint was closed. See McKoy Dep. at 95-96. The Settlement Agreement provided that any alleged breach of the agreement had to be reported to the EEO within 30 days of the alleged breach. Settlement Agreement at 1.
The USPS asserts that McKoy also filed a separate document on "Sept. 9, 1999," again withdrawing his EEO precomplaint. See USPS's Statement Pursuant to Local Rule 56.1, dated March 1, 2002, ¶ 16. The USPS appends a document to support this proposition, however, that is dated September 9, 1998, not 1999, and that contains a different EEO file number from the one assigned to McKoy's precomplaint. Accordingly, the USPS's averment on this point is not accepted as accurate.
Separately from the EEO mediation, McKoy filed a grievance pursuant to the CBA to arbitrate the June 10 Notice. See McKoy Dep. at 96-100. McKoy continued working for the USPS during this time pursuant to the CBA. See 1994-1998 National Agreement between the USPS and the NALC ("National Agreement"), dated Aug. 19, 1995, at 41-42. The grievance was heard by an arbitrator on February 22, 2000. See In the Matter of the Arbitration between United States Postal Serv. and Nat'l. Ass'n. of Letter Carriers, AFL-CIO, dated Feb. 26, 2000, at 1 (reproduced in Yankwitt Decl. Ex. N). After hearing the parties and evaluating the available evidence, the arbitrator upheld McKoy's termination finding the USPS had "just cause" for the dismissal. See id. at 2-4. Specifically, the arbitrator determined that "on numerous occasions, McKoy has been advised of the need to return to the station on a timely basis, and he has failed to heed those warnings. In addition, on many of the dates indicated, the extra time utilized is 1-1/2 to 2 hours." See id. at 2-3. The arbitrator found that McKoy's previous disciplinary record justified McKoy's removal. See id. at 3. McKoy was removed from employment on February 28, 2000. See Equal Employment Opportunity Commission Decision, dated Feb. 23, 2001 ("EEOC Decision"), at 1 (reproduced in Yankwitt Decl. Ex. S).
A copy of the CBA is included in the "Original Supporting Documents Submitted by Plaintiff (undated)."
E. The post-June 10, 1999 Notices of Removal
In the meantime — between the filing of his grievance and the arbitrator's final decision — the USPS issued two additional Notices of Removal. See id. A November 23, 1999 Notice of Removal charged McKoy with failing to follow instructions and unauthorized overtime. See USPS Notice of Removal, dated Nov. 23, 1999, at 1 (reproduced in Yankwitt Decl. Ex. L). McKoy received an additional Notice of Removal on January 25, 2000 for failure to follow instructions. See USPS Notice of Removal, dated Jan. 25, 2000, at 1 (reproduced in Yankwitt Decl. Ex. M). On February 28, 2000, the date of McKoy's termination, the USPS withdrew both of these notices without further action. See USPS EEO Decision, dated Sept. 11, 2000 ("EEO Decision"), at 1-2 (reproduced in Yankwitt Decl. Ex. R).
Nonetheless, on March 25, 2000, McKoy filed a formal EEO Complaint alleging that the November 23, 1999 and January 25, 2000 Notices of Removal were in retaliation for his previous allegations of racial discrimination. See EEO Complaint of Discrimination in the Postal Service, dated Mar. 25, 2000 ("EEO Complaint") at 1 (reproduced in Yankwitt Decl. Ex. O). On August 23, 2000, before the USPS had rendered a decision on his EEO complaint, McKoy sent a letter to Chief Administrative Judge Kenneth Chu of the New York District Office of the EEOC, requesting a hearing regarding, inter alia, his June 10 Notice and his subsequent termination. See Letter from McKoy to Chief Administrative Judge Chu, dated Aug. 23, 2000, at 1-5 (reproduced in Yankwitt Decl. Ex. P). The letter makes reference both to the USPS Information for Precomplaint Counseling, dated July 21, 1999, Informal No. 4A-100-0170-99, at 1 (reproduced in Yankwitt Decl. Ex. H) — relating to the June 10 Notice — and to his formal EEO Complaint of March 25, 2000. Id. Chief Administrative Judge Chu responded by letter on August 24, stating that the precomplaint had been fully adjudicated by the September 1, 1999 settlement agreement and that therefore the complaint was "closed." See Letter from Chief Administrative Judge Chu to McKoy, dated Aug. 24, 2000, at 1 (reproduced in Yankwitt Decl. Ex. Q). The letter further stated that any action on the formal EEO Complaint was premature inasmuch as McKoy was required to wait for a decision from the USPS, or six months if no decision was made, before he contacted the EEOC. See id.
