Petition for Writ of Certiorari — In Re Gerald Nelson, Petitioner
Supreme Court briefNov 15, 2025
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No.
In the Supreme Court of the United States
In Re Gerald Nelson
PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES COURT OF
FOR THE SECOND CIRCUIT
SUPPLEMENTAL
APPENDIX TO THE WRIT OF MANDAMUS
Gerald Nelson
Pro Se/Petitioner
293 Ralph Avenue 2nd FL.
Brooklyn,New York 11233
Tel-347-737-2217
Email-rockynelson234@gmail.com
RECEIVED
NOV 2 0 2025
TABLE OF CONTENTS
Defendant’s Notice of Removal, dated October 12,2022 (excerpt)---------- SA-1
Verified Complaint, dated September 14,2022— ----------------------------- SA-2
Amended Verified Complaint, November 23,2022----------------------------- SA-3
Report and Recommendation Magistrate Judge Bloom------------------------- SA-4
Order Adopting Report And Recomendation------------------------------------- SA-5
Brief of NYCTA , excerpts pages 8,9,10,11,12——————————————SA-6
Summary order .Second Circuit Court of Appeals, dated September 30,2024
--------------------------------------------------------------------------------------- SA-7
*
Panel Rehearing/rehearing en banc, Court of Appeals Second Circuit, dated
November 6,2024-------------------------------------------------------------------SA-8
Supreme Court of the United States, Writ of Certiorari, dated May 27,2025
---------------------------------------------------------------------------------------- SA-9
Supreme Court of the United States , Petition for Rehearing, dated October 6,2025
-------------------------------------------------------------------------------------- SA-10
SA-1
Case l:22-cv-06112 Document 1 Filed'10/12/22 Page 1 of 6 PagelD
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GERALD NELSON,
__ Civ.
Plaintiff,
DEFENDANT’S NOTICE OF
REMOVAL
-vsNEW YORK CITY TRANSIT AUTHORITY,
DEPARTMENT OF BUSES (EAST NEW
YORK DEPOT)
(New York Supreme Court,
County of Kings, Index No.
537/2022)
Defendant.
TO:
The Honorable Judges of the United States District
Court for the Eastern District of New York
PLEASE TAKE NOTICE that Defendant New York City Transit Authority (i/p/a “New
York City Transit Authority, Department of Buses (East New York Depot)”) (“Defendant”), by
and through its undersigned attorneys, Proskauer Rose LLP, files this Notice of Removal of the
above-captioned action from the Supreme Court of the State of New York, County of Kings, to
the United States District Court for the Eastern District of New York pursuant to Section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185(a) (“LMRA”) and 28 U.S.C. §§ 1331,
1441 and 1446, and now state:
Introduction
1.
On August 25, 2022, pro se Plaintiff, Gerald Wratson, commenced an action in the
Supreme Court for the State of New York, County of Kings, Index No. 537/22 (“State Court
Action”) by filing a Summons with Notice and Request for Judicial Intervention. The action is
Case l:22-cv-06112 Document 1 Filed 10/12/22 Page 2 of 6 PagelD #: 2
pending in that court. No substantive proceeding have been had therein. The Defendant in the
State Court Action is New York City Transit Authority.
2.
For the reasons set forth below, this Court has original jurisdiction over the action
pursuant to Section 301 of the LMRA, and 28 U.S.C. §§ 1331, 1441 and 1446.
Procedural History
3.
On September 14, 2022, Plaintiff served a non-party affiliate of Defendant with
the filed Summons with Notice, filed Request for Judicial Intervention, unfiled Supplemental
Summons, and unfiled Verified Complaint. Attached as Exhibit A is an index of the State Court
Action filings to date. Pursuant to 28 U.S.C. § 1446(a), attached as Exhibit B and listed below
are all “process, pleadings, and orders” in the State Court Action to date.
B-l: Filed Summons with Notice, dated August 25,2022, filed August 25, 2022;
B-2: Filed Request for Judicial Intervention, dated August 25, 2022, filed August 25,
2022;
B-3: Unfiled Supplemental Summons with Complaint, dated September 14, 2022; and
B-4: Unfiled Verified Complaint, dated September 14, 2022.
4.
On September 30, 2022, Defendant received the filed Summons with Notice, filed
Request for Judicial Intervention, unfiled Supplemental Summons, and unfiled Verified
Complaint from its non-party affiliate.
5.
On October 4, 2022, Defendant advised Plaintiff that it would accept service of
the filed Summons with Notice, filed Request for Judicial Intervention, unfiled Supplemental
Summons, and unfiled Verified Complaint effectuated on its non-party affiliate on September 14,
2022.
2
Case l:22-cv-06112 Document 1 Filed 10/12/22 Page 3 of 6 PagelD
6.
3
On October 5, 2022. Defendant filed a motion in the State Court Action for an
order pursuant to New York Civil Practice Rules §2004 and 3012(d) for an extension of time to
respond to the Verified Complaint in light of the anticipated Notice of Removal. Attached as
Exhibit C is Defendant’s moving papers for said motion. Except for said motion, Defendant has
not filed any pleadings or papers to date in the State Court Action.
The Parties
7.
Defendant is a public benefit corporation of the State of New York (N.Y. Pub.
Auth. Law § 1200 et seq.) that operates bus service in New York City. (See Ex. B-4 at 5.)
8.
Plaintiff is a former employee of Defendant and, as an employee, was represented
by non-party the Transport Workers Union of Greater New York, AFL-CIO, Local 100
(“TWU”). (See id.)
9.
At all relevant times to this action, Defendant and the TWU were parties to a
Collective Bargaining Agreement (“CBA”) that governed the terms and conditions of Plaintiffs
employment. (See id.)
Federal Subject Matter Jurisdiction
10.
28 U.S.C. § 1331 provides that, “.. .[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.”
11.
In the Verified Complaint, Plaintiff alleges to:
[B]ring[] this action under, [sic] 301 of the Labor Management Relations Act (29
U.S.C. A. 185; Fed R. Civ. P 8(a)) referred to as the Act, to recover damages for
plaintiffs unlawful discharge by defendants [sic] New York City Transit Authority,
Department of Buses, East New York Depot, (defendants [SIC] Company),plaintiff s
[SIC] employer, and for breach by defendants Transport Workers Union of America,
AFL-CIO, Local 100 (defendant Union) of its duty of fair representation owing to
plaintiff, and for reinstatement by plaintiffs employer.
3
Case l:22-cv-06112 Document 1... Filed 10/12/22 Page 4 of 6 PagelD #: 4
See Exhibit B-4 at 1.
12.
Because the Verified Complaint expressly invokes 29 U.S.C. A. 185 as the basis
for a claim therein, this Court has original jurisdiction pursuant that provision and 28 U.S.C. §
1331. Therefore this action is properly removed to this Court pursuant to 28 U.S.C. § 1441.1
Timeliness of Removal
13.
28 U.S.C. § 1446(b)(1) provides that “...notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based....”
14.
The date of filing of this Notice of Removal is within 30 days of the non-party
affiliate of Defendant receiving the filed Summons with Notice, filed Request for judicial
Intervention, unfiled Supplemental Summons, and unfiled Verified Complaint and, therefore,
this Notice of Removal is being filed in a timely manner pursuant to 28 U.S.C. § 1446(b).
Venue
15.
28 U.S.C. § 1441(a) provides that, “...any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.”
16.
This Court is the district court embracing the Supreme Court for the State of New
York, County of Kings and, therefore, venue is proper in this Court pursuant to 28 U.S.C. §
1441(a).
1 There are no state or common law claims alleged in the Verified Complaint. To the extent that the Verified
Complaint is interpreted as raising state or common law claims such claims are related to Plaintiff s federal claim by
subject matter, time period and/or alleged action and, therefore, this Court may exercise supplemental jurisdiction
over these related state, state constitutional, and common law claims pursuant to 28 U.S.C. § 1367(a).
4
Case l:22-cv-06112 Document 1 Filed'10/12)22 Page 5 of 6 PagelD #: 5
Non-Waiver of Defenses
17.
By filing this Notice of Removal, Defendant does not waive any defenses which
may be available to them, nor do they waive any rights to appeal.
18.
By filing this Notice of Removal, Defendant does not admit any of the allegations
in Plaintiffs Verified Complaint.
Conclusion
19.
1
Based on the foregoing, because Plaintiff brings his claim under the laws of the
United States this action may be removed to this Court pursuant to Section 301 of the LMRA
and 28 U.S.C. §§ 1331, and 1441.
20.
Promptly after filing this Notice of Removal, a true copy of this Notice will be
given to Plaintiff and filed with the Supreme Court of the State of New York, County of New
Kings, pursuant to 28 U.S.C. § 1446(d).
21.
Accompanying this Notice of Removal is a Civil Cover Sheet.
WHEREFORE, Defendant respectfully prays that this action proceed in this Court as a
matter properly removed to this Court.
Dated:
New York, New York
October 12, 2022
PROSKAUER ROSE LLP
Attorneys for Defendant
New York City Transit Authority
By: /s/Neil H. Abramson
Neil H. Abramson
Rosanne Facchini
Erin P. Conroy
Eleven Times Square
New York, New York 10036
Phone: (212) 969-3000
nabramson@proskauer.com
rfacchini@proskauer.com
econroy@proskauer.com
5
1
SA-2
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 2 of 13 PagelD #: 21
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
i
----------------------------------------------------------------------- X
GERALD NELSON
Plaintiff,
VERIFIED COMPLAINT
Index No. 537/2022
(attached exhibits A and B
A. Stipulation signed 3/10/22
B. unemployment notice of
Determination dated:09/09/22)
-against(verification attached)
NEW YORK CITY TRANSIT AUTHORITY,
DEPARTMENT OF BUSES (EAST NEW YORK DEPOT)
Defendant,
—---------------------------------------------------------------------------------- x
1 .Plaintiff brings this action under, 301 of the Labor Management Relations
Act (29 U.S.C.A 185; Fed. R. Civ. P. 8 (a)) referred to as the Act, to recover
damages for plaintiff’s unlawful discharge by defendants New York City Transit
Authority, Department of Buses ,East New York Depot, (defendants
Company)plaintiffs employer, and for breach by defendants Transport Workers
Union of America, AFL-CIO, Local 100 (defendant Union) of its duty of fair
representation owing to plaintiff, and for reinstatement by plaintiff’s employer.
2. Defendants Company New York City Transit Authority (“Transit”) is a
corporation organized and existing under the laws of the State of New York, within
1 of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 3 of 13 PagelD #: 22
the territorial jurisdiction of this court. This defendant transacts business in the
state of New York, and is an employer within the meaning of Section 2(2) of the
CNLRA”), 29 U.S.C. 152 (2), and, within the meaning of 29 U.S.C.A. 185.
3. Defendants Local 100 Transport Workers of America AFL-CIO,(“ Local
100”) is a”Iabor organization” within the meaning of Section 2(5) of the National
Labor Relations Act (“NLRA”), 29 U.S.C. 152 (2).
4. Plaintiff was employed by defendant Transit on February 28,2021, as a Bus
operator of Transit, and was continuously in defendant's employ in that
classification until August 18, 2022, when plaintiff was unlawfully discharged by
defendant, as is more specifically alleged in this complaint.
5. On 1999 to 2023 (Ratifications), defendants entered into a collective
Bargaining agreement covering the employees,including plaintiff, in the
bargaining unit, which agreement was in force during the entire period
involved in this complaint.Both defendants have copies of the agreement
and for that reason none is attached to this complaint.The agreement was
entered into by the defendant for the benefit of the employees in the
bargaining unit,and plaintiff, as a member, is accordingly entitled to the
benefit of the agreement ant to enforce its provisions.
2 Of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 4 of 13 PagelD
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6. Section 2.1 Grievance and Arbitration , Disciplinary Grievance
Procedures 1,2,3-a,b,c. One and Two states 1. “It is understood that the
right to discharge or discipline employees for cause and to maintain
discipline and efficiency of employees is the responsibility of the Authority.
The Authority shall be guided by a policy of progressive discipline in the
administration of its disciplinary procedures. As such, penalties will be
evaluated in accordance with the principle of progressive discipline, and as
further elaborated in the January 26, 1995 Daniel Collins arbitration award,
attached hereto as Appendix H.” 2. “The Disciplinary procedure set forth in
this section shall be in lieu of any other disciplinary procedure that may
have previously applied to an employee covered by this Agreement
including but not limited to the procedure specified in Sections 75 and 76 of
the civil Service Law and shall apply to all persons who but for this
procedure would be subject to Sections 75 and 76 of the Civil Service Law.
This procedure shall not apply to probationary, provisional, part time or
temporary employees.”
7. As alleged above, the plaintiff was discharged by the defendant
company on August 18,2022. There was no notice, Plaitiff was verbally told
3 of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 5 of 13 PagelD #: 24
you are terminated by supertendent Boston. Plaintiff was never given a
reason. Plaintiff alleges that the true reason for his discharge was that a
stipulation of extension was made by the defendants,that made him an
improper probationary employee, (stipulation exhibit A)
8. Plaintiff was taken from a civil service list. So Plaintiff was a civil
service employee.plaintiff position is regulated by the civil service law of the
state of New York and the Civil service Regulations , and also the New york
City Personnel Rules.
9. Plaintiffs position as bus operator was for a one year probationary
period. Since Plaintiff was appointed on February 28, 2021, plaintiff is
scheduled to serve until February 28th, 2022 for Plaintiffs probationary
period. Under MTA or any other city agency can extend the probationary
period up to a period of six months. Beyond that you either have to fire the
probationary employee or if you don’t fire the probationary employee during
the one year period, the probationary employee automatically becomes a
permanent employee, (unemployment determination exhibit B)
10, Personnel Services Bulletin (PSBs) 200-6, Source: Personnel
4 of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 6 of 13 PagelD #: 25
Rules and Regulations of the City of New York 5.2,6.1.1.6,6.2.2 and 6.6.3,
General Examination Regulations E.20; New York Civil Service Law
Sections 63 and 81.4; New York Military Law Section 243.9: and Citywide
Agreement, Dated December 3, 2021. Rule C. Extension of the
Probationary Period , No. 1-b states “For extension of probation pursuant to
(PRR Rule 5.2.8(a),at least one month prior to the completion of the
original probationary period, the agency must notify the employee in writing
that the employee’s probationary period will be be extended .Where the
probationary period is extended pursuant to Rule 5.2.8 (b), the extension is
automatic and does not require notification to the employee”. Plaintiff
extension was made , on the last day of his probation, in violation of the
above rules.
11. Plaintiff protested a stipulation agreement, to extend his probation
on March 10, 2022. Plaintiff filed a griievance ,but was contacted by no one
who would help him.
12. On September 8, , Plaintiff was informed by Union member Ron
Carter(Brooklyn Division Union head) and told that it was official, that
Zerega Ron Howard( Probationary head), said I could not return to work.
13. Plaintiff alleges the fact that defendant Union, in breach of statutory
5 of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 7 of 13 PagelD #: 26
duty of fair representation owing to plaintiff under the provisions of the Act,
conspired to permit plaintiff’s discharge to stand, although there was no just
cause for the discharge; that the negotiation between defendants with
respect to plaintiffs stipulation (extension), were spurious .carried on in bad
faith,and deliberately designed to give plaintiff the false impression that a
sincere effort was being made by defendants to resolve the plaintiff’s
improper probationary status, after termination.
14. By attempting to elicit help from the Union, Plaintiff exhausted the
remedies provided by the CBA. The only other alternative for Plaintiff was
to file a civil action.
15. As a result of plaintiff’s discharge by defendant Company in
violation of Plaintiffs rights under the collective bargaining agreement, and
in breach by Union of its duty of fair representation owing to plaintiff, as
alleged above, plaintiff has suffered grievous and extensive damages as
follows: back pay,front pay,compensatory damages for emotional stress,
loss of quality of life and loss of enjoyment of life and damages to plaintiff’s
professional
reputation,
punitive
damages,
nominal
damages,
prejudgement interest and cost of legal fees.
16. Plaintiff desires to be reinstated to his former job at defendant
6 of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 8 of 13 PagelD
27
Company and alleges that he is entitled to such reinstatement retroactive to
the date of his discharge, without any break in his seniority, together with
any other relief the Court finds to be just and proper.
Dated: September 14, 2022
Gerald Nelson
Plaintiff
293 Ralph Avenue 2 FL
Brooklyn,Ny 11233
Tel. 347-737-2217
7 of 7
Case l:22-cv-06112 Document 1-5 Filed 10/12/22 Page 9 of 13 PagelD #: 28
VERIFICATION
Gerald Nelson, being duly sworn, deposes and says:
I am the plaintiff in the above-entitled action. I have read the foregoing
complaint and know the contents thereof. The same are to my knowledge,
except as to matters therein stated to be alleged on information and belief
and as to those matters I believe them to be true.
Gerald Nelson
293 Ralph Avenue
Brooklyn, New York
11233
Tel. 347-737-2217
Sworn to before me this
14 Day of September 2022
CLASSIE DOCKERY
COMMISSIONER OF DEEDS
City of New York -No.212S03
Qualified In Kings Couniy
CommlMtoner Expires December 1,20
1 Of 1
SA-3
I
UNITED STATES DISTRICT COURT
(
....
<7; Q: Cj
EASTERN DISTRICT OF NEW YORK
___ _________ _________ -______x
r aw,
GERALD NELSON
Plaintiff,
/ 11
\
AMENDED COMPfaftlNT
Demand forlJury
22 CV 611zmRPK)(LB7q /
(attached magistrate Judge b^is Bloorrfc^
-againstOrder dated October 27,20^4——^
NEW YORK CITY TRANSIT AUTHORITY,
DEPARTMENT OF BUSES (EAST NEW YORK DEPOT),
and TRANSPORTATION WORKERS UNION LOCAL 100
Defendants,
-----------------------------------------------------------------------------x
1 .Plaintiff brings this action under, 301 (a),(b) of the Labor Management
Relations Act (29 U.S.C.A 185; Fed. R. Civ. P. 8 (a)) referred to as the Act, to
recover damages for plaintiff’s wrongful discharge,, by defendants New York City
Transit Authority , Department of Buses ,East New York Depot, (defendants
Company)plaintiffs employer, and for breach by defendants Transport Workers
Union of America, AFL-CIO, Local 100 (defendant Union) of its duty of fair
representation owing to plaintiff, and for reinstatement by plaintiff’s employer.
2. Defendants Company New York City Transit Authority (“Transit”) is a
corporation organized and existing under the laws of the State of New York, within
the territorial jurisdiction of this court. This defendant transacts business in the
1 of 8
state of New York, and is an employer within the meaning of Section 2(2) of the
CNLRA”), 29 U.S.C. 152 (2), and, within the meaning of 29 U.S.C.A. 185, 29
U.S. CODE 203.
3. Defendants Local 100 Transport Workers of America AFL-CIO,(“ Local
100”) is a”labor organization” within the meaning of Section 2(5) of the National
Labor Relations Act (“NLRA”), 29 U.S.C. 152 (2).
4. Plaintiff was employed by defendant Transit on February 28,2021, as a Bus
operator of Transit, and was continuously in defendant's employ in that
classification until August 18, 2022, when plaintiff was unlawfully dischaiged by
defendant, as is more specifically alleged in this complaint.
5. On 1999 to 2023 (Ratifications), defendants entered into a collective
Bargaining agreement covering the employees,including plaintiff, in the
bargaining unit, which agreement was in force during the entire period
involved in this complaint.Both defendants have copies of the agreement
and for that reason part and section 2.1-grievance and arbitration
procedures is attached to this complaint.The agreement was entered into
by the defendant for the benefit of the employees in the bargaining unit,and
plaintiff, as a member, is accordingly entitled to the benefit of the
agreement ant to enforce its provisions.(EXhibit A section 2.1- Grievance
2 of 8
and Arbitration)
6. Section 2.1 Grievance and Arbitration , Disciplinary Grievance
Procedures 1,2,3-a.b.c. One and Two states 1. “It is understood that the
right to discharge or discipline employees for cause and to maintain
discipline and efficiency of employees is the responsibility of the Authority.
The Authority shall be guided by a policy of progressive discipline in the
administration of its disciplinary procedures. As such, penalties will be
evaluated in accordance with the principle of progressive discipline, and as
further elaborated in the January 26,1995 Daniel Collins arbitration award,
attached hereto as Appendix H.” 2. “The Disciplinary procedure set forth in
this section shall be in lieu of any other disciplinary procedure that may
have previously applied to an employee covered by this Agreement
including but not iimited to the procedure specified in Sections 75 and 76 of
me Civil service Law and shall apply to all persons who but for this
procedure would be subject to Sections 75 and 76 of the Civil Service Law.
This procedure shall not apply to probationary, provisional, part time or
temporary employees.”
7. As alleged above, the plaintiff was discharged by the defendant
company on August 18,2022. There was no notice, Plaitiff was verbaliy told
3 of 8
you are terminated by supertendent Boston. Plaintiff was never given a
reason. Plaintiff alleges that the true reason for his discharge was that a
stipulation of extension was made by the defendants,that made him an
improper probationary employee, (stipulation Exhibit B)
8. Plaintiff was taken from a civil service list. So Plaintiff was a civil
service employee.plaintiff position is regulated by the civil service law of the
state of New York and the Civil service Regulations , and also the New york
City Personnel Rules.
9. Plaintiffs position as bus operator was for a one year probationary
period. Since Plaintiff was appointed on February 28, 2021, plaintiff is
scheduled to serve until February 28th, 2022 for Plaintiffs probationary
period. Under MTA or any other city agency can extend the probationary
period up to a period of six months. Beyond that you either have to fire the
probationary employee or if you don’t fire the probationary employee during
the one year period, the probationary employee automatically becomes a
permanent employee.(Exhibit C Probationary Termination union signature
Clark 8/18/2022)
10, Personnel Services Bulletin (PSBs) 200-6, Source: Personnel
4 of 8
Rules and Regulations of the City of New York 5.2,6.1.1.6,6.2.2 and 6.6.3,
General Examination Regulations E.20; New York Civil Service Law
Sections 63 and 81.4; New York Military Law Section 243.9: and Citywide
Agreement,
Dated
December 3, 2021. Rule C. Extension of the
Probationary Period , No. 1-b states "For extension of probation pursuant to
(PRR Rule 5.2.8(a),at least one month prior to the completion of the
original probationary period, the agency must notify the employee in writing
that the employee’s probationary period will be be extended.Where the
probationary period is extended pursuant to Rule 5.2.8 (b), the extension is
automatic and does not require notification to the employee”. Plaintiff
extension was made , on the last day of his probation, in violation of the
above rules.
11. Plaintiff protested a stipulation agreement, to extend his probation
on March 10, 2022. Plaintiff filed a griievance ,but was contacted by no one
who would help him.(see Grievance exhibit D)
12. On September 8,2022 Plaintiff was informed by Union member
Ron Carter(Brooklyn Division Union head) and told that it was official, that
Zerega Ron Howard( Probationary head), said I could not return to work.
5 of 8
13. Plaintiff alleges the fact that defendant Union, in breach of
statutory duty of fair representation owing to plaintiff under the provisions of
the Act, conspired to permit plaintiff’s discharge to stand, although there
was no just cause for the discharge; that the negotiation between
defendants with respect to plaintiff’s stipulation (extension), were spurious
.carried on in bad faith,and deliberately designed to give plaintiff the false
impression that a sincere effort was being made by defendants to resolve
the plaintiff's improper probationary status, after termination.
14. Plaintiff states that said Defendants (caption) by and through its
agents
Claude
Boston
(superintendent),Domingo
Henriquez
(superintendent that signed the stipulation under the office of labor
relations,forged an unknown name John Doe) and Javier Oquedo
(chairman),willfully,wantonly,maliciously,and
unlawfully
agreed
and
conspired among themselves to cause a breach of contract and wrongful
termination of Plaintiff, since on or about March 10, 2022, to abandon his
rights under the exciting contract and personnel bulletin rules of New York
Transit Authority (‘Transit’). Plaintiff states the Union TWu 100 (“TWU”)
breach its duty of fair representation
by ignoring Plaintiff’s grievance
(arbitrary,discriminatory,bad faith) and Transit breach the
6 of 8
collective bargaining agreement.
15. By attempting to elicit help from the Union, Plaintiff exhausted the
remedies provided by the CBA. The only other alternative for Plaintiff was
to file a civil action.
16. As a result of plaintiff’s discharge by defendant Company in
violation of Plaintiffs rights under the collective bargaining agreement, and
in breach by Union of its duty of fair representation owing to plaintiff, as
alleged above, relief sought is back pay,front pay,compensatory damages
in the amount o f$ 500,000, loss of quality of life and loss of enjoyment of
life $100,000, and damages to plaintiff’s professional reputation $100,000,
punitive damages $2,000,000, nominal damages, prejudgement interest
and cost of legal fees.
16. Plaintiff desires to be reinstated to his former job at defendant
Company and alleges that he is entitled to such reinstatement retroactive to
the date of his discharge, without any break in his seniority, together with
any other relief the Court finds to be just and proper.Plaintiff request for
Jury Trial, (relevant case Vaca v. Sipes 386 U.S. 171 (1967), Hines v.
Anchor motor freight,inc. 424 U.S. 554 (1976), Chauffeurs Local 391 v.
7 of 8
Terry 494 U.S. 558 (1990).)
17. Plaintiff request for such other and further relief as the Court
may deem appropriate.
18.Plaintif hereby demands a jury trial on all issues triable as of
right to a jury. Fed. R. Civ. P. 38(b). (law and facts)
(attached is verification of complaint)
Dated: November 23, 2022
-
Gerald Nelson
Plaintiff
293 Ralph Avenue 2 FL
Brooklyn ,Ny 11233
Tel. 347-737-2217
8 of 8
SA-4
Case l:22-cv-06112-RPK-LB Document 34 Filed 08/07/23 Page 1 of 11 PagelD #: 292
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------- ----------------- x
GERALD NELSON,
REPORT AND RECOMMENDATION
22 CV 6112 (RPK)(LB)
Plaintiff,
-againstNEW YORK CITY TRANSIT AUTHORITY,
DEPARTMENT OF BUSES (EAST NEW
YORK DEPOT) and
TRANSPORTATION WORKERS
UNION LOCAL 100,
Defendants.
------------------------------ -------------------X
BLOOM, United States Magistrate Judge:
Plaintiff Gerald Nelson, proceeding pro se, brings this hybrid § 301/duty-of-fairrepresentation claim (“hybrid claim”) against defendants New York City Transit Authority,
Department Of Buses (East New York Depot) (“NYCTA”) and Transportation Workers Union
Local 100 (“TWU”) under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C.
§ 185, and the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seo. Defendants move
to dismiss plaintiffs amended complaint under Federal Rules of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction and I2(bX6) for failure to state a claim. Ute Honorable Rachel P.
Kovner referred defendants’ motions to me for a Report and Recommendation in accordance with
28 U.S.C. § 636(b). For the reasons stated in this Report, it is respectfully recommended that
defendants’ motions should be granted in part and denied in part: plaintiffs amended complaint
should be dismissed for failure to state a claim.
1
Case l:22-cv-06112-RPK-LB Document 34 Filed 08/07/23 Page 2 of 11 PagelD #: 293
BACKGROUND
Plaintiff worked for defendant NYCTA as a bus operator from February 28, 2021 until
August 18, 2022, when he was terminated. ECF No. 18 [“Am. Compl.”] fj 4, 7. During his
employment, plaintiff was represented by defendant TWU, his former union, pursuant to a
collective bargaining agreement (“CBA”) “entered into by the defendant for the benefit of the
employees in the bargaining unit,” including plaintiff. Id. f 5. Among other things, the CBA
establishes a disciplinary procedure and allows employees to bring a “Disciplinary Grievance”
when there has been “a violation of the employee’s contractual rights with respect to a disciplinaiy
action” (including termination). Am. Compl., Ex. A § 2.1(A)(2). Under the CBA, however, the
disciplinary procedure does not apply to probationary employees. Id,; see also ECF No. 27
[“Opp.”], Ex. E § 2.1(C)(2).
Plaintiffs probationary period initially ran from February 28,2021 through February 28,
2022. Am. Compl. f 9. “[O]n the last day of [plaintiffs] probation,” plaintiff “was made” to sign
a stipulation (hereafter “Stipulation”) which provided that “in lieu of termination,” plaintiffs
10; Am. Compl., Ex. B. Plaintiff signed the
probationary period would be extended.1 Id.
Stipulation on February 28, 2022, and a second time on March 10, 2022? Id., Ex. B. Plaintiff
alleges that the extension of his probation violated New York City personnel rules and regulations
because it occurred on the last day of his probationary period and without the required one month
written notice. Id.
10 (citing Personnel Services Bulletin 200-6). He further asserts that “the
negotiation between defendants with respect to plaintiffs stipulation” was “spurious” and in bad
1 The document was executed in part on February 28, 2022 and on March 10, 2022. The Stipulation states that
plaintiff’s probationary period "will be extended... from April 25,2022 to October 25,2022.” Am. Compl., Ex. B.
2 The document is also signed by representatives of defendant TWU, the NYCTA department of buses and the office
of labor relations, although plaintiff asserts the last signature was “forged....” Am. Compl. |13; Am. Compl., Ex.
B.
2
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faith, “deliberately designed to give plaintiff the false impression that a sincere effort was being
made” to resolve his “improper probationary status....” Id. If 13.
Believing the Stipulation to be fraudulent and unlawful, plaintiff “protested [the]
stipulation agreement... on March 10,2022.” Id. 1111- Plaintiff sought the assistance of a TWU
union representative, who told plaintiff that he could not file a grievance. Opp., Ex. A.
Nevertheless, plaintiff mailed a grievance, postmarked April 7,2022, seeking the revocation of the
Stipulation, id., but “was contacted by no one who would help him.” Am. Compl. f 11. On August
18, 2022, defendant NYCTA terminated plaintiff. Id. K 7. Plaintiff had no notice and defendant
NYCTA did not provide plaintiff with a reason for his termination. Id. Plaintiff alleges that he was
terminated because the Stipulation “made him an improper probationary employee.” Id.
PROCEDURAL HISTORY
Plaintiffcommenced this action in Kings County Supreme Court on August 25,2022. ECF
No. 1. Defendant NYCTA—then the only named defendant—removed the case to this Court on
October 12, 2022. Id, The Court held an initial conference on October 27, 2022 and granted
plaintiff leave to file an amended complaint. Plaintiff filed the amended complaint which added
defendant TWU, ECF No. 18, on November 23,2022. Defendants TWU and NYCTA now move
to dismiss plaintiffs amended complaint. ECF No. 25 (defendant NYCTA); ECF No. 26
(defendant TWU). Plaintiff opposes defendants’ motions, ECF No. 27, and defendants have
replied. ECF Nos. 29,31.
DISCUSSION
I.
Standard of Review
A court reviewing a motion to dismiss must accept all factual allegations in the complaint
as true and draw all reasonable inferences in the plaintiffs favor. See Bell Atl, Corp, v, Twomblv.
3
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550 U.S. 544,555-56 (2007); Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999). However,
“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v, Iqbal, 556 U.S. 662,678 (2009).
Under Rule 12(b)(6), a case is properly dismissed when the complaint fails to “‘state a
claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 570) (“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”),
“Determining whether a complaint states a plausible claim for relief will be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft.
556 U.S. at 678.
The standard of review for a motion to dismiss under Rules 12(b)(1) and 12(b)(6) are
substantively identical. Moore v. PaineWebber. Ind., 189 F.3d 165, 169 n.3 (2d Cir. 1999). On a
motion to dismiss under 12(b)(1), however, the party invoking the Court’s jurisdiction bears the
burden of proof to show that subject matter jurisdiction exists, while the movant bears the burden
of proof on a motion to dismiss under Rule 12(b)(6). Fountain v. Karim. 838 F.3d 129, 134 (2d
Cir. 2016) (citing Makarova v. United States, 201 F.3d 110,113 (2d Cir. 2000)); McCray v. Lee.
No. 16-CV-1730,2017 WL 2275024, at *2 (S.D.N.Y. May 23,2017).3
In addition to the complaint, the Court may consider documents attached to the complaint,
documents incorporated by reference therein, or documents that the complaint “relies heavily
upon” and are “integral” to the complaint, even ifnot incorporated by reference. Chambers v. Time
Warner, Inc., 282 F.3d 147,153 (2d Cir. 2002). The Court “may also consider ‘factual allegations
made by a pro se party in his papers opposing the motion’” to dismiss. Antrobus v, City of New
3 The Clerk of Court is respectfully directed to send plaintiff the attached copies of all the unreported cases cited
herein.
4
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York. No. 19-CV-6277, 2021 WL 848786, at *3 (E.D.N.Y. Mar. 5, 2021) (quoting Walker v.
Schult, 717 F.3d 119,122 n.l (2d Cir. 2013)).
II.
Plaintiff's Hybrid Claim
Plaintiff alleges that defendant TWU violated its federal duty of fair representation -
(“DFR”) by failing to grieve the improper extension of his probation and that defendant NYCTA
violated the CBA when it terminated him without notice or cause.4 “[A] suit in which an employee
alleges that an employer has breached a CBA and that a union has breached its duty of fair
representation by failing to enforce the CBA is known as a ‘hybrid § 301/fair representation
claim.’” Acosta v. Potter, 410 F. Supp. 2d 298, 308 (S.D.N.Y. 2006) (citing DelCostello v. Int'l
Bhd. of Teamsters. 462 U.S. 151, 164-65 (1983)). Section 301 of the LMRA provides that “an
individual employee may bring suit against his employer for breach of a collective bargaining
agreement.” DelCostello, 462 U.S. at 163 (1983) (citation omitted); see 29 U.S.C. § 185(a). A
union’s “duty of fair representation is a ‘statutory obligation’ under the NLRA, requiring a union
‘to serve the interests of all members without hostility or discrimination, to exercise its discretion
with complete good faith and honesty, and to avoid arbitrary conduct.’”5 Fowlkes v. Ironworkers
4 While plaintiff asserts his “discharge by defendant (NYCTA was] in violation ofPlaintiffs rights under the collective'
bargaining agreement,” am. compl. H 16, he acknowledges his claim hinges on the extension of his probationary period
in February 2022. Id. f 7 (“Plaintiff alleges that the true reason for his discharge was that a stipulation of extension
was made by the defendants, that made him an improper probationary employee.”) (emphasis added). If plaintiff
was a probationary employee when he was terminated, there is no dispute that NYCTA was within the bounds of the
CBA to fire plaintiff without notice or cause.
Plaintiff does not allege that the CBA required defendant NYCTA to follow certain procedures prior to extending his
probationary period. Rather, plaintiff asserts that the extension was “illegal,” opp. at 8, because it “was made, on the
last day of his probation, in violation” of New York City rules. Am. Compi. 110. Plaintiff cites Personnel Services
Bulletin (“PSB”) 200-6, which requires, among other things, that “one month prior to the completion of the original
probationary period, the agency must notify the employee in writing that the employee’s probationary period will be
be Isicl extended.” See id. (quoting PSB 200-6). However, a violation of this PSB docs not give rise to a federal claim.
While plaintiff asserts that defendants did not comply with PSB 200-6 when extending his probation, “(s]uch a
deviation does not amount to a federal constitutional due process violationf.]” Green v, Dep’t of Educ, of Citv of New
York. 16 F.4th 1070,1077 (2d Cir. 2021). For the reasons stated in this Report, plaintiff cannot challenge the extension
of his probationary period under the LMRA.
s The union’s duty is implied by the structure of the National Labor Relations Act, which allows “a single labor
organization to represent collectively the interests of all employees within a unit, thereby depriving individuals in the
unit of the ability to bargain individually or to select a minority union as their representative. In such a system, if
5
W
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Loc. 40. 790 F.3d 378, 387 (2d Cir. 2015) (quoting Vaca v. Sipes. 386 U.S. 171, 177 (1967))
(cleaned up); see 29 U.S.C. § 185(b).
Although a hybrid 301/DFR claim, “as a formal matter, comprises two causes of action[,]”
DelCostello. 462 U.S. at 164, “(a]n employee's duty-of-fair-representation claim against his labor
union is derivative of- that is, ‘inextricably interdependent’ with - his claim against his employer
under section 301 of the LMRA.” Jusino v. Fed’n of Cath. Tchrs.. Inc.. 54 F.4th 95,101 (2d Cir.
2022), cert, denied, 143 S. Ct. 1056 (2023) (quoting DelCostello. 462 U.S. at 164). “[T]o prevail
the employee must not only show that his discharge was contrary to the contract, but must also
carry the burden of demonstrating breach of duty by the [u]nion.” Carrion v. Enter. Ass'n, Metal
Trades Branch Loc. Union 638.227 F.3d 29, 33 (2d Cir. 2000) (quotation and citation omitted).
a. Plaintiff is Not Covered by the LMRA and NLRA
Here, because plaintiff was a public employee, plaintiff is “not covered by the NLRA” and
therefore cannot bring a § 301 claim under the LMRA. Green. 16 F.4th at 1075. The NLRA’s
definition of “employee”—which the LMRA incorporated—excludes individuals who work for
“any State or political subdivision thereof’ as such entities do not fall within the statute’s definition
of “employer.” 29 U.S.C. § 152(2), (3); see also Cunningham v. Loc. 30. Int’i Union of Operating
Engineers. 234 F. Supp. 2d 383, 395 (S.D.N.Y. 2002) (“The National Labor Relations Act's
definitions apply to the LMRA.”) (internal citations omitted). “For this reason, public employees
may not bring federal duty-of-fair representation claims ... or claims under Section 301 of the
LMRA. . . .” Malast v. Civ. Serv. Emps, Ass'n, Inc.. 474 F. App'x 829, 829 (2d Cir. 2012)
individual employees are not to be deprived ofall effective means of protecting their own interests, it must be the duty
of the representative organization” to fairly represent all members. DelCostello. 462 U.S. at 164 n.14 (citations
omitted).
6
SA-41
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(summary order).6 In other words, to state a hybrid claim, a plaintiff must allege that he (1)
“workfed] for an ‘employer’—that is, an entity that is not a ‘political subdivision of the State,’”
and (2) “participate[d] in a ‘labor organization’ that deals with that employer.” Baumgart v. Stony
Brook Children's Serv.. P.C.. 249 F. App'x 851, 852 (2d Cir. 2007) (summary order) (emphasis
added).
Plaintiff is not considered an “employee” under the LMRA because he worked for the
NYCTA, which, as a political subdivision of New York State, is not an “employer” under the Act.
“‘Political subdivisions’ within the meaning of the LMRA are entities that are either ‘(1) created
directly by the state, so as to constitute a department or administrative arm of the government, or
(2) administered by individuals who are responsible to public officials or to the general electorate.”
Kristiansen v. Metropolitan Transit Authority No. 22-CV-5601, 2023 WL 2330380, at *2
(S.D.N.Y. Mar. 2, 2023) (quoting Temple Univ. Hosp., Inc, v. NLRB. 39 F.4th 743, 752 (D.C.
Cir. 2022)). Applying this test, the Court in Kristiansen dismissed a § 301 claim against the
NYCTA and the Metropolitan Transportation Authority (“MTA”) because “the MTA and the
NYCTA have explicitly and repeatedly been held to be ‘political subdivisions’ ofthe State of New
York.” Id, at *2 (collecting cases); see also Sales v. Clark. No. 14-CV-8091,2017 WL 892609, at
*5 (S.D.N.Y. Feb. 3, 2017), report and recommendation adopted. 2017 WL 924239 (S.D.N.Y.
Mar. 6,2017) (“The MTA and the NYCTA have explicitly been held to be political subdivisions
of the State of New York for the purpose of the LMRA.”); Rome v. MTA/New York Citv Transit.
No. 97-CV-2945,1997 WL 1048908, at *6 (E.D.N.Y. Nov. 18,1997) (“The NYCTA is, clearly,
a political subdivision of the State of New York....”).
6 Some decisions cited in this Report reference a lack of “jurisdiction” when finding that public employees fall outside
the scope of the LMRA and NLRA. As discussed in footnote seven, infra, the Second Circuit recently clarified that
this is not jurisdictional but rather, a failure to state a claim. The Second Circuit did not disturb the analysis in earlier
decisions as to why public employees are excluded from the LMRA.
7
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Plaintiff does not dispute that defendant NYCTA is a political subdivision of New York,
instead arguing that this Court has jurisdiction over his § 301 claim. Opp. at 11 (citing 28 U.S.C.
§ 1331). And defendants do indeed raise lack of subject matter jurisdiction as an alternative basis
for dismissal of plaintiff’s amended complaint. ECF No. 26 at 5; ECF No. 25-1 at 7 n.4. But this
argument confuses two distinct concepts: “federal-court subject-matter jurisdiction over a
controversy; and the essential ingredients of a federal claim for relief.”7 Green, 16 F.4th at 1076
(quoting Arbaugh v. Y&H Corp.. 546 U.S. 500,503 (2006)). In Green, the Second Circuit clarified
that whether a plaintiff is an “employee” as defined by the NLRA is not jurisdictional, but rather
one of “the requirements of a cause of action under the NLRA . . . .” Id. at 1076. If a plaintiff
“cannot allege that he is an employee under the NLRA, his complaint fails to state a claim for a
violation of the statute” and should be “dismissed pursuant to Rule 12(b)(6).” Id. at 1075.
Therefore, while this Court has jurisdiction over plaintiff’s amended complaint, it should
nevertheless be dismissed for failure to state a claim.
Plaintiff also argues that his “wrongfill termination claim does not exist independent of any
rights established by [t]he CBA and is [therefore] preempted by 301 of the LMRA.” Opp. at 17,
12 (“Federal law completely preempts state law.”).8 But preemption is not the issue. The issue is
that plaintiff fails to state a claim against defendants under the LMRA.9 In any event, as plaintiff
7 This confusion is understandable because the Second Circuit has, itself, affirmed dismissal of a suit by a public
employee under the LMRA for lack ofjurisdiction. Green. 16 F.4th at 1076, n.l (citing Fotd v. D.C. 37 Union Local
.1.5.49,579 F.3d 187 (2d Cir. 2009)). But as Green and Jusino make clear, this did not establish binding precedent. Id.
(quotation and citation omitted); Jusino. 54 F.4th at 104-5 (quotation and citation omitted). The proper basis for
dismissal of a hybrid claim brought against a state or its political subdivision is for failure to state a claim.
8 The Court references the ECF page numbers in plaintiffs opposition.
’ Granting defendants’ motions does not render them “above the law,” as plaintiffclaims. Opp. at 10. As was explained
at the initial conference, plaintiffmay bring his claims under state law, including New York’s Taylor Law; New York
Civil Service Law § 200 et seq. Counsel fbr defendant NYCTA raised the Taylor Law as a possible avenue for relief
with plaintiff at the initial conference, which was held prior to plaintiff filing the amended complaint ECF No. 33 at
24:16-20; 25:5-9. (“[TJhe New York State Taylor Law codifies the union’s duty of fair representation to an employee,
so there is a statutory claim that (plaintiff) could bring against the union, and the employer would be a statutory party
to that claim.... So you could bring that state law claim in lieu of the federal claim. So naming the union doesn’t
change our argument that we’re not subject to the federal law. We would instead say we were subject to the state
8
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cannot bring a claim under the LMRA, any state law claims he might raise would not likely be
preempted. Malast, 474 F. App'x at 829 (reversing district court’s dismissal of public employee’s
state law claims as preempted by the LMRA because “Congress’s explicit intention to exclude
public employees like [plaintiff] from the ambit of federal regulation renders the ... preemption
holding untenable”); Beauchine v. City of Syracuse. No. 21-CV-845, 2022 WL 561548, at *17
(N.D.N.Y. Feb. 24, 2022) (finding “no basis on which to conclude that Plaintiffs state law claim
of tortious interference is preempted by the LMRA” because she is a public employee “excluded”
from the Act). Defendant NYCTA’s motion to dismiss should therefore be granted because
plaintiff cannot allege an essential element of his § 301 claim: that he was an employee within the
meaning of the LMRA.
Plaintiffs inability to bring a § 301 claim against defendant NYCTA precludes his federal
duty-of-fair-representation claim against defendant TWU. In a hybrid claim such as plaintiffs, the
two causes of action rise and fall together: plaintiff only has a “viable duty-of-fair-representation
claim against” his union “if he also has a viable section 301 claim against” his employer. Jusino
54 F.4th at 95. As plaintiff cannot state a § 301 claim against his former employer, he cannot state
a federal duty-of-fair-representation claim against his former union. See id. at 103 (dismissing
DFR claim because plaintiff’s former employer was not “covered by the NLRA as amended by
the LMRA[J” a fact which “squarely forecloses (plaintiff’s] section 301 claim”) (quotation,
citation, and alteration omitted); Kristiansen, 2023 WL 2330380, at *3 (“Since plaintiff does not
assert a viable claim against the (MTA and NYCTA], her claim against the TWU must also be
law.”). After defendant argued that it is not subject to the LMRA, plaintiff stated: “I’m familiar with the Taylor Law,
I’m familiar with the Wagner Act, I’m familiar with the 301 Labor Management Act, I’m familiar with Article 75,78,
so I m familiar with what she’s saying. It’s not a new language.” Id, 27:16-20. However, even though he stated he is
familiar with those other laws, plaintiff cites only the LMRA in his amended complaint, and therefore the Court should
not construe the amended complaint as raising a claim under the Taylor Law or any other state law. Negron v. Citv of
New York, No. 10-CV-2757,2011 WL 4737068, at *20 n.l 1 (E.D.N.Y. Sept. 14,2011), report and recommendation
adopted. 2011 WL 4729754 (E.D.N.Y. Oct. 6,2011).
9
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301
dismissed.”). For the reasons explained in this Report, plaintiff is not an employee covered by the
NLRA. Plaintiff therefore fails to state a claim against defendant TWU for breach of its duty of
fair representation. See Green, 16 F.4th at 1075-76 (dismissing DFR claim because plaintiffs
former employer was a political subdivision of New York State, and therefore plaintiff “cannot
allege that he is an employee under the NLRA”); Baumgart v. Stony Brook Children’s Serv.. P.C.,
No. 03-CV-5526,2005 WL 2179429, at *6 (E.D.N.Y. Sept. 9,2005), affd, 249 F. App'x 851 (2d
Cir. 2007) (“[H]ybrid Section 301 suits do not lie against a union for breaching its duty of fair
representation, if that duty arises out of a collective bargaining agreement with a public
employer.”). Defendant TWU’s motion to dismiss plaintiffs amended complaint for failure to
state a claim should be granted.10
Leave to Amend
III.
Although a court should not dismiss a complaint “without granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated[,]” courts may deny leave to replead where amending the complaint would be futile. Cuoco
v. Moritsugu. 222 F.3d 99, 112 (2d Cir. 2000). Here, as plaintiff was indisputably a public
employee, he “cannot plead any set of facts that would salvage [his] claims under the LMRA or
the NLRA.” Kristiansen, 2023 WL 2330380, at *3 (denying leave to amend under similar
circumstances). Therefore, plaintiff should not be granted leave to file a second amended
complaint.
10 Plaintiff asserts for the first time in his opposition papers that he signed the Stipulation “under duress....” Op. at
9. As plaintiff is a public employee excluded from the NLRA/LMRA, the Court does not reach the question ofwhether
this allegation would state a claim that defendant TWU breached its duty of fair representation under state law.
10
&SL
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CONCLUSION
Accordingly, defendants’ motions to dismiss plaintiffs § 301 and federal duty-of-fair
representation claims should be granted for failure to state a claim. Defendants’ motions to dismiss
for lack of subject matter jurisdiction should be denied.
FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,
the parties shall have fourteen days from service of this Report to file written objections. See also
Fed. R. Civ. P. 6. Such objections shall be filed with the Clerk of the Court. Any request for an
extension of time to file objections must be made within the fourteen-day period. Failure to file a
timely objection to this Report generally waives any further judicial review. Marcella v. Capital
Dist. Physicians* Health Plan, Inc.. 293 F.3d 42 (2d Cir. 2002); Small v. Sec’v of Health and
Human Servs.. 892 F.2d 15 (2d Cir. 1989k see Thomas v. Am, 474 U.S. 140 (1985).
SO ORDERED.
___________ /S/
LOIS BLOOM
United States Magistrate Judge
Dated: August 7,2023
Brooklyn, New York
11
SA-5
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------ -
GERALD NELSON,
ORDER ADOPTING REPORT
AND RECOMMENDATION
Plaintiff,
22-CV-6112 (RPK) (LB)
v-
NEW YORK CITY TRANSITY AUTHORITY.
DEPARTMENT OF BUSES (EAST NEW
YORK DEPOT); and TRANSPORTATION
WORKERS UNION LOCAL 100,
Defendants.
------------------------------------------------------------------ -
RACHEL P. KOVNER, United States District Judge:
Plaintiff Gerald Nelson filed this pro se lawsuit against defendants New York City Transit
Authority, Department of Buses (East New York Depot) (“NYCTA”) and Transportation Workers
Union Local 100 (“TWU”) under Section 301 of the Labor Management Relations Act (“LMRA”),
29 U.S.C. § 185, and the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. See
Am. Compl.
1-3, 13 (Dkt. #18). Defendants moved to dismiss plaintiff's amended complaint
for failure to state a claim and for lack of subject-matter jurisdiction, and the Court referred the
motions to Magