Buczakowski v. 1199SEIU

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

LINDA BUCZAKOWSKI,

Plaintiff,

-against- 5:18-CV-0812 (LEK/ML)

1199SEIU,

Defendant.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 5, 2017, plaintiff Linda Buczakowski resigned her position as a patient account

representative at Crouse Health Hospital, Inc., (“Crouse Hospital”) in Syracuse, New York,

allegedly because of discriminatory and retaliatory treatment by her managers stemming from her

age and a medical disability. She filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”) against her union, 1199SEIU Healthcare Workers East (“Defendant,”

“SEIU,” or “Union”). After receiving a right to sue letter on April 12, 2018, Plaintiff filed the

present case against SEIU pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq.

(“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34 (“ADEA”), and

the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Dkt. No. 1

(“Complaint”). Plaintiff claims under Title VII, the ADEA, and the ADA that the Union

retaliated against her. Compl. at 2, 8, 14.1 The Court also construes the pro se complaint to assert

a “hybrid” claim for breach of the collective bargaining agreement and the duty of fair

1 Citations to all papers refer to the pagination generated by CM/ECF, the Court’s

electronic filing system.

representation (“DFR”) pursuant to the Labor Management Relations Act, 29 U.S.C. § 185

(“hybrid § 301 / DFR claim”).

SEIU moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule

of Civil Procedure 12(b)(6) and for failure to join a necessary party pursuant to Federal Rule of

Civil Procedure 12(b)(7). Dkt. Nos. 7 (“Motion to Dismiss”), 7-1 (“Defendant’s Memorandum”)

at 1. Plaintiff has filed a response, Dkt. No. 23 (“Plaintiff’s Response”), to which the Union

replied, Dkt. No. 26 (“Defendant’s Reply”). Plaintiff has also filed a sur-reply. Dkt. No. 30

(“Plaintiff’s Sur-Reply”). For the following reasons, the Motion to Dismiss is granted in part and

denied in part.

II. BACKGROUND

Because the Plaintiff is proceeding pro se in this action,2 the Court will construe her

complaint liberally. Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990). For the purposes of the

Motion to Dismiss, the Court will consider the (1) facts as alleged by Plaintiff in the three form

complaints—one for Title VII, one for the ADEA, and one for the ADA—that she has filed; (2)

the seven-paragraph statement of facts attached to her ADA form complaint; and (3) facts alleged

in her responses to Defendant’s Motion to Dismiss. “[I]n the Second Circuit, a pro se plaintiff’s

papers in response to a defendant’s motion to dismiss for failure to state a claim may be

considered as effectively amending the allegations of his complaint–to the extent those papers are

2 Plaintiff has brought a separate suit before this Court against Crouse Hospital and four

of its employees. In the related action against her employer, Buczakowski v. Crouse Health

Hospital Inc., No. 18-CV-330 (N.D.N.Y. filed Mar. 16, 2018), Plaintiff initially proceeded pro se

but retained counsel after the Motion to Dismiss was filed in this case. No. 18-CV-330, Dkt. No.

25. However, she has not retained counsel in the action against the Union, so the Court will

continue to hold her to the standard due a pro se litigant.

2

consistent with the allegations in the complaint.” Morgan v. Luft, No. 15-CV-24, 2016 WL

1118452, at *3 (N.D.N.Y. Mar. 22, 2016) (citing, inter alia, Drake v. Delta Air Lines, Inc., 147

F.3d 169, 170 n.1 (2d Cir. 1998) (per curiam)). As discussed below, the Court will also take

judicial notice of the Charge of Discrimination Plaintiff filed with the EEOC. Dkt. No. 7-3

(“EEOC Charge”).

In May 2017, when the adverse actions in question took place, Plaintiff was sixty-two

years old. Compl. at 9. She had also suffered from multiple myeloma, which resulted in “several

fractured vertebrae.” Id. at 13. This condition occasionally required her to take time off for

medical appointments. Id. at 19.

Plaintiff was both hired by Crouse Hospital’s “Business Office” and became a member of

SEIU on October 8, 2012. Id. at 15. A year later, Plaintiff received the title “Patient Account

Representative Float.” There were three other “floats” in the business office. Id. Of the four,

Plaintiff was the “second senior employee.” Id. at 16. On May 3, 2017, Plaintiff’s supervisor,

Cathy Greenia, “threatened to discipline [Plaintiff] for not obtaining [her] yearly physical . . . .”