The EEO Complaint refers to the dates of discrimination as November 15, 1999, and January 25, 2000. It would appear, however, that the former date was meant to refer to the November 23, 1999 Notice of Removal.
On September 11, 2000, the USPS dismissed McKoy's formal EEO Complaint as moot. See EEO Decision, at 1-2. Specifically, the USPS found that because McKoy was no longer a USPS employee, "there is no reasonable expectation that the alleged violation, i.e. issuance of the removal notices, will recur." See id. at 2. After McKoy appealed this determination to the EEOC, the EEOC issued a final decision holding that McKoy's EEO Complaint should have been dismissed for failure to state a claim. See EEOC Decision at 1. The EEOC found that McKoy could not maintain a claim for retaliation based on the November 23, 1999 or January 25, 2000 Notices of Removal because these notices were not the ones that had led to his termination from the USPS. See id. The EEOC found that McKoy's removal instead "stemmed from the notice of removal dated June 10, 1999 which is not at issue in the instant complaint." Id. The EEOC decision, dated February 23, 2001, informed McKoy of his right to file a civil action in a United States District Court within 90 days.Id. at 2.
F. The Instant Complaint and Subsequent Filings
On March 8, 2001, McKoy filed the instant complaint. The factual allegations complained both about the June 10 Notice and about the alleged breach of the CBA. Complaint, ¶ 8. The complaint does not allege retaliation. Id. at ¶ 4.
McKoy supported his complaint with a number of exhibits relating to the various charges that were brought against him during the grievance process (denominated as various "causes of action"). The gravamen of these causes of action and exhibits is that the charges against him were without justification.
Because they have been separated from the original complaint, these documents are being docketed herewith as "Original Supporting Documents Submitted by Plaintiff (undated)."
In response to the Answer filed by the NALC and McNally, McKoy filed a document entitled "Opposing Motion to defendent [sic] motion to dismiss," (Docket #7, filed April 19, 2001), in which he reiterates his allegations of inadequate representation by the NALC.
After some pre-trial proceedings, McKoy filed a document entitled "Notice of Motion for Claims for Relief Rule 8" (Docket #17, filed Jan. 10, 2002) and "Counterclaim" (Docket #18, filed Jan. 10, 2002). He later served on the parties, although he did not file with the Court, three documents dated February 5, 2002: "Motion Under Federal Tort Claims Act"; "Motion Chain and Civil Conspiracy"; and "Motion Fraudulent Inducement of Employment." Copies of all these documents, as provided by defendant's counsel, are now being docketed herewith. Together, the post-complaint documents reiterate McKoy's claims that he was improperly discharged on the grounds of race and reflect that he is purporting to sue the USPS under various federal statutes, including the Federal Tort Claims, Act, 28 U.S.C. § 2671 et seq., and for "Fraud, chain and civil conspiracy, breach of agreement/(contract) and forgery," Motion Under Federal Tort Claims Act, ¶ 7; Motion for Claims for Relief Rule 8 at 1-2. The gravamen of these claims appears to be that plaintiff's discharge is the result of discrimination because he compared favorably with other employees with respect to usage of overtime and that he is owed "back pay" from the time of his discharge until the present.
