Opinion
00 Civ. 1143 (GBD)(FM).
February 22, 2002
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
I. Introduction
This is a pro se employment action. Plaintiff Gil A. Sanchez seeks to assert numerous claims against his former employer, Harvard Maintenance, Inc. ("Harvard"), which performed maintenance services at the New York University College of Dentistry ("NYU") pursuant to a contract with NYU, and his union, Local 32B-32J of the Service Employees International Union, AFL-CIO ("Union"). In his First Amended Complaint ("Complaint"), Sanchez has named as defendants the Union; Union delegates Chris Dankert, Rob Flores, and Brian Lambert; Brendan Egan, Esq., an attorney for the Union; and Arthur J. Flanagan, an arbitrator who heard one of two grievances filed against Harvard by the Union for the benefit of Sanchez. (The aforementioned defendants are hereinafter referred to, collectively, as the "Union Defendants."). Sanchez also has named as defendants Steven Donofrio, Administrative Dean of NYU; Frank LoCastro, Building Manager of the NYU facility; John DiGiovani, the vice president of Marketing at Harvard; Carl Rinaldi, a Harvard crew chief; and Perry Heidecker, Esq., an attorney for Harvard. (The latter defendants are hereinafter referred to, collectively, as the "Management Defendants.").
Flanagan is erroneously referred to in the Complaint as "Author J. Flanagan."
LoCastro is erroneously referred to in the Complaint as "Frank LaCastro."
Rinaldi is erroneously referred to in the Complaint as "Carl Ranaldi."
Although the Union and Management Defendants evidently consented to its filing, the Complaint never was submitted to the Clerk of the Court. A copy is annexed to the Union's motion papers. (See Sturm Aff. Ex. A).
The Management Defendants have now moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6), for lack of subject matter jurisdiction and failure to state a legally sufficient claim for relief. The Union Defendants have moved, pursuant to Fed.R.Civ.P. 56, for summary judgment. As set forth in greater detail below, the Complaint, together with the exhibits annexed thereto, and Sanchez's opposition papers, establish that Sanchez has failed to state a claim upon which relief can be granted. Accordingly, I recommend that the Management and Union Defendants' motions be granted. I further recommend that Sanchez be granted leave to submit a Second Amended Complaint within twenty days, provided that he is able to cure the pleading defects in his only two potentially viable claims.
II. Facts
Sanchez's fourteen-page, single-spaced Complaint drifts back and forth between factual and legal assertions and is often difficult to understand. Accordingly, in an effort to provide sufficient background to assess his legal and factual theories, the following recitation draws on the allegations of his Complaint and other submissions and sets forth the facts in the light most favorable to him.
Although a court considering a Rule 12(b)(6) motion to dismiss is generally restricted to the four corners of the complaint, pro se papers may properly be read together to determine whether a plaintiff could conceivably be entitled to relief. See, e.g., Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) (Scheindlin, J.) (considering allegations set forth in pro se plaintiff's opposition papers in deciding defendants' Rule 12(b)(6) motion); Gadson v. Goord, No. 96 Civ. 7544, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997) (Sotomayor, J.)(same); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) (Cannella, J.)("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint."). Courts also may look beyond the complaint where, as here, a party alleges that the court lacks subject matter jurisdiction. See Kamen v. ATT, 791 F.2d 1006, 1011 (2d Cir. 1986); Exchange Nat'l Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976); Marsden v. Federal B.O.P., 856 F. Supp. 832, 835 (S.D.N.Y. 1994) (Stanton, J., adopting report and recommendation of Grubin, Mag. J.).
From March 1988 to September 19, 1999, Sanchez worked for two outside contractors performing maintenance services at an NYU building at 345 East 24th Street, New York, New York. (Compl. at 2-3 ¶ 1; Deposition of Gil A. Sanchez, taken on July 19, 2000 ("Dep."), at 10-11). Originally, Sanchez was employed by Ogden Allied Services Corporation as a maintenance man. (See Compl. at 2 ¶ 1; Dep. at 11). Later, Ogden promoted him to a "crew chief " position that he held for four or five years. (Id.).
In September 1996, when Harvard replaced Ogden as the provider of maintenance services to NYU, Sanchez was retained as a crew chief. (Compl. at 2 ¶ 1; Dep. at 12).
In January 1997, however, LoCastro, who was an NYU employee, stripped Sanchez of his crew chief responsibilities and reassigned them to Rinaldi, who was also Sanchez's Union shop steward. (Id.). Suffice it to say, after Rinaldi assumed Sanchez's former duties as crew chief, the two did not get along. (See, e.g., Compl. at 2 ¶ 1, Dep. at 20, 22). Indeed, Sanchez contends that Rinaldi's "harassment" and "pestering" was so pervasive that he was required to seek treatment for work-related stress and anxiety. (Compl. at 2 ¶ 1).