Pl.’s Resp. at 3. On May 4, 2017, Plaintiff attended a meeting with the other floats, Crouse

Hospital management, and two SEIU representatives, Veronica Clanton and Adrienne Valenti.

Compl. at 16. Both the management and the Union representatives informed the floats that

Crouse Hospital was eliminating the float “title,” but none of their “positions” were eliminated.

Id. The other three floats were given new positions at the meeting, while Plaintiff was told “her

position had not yet been determined.” Id. Management also told Plaintiff that as part of the

reorganization “authorization and verification employees[] would be brought back into the

business office.” Dkt. No. 23-3 (“Plaintiff’s Response, Exhibit 3”) at 2. Plaintiff inquired

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whether any of the “floats could bid into the authorization and verification department,” but

Valenti responded “that there would be no openings in authorization and verification.” Id.

After the meeting, Clanton introduced Plaintiff to John Bergemann, the human resources

director for Crouse Hospital. Bergemann told Plaintiff “to ‘leave’ Crouse Hospital due to [her]

medical condition and the fact that [she] had no immune system,” and Clanton “made it quite

clear she agreed with [Bergemann’s] statement.” Compl. at 16. Bergemann also urged Plaintiff

“to retire and apply for Medicare.” Id. at 9. Plaintiff responded that she had been cleared to work

and did not wish to leave her position. Id. at 16. Bergemann and Clanton both reiterated that her

position was not being eliminated. Id. After Plaintiff met with Bergemann, she asked Clanton

why Clanton had introduced Bergemann to Plaintiff since Plaintiff “thought HR only got

involved when there was a termination.” Pl.’s Resp., Ex. 3 at 3. Clanton responded that “if it was

a question of termination [Plaintiff] would have been brought up to HR and that Bergemann was

just being friendly.” Id.

The next day, Plaintiff attended a union meeting where she protested not being given a

new position despite being the “second senior employee.” Compl. at 16. The collective

bargaining agreement mandated that more senior employees are given “bumping rights” when

their job classification is eliminated. Id. Between May 4 and 9, Plaintiff requested the Union take

action to investigate why all of the floats except Plaintiff had been given new job titles, but SEIU

representatives “refused to provide [Plaintiff] with the ability to even file a grievance” since her

position was not being eliminated. See id.; Pl.’s Resp. at 4. Clanton told Plaintiff that she should

“bid on a job, even though none of the other business office floats had had to bid on jobs.” Pl.’s

Resp., Ex. 3 at 5. On May 10, Clanton provided Plaintiff with a “bumping list,” which the Court

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presumes to have included alternative positions at Crouse Hospital. Compl. at 17. When Plaintiff

asked if the less senior floats had also received a bumping list, Clanton informed her she was the

only employee who had been given one. Id. Plaintiff refused the bumping list, saying “she did not

want to bump unless all four floats were treated the same way.” Pl.’s Resp., Ex. 3 at 6.

On May 11, 2017,3 Plaintiff called for a meeting with Bergemann, who informed her that

Crouse Hospital had decided to eliminate her position prior to the May 4th meeting. Compl. at

17. Bergemann also informed Plaintiff that “the hospital and the union had meant [sic] in several

meetings and agreed to eliminate [Plaintiff’s] position,” Pl.’s Resp. at 4, and “only [her]

position,” Pl.’s Sur-Reply at 2. While Crouse Hospital did not fire Plaintiff despite eliminating

her position, the hospital “intended to force [Plaintiff] out of [her]” new job4 by refusing to give

her permission to take medical leave and penalizing Plaintiff for taking time off. Compl. at 18.

Therefore she was “forced to resign so that [she] could continue necessary medical treatment.”

Id. She has accused SEIU of “collud[ing] with management to eliminate [her] position due to

[her] medical condition.” Id.

Plaintiff claims that she was subject to “retaliation,” including “being charged with a

Class C Offense,” id. at 17, and being “suspended,” Pl.’s Resp., Ex. 3 at 7–8. Plaintiff also

received “constant threats on losing [her] position” from Tracy Tortorello, a Crouse Hospital

employee, even though Plaintiff “survive[d] going thru [sic] daily high dose chemo pills, weekly

3 The Complaint states this meeting occurred May 11, 2018, but considering Plaintiff

resigned her position on June 5, 2017, Compl. at 17, the Court construes this allegation to refer to

May 11, 2017.

4 Plaintiff does not clarify what her new position entailed.

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chemo injections, pneumonia, [and] monthly infusions.” Pl.’s Resp. at 4; Dkt. No. 23-8

(“Plaintiff’s Response, Exhibit 8”) at 9.

Plaintiff filed a complaint against SEIU with the NLRB (“National Labor Relations

Board”) on May 12, 2017. Pl.’s Resp. at 4. Plaintiff then filed a complaint against the Union with

the EEOC and received a right to sue letter on April 12, 2018. Compl. at 5. She then filed the

present case on July 10, 2018. Id. As explained below, Plaintiff seems to have used the Title VII

form to assert a hybrid § 301 / DFR claim rather than a claim for “discrimination based on race,

color, religion, sex or national origin.” Compl. at 2. Plaintiff asked for “Reinstatement of position

in Business Office[,] Lost wages, Compensation for emotional distress, Cost incurred from

increased medical / dental due to loss of benefits, Attorney fee [sic], [and] Court fees.” Id.. at 6,

19.5

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion, a “complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation marks and citations omitted). In addition to accepting all factual

allegations as true, a court must draw all reasonable inferences in a plaintiff’s favor. Jaffer v.

Hirji, 887 F.3d 111, 114 (2d Cir. 2018). However the complaint must provide enough “factual

content” to “allow[] the court to draw the reasonable inference that the defendant is liable for the

5 Plaintiff includes factual allegations in her case against Crouse Hospital that are

different and more detailed than those in her Complaint against SEIU. No. 18-CV-330, Dkt. Nos.

1, 7, 49. The Court will not consider these additional factual allegations in determining whether

the Complaint should be dismissed for failure to state a claim under Rule 12(b)(6). Fed. R. Civ.

P. 12(d); see also Goel v. Bunge, Ltd, 820 F.3d 554, 560 (holding that filings from a related case

could not be considered on a Rule 12(b)(6) motion when they were not integral to the complaint).

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misconduct alleged.” Iqbal, 556 U.S. at 678. Therefore a complaint cannot survive merely by

alleging “labels and conclusions, and a formulaic recitation of the elements of a cause of action.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When there are “two plausible inferences

that may be drawn from factual allegations” in the complaint, “[a] court ruling on such a motion

may not properly dismiss a complaint that states a plausible version of the events merely because

the court finds a different version more plausible.” Anderson News, L.L.C. v. Am. Media Inc.,

680 F.3d 162, 185 (2d Cir. 2012); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of those facts is

improbable.”)

Pleadings by pro se plaintiffs are held “to less stringent standards than formal pleadings

drafted by lawyers.” Peay v. Ajello, 470 F.3d 65, 67 (2d Cir. 2006) (quoting Haines v. Kerner,

404 U.S. 519, 520 (1972)). However, pro se plaintiffs are still required to meet the plausibility

standard. Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010).

IV. DISCUSSION

A. Plaintiff’s Title VII Claim

Title VII makes it illegal for a labor organization to “discriminate against[] any individual

because of his race, color, religion, sex, or national origin” or to “cause or attempt to cause an

employer to discriminate against an individual in violation of this section.” 42 U.S.C.

§ 2000e-2(c). Plaintiff filed a form complaint entitled, “Civil Complaint Pursuant to Title VII of

the Civil Rights Act, as Amended,” and she has checked a box indicating she is alleging

“employment discrimination based on race, color, religion, sex or national origin.” Compl. at

1–2.

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However, in clarifying which protected category applies to her, Plaintiff checked a box

saying, “Other,” and added Defendant had discriminated against her in “violation of the union

fair representation.” Id. at 2. In other parts of the Title VII complaint, Plaintiff alleges “failure to

follow provisions of the union contract,” that “1199 SEIU union representatives failed to

represent me pursuant to the collective bargaining agreement,” “violations of the collective

bargaining agreement,” and that “Union representatives choose not to file grievance when

requested.” Id. at 2–3.