On March 1, 2002, the USPS moved for summary judgment on the ground that the plaintiff's claims are barred by the Settlement Agreement, are unexhausted and are time-barred. Defendants NALC and McNally moved for judgment on the pleadings on the ground that the complaint is time barred. The USPS's motion contained a notice warning the plaintiff that any facts in its Local Civil Rule 56.1 statement that were not controverted would be deemed admitted.
McKoy opposed the defendants' motion in a memorandum of law filed March 26, 2002 (Docket #22; see also Docket #24 (duplicate of #22)). In addition, he filed a document entitled "Notice of Motion" (Docket #21) on the same date. In this document, he purports to move for summary judgment and states that "the defendant's [apparently, the NALC's] motion should be denied because . . . the plaintiff has not had the opportunity to gather all relevant facts upon this case." Notice of Motion, filed March 26, 2002, ¶ 12 (citing Fed.R.Civ.P. 56(f)).
In his filings, McKoy essentially repeated his prior allegations, reiterating that the USPS's policies regarding overtime and his resulting discharge for allegedly abusing those policies were unlawful on the ground that they were motivated by racial discrimination. He did not specifically controvert the factual averments in the USPS's Rule 56.1 statement.
II. USPS'S MOTION FOR SUMMARY JUDGMENT A. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure summary judgment may be granted only when no genuine issue of material fact is disputed and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); McPherson v. Coombe, 174 F.3d 276, 279-80 (2d Cir. 1999). On a motion for summary judgment, all ambiguities and factual inferences are drawn in favor of the party opposing the motion. McPherson, 174 F.3d at 280 (citing Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998)). The pleadings of a pro se plaintiff are read liberally and interpreted "'to raise the strongest arguments that they suggest.'" McPherson, 174 F.3d at 280 (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying [the evidence] which it believes demonstrate the absence of material fact." Celotex, 477 U.S. at 323. After the motion is properly made and supported the burden then shifts to the non-moving party, which "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' . . . or defeat the motion through 'mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir. 1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied 480 U.S. 932 (1987)).
B. McKoy's Title VII Claim of Racial Discrimination Against USPS
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was enacted to ensure equality in employment by eliminating discriminatory practices. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). "Cooperation and voluntary compliance were selected as the preferred means for achieving this goal." Alexander, 415 U.S. at 44; see also Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14 (1981) ("In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims."). To encourage Congress' goal, voluntary compromises of Title VII claims are presumed valid. See Kirkland v. New York State Dep't of Correctional Services, 711 F.2d 1117, 1128-29 (2d Cir. 1983), cert. denied, 465 U.S. 1005 (1984). A voluntary compromise should be upheld unless it contains "'provisions that are unreasonable, unlawful, or against public policy.'" Id. (quoting Berkman v. City of New York, 705 F.2d 584, 597 (2d Cir. 1983)).
To waive the right to assert a claim of discrimination under Title VII, the waiver must be made "knowingly and willfully." Bormann v. ATT Communications, Inc., 875 F.2d 399, 402 (2d Cir.) (quoting Coventry v. U.S. Steel Co., 856 F.2d 514, 522 (3d Cir. 1988)), cert. denied 493 U.S. 924 (1989). The Second Circuit utilizes a "totality of the circumstances test" to determine whether a waiver of claims under Title VII meets this requirement. See Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir. 1988) (waiver must be "knowing and voluntary") (citing Bormann, 875 F.2d at 403); Nicholas v. NYNEX, Inc., 929 F. Supp. 727, 730 n. 1 (S.D.N.Y. 1996); Baba v. Warren Mgmt. Consultants, Inc., 882 F. Supp. 339, 343 (S.D.N.Y.), aff'd 89 F.3d 826 (2d Cir. 1995), cert. denied, 519 U.S. 840 (1996). The factors to be considered in determining whether a waiver was knowing and willful are:
1) the plaintiff's education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted an attorney, and 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.Bormann, 875 F.2d at 403 (citing EEOC v. American Express Publishing Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988)). Courts also examine whether an employer encouraged or discouraged the employee to consult an attorney and if the employee had a fair opportunity to do so. Bormann, 875 F.2d at 403 (citing Cirillo v. Arco Chem. Co., 862 F.2d 448, 454 (3d Cir. 1988)). The list is not exhaustive nor do all factors need to be satisfied, or examined, for a release to be enforceable. Laniok v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan, 935 F.2d 1360, 1365 (2d Cir. 1991); Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 516 (S.D.N.Y. 2000).
