Opinion
01 Civ. 9129 (RCC)
July 12, 2002
OPINION AND ORDER
"Plaintiff Regina Wells ("Wells") brings this action against her former employer, The Mount Vernon Hospital ("Mount Vernon"), Arthur B. Simmons ("Simmons"), the Mount Vernon Director of Labor Relations, and her collective bargaining representative, 1199 National Health and Human Service Employees Union, now known as New York's Health and Human Service Union 11 99/SEIU, AFL-CIO (the "Union"). Wells alleges (1) that she was terminated from her employment based on race, sex and age discrimination, and unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), and (2) that Mount Vernon breached the Collective Bargaining Agreement and the Union breached its duty of fair representation in violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 et seq. ("Section 301").
Defendant Union now moves to dismiss the action as against it pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. First, the Union argues that plaintiffs Title VII and ADEA claims are subject to dismissal because plaintiff neither filed a discrimination charge nor obtained a right to sue letter from the Equal Employment Opportunity Commission ("EEOC") as against the Union. Second, the Union contends that plaintiffs Section 301 cause of action is time-barred and, in any event, fails to state a cognizable claim. For the reasons set forth below, defendant Union's motion is granted in its entirety.
I. BACKGROUND
The following facts, in relevant part, are culled from the Amended Complaint and are taken as true for purposes of this motion. Plaintiff Wells is a 61 year old black female. (Am. Compl. ¶ 8.) She was employed by Mount Vernon for approximately 21 years, first as a laundry worker and then as a dietary worker. (Id. ¶¶ 9-1 1.) Mount Vernon terminated Wells on May 9, 2000, allegedly for unexcused absences. (Id. ¶ 13.)
Wells refers to the defendants collectively in the Amended Complaint, thereby creating some confusion as to which specific party she is accusing of wrongdoing. Therefore, for clarity's sake; the Court will refer to the defendants individually whenever possible, while construing the Amended Complaint in the light most favorable to plaintiff.
On or about May 15, 2000, Mount Vernon held a hearing regarding the termination. (Id. ¶ 14.) Mount Vernon indicated that Wells had been insubordinate and excessively absent. (Id.) Wells, represented by her Union delegate, unequivocally denied the allegations. (Id.) According to Wells, Mount Vernon's stated justifications were mere pretext. (Id. ¶ 20). Wells claims that, in reality, her termination was the result of age, sex and race discrimination, as well as retaliation for a previous work-related grievance. (Id. ¶¶ 15-20.) In addition, Wells contends that the termination was intended to sabotage her inclusion in an early retirement program. (Id. ¶ 22.)
On December 11, 2000, Wells filed a discrimination charge with the EEOC against Mount Vernon. (Id. ¶ 26 Ex. A.) On or about April 2001, while the EEOC case was pending, defendants contacted Wells. (Id. ¶ 26(d).) Wells thereafter entered into a Consent Award in settlement of her case on April 2, 2001. (Id. Ex. B.) Pursuant to the terms of the Consent Award, Mount Vernon agreed to pay Wells $5,000 and to convert her discharge to a resignation. (Ex. B. ¶¶ 1-2.) Mount Vernon also agreed not to challenge Wells'. eligibility for unemployment benefits. (Id. ¶ 3.) In return, Wells agreed to withdraw her EEOC complaint and stipulated that she would "not initiate any action against the Hospital arising out of her employment with it." (Id. ¶ 4.) Finally, Wells acknowledged that the Union represented her fully and fairly, and that she entered into the settlement "freely and without duress." (Id. ¶ 5.)
Despite that acknowledgment, Wells now claims that the Union failed to represent her adequately when it instructed her to accept the Consent Award, and did not properly advise her of her existing federal claims. (Am. Compl. ¶ 26(d).) Wells further alleges that the Union exerted undue influence upon her, while knowing of her dire financial straits, by stating that: you can't sue your employer in court;" "you'll never win anyway because only people in class actions are successful;" "if you don't sign this agreement now, you won't get anything;" and "$5,000 is better than nothing, you can't win." (Id.) Therefore, Wells argues that she signed the Consent Award under extreme financial and emotional duress, and did not execute a knowing or voluntary waiver of her federal rights. (Id. ¶ 26(e).) Wells further contends that the Consent Award is invalid because it does not contain the necessary language mandated by Section 7 of the ADEA. (Id.)
Specifically, Wells claims that the Consent Award runs afoul of the ADEA because it (i) was not written in a manner calculated to be understood by plaintiff; (ii) did not specifically refer to plaintiffs federal rights and claims announced in her pending EEOC charge of discrimination; (iii) did not advise plaintiff to consult with an attorney prior to executing the document; (iv) did not provide a 21-day period of consideration; and (v) did not provide for a seven-day revocation period. (Id.)
On July 13, 2001, the EEOC, apparently unaware of the Consent Award, issued plaintiff a right to sue letter as against Mount Vernon. (Am. Compl. Ex. A.) Notwithstanding the settlement agreement, plaintiff commenced this action against Mount Vernon and Mr. Simmons on October 15, 2001. Wells thereafter amended her complaint to include claims against the Union, whom she served on December 28, 2001. The Union's motion to dismiss the action as against it pursuant to Federal Rule of Civil Procedure 12(c) is now before the Court.
II. DISCUSSION
The standard for evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(c) is the same as that under Rule 12(b)(6). Irish Lesbian. Gay Organization v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The allegations of the complaint are to be accepted as true and all reasonable inferences are to be drawn in favor of the plaintiff. Id. Judgment for defendant is only appropriate if; after construing the complaint in the light most favorable to the plaintiff; it is apparent from the pleadings that no material issues of fact need to be resolved and that the moving party is entitled to judgment as a matter of law. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 (1994).
A. Exhaustion under Title VII and the ADEA
d The filing of a timely charge with the EEOC is a statutory prerequisite to Title VII and ADEA claims. 42 U.S.C. § 2000e-5 (f)(1); 29 U.S.C. § 626 (d)(2); see also Criales v. American Airlines. Inc., 105 F.3d 93, 95 (2d Cir. 1997). This requirement is an "essential element" of the statutory scheme. Butts v. City of New York Department of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). As the Second Circuit has noted, the purpose of this provision, which is to encourage settlement of discrimination disputes through concihation and voluntary compliance, "would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Id. (citing Miller v. International Tel. Tel., 755 F.2d 20, 26 (2d Cir.), cert. denied, 474 U.S. 851 (1985)).
Here, Wells filed a discrimination charge with the EEOC against Mount Vernon, but acknowledges that she failed to do so with respect to the Union. Wells argues, however, that the Union and Mount Vernon share an "identity of interest" so as to excuse plaintiffs failure to name the Union separately.
Plaintiff also argues that Federal Rule of Civil Procedure 19 permits joinder of the Union in a Title VII suit, even though it was not named in the EEOC charge. (Pl. Mem. in Opp. at 3-5.) Plaintiffs argument is nonsensical here. The Union is already a party to this action, and, even if it was not, the question of joinder has no bearing on whether Wells properly can bring Title VII and ADEA claims as against the Union, given her failure to exhaust her administrative remedies.
Because EEOC charges generally are filed by parties not versed in Title VII's procedural requirements, courts have recognized an exception to the general rule that a defendant must be named in the EEOC complaint. Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). Therefore, a Title VII action may proceed against an unnamed party "where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge." Id. In order to determine whether such an identity of interest exists, courts look to the following four factors: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary concihation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. 14. at 209-10 (citing Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)).
None of these factors support a finding of identity of interest here. In fact, this case is closely analogous to that of Vital v. Interfaith Med. Ctr., 168 F.3d 615 (2d Cir. 1999), in which a terminated employee settled a grievance against the employer and subsequently sued both the employer and union in federal court under Title VII. The Second Circuit affirmed the lower court's dismissal of the Title VII claim as against the union because the plaintiff had named only his employer in the EEOC charge. The Second Circuit concluded that no identity of interest existed because (1) the plaintiff was fully aware of the union's role at the time the EEOC charge was filed; (2) the interests of the union and the employer were sufficiently dissimilar; and (3) there was no allegation that the union represented to the plaintiff that his relationship with the union should be through the employer. 168 F.3d at 620. Following Vital, courts in this circuit consistently have held that unions and employers lack the "clear identity of interest" required to waive the Title VII and ADEA filing requirements. See, e.g., Schaefer v. Erie County Dept. of Social Servs., 82 F. Supp.2d 114, 116-117 (W.D.N.Y. 2000) (finding no identity of interest and noting that the union's "primary function is to represent . . . employees in negotiating the terms and conditions of their employment, and in the administration of employee grievances against the employer . . . [i]t is an entity completely separate from and independent of [the employer], and would in no way be bound by the [employer's] voluntary concihation in the EEOC proceeding"); Hussein v. Waldorf Astoria Hotel Restaurant and Club Em lo ees and Bartenders Local #6, No. 99 Civ. 1652, 2000 WL 16928, at *5 (S.D.N.Y. Jan 11, 2000) (holding that union does not share identity of interest with allegedly discriminating employer); Johnson v. District Council of Carpenters, No. 91 Civ. 7961, 1995 WL 567426, at *2..3 (S.D.N.Y. Sept. 25, 1995) (same).