In March 1997, Sanchez tried to present Rinaldi with a letter from his doctor to demonstrate the effect that this harassment was having. (Dep. at 20-21).
Sanchez alleges that Rinaldi responded by telling him, in substance, that he did not want to hear about it. (Id. at 20). Only a few weeks earlier, on February 27, 1997, Sanchez had filed a complaint with the Union. In that complaint, Sanchez contended that, even though he had been a maintenance worker at NYU for a period of nine years, Harvard changed his routine "on an almost daily basis," recently had given him "extra work without extra time or pay to do the work," and, as of February 26, 1997, would no longer be giving him his fair share of the overtime. (See Mem. of L. in Support of Pl's Opp. of Mot. to Dismiss Compl. ("Sanchez Mem.") Ex. J).
On March 12, 1997, Sanchez was given a verbal "final warning" as a result of an incident the prior day during which Rinaldi asked Sanchez to move a table and chair, but Sanchez allegedly refused to do so, stating that he had to finish polishing a door. (Sanchez Mem. Ex. V). Although Rinaldi indicated that Sanchez was "loud, threatening and abusive during this episode," (id.), Sanchez contends that he merely wanted to stow a ladder that he had been using before turning to the task that Rinaldi assigned. (Dep. at 31-32). When the incident subsequently was reported to him by Rinaldi, however, defendant DiGiovani suspended Sanchez for a period of five days without pay. (Sanchez Mem. Ex. V). DiGiovani further warned Sanchez that "any further misconduct will result in termination." (Id.). DiGiovani memorialized his handling of the incident in a March 13, 1997 warning notice which was signed by him but not by Sanchez. (Id.).
After Sanchez protested his suspension, the Union filed a grievance on his behalf which was referred to defendant Flanagan pursuant to the collective bargaining agreement between Harvard and the Union. (Sanchez Mem. Ex. I). At the hearings regarding that grievance, the Union was represented by Brendan Egan, its outside counsel, and defendant Flores, one of its business agents; Harvard was represented by defendant Heidecker. (Id.). On November 18, 1997, Flanagan issued an Opinion and Award, in which he found that "because of the insubordinate behavior of [Sanchez], [Harvard] had more than sufficient justification to discipline him." (Id.).
Sanchez has numerous complaints about the conduct of the arbitration. For example, he argues that Egan improperly refused to introduce into evidence certain material relevant to his earlier complaint regarding the frequent changes in his work routine and the requirement that he perform extra work without extra pay. (Dep. at 62-63, 67-68). Sanchez also objects that his Union delegate, defendant Dankert, investigated his complaint and was scheduled to be at the hearing, but unexpectedly failed to appear, sending defendant Flores instead. (Compl. at 5 ¶ 3). Finally, Sanchez contends that Rinaldi should not have been permitted to testify against him because he was his shop steward. (Id. at 2-3 ¶ 1).
Following the completion of his suspension, and even after the conclusion of the arbitration, Sanchez continued to work under Rinaldi's supervision as a maintenance worker at NYU. (Id.). During this period, Sanchez became concerned that his working conditions were unsafe. Specifically, he feared that certain cabinets which were being dismantled were contaminated with asbestos. (See, e.g., Compl. at 3 ¶ 1 Ex. 3; Dep. at 40-44). According to Sanchez, Dr. Roy Martin, who was "in charge of safety" at NYU in the mid-1990s, told him then not to touch the cabinets because they contained asbestos. (Dep. at 43). Notwithstanding that warning, Rinaldi ordered Sanchez to handle the cabinets and refused to supply appropriate protective gear. (Id.). Rinaldi further indicated that Sanchez would be fired if he refused to comply. (Id.)
Sanchez also feared that he was in danger of catching an infectious disease because his duties as a roving maintenance man required that he handle medical waste. (Compl. at 2 ¶ 1). He was required to do this work without being given suitable protective gear and a hepatitis B vaccination. (See id. at 5 ¶ 3; Sanchez Mem. Ex. M).
In or around 1999, Sanchez began filing a series of formal complaints regarding his working conditions. On May 4, 1999, he filed a charge against Harvard with the National Labor Relations Board in which he alleged that Harvard had retaliated against him by "imposing more onerous working conditions" because he had taken part in "Union and other concerted protected activities." (Sanchez Mem. Ex. A). On June 22, 1999, he filed a complaint with the Union that a Harvard field supervisor named Muller was harassing him because of his complaints about the asbestos. (Id. Ex. K; Dep. at 212).
Shortly thereafter, on July 7, 1999, Sanchez filed another complaint with the Union in which he alleged that Rinaldi was continuing to harass him "for no reason." (Sanchez Mem. Ex. M).
On July 20, 1999, Muller notified Sanchez by telephone that LoCastro no longer wanted him at the NYU building because he allegedly had threatened certain of his coworkers. (Dep. at 213). The Management Defendants contend, and Sanchez denies, that he subsequently was offered alternative employment at another Harvard facility. (Compl. at 8 ¶ 8; Dep. at 199; Heidecker Aff. ¶¶ 32-34).