In this case, neither McKoy nor the USPS has offered much in the way of extrinsic evidence to elucidate the applicability of these factors. It is particularly surprising that McKoy has not offered any extrinsic evidence as the factors were explicitly raised in the USPS's motion for summary judgment. Accordingly, the Court is essentially relegated to the documentary record in order to assess the enforceability of the Settlement Agreement. The undisputed facts in the record favor the conclusion that the settlement was knowing and voluntary.
With respect to the first factor, the Court cannot find this to favor or disfavor enforcement of the agreement as there is no indication in the record of McKoy's education or business experience. With respect to the amount of time McKoy had possession of the agreement, at first blush this factor might seem to favor McKoy since he received and signed the settlement agreement form on the same day, September 1, 1999. However, McKoy had initiated the EEO Precomplaint process long before that date (on July 13, 1999) and had agreed at that time to mediation with the assistance of his shop steward. Thus, it was the very purpose of the process that a mediated settlement might be reached. These facts mitigate any shortness of time that McKoy actually had the settlement document in his possession.
With respect to the role McKoy played in signing the agreement, again neither side has provided information on this point and thus this factor cannot favor either side.
As to representation, McKoy was not represented by an attorney at the mediation session but he was represented by a union representative. See McKoy Dep. at 86; Agreement to Mediate, dated Sept. 1, 1999 at 1 (reproduced in Yankwitt Decl. Ex. I); Settlement Agreement Form at 2. The USPS similarly was not represented by counsel but by a management representative, Elizabeth Schneyer, McKoy's supervisor. See Agreement to Mediate, dated Sept. 1, 1999 at 1 (reproduced in Yankwitt Decl. Ex. I). As both parties were on equal footing in terms of the absence of counsel, and McKoy had representation from a party presumably familiar with these sorts of proceedings, these circumstances weigh in favor of the USPS. See Prunella, 94 F. Supp.2d at 516-17 (finding the thirdBormann factor weighing in favor of enforcement when employee was represented by a union representative and an employer represented by a management official).
The clarity of the agreement with respect to the status of the EEO complaint weighs strongly in favor of enforcement. The agreement is written in plain English and places the reader on notice of its effect.See Laramee v. Jewish Guild for the Blind, 72 F. Supp.2d 357, 360 (S.D.N.Y. 1999). In addition, the initial Agreement to Mediate informed the parties that they would be bound if an agreement is reached. See Agreement to Mediate, dated Sept. 1, 1999 at 1 (reproduced in Yankwitt Decl. Ex. I) ("no participant will be bound by anything said or doneunless and until there is a written and signed settlement agreement.") (emphasis added). Most importantly, the Settlement Agreement explicitly states, "[t]his agreement constitutes a full and final settlement of all issues arising out of the subject matter." See Settlement Agreement at 2. McKoy does not dispute that he signed the second page of the Settlement Agreement containing the full and final settlement terms. See McKoy Dep. at 90. The document states with clarity and in simple English that "[b]y signing this agreement, the counselee withdraws this complaint without any further appeal of this allegation through the EEO process."See Settlement Agreement at 2.
McKoy's opposition to the enforcement of the Settlement Agreement does not in any way undermine the USPS's contention that the settlement was knowing and voluntary. Instead, McKoy claims that he did not agree to settle his discrimination claims because the mediation "was not the appropriate forum to do so." See Plaintiff Memorandum of Law, In Support of Plaintiff Opposition to Defendant Motion to Dismiss and Summary Judgment ("Pl. Mem."), dated March 26, 2002, at 33. This argument is inexplicable. McKoy does not deny that he agreed to enter into the mediation process precisely to resolve his claims of discrimination. See Information for Precomplaint Counseling, dated July 13, 1999, at 1 (reproduced in Yankwitt Decl. Ex. H). Thus, the mediation was McKoy's own chosen forum to attempt to resolve his alleged discrimination claims.