Plaintiff offers nothing which would distinguish her case from Vital and its progeny. Plaintiffs sole argument is that the union engaged in discriminatory conduct after she filed her EEOC charge against Mount Vernon. (Pl. Mem. in Opp. at 6.) Even assuming plaintiffs allegation to be true, this does not excuse Wells' failure to file a charge with the EEOC as against the Union once she became aware of the alleged discrimination. Because plaintiff did not exhaust EEOC administrative procedures, her claims under Title VII and the ADEA against the Union must be dismissed.
Presumably plaintiff is referring to the Union's actions with respect to the execution of the Consent Award. However, the Amended Complaint is bereft of any allegatibns which would indicate that the Union's conduct was the product of unlawful discrimination.
B. Section 301 Statute of Limitations
The Union next argues that plaintiffs Section 301 claim, based on the Union's handling of the Consent Award, is untimely under the six-month statute of limitations, which the parties agree is applicable here. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 169-71 (1982) (holding that the six-month statute of limitations provided by § 10(b) of the National Labor Relations Act governs breach of duty of fair representation claims). It is undisputed that plaintiff signed the Consent Award on April 2, 2001, but did not commence this suit against the Union until December 28, 2001, almost nine months later. Plaintiff now claims that the Union breached its duty by (1) exercising undue influence over Wells in instructing her to sign the Consent Award and (2) failing to ensure that the terms of the Consent Award complied with the ADEA and failing to advise Wells of her existing federal claims.
The statute of limitations begins to run when the employee knew or should have known of the breach of the duty of fair representation. White v. White Rose Food, 128 F.3d 110, 114 (2d Cir. 1997). Although plaintiff now argues in her opposition memorandum — without any detail or affidavit support — that she did not learn of her claim until some unspecified time after April 2, 2001, the. Amended Complaint as currently pled contains no allegations to that effect and refers only to events occurring on or before April 2, 2001. Wells has offered nothing to the Court which would demonstrate that her claim is timely, and therefore the claim must be dismissed. See Vital, 168 F.3d at 620 (dismissing Section 301 claim as barred by the statute of limitations because "none of the events alleged in [plaintiffs] pleadings occurred within the six months preceding the date on which he filed his complaint").
It should be noted that any purported pressure applied by the Union must have been known to Wells at the time she signed the Consent Award, or there could be no claim that she executed the settlement under duress. Moreover, under New York law, a party claiming duress is required to act promptly to repudiate the contract, or else will be deemed to have waived her right to do so. See VKK Corp. v. National Football League, 244 F.3d 114, 122 (2d Cir. 2001).
Even if Wells were able to surmount the statute of limitations obstacle, the Amended Complaint fails to state a claim for breach of the duty of fair representation. A union breaches its duty of fair representation only if its actions "can fairly be characterized as so far outside a "wide range of reasonableness' . . . that [they are] wholly "arbitrary, discriminatory, or in bad faith."' Spellacy v. Airline Pnots Ass'n Int'l, 156 F.3d 120, 126 (2d Cir. 1998) (quoting Air Line Pnots Ass'n Int'l v. O'Neill, 499 U.S. 65, 67 (1991)). Plaintiff simply has not pled any facts which would tend to show that the Union acted with an improper purpose or motive, or intentionally rendered wrong or misleading advice. As currently pled, the most that can be inferred from the Amended Complaint is that the Union may have been negligent in advising Wells to settle without adequately informing her of her federal claims or ensuring that the Consent Award comported with the ADEA. Mere negligence, however, does not amount to a breach of the duty of fair representation. See, e.g., Barr v. United Parcel Serv.. Inc., 868 F.2d 36, 43-44 (2d Cir.), cert. denied, 493 U.S. 975 (1989); Lettis v. United States Postal Serv., 39 F. Supp.2d 181, 203 (E.D.N.Y. 1998). Therefore, the Union is entitled to judgment on the pleadings as to plaintiffs Section 301 claim.
III. CONCLUSION
For the foregoing reasons, the Union's motion to dismiss the Amended Complaint as against it is GRANTED.