Following his alleged dismissal, Sanchez initiated a new series of complaints against Harvard. In addition, on August 2, 1999, the Union filed a grievance on his behalf, seeking, among other things, his reinstatement. A second grievance, dated October 22, 1999, indicated somewhat cryptically that the Union wished to amend its earlier grievance "to include that the member was transferred to another building." (Heidecker Aff. Ex. D). Sanchez waived his right to a Union attorney with respect to both grievances and appeared with his own counsel, whom he later discharged. (Id.).
Thereafter, when Sanchez failed to appear at a May 9, 2000 hearing, the arbitrator dismissed his case on the basis of his default. (Id.).
On October 17, 1999, Sanchez filed a complaint against Harvard and NYU with the Equal Employment Opportunity Commission ("EEOC") in which he alleged that he had been discriminated against on the basis of his race between March 1, 1997 and July 1999. (Sanchez Mem. Ex. O). Sanchez also contended that he had been the victim of retaliatory conduct. (Id.). The EEOC subsequently dismissed this complaint and issued Sanchez a "right to sue" letter on an undisclosed date. (See Dep. at 196; Heidecker Aff. ¶ 50).
Both the EEOC filing and the Complaint in this action fail to disclose any information concerning Sanchez's race. The Complaint does note, however, that he is Hispanic. (Compl. at 8 ¶ 8).
On November 2, 1999, Sanchez contacted the Occupational Safety and Health Administration ("OSHA"), arguing that he had been terminated by NYU after complaining about "asbestos and blood borne pathogens" at his place of work. (Sanchez Mem. Ex. K). After conducting an inspection, OSHA rejected virtually all of Sanchez's allegations. (Id.). OSHA nevertheless fined Harvard for failing to provide proper training to its workers or offer them timely hepatitis B vaccinations. (Id.).
Finally, on December 15, 1999, Sanchez filed a second complaint with the NLRB. This time he alleged that his union representative, Dankert, had violated his duty of fair representation by refusing to process a grievance relating to an alleged conflict of interest arising out of Harvard's assignment of supervisory duties to Rinaldi at the same time that he was serving as a Union shop steward. (Sanchez Mem. Exs. B, R). After investigating this charge, the NLRB concluded, on December 21, 1999, that Rinaldi was not a "supervisor" within the meaning of Section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11) , because he lacked the discretion to promote, fire, or discipline employees. (Sanchez Mem. Ex. R).
On February 6, 2000, Sanchez commenced this action by the filing of his original complaint.
III. Discussion
A. Standards of Review
The Management Defendants have moved to dismiss the Complaint, pursuant to Rule 12(b)(1) and (b)(6), for lack of subject matter jurisdiction and failure to state a claim for relief. On a motion to dismiss, the court must accept as true all of the factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). Moreover, a complaint drafted by a pro se plaintiff must be held to "less stringent standards" than ones drafted by lawyers and should be dismissed at the pleading stage only if it is beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999); see also Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest"). In keeping with these precepts, in analyzing Sanchez's claims, I have assumed that all of the factual allegations set forth in his motion papers are incorporated by reference in his Complaint. (See n. 5 supra).
The Union Defendants have moved for summary judgment pursuant to Rule 56. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial,'" and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 569 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). In making this determination, the court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 2434-35, 115 L.Ed.2d 447 (1991). If the moving party has met its burden, however, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. The nonmovant must set forth specific facts, not mere speculation or conclusory allegations, to demonstrate the existence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986); Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995).
B. The Labor Management Reporting and Disclosure Act
In his Complaint, Sanchez seeks to assert claims against certain of the Union and Management Defendants under the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401, et seq. As set forth below, none of these claims withstands scrutiny.
1. Section 501
Sanchez first alleges that defendants Rinaldi, Dankert, Flores, and Lambert violated their fiduciary duties to him under 29 U.S.C. § 501. That statute empowers any union member to sue any officer, agent, shop steward, or representative of the union who is alleged to have violated the fiduciary duties enumerated in Section 501(a). The Second Circuit, however, "has strictly limited the scope of the fiduciary duty imposed on union officers by [S]ection 501(a), limiting recovery to claims that centrally challenged misuse of union 'money and property' and rejecting those that centered on other breaches of trust that only incidentally affected union funds." Guzman v. Bevona, 90 F.3d 641, 646 (2d Cir. 1996).
In this case, although Sanchez has challenged the manner in which the Union and several of its officials handled his grievances against Harvard, the gravamen of his Complaint clearly does not relate to the misuse of Union property or funds.