Next, McKoy claims that the mediator did not agree to settle the discrimination claim. Pl. Mem. at 33. This contention, however, flies in the face of the explicit language of the agreement stating that the discrimination claim was being "withdrawn." Settlement Agreement at 2. Without further explanation, McKoy's assertion is insufficient to undermine the "knowingness" or "voluntariness" of the Settlement Agreement.
Finally, McKoy argues against enforcement of the settlement agreement because he did not personally write in his name as the complainant on the first page of the agreement. See Pl. Mem. at 34; McKoy Dep. at 89-90. However, McKoy admits that he personally signed the Settlement Agreement. See McKoy Dep. at 91. Whether he or another person wrote his name on the front page of the agreement is irrelevant.
While McKoy has raised no issue in his own papers to challenge the Settlement Agreement regarding the consideration given in return, it is this factor that weighs most in his favor. Here, the USPS gave no consideration whatsoever in return for McKoy dropping his claim. Neither party has disputed that the Settlement Agreement allowed the USPS to continue with the enforcement of the Notice of Removal and that McKoy was entitled to oppose it through the collective bargaining agreement's grievance process. All that apparently resulted from the Settlement Agreement was that McKoy could no longer challenge the Notice of Removal on the basis of race discrimination. While one can imagine that there are situations where a party would have reason to enter into such an agreement (for example, a desire to focus on the challenged termination for the reasons given in the notice or a recognition that claim of discrimination was baseless), certainly there was no "consideration" given by the USPS for McKoy's agreeing withdraw his clam of race discrimination.
This one factor, however, when considered in combination with all the others, is insufficient to defeat the presumption of validity that attaches to the Settlement Agreement. Kirkland, 711 F.2d at 1128-29. McKoy simply has not put forward sufficient evidence to allow the conclusion that his waiver was not knowing and voluntary. For these reasons, the Settlement Agreement should be considered enforceable. As a result, the USPS is entitled to summary judgment dismissing the claims made against under Title VII.
C. McKoy's Other Claims Against the USPS
McKoy has attempted to add claims against the USPS under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and various other statutes, including civil rights statutes. See Motion for Claims for Relief, dated January 10, 2002, at 1; Motion Fraudulent Inducement of Employment, dated February 5, 2002, at 2. While his papers are not entirely clear, it appears that the basis for all of his claims is the alleged discrimination he suffered during the course of his employment because of his race. These claims fail as a matter of law because "Title VII provides the sole remedy for federal employees alleging employment discrimination." Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998);accord Brown v. General Services Admin., 425 U.S. 820, 835 (1976);Briones v. Runyon, 101 F.3d 287, 289 (2d. Cir. 1996); Bumpus v. Runyon, 1997 WL 539924, at *3 (S.D.N.Y. Aug. 28, 1997) ("Federal courts . . . have repeatedly held that Title VII preempts employment discrimination and related claims made by federal employees purporting to invoke any other statutes.") (citations omitted). Accordingly, the USPS is entitled to judgment as a matter of law against McKoy on his non-Title VII claims relating to his allegations of discrimination in employment.
To the extent McKoy's papers may be construed as an attempt to challenge his termination directly, any such claim must fail. See generally United States v. Fausto, 484 U.S. 439 (1988) (provisions of Civil Service Reform Act provide the exclusive method for challenges to federal employment actions).
D. McKoy's Claim Against USPS for Violation of the CBA
McKoy also claims that the USPS breached its duties under the CBA between the USPS and the NALC. See Complaint at ¶ 8. McKoy additionally claims that the NALC breached its statutory duty of fair representation. See Motion Fraudulent Inducement of Employment, dated Feb. 5, 2002 at ¶ 7. These claims represent a "hybrid § 301/fair representation claim" challenging the validity of the settlement of disputes under collective bargaining agreements. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165 (1983) (citing § 301 of the Labor Management Relations Act, 29 U.S.C. § 185). "The suit is thus not a straightforward breach of contract suit under § 301, . . . but a hybrid § 301/fair representation claim, amounting to a 'direct challenge to the 'private settlement of disputes under [the collective bargaining agreement].''" Id. (quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66 (1981) (Stewart, J., concurring in judgment) (in turn quoting United Auto Workers of America v. Hoosier Cardinal Corp., 383 U.S. 696, 702 (1966))). The Supreme Court has held that a six month statute of limitations governs such hybrid actions as set by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). See DelCostello, 462 U.S. at 154-55. The limitations period begins to accrue when the employee knew or should have known that a breach of the duty of fair representation had occurred. See White v. White Rose Food, 128 F.3d 110, 114 (2d Cir. 1997); Cohen v. Flushing Hosp. and Medical Center, 68 F.3d 64, 67 (2d Cir. 1996) (quoting Santos v. District Council of New York and Vicinity of United Bhd. of Carpenters, 619 F.2d 963, 969 (2d Cir. 1980)); Hussein v. Pierre Hotel, 2000 WL 776920, at *2 (S.D.N.Y. June 14, 2000).At the latest, McKoy should have known of any alleged breach after the arbitrator's decision regarding the June 10 Notice. McKoy received notice of the decision on February 29, 2000, when he was terminated from his employment from the USPS. See EEO Decision at 2. However, McKoy did not file his complaint in this action until March 7, 2001, well over a year after his removal. Accordingly, McKoy's hybrid claims against the USPS for violation of the CBA are time-barred.
III. NALC'S MOTION FOR JUDGMENT ON THE PLEADINGS A. Judgment on the Pleadings Standard
The NALC has moved for judgment on the pleadings with respect to McKoy's claims against it. A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is evaluated under the same standard as a motion to dismiss under Rule 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.) (citing Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987)), cert. denied, 513 U.S. 816 (1994); Miner v. Empire Blue Cross/Blue Shield, 2001 WL 96524, at *2 (S.D.N.Y. Feb. 5, 2001). "Although on a motion to dismiss a court must accept all factual allegations as true and draw all inferences in the plaintiff's favor . . . dismissal is appropriate if plaintiff can prove no set of facts that would entitle him to relief." Levy v. Southbrook Int'l Investments, Ltd., 263 F.3d 10, 14 (2d Cir. 2001) (citing Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)) (internal citations omitted), cert. denied 122 S.Ct. 1911 (2002).
"When considering a motion to dismiss a pro se complaint such as this, 'the court must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002) (quotingCruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). A court can consider documents referred to in a complaint, explicitly or by reference, on a motion to dismiss without converting it to a motion for summary judgment. See Stuto v. Fleishman, 164 F.3d 820, 826 n. 1 (2d Cir. 1999);Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991),cert. denied, 503 U.S. 960 (1992).
B. McKoy's Claim that the NALC Breached its Duty of Fair Representation and the CBA
McKoy claims that the NALC breached its statutory duty of fair representation and violated the terms of the CBA. See Complaint ¶ 8, paragraph 3(c). As previously discussed, this claim is a "hybrid/§ 301" claim against both the USPS and the NALC. See DelCostello, 462 U.S. at 165. In such a case, the employee's claim against the employer is for a violation of the CBA and the claim against the union is for a violation of the duty of fair representation. See id., 462 U.S. at 164. In both cases, the statute of limitations period is six months as established by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). See id., 462 U.S. at 155. As already noted, McKoy filed this lawsuit well beyond the six month period established by § 10(b). As such, the NALC should be granted judgment on the pleadings for McKoy's hybrid claim against the union.