The Court believes that Plaintiff intended to use this form to file a hybrid § 301 / DFR

claim. To the extent Plaintiff is asserting a Title VII claim, the Court dismisses it because the

Complaint contains no allegations that either SEIU discriminated against her based on race,

color, religion, sex or national origin. Because the Court is dismissing this claim on other

grounds, it will not consider Defendant’s argument that Plaintiff failed to exhaust her

administrative remedies on her Title VII claim. Def.’s Mem. at 10–11.

B. Plaintiff’s Hybrid § 301 / DFR Claim

Under federal labor law, a union is the “exclusive bargaining representative of the

employees.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). Thus, a union has a “statutory duty fairly

to represent all of those employees, both in its collective bargaining . . . and in its enforcement of

the resulting collective bargaining agreement.” Id. Because a union’s status as exclusive

representative deprives union members of other “means of protecting their own interest[s],” the

Supreme Court has found unions have a legal duty “to serve the interests of all members without

hostility or discrimination toward any, to exercise its discretion with complete good faith and

honesty, and to avoid arbitrary conduct.” Del Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151,

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164 n.14 (quoting Vaca, 386 U.S. at 177). Accordingly, “a union breaches the DFR when its

conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.”

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998) (quoting Vaca, 386 U.S. at 190).

Section 301 of the Labor Management Relations Act provides a remedy for “violation of

contracts between an employer and a labor organization.” 29 U.S.C. § 185(c). A hybrid § 301 /

DFR action stems from a breach of the collective bargaining agreement by the employer, which

the union responds to in a manner that violates the DFR. White v. White Rose Food, 237 F.3d

174, 178–79 (2d Cir. 2001) (citing Del Costello 462 U.S. at 164–65). Because Plaintiff has

asserted “1199 SEIU union representatives failed to represent me pursuant to the collective

bargaining agreement,” Compl. at 3, the Court construes Plaintiff’s Complaint to raise a hybrid

§ 301 / DFR claim against Defendant.

The limitations period for filing a hybrid § 301 / DFR claim is six months. Del Costello,

462 U.S. at 169. The limitations period starts running when “the union member knew or

reasonably should have known that a breach of the duty of fair representation had occurred.”

Kavowras v. N.Y. Times Co., 328 F.3d 50, 55 (2d Cir. 2003) (internal quotations and alterations

omitted).

Plaintiff brought the present action on July 10, 2018. Compl. According to the Complaint,

some time before May 10, 2017, Plaintiff “asked for union assistance and the union

representative refused.” Id. at 16–17. On May 10, 2017, Plaintiff’s union representative provided

her with a “bumping list” and informed her that less senior employees were not required to

“bump,” allegedly in violation of the “union contract.” Id. at 17. The next day, Crouse Hospital

informed Plaintiff that her position had been eliminated prior to the meeting on May 4, 2017,

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meaning it was already apparent that “union representatives misrepresented the facts.” Id. On

June 5, 2017, Plaintiff “realized that the negative actions of the union . . . were not going to stop

and was forced to resign.” Id. at 18.

Plaintiff has also provided the Court with a copy of her EEOC Charge, which she signed

on July 5, 2017. EEOC Charge at 5. It is appropriate to consider the EEOC Charge on a motion

to dismiss because it is a public record and Plaintiff relied on it in her Complaint by attaching her

right-to-sue letter. Compl. at 5; Kavowras, 328 F.3d at 57 (upholding a lower court’s

consideration of an NLRB charge at the motion-to-dismiss stage); Amaya v. Ballyshear, 295 F.

Supp. 3d 204, 217 (E.D.N.Y. 2018) (considering an EEOC charge on a motion to dismiss). In it,

Plaintiff alleges “the Union failed to represent me in reference to the elimination of the float

position description.” EEOC Charge at 5. The Court notes the allegations in the Complaint alone

are sufficient to conclude that Plaintiff’s claim accrued more than six months before her claim

was filed. However, the EEOC Charge demonstrates that Plaintiff had “actual knowledge of the

breach” at the time it was filed. See Kavowras, 328 F.3d at 55; Amaya, 295 F. Supp. 3d at 217.

Because Plaintiff’s claim accrued by July 5, 2017 at the latest—one year before she filed the

Complaint—her hybrid § 301 / DFR claim is dismissed as time barred.

C. Plaintiff’s Discrimination Claims Under the ADEA and ADA

The ADEA prohibits labor organizations from discriminating “against any individual

because of “age,” or causing or attempting to cause employers to do the same. 29 U.S.C.

§ 623(c). Similarly, the ADA makes it illegal for unions to “discriminate against a qualified

individual on the basis of disability.” See 42 U.S.C. §§ 12111(2), 12112(a). A claim brought

against a labor organization under the ADEA or ADA requires the Plaintiff to demonstrate: (1)

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that the union breached its DFR; and (2) that the breach was motivated by discriminatory intent

with respect to age or disability. McIntyre v. Longwood Cent. Sch. Dist., 380 F. App’x 44, 49 (2d

Cir. 2010); Klaper v. Cypress Hills Cemetery, No. 10-CV-1811, 2012 WL 959403, at *12

(E.D.N.Y. Mar. 21, 2012).

I. A Breach of the DFR

To establish a breach of the DFR, Plaintiff must demonstrate that SEIU’s behavior was

“arbitrary, discriminatory, or in bad faith.” Marquez, 525 U.S. at 44 (quoting Vaca, 386 U.S. at

190). A union’s action is arbitrary “if, in light of the factual and legal landscape at the time of the

union’s actions, the union’s behavior is so far outside a wide range of reasonableness, as to be

irrational.” White, 237 F.3d at 179 (quoting Marquez, 525 U.S. at 45) (internal quotation marks

omitted). For action to be discriminatory, it must be “intentional, severe, and unrelated to

legitimate union objectives.” Vaughn v. Air Line Pilots Ass’n, Int'l, 604 F.3d 703, 709 (2d Cir.

2010) (quoting Amalgamated Ass’n of St. Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge,

403 U.S. 274, 301 (1974)). A union acts with “bad faith” when it engages in “fraud, dishonesty,

and other intentionally misleading conduct” and has an “improper intent, purpose, or motive.”

Vaughn, 604 F.3d at 709-10 (quoting Spellacy v. Air Line Pilots Ass’n, Int’l, 156 F.3d 120, 126

(2d Cir. 1998)).

A union’s liability can be predicated on its “role in ratifying an employer’s discriminatory

practice” or in “tacit acquiescence in an employer’s discriminatory practices.” Nweke v.

Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 220 (S.D.N.Y. 1998) (quoting United States v.

City of Buffalo, 457 F. Supp. 612, 639 (W.D.N.Y. 1978)). However, this ratification

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acquiescence must rise to the level of a breach of the DFR, or, in other words, it must itself be

“arbitrary, discriminatory, or in bad faith.” Klaper, 2012 WL 959403 at *7.

Plaintiff alleges that “the union colluded with management to eliminate [Plaintiff s]

position due to [her] medical condition,” and that Crouse Hospital “management and union

representatives misrepresented the facts [about the elimination of her position].” Compl. at

17-18. Another court in this circuit has observed:

When an employee claims that his union breached its duty of fair

representation by failing to grieve his complaints, courts typically

look to determine whether the union’s conduct was arbitrary. Clarke

v. Comme’ns Workers of America, 318 F. Supp. 2d 48, 56 (E.D.N.Y.

2004) (collecting cases). A union acts arbitrarily when it ‘ignores or

perfunctorily presses a meritorious claim,’ Samuels v. Air Transport

Local 504, 992 F.2d 12, 16 (2d Cir. 1993), but not where it ‘fails to

process a meritless grievance, engages in mere negligent conduct, or

fails to process a grievance due to error in evaluating the merits of the

grievance,’ Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec.

Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994). Before deciding that

a grievance lacks merit, however, the union must conduct at least a

minimal investigation ... [b]ut under this standard, only an egregious

disregard for union members’ rights constitutes a breach of the

union’s duty to investigate. Emmanuel v. Int’| Bhd. of Teamsters,

Local Union No. 25, 426 F.3d 416, 420 (1st Cir. 2005) (quoting

Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1176 (7th Cir. 1995)

(internal quotation marks omitted); Castelli v. Douglas Aircraft Co.,

752 F.2d 1480, 1483 (9th Cir. 1985)).

Accordingly, to prevail on his claim, plaintiff must demonstrate that

(1) his grievances had merit, (2) that [the union] was aware of the

grievances, and (3) that [the union’s] conduct in failing to process the

grievances was arbitrary. See Clarke, 318 F. Supp. 2d at 58-59 (citing

Young v. United States Postal Serv., 907 F.2d 305, 308 (2d Cir.

1990)).

Moore v. Roadway Express, Inc. & Local 707, No. 07-CV-977, 2008 WL 819049, at *5

(E.D.N.Y. Mar. 25, 2008). In Moore, the court found that Plaintiff stated a valid claim for breach

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of DFR because the union “failed to conduct even a minimal investigation” into his complaints

that his employer “forced him to use unsafe equipment, wrongly denied him overtime hours and

compensation, and harassed him in retaliation for his complaints.” Id.

Here, SEIU refused to conduct even a “minimal investigation” into Plaintiff’s complaints

even though the Union still provided Plaintiff with a “bumping” list, which the Union likely

would not have done unless Crouse Hospital had eliminated Plaintiff’s position. Compl at 17.

Furthermore, Bergemann admitted that the hospital and union had met “in several meetings and

agreed to eliminate [Plaintiff’s] position,” Pl.’s Resp. at 4, and “only [her] position,” Pl.’s Sur-

Reply at 2. Thus, taking Plaintiff’s allegations as true, the Union appears to have acquiesced in

Crouse Hospital’s decision to eliminate Plaintiff’s position. And by covering up this

acquiescence through maintaining to Plaintiff that Crouse Hospital was not eliminating her

position, SEIU “misrepresented the facts” surrounding the elimination of Plaintiff’s position.

Compl. at 17. “Courts have found a breach of the federal duty of fair representation when a union

leader has purposefully concealed or misrepresented matters in his dealings with members.”

Cunningham v. Local 30, Int’l Union of Operating Engineers, 234 F. Supp. 2d 383, 399

(S.D.N.Y. 2002) (citing Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1142 (2d Cir. 1994));

see also Alicea v. Suffield Poultry, Inc., 902 F.2d 125, 130 (1st Cir. 1990) (“Holding a union

responsible for serious misrepresentations that lack rational justification or are improperly

motivated is consistent with the union’s obligation to deal honestly and fairly with its members.”)

Plaintiff has therefore demonstrated her grievances had merit, that the Union was aware of her

complaints, and that SEIU’s failure to process Plaintiff’s complaints was “so far outside a wide

range of reasonableness, as to be irrational,” and, consequently, arbitrary. See Moore, 2008 WL

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819049, at *5 (citing Clarke, 318 F. Supp. 2d at 58-59); see also White, 237 F.3d at 179 (quoting

Marquez, 525 U.S. at 45) (internal quotation marks omitted). “At this preliminary stage . . . the

[C]ourt cannot hold that [P]laintiff’s claim[]” that SEIU breached its DFR is “implausible.” See

Moore, 2008 WL 819049, at *5.

2. Discriminatory Intent

Given Plaintiff has sufficiently alleged that the Union breached its DFR owed to Plaintiff,

the Court will consider whether SEIU’s breach was motivated by “discriminatory animus”

toward Plaintiff's age or disability. McIntyre, 380 F. App’x at 49. “[T]o demonstrate Defendants’

discriminatory animus, [a plaintiff] ‘must ultimately show that the union’s actions were

motivated by discriminatory or retaliatory intent.’” Braxton v. TWU Local 100, No. 16-CV-9425,

2017 WL 6542500, at *3 (S.D.N.Y. Dec. 21, 2017) (quoting Durant v. Union Local 237, No. 12-

CV-1166, 2013 WL 1232555, at *6 (E.D.N.Y. Mar. 4, 2013), report and recommendation

adopted by No. 12-CV-1166, 2013 WL 1247520 (E.D.N.Y. Mar. 26, 2013). At the pleading

stage, “the plaintiff does not need substantial evidence of discriminatory intent,” and need only

“sustain a minimal burden of showing facts suggesting an inference of discriminatory

motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Burke v.

N.Y.C. Transit Auth., 758 F. App’x 192, 194 (2d Cir. 2019) (noting that to state an ADA

employment discrimination claim, “a plaintiff must allege an adverse employment action that

occurred under circumstances giving rise to an inference of discrimination”).

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Here, Plaintiff has failed to sufficiently allege that Defendant intended to discriminate

against Plaintiff because of her age. Plaintiff alleges that she is over the age of 406 and that, on

the day Plaintiff learned Crouse Hospital was eliminating the float titles, Bergemann urged her

“to retire and apply for Medicare.” Compl. at 9. But these facts alone do not indicate the Union

acted with discriminatory animus towards Plaintiff’s age. First, Plaintiff has not alleged facts

indicating the Union was aware of Bergemann’s statement or agreed with it. Nor has Plaintiff

alleged any statements made by SEIU officials regarding Plaintiff’s age. Finally, Plaintiff has not

alleged any facts that the other floats maintained their positions, at least in part, because of their

age. Thus, the Court must dismiss Plaintiff’s ADEA claim.

Plaintiff has, in contrast, sufficiently alleged that SEIU intended to discriminate against

her because of a disability. Plaintiff alleges that she suffered from multiple myeloma, a condition

that required her to take time off for medical appointments during which she received “weekly

chemo injections, pneumonia, [and] monthly infusions.” Id. at 13, 19; Pl.’s Resp. at 4. Plaintiff’s

allegation that Clanton—a Union representative—agreed with Bergemann’s statement that

Plaintiff should “‘leave’ Crouse Hospital due to [her] medical condition and the fact that [she]

had no immune system” supports Plaintiff’s assertion that the Union “colluded with [Crouse

Hospital’s] management to eliminate [Plaintiff’s] position due to [her] medical condition.”

Compl. at 16, 18. Plaintiff further alleges that she was “forced to resign so that [she] could

continue necessary medical treatment.” Id. at 18. Hence, Plaintiff has alleged facts plausibly

6 “The discrimination prohibited by the ADEA is discrimination ‘because of [an]

individual’s age,’ 29 U.S.C. § 623(a)(1), though the prohibition is ‘limited to individuals who are

at least 40 years of age,’ § 631(a).” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312

(1996).

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suggesting the Union intended to discriminate against Plaintiff based on her disability. See

Littlejohn, 795 F.3d at 311; Burke, 758 F. App’x at 194.

D. Retaliation Claims

SEIU has moved to dismiss Plaintiff’s retaliation claims made pursuant to Title VII, the

ADEA, and the ADA. Def’s. Mem. at 14, 16, 21. A claim for retaliation under each of the three

statutes requires: (1) that the defendant knew the plaintiff engaged in a protected activity; (2) an

adverse action by defendant against the plaintiff; and (3) a causal link between the adverse action

and protected activity. Yerdon v. Henry, 91 F.3d 370, 377 (2d Cir. 1996) (Title VII); Kessler v.

Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006) (ADEA); Treglia v.

Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA). While Plaintiff filed claims against

the Union with the NLRB and EEOC, which are protected actions, she has not alleged SEIU took

adverse action against her in response to those claims. See Johnson v. Palma, 931 F.2d 203, 207

(2d Cir. 1991) (finding adverse action in a union’s refusal to proceed with a member’s grievance

because the member had filed a complaint against that union with the New York State Division

of Human Rights). And to the extent Plaintiff claims that she was “charged with a Class C

Offense,” Compl. at 17, “suspended,” Pl.’s Resp., Ex. 3 at 7–8, and received “constant threats on

losing [her] position,” Pl.’s Resp. at 4, such actions were not plausibly taken by Union officials

or were not plausibly taken to stop Plaintiff from complaining to SEIU. In sum, Plaintiff has

failed to plead facts demonstrating that the Union retaliated against her.

E. SEIU’s Rule 12(b)(7) Defense

A movant under Rule 12(b)(7) must demonstrate that: (1) a non-party “should be joined

as a necessary party;” (2) joinder of the necessary party is “not feasible;” and (3) if joinder is not

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feasible, then “whether, in equity and good conscience, the party is one without whom the action

between the remaining parties cannot proceed—or, in the traditional terminology, whether the

absent party is indispensable.” Am. Trucking Ass’n v. N.Y.S. Thruway Auth., 795 F.3d 351,

356–57 (2d Cir. 2015) (internal citations and quotation marks omitted). “Federal courts are

extremely reluctant to grant motions to dismiss based on nonjoinder and, in general, dismissal

will be ordered only when the defect cannot be cured and serious prejudice or inefficiency will

result.” Id. (quoting 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

1609 (3d ed.)).

SEIU has failed to satisfy the requirements for dismissal under Rule 12(b)(7). The Union

argues that Crouse Hospital is a necessary party under Rule 19 because “Plaintiff’s prayers for

relief in each of the form complaints include reinstatement and lost wages, relief which cannot be

provided without the Employer’s involvement.” Def.’s Mem. at 23. The only claim that remains

in this case is Plaintiff’s ADA claim. The Court construes Plaintiff’s request for reinstatement

that the Court order the Union investigate her grievance against Crouse Hospital or otherwise

make a good faith attempt to negotiate with Crouse Hospital for her reinstatement. Consequently,

Plaintiff’s request for reinstatement under the ADA does not implicate Crouse Hospital’s

involvement in this suit. And, given “the governing principle [] is to apportion liability between

the employer and the union according to the damage caused by the fault of each,” see Vaca, 386

U.S. at 197, then the Court need not join Crouse Hospital to “accord [Plaintiff] complete relief”

for her ADA claim of lost wages, see Fed. R. Civ. P. 19(a)(1)(A).

Moreover, Crouse Hospital “has not made a motion to intervene or otherwise claimed to

have an interest in this litigation.” See Trustees of 1199 Nat’l Ben. Fund for Health & Human

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Serv. Employees v. United Presbyterian Home at Syosset, Inc., No. 01-CV-10910, 2002 WL

1492133, at *5 (S.D.N.Y. July 11, 2002). Hence, Crouse Hospital is not a necessary party under

Rule 19(a)(1)(B) as well. See Fed. R. Civ. P. 19(a)(1)(B) (stating a party is necessary if it “claims

an interest relating to the subject of the action . . .”).

The Union cites to several cases in support of its argument that Crouse Hospital is a

necessary party to Plaintiff’s hybrid § 301 / DFR claim, but the Court has dismissed this claim,

rendering SEIU’s argument moot. Part IV.B. supra. And the Union’s reliance upon these cases is

misplaced. Del Costello, upon which SEIU relies, explicitly states, “The employee may, if he

chooses, sue one defendant and not the other; but the case he must prove is the same whether he

sues one, the other, or both.” 462 U.S. at 165 (emphasis added). SEIU also relies upon Vaca in

which that court merely noted that “the employer may be (and probably should be) joined as a

defendant in the fair representation suit.” 386 U.S. at 197 (emphasis added). And while the

Union quotes a portion of Phillips v. Lenox Hill Hosp. in its Memorandum, that case required

claims against a hospital and union be tried in one suit pursuant to Rule 42(b), which contains a

different standard for joining parties than that contained in Rule 19. No. 86-CV-1026, 1986 WL

12512 at *1 (S.D.N.Y. Oct. 24, 1986).7 Consequently, these three cases at most stand for the

proposition that SEIU and Crouse Hospital should be joined in the same action, not that they

must be.

In sum, the Union is not entitled to have the Complaint dismissed under Rule 12(b)(7).

7 It is curious that the Union cites a case requiring claims against a hospital and a union

to be tried in one action given SEIU’s opposition to consolidating the instant action with

Plaintiff’s separate case against Crouse Hospital. Dkt. No. 12 (“Defendant’s Opposition to

Consolidation”).

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IV. CONCLUSION

Accordingly, it is hereby:

ORDERED, that SEIU’s Motion to Dismiss (Dkt. No. 7) is GRANTED in part.

Plaintiff's Title VII and ADEA claims are dismissed without prejudice. Plaintiff's Hybrid §

301 / DFR claim is dismissed with prejudice as time barred; and it is further

ORDERED, that Plaintiff may move to replead her Title VII and ADEA claims within

sixty days of the date of this Memorandum-Decision and Order; and it is further

ORDERED, that the Union’s Motion to Dismiss is otherwise DENIED. Plaintiff's ADA

claim may proceed; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and

Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

DATED: November 04, 2019

Albany, New York

fee

U.S. District Judge

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