Accordingly, his reliance on Section 501 as a basis for relief is misplaced. Moreover, even if Sanchez's claim were interpreted to fall within the ambit of Section 501(a), the Union Defendants would be entitled to summary judgment because Sanchez has failed to show, as he must, that he complied with the requirements of Section 501(b). Pursuant to that statute, a union member seeking to bring a derivative suit under Section 501 on behalf of his union must first request that the union or its officers sue or take other appropriate steps to recover the money or property allegedly mishandled. 29 U.S.C. § 501(b). Thereafter, if his request is denied, the union member must seek leave of the court to bring such a suit "upon verified application and for good cause shown."
In the Second Circuit, the request provision of the statute "is mandatory and . . . its requirements cannot be met by anything short of an actual request." Coleman v. Bhd. of Ry. S.S. Clerks, 340 F.2d 206, 209 (2d Cir. 1965). Accord, Dinko v. Wall, 531 F.2d 68, 72-73 (2d Cir. 1976); Shea v. McCarthy, No. 91 Civ. 0588, 1991 WL 41642, at * 4 (S.D.N.Y. Mar. 18, 1991) (McKenna, J.), rev'd in part on other grounds, 953 F.2d 29 (2d Cir. 1992). Cf. Doyle v. Turner, 90 F. Supp.2d 311, 328 (S.D.N.Y. 2000) (Haight, J.) (holding that absence of demand did not deprive federal court of jurisdiction where defendants failed to raise it as a defense and case had proceeded on the merits).
There has been no showing here that Sanchez ever requested that the Union act to recover or secure any Union property or funds. There also has been no showing that Sanchez made a proper application to this Court before seeking relief under Section 501. Although Sanchez contends that "if the court examines the [e]xhibits [annexed to his opposition papers] it would see good cause," (Sanchez Mem. at 12), this plainly is not enough to comply with the statutory requirements. The Union Defendants therefore are entitled to summary judgment on Sanchez's Section 501 claim.
2. Section 529
Sanchez also seeks to recover damages from defendant Rinaldi pursuant to 29 U.S.C. § 529. Insofar as relevant, Section 529 states that, "[i]t shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization . . . to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter."
Sanchez apparently believes that this statute applies to his situation because Rinaldi, who was then serving as a Union shop steward, testified against him at the 1997 arbitration. (See Sanchez Mem. at 10; Dep. at 27 ("It was illegal for Carl Rinaldi to testify against me as an acting foreman[;] his violating his duties is an act of corruption.")). There has been no showing, however, that the Union or any of its representatives ever limited Sanchez's ability to participate in Union affairs in any respect. Indeed, even after Harvard removed Sanchez from the NYU facility in 1999, the Union filed a grievance on his behalf.
Consequently, because there has been no showing that the Union or any of its representatives took any action which adversely affected Sanchez's membership status in the Union, the Union Defendants are entitled to summary judgment on this claim. See Finnegan v. Leu, 456 U.S. 431, 437, 102 S.Ct. 1867, 1871, 72 L.Ed.2d 239 (1982).
3. Section 412
Sanchez also seeks to recover damages against defendants Rinaldi, Flores, DiGiovani, and Lambert under 29 U.S.C. § 412. Section 412 authorizes union members to bring suits in federal court when their rights under "this subchapter" have been infringed. 29 U.S.C. § 412. Section 412 is part of Subchapter II of the LMRDA, which sets forth a "Bill of Rights of Members of Labor Organizations." See 29 U.S.C. § 411- 415. Section 412 does not, however, authorize an employee to sue an employer rather than a union. See Phelan v. Local 305 of United Ass'n of Journeymen, 973 F.2d 1050, 1056 (2d Cir. 1992); Grogan v. Holland Patent Centr. Sch. Dist., No. 00 Civ. 0399, 2000 WL 33115406, at *4 (N.D.N.Y. Dec 18, 2000); Fanning v. United Scenic Artists, Local 829 of the Bhd. of Painters, Decorators, and Paperhangers of Am., AFL-CIO, 265 F. Supp. 523, 526 (S.D.N.Y 1966) (LMRDA is concerned "only with controversies between union members and unions, not with employers"). The Section 412 claim against DiGiovani, who is described in the Complaint as a Harvard employee, consequently must be dismissed.
The remaining defendants alleged to have violated Section 412 are affiliated with the Union. Nevertheless, Sanchez has failed to adduce any facts which suggest that they violated any of his rights under Subchapter II of the LMRDA. In the absence of such proof, the Union Defendants named in Sanchez's claim for relief under Section 412 are entitled to summary judgment on this claim as well.
4. Section 530
Sanchez's effort to sue defendant Rinaldi under 29 U.S.C. § 530 is equally misplaced. Section 530 makes it a misdemeanor for any person to use "force or violence, or [a] threat of the use of force or violence, to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any LMRDA right." In this regard, Sanchez alleges that Rinaldi threatened that Sanchez would be fired if did not do what as he was told. (Sanchez Mem. at 8). He further alleges that Rinaldi said that he would have a "problem" if he continued to make safety allegations. (Id.). What Sanchez overlooks, however, is that Section 530 is a criminal statute which does not give rise to a private right of action. See Moore v. Local 569, I.B.E.W., 653 F. Supp. 767, 774-75 (S.D.Cal. 1987), aff'd, 989 F.2d 1534 (9th Cir. 1993); Schonfield v. Rafferty, 335 F. Supp. 846, 851 (S.D.N.Y. 1971) (Lasker, J.).
Moreover, even if Sanchez were able to maintain an action under Section 530, the statements that he attributes to Rinaldi clearly would not permit a reasonable finder of fact to conclude that Rinaldi threatened to use force or violence to restrain Sanchez from the exercise of his rights under the LMRDA. The Management Defendants therefore are entitled to the dismissal of this claim.
5. Section 1580
Sanchez apparently contends that defendant Rinaldi also violated his equal rights and privileges under 15 U.S.C. § 1580. (Compl. at 4 ¶ 7). That statute confers certain authority on the Secretary of Labor which is entirely unrelated to this case. It does not give rise to any rights for a private litigant. Therefore, this claim too must be dismissed.
C. Labor Management Relations Act
Pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, a union member may institute a suit against his union if it has breached its duty of "fair representation." See, e.g., DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). In an effort to meet this threshold, Sanchez alleges that defendant Egan, his union-appointed attorney in connection with the 1997 arbitration, committed various misdeeds, such as allowing Rinaldi to testify against him and failing to call witnesses whose testimony would have proved helpful. (Compl. at 7 ¶ 6.1; Dep. at 105-07). Sanchez further alleges that Egan conspired with all of the other defendants to deprive him of his rights and "went along with all the corruption." (Compl. at 7 ¶ 6.1; Dep. at 164-69).
A union breaches its duty of fair representation to one of its members only when its conduct is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); Simberland v. Long Island R.R. Co., 421 F.2d 1219, 1224 n. 8 (2d Cir. 1979). Mere negligence is not enough. Giordano v. Local 804, Int'l Bhd. of Teamsters, 634 F. Supp. 953, 956 (S.D.N.Y. 1986) (Sprizzo, J.).
Rather, the union member must adduce "substantial evidence of fraud, deceitful action, or dishonest conduct." Amalgamated Assoc. of Street, Elec. Ry. and Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1971) (quoting Humphrey v. Moore, 375 U.S. 335, 348, 84 S.Ct. 363, 371, 11 L.Ed.2d 370 (1964)). A union member who argues that his union breached its duty by failing to adduce relevant evidence at an arbitration must not only identify the evidence withheld, but show that it "probably" would have led to a different result. See Black v. Ryder/PIE Nationwide, Inc., 15 F.3d 573, 585 (6th Cir. 1994); Phillips v. Lenox Hill Hosp., 673 F. Supp. 1207, 1214 (S.D.N.Y. 1997) (Sweet, J.)("Phillips has not provided the court with affidavits or deposition testimony from the uncalled witnesses to establish what they would have testified at the arbitration, an absence in proof which is fatal.").
Sanchez's conclusory assertions, which second guess the actions of every person associated with the arbitration, including the arbitrator, fall woefully short of the required level of pleading specificity. In any event, even if those allegations were deemed adequate, it is settled law that a suit challenging the disposition of a grievance must be brought within six months from the date the cause of action accrued. See DelCostello, 462 U.S. at 168-70, 103 S.Ct. at 2293-95. Accordingly, Sanchez's claims against Egan and any alleged "co-conspirators" arising out of the 1997 arbitration would be time barred even if he were able to show that the Union somehow breached its duty of fair representation here.
D. Weingarten Rights
In NLRB v. Weingarten, 420 U.S. 251, 260, 95 S.Ct. 959, 965, 43 L.Ed. 2d 171 (1975), the Supreme Court upheld an administrative determination that an employer's denial of an employee's request to have a union representative present during an investigatory interview with the employer which the employee reasonably believes could lead to disciplinary action is an unfair labor practice. As the Court observed, absent such representation, "a single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors." Id., 420 U.S. at 262-63, 95 S.Ct. at 966.
In his Complaint, Sanchez contends that defendants Rinaldi, Heidecker, Egan, and LoCastro deprived him of his rights under Weingarten. As his motion papers make clear, Sanchez evidently believes that these defendants acted improperly by permitting Rinaldi to testify against him at an arbitration. That adversary proceeding obviously is far removed from the sort of preliminary interview by an employer that the Weingarten decision seeks to address. Moreover, an employer runs afoul of Weingarten only when its employee actually requests representation by his union in connection with the interview. Here, however, there is no indication that Sanchez ever made such a request in connection with a preliminary employer interview. Accordingly, there is no legal or factual basis for this claim.
E. OSHA Regulations
Sanchez also seeks to recover damages from several of the Management Defendants as a consequence of their alleged violation of certain regulations promulgated by OSHA relating to blood borne pathogens ( 29 C.F.R. § 1930.1030) and asbestos (id. § 1930.1010). More specifically, Sanchez contends that defendant Rinaldi instructed him over the course of several years to "remove asbestos and bloodborne pathogens" without proper protection, and that other supervisors approved these directives. (See Sanchez Mem. at 21).
Both regulations cited by Sanchez were promulgated by OSHA pursuant to legislation which does not afford a private litigant the right to bring an action in federal court. Ellis v. Chase Communications, 63 F.3d 473, 477 (6th Cir. 1995); Donovan v. OSHRC, 713 F.2d 918, 926 (2d Cir. 1983). The statute does, however, allow an employee to file a complaint with the Secretary of Labor if he has been discharged or discriminated against because he filed a complaint with OSHA. 29 U.S.C. § 660(c)(2).
In this case, of course, it would be difficult to show such retaliation because Sanchez apparently first complained to OSHA after he was removed from the NYU facility. (Sanchez Mem. Ex. K). Nevertheless, even if Sanchez were able to show that he contacted OSHA prior to his dismissal, his sole remedy under the statute would have been to file a complaint with the Secretary of Labor within ten days after the violation occurred. Id. As the statute makes clear, only the Secretary could then have instituted an action against Harvard. A private litigant such as Sanchez may not assume the Secretary's role by bringing his own suit. See George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186 (5th Cir. 1985); Donovan, 713 F.2d at 926.
Sanchez's OSHA claims therefore must be dismissed.
F. Constitutional Claims
Construing the complaint liberally, it appears that Sanchez also seeks to assert several constitutional claims against the Union and Management Defendants under 42 U.S.C. § 1983 as a consequence of their alleged violation of the Eighth Amendment and Due Process Clause of the Fourteenth Amendment. Indeed, virtually every page of his Complaint contains one or more such claims.
Section 1983 does not create any independent constitutional rights, but, rather, is simply a vehicle for enforcing such rights. Rosa R. v. Connelly, 889 F.2d 435, 440 (2d Cir. 1989). To state a Section 1983 claim, a plaintiff therefore must show that a person acting under color of state law has deprived him of rights privileges or immunities secured by the Constitution or laws of the United States. Paratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); 42 U.S.C. § 1983.
In this case, to invoke either the Eighth or Fourteenth Amendments to vindicate his rights, Sanchez must show that the acts about which he complains were undertaken by a governmental actor or someone invoking the authority of the government. See, e, g,, Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982) ("[The Fourteenth Amendment] erects no shield against merely private conduct, however discriminatory or wrongful.'") (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948)); Bond v. Dentzer, 494 F.2d 302, 305 (2d Cir. 1974) (Fourteenth Amendment applies only to action by the state, not to action which is private); Lowe v. IRS, No. 93-1421-Civ.-J-20, 1995 WL 420817, at *2 (M.D.Fla. May 25, 1994) (Eighth Amendment applies only to penalties imposed in a criminal context); Sims v. Waln, 388 F. Supp. 543, 549 (S.D.Ohio 1974) ("the Eighth Amendment is not applicable in a civil context"), aff'd, 536 F.2d 686 (6th Cir. 1976).
Here, however, it is clear that New York University is a private, not a state university. See Boise v. Boufford, 127 F. Supp.2d 467, 469 (S.D.N.Y. 2001) (Sweet, J.); Naftchi v. NYU, 14 F. Supp.2d 473, 475 (S.D.N.Y. 1998) (Kaplan, J.). Moreover, Sanchez has not alleged any facts which would suggest that any person affiliated with a governmental entity engaged in any conduct with respect to Sanchez that could conceivably constitute a violation of the Constitution. Accordingly, each of Sanchez's constitutional claims must be dismissed.
G. Title 18
Next, Sanchez contends that the Union and Management Defendants have violated various provisions of Title 18 of the United States Code. Each of these claims necessarily fails, as a matter of law, because individuals, such as Sanchez, cannot bring suits as private attorneys general in an effort to right the potential wrongs therein set forth. See, e.g., Moser v. Exeter Township Borough Council Meetings, No. CIV. A. 98-3525, 1998 WL 575109, at *2 (E.D.Pa. Sept. 4, 1998) ("perjury and obstruct[ion] of justice in violation of '18 U.S.C. Criminal Code' . . . are both criminal statutes, enforceable only by the United States Department of Justice."); Ippolito v. Meisel, 958 F. Supp. 155, 167 (S.D.N.Y. 1997) (Conner, J.) (no private right of action under criminal statutes); Sordean v. United States, No. C 94-2387, 1995 WL 86548, at *2 (N.D.Cal. Feb. 24, 1995) ("criminal statutes generally do not provide a private cause of action or basis for civil liability"); Milburn v. Blackfrica Promotions, Inc., 392 F. Supp. 434, 435 (S.D.N.Y. 1974) (Duffy, J.)("Private litigants cannot sue to redress the offenses defined in Section[s] 371 and 1341 of Title 18 . . . .").
Sanchez's claims under Title 18 therefore must be dismissed.
Sanchez also seeks to assert claims under the Model Penal Code, which has not been adopted by the federal government or the State of New York. The precatory language of this compilation, unless adopted by a jurisdiction, obviously cannot afford any rights to anyone.
H. Fair Debt Collection Practices Act
Sanchez also seeks to recover damages from defendant Rinaldi under Section 1692d of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., a statute that was enacted by Congress in an effort to eliminate abusive practices by debt collectors. Id. § 1692(e). Sanchez contends that Rinaldi should be held liable under the Act because he allegedly harassed Sanchez by using obscene language and acting as an aggressor "time and time again." (Sanchez Mem. at 7-8). As the parties' submissions make clear, however, whatever Rinaldi's shortcomings may have been, he plainly was not acting as a debt collector in his dealings with Sanchez. (See Compl. at 1-2 ¶ 1). The Management Defendants are therefore entitled to summary judgment as to this claim.
In his Complaint, Sanchez mistakenly refers to "15 U.S.C.A § 1692(D) (Harassment)" as the relevant statute. (Compl. at 3 ¶ 2).
J. The Universal Declaration of Human Rights.
Reaching even further afield, Sanchez claims that defendant Rinaldi also violated his rights under the Universal Declaration of Human Rights, G. A. Res. 217, 3 U.N. GAOR, U.N. Doc. 1/777 (1948). While the Universal Declaration may provide insight into the "law of nations," see Filartiga v. Pena-Irala, 630 F.2d 876, 883-84 (2d Cir. 1980), it is "a nonbinding resolution, not a treaty." Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 816 n. 17 (D.C. Cir. 1987). As a consequence, the Universal Declaration does not confer any rights upon individual citizens. See Kyler v. Montezuma Co., 203 F.3d 835, 2000 WL 93996, at * 1 (10th Cir. 2000) (Universal Declaration does not, by its terms, confer rights upon individual citizens); see also Hatley v. Dep't of Navy, 164 F.3d 602, 604-05 (Fed. Cir. 1998) (Universal Declaration is "directed to torture, summary execution, genocide, slavery, and other acts uniformly condemned by the community of nations, [and] does not reach the humiliation which Petitioner states he would experience in complying with [his employer's] drug testing requirements."). This claim therefore must also be dismissed.
Although Kyler is an unpublished opinion, the Rules of the United States Court of Appeals for the Tenth Circuit permit its citation because it has persuasive value with respect to a material issue not addressed in a published opinion and is of assistance in the disposition of this case. See 10th Cir.R. 36.3 (2001).
K. Title VII
Sanchez also has named each of the defendants other than Flanagan and Heidecker in one or more claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In these claims, Sanchez alleges, among other things, that he was wrongfully terminated because of his race. These employment discrimination claims suffer from numerous deficiencies.
First, Title VII states that it is an unlawful employment practice for an "employer" to discharge an individual because of that "individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. The term "employer," in turn, is defined to include only persons who have fifteen or more employees. Id. § 2000e(b). An individual — even if he is a supervisor — does not meet this definition and is not considered his employer's agent for purposes of liability under Title VII. See, e.g., Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Sanchez's Title VII claims against the individual defendants therefore must be dismissed.
Second, the Union and NYU obviously cannot be held liable under Title VII since they were not Sanchez's employer. Moreover, even if these entities could be considered Sanchez's employer, his Title VII claims against them still would have to be dismissed because he failed to exhaust his administrative remedies by naming them in an EEOC charge before proceeding in federal court. 42 U.S.C. § 2000e-5(e); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991).
Third, Sanchez has failed to set forth a legally sufficient Title VII claim against his employer. To make out a prima facie case of unlawful employment discrimination against Harvard under Title VII, Sanchez must show that: (a) he is a member of a protected class; (b) he was performing his duties satisfactorily; (c) he was discharged; and (d) the circumstances of his discharge give rise to an inference of racial discrimination. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). As many courts have noted, meeting this threshold is not difficult. See, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998) (describing the burden as "de minimis"). In seeking to show discriminatory intent, however, a plaintiff "must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference" of discriminatory intent. Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). "Therefore, 'a complaint consisting [only of] naked assertions, and setting forth no facts upon which a court could find a violations of the Civil Right Acts, fails to state a claim under Rule 12(b)(6).'" Id. (quoting Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)).
Construing the Complaint liberally, Sanchez has adequately alleged that he is Hispanic and that he was discharged. (Compl. at 3 ¶ 1, 8 ¶ 8). In addition, although the Complaint does not specifically allege that he was capable of continuing his employment, Sanchez has insisted that he did nothing to warrant his termination and the defendants have not claimed that he is physically incapable of performing his duties. The first three elements of a prima facie Title VII claim therefore are arguably satisfied.
Where Sanchez's prima facie case nevertheless falters is with respect to the required element of discriminatory intent. Rather than setting forth facts which would warrant an inference of racial discrimination, Sanchez simply has alleged in conclusory terms that the motive for defendant LoCastro's decision to terminate him "was that [he] was Hispanic." (Compl. 8). Having failed to supply any facts which would justify this conclusion, he has failed to plead a prima facie Title VII claim against Harvard.
For these reasons, Sanchez's Title VII claims against the Union and Management Defendants must be dismissed.
L. State Law Claims
In addition to combing federal authorities for possible causes of action, statutes, Sanchez has canvassed New York law. Sanchez first cites Sections 1-201(39) and 3-401(2) of the New York Uniform Commercial Code. Based upon these provisions, Sanchez contends that DiGiovani's March 13, 1997 warning notice was ineffective because it was signed by DiGiovani but not by him. (See Compl. at 10 ¶ 10, Sanchez Mem. Ex. V). What Sanchez overlooks is that the requirement that an "instrument" be signed within the meaning of Section 1-201(39) applies only to negotiable bearer instruments. See N YU.C.C. §§ 3-103, 3-104, 3-401(1). This case, however, has nothing to do with such commercial documents. Accordingly, the Management Defendants are entitled to summary judgment with respect to this claim. Sanchez's next state law claim is brought under Section 740 of the New York Labor Law, a "whistleblower" statute enacted in response to the decision in Murphy v. Am. Home Prods., 58 N.Y.2d 293, 461 N.Y.S.2d 232 (1983). In that case, the New York Court of Appeals declined to recognize a cause of action for an at-will employee who contended that he had been improperly fired for reporting accounting improprieties by corporate personnel. The statute subsequently enacted provides limited relief for such employees in circumstances where their employers take retaliatory action against them for disclosing or threatening to disclose to a supervisor or a public body "a violation of law, rule or regulation which . . . creates and presents a substantial and specific danger to the public health and safety." N.Y. Labor L. § 740 (McKinney 1988).
In this case, however, Sanchez has failed to plead any facts from which a finder of fact could reasonably find that his dismissal was in retaliation for his decision to report an actual threat to the public's health and safety. Indeed, as noted above, it appears that his first contact with OSHA occurred after his termination. For this reason, Sanchez's claim under Section 740 also must be dismissed.
Finally, Sanchez contends that defendant Rinaldi is liable to him under the New York Employer's Liability Law. (Compl. at 4 ¶ 15). Pursuant to that statute, employers are unable to rely on the common law "fellow servant" rule to overcome liability for physical injuries sustained by their employees which are proximately caused by the negligence of fellow employees who hold positions of superintendence. See Bellegarde v. Union Bag and Paper Co., 90 A.D. 577, 583, 86 N.Y.S. 72, 77 (3d Dep't 1904). Here, however, the injuries complained of obviously are not physical injuries for which recovery could be sought under common law negligence law. This claim too must therefore be dismissed.
IV. Conclusion
For the foregoing reasons, each of Sanchez's numerous claims must be dismissed. Nevertheless, because this action is brought pro se, I also have considered whether leave to replead should be granted.
Although Fed.R.Civ.P. 15(a) states that leave to amend a complaint "shall be freely given when justice so requires," the "liberal rules of pleading in the federal system are not without limits." Levitch v. Columbia Broadcasting Sys., Inc., 94 F.R.D. 292, 295 (S.D.N.Y. 1982), aff'd, 697 F.2d (2d Cir. 1983). A court consequently may exercise its discretion to deny leave to replead when an amendment would be futile.
Foman v. Davis, 371 U.S. 178, 182 (1962); Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999); Hunt v. Alliance North American Gov't Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998).
In this case, for the reasons set forth above, virtually all of Sanchez's claims rely on statutes or legal doctrines which are inapplicable. There are, however, two claims which conceivably could have merit. Sanchez should therefore be permitted to explain in an amended pleading why the circumstances surrounding his discharge establish that Harvard acted with discriminatory intent. Sanchez should also be permitted to provide further details regarding the conduct on the part of Harvard that he alleges constitutes a violation of Section 740 of the New York Labor Law.
It bears emphasis that the analysis of Sanchez's Complaint was made far more difficult by his failure to comply with Rule 8 of the Federal Rules of Civil Procedure, which requires that "[e]ach averment of a pleading shall be simple, concise and direct." Indeed, Sanchez's Complaint contains one single-spaced paragraph, incorporating many of his key allegations, which alone is one and one-half pages long.
Sanchez should therefore be cautioned that any further pleading that he may file must name only Harvard as a defendant, must be restricted to his Title VII and Labor Law claims, and must comply with Rule 8.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable George B. Daniels, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. Any requests for an extension of time for filing objections must be directed to Judge Daniels. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).