To the extent that McKoy's claim against the NALC can be read as separate from the union's duty of fair representation, his claim for violation of the CBA directly must still fail. Ordinarily, an employee's only claim against a union for violation of the terms of a collective bargaining agreement is for a violation of the duty of fair representation. See United Steelworkers of America v. Rawson, 495 U.S. 362, 372-75 (1990). However, an employee may state a claim against a union for a violation of the collective bargaining agreement if the agreement explicitly creates such a right. See id., 495 U.S. at 374; see also Argento v. Airborne Freight Corp., 933 F. Supp. 373, 376 (S.D.N.Y. 1996) ("A union may assume additional responsibilities towards its employees by accepting a duty of care through a collective-bargaining agreement") (citation omitted). "If an employee claims that a union owes him a more far-reaching duty, he must be able to point to language in the collective-bargaining agreement specifically indicating an intent to create obligations enforceable against the union by the individual employees." Rawson, 495 U.S. at 374 (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965)). In order to evaluate McKoy's claims against the NALC for violations of the CBA, the court must evaluate whether the CBA grants any rights enforceable by individual employees.
In his complaint McKoy claims that the NALC violated Article 15, section 2, and Article 16, section 1 of the National Agreement. See Complaint ¶ 8, paragraph 3(a), (d). Article 15, section 2, of the CBA refers to the rights of the NALC to appeal an adverse decision to the next step of the grievance procedure. See National Agreement, dated Aug. 19, 1995, at 35. Article 16, section 1 refers to the general principles regarding discipline of USPS employees. See National Agreement, dated Aug. 19, 1995, at 41. Neither of these sections even intimates, much less expressly creates, any rights enforceable by an employee against the NALC. As such, McKoy has failed to meet his burden to demonstrate any language that could create a right in the CBA that he can enforce against the NALC. See Rawson, 495 U.S. at 374. Accordingly, the NALC is entitled to judgment on the pleadings as to McKoy's claims under the CBA.
C. McKoy's Constitutional Claims Against the NALC
McKoy claims that the NALC has deprived him of his due process and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution. To state a claim for a violation of a person's constitutional rights, the following must apply:
[f]irst, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible. . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.Lugar v. Edmonson Oil Co. Inc., 457 U.S. 922, 937 (1982) (internal citations omitted). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'" U.S. v. Int'l Bhd. of Teamsters, 941 F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)), cert. denied, 502 U.S. 1091 (1992). To establish "state action" a litigant must demonstrate that the deprivation occurred at the hands of persons acting on behalf of the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (finding the Fourteenth Amendment applicable only to the actions of state actors, not private persons).
A union is generally not a state actor. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); Messman v. Helmke, 133 F.3d 1042, 1044 (7th Cir. 1998); McGovern v. Local 456, Int'l Bhd. of Teamsters, 107 F. Supp.2d 311, 316 (S.D.N.Y. 2000), aff'd 2001 U.S. App. Lexis 28459 (2d Cir. Feb. 14, 2001). Since McKoy has alleged no facts that could lead to a conclusion that the NALC could be considered a state actor, he cannot assert any constitutional claims against the union. As such, the NALC should be granted judgment on the pleadings on McKoy's constitutional claims.
E. McKoy's Claims Against McNally
McKoy has named Patrick McNally as a defendant in this action. Nowhere in any pleading filed by McKoy, however, is any claim raised against McNally in an individual capacity. As such, no claim exists against McNally and he should be granted judgment on the pleadings.
IV. CONCLUSION
For the foregoing reasons, defendant USPS is entitled to summary judgment and defendants NALC and Patrick McNally are entitled to judgment on the pleadings.
As previously noted, McKoy opposed the defendants' motions on the ground that he has "not had the opportunity to gather all relevant facts upon this case." Notice of Motion, filed March 26, 2002, ¶ 12. McKoy, however, gives no reason whatsoever why discovery is necessary to address the issues raised in the defendants' motions and thus there is no reason to order a continuance to permit additional discovery in this matter under Fed.R.Civ.P. 56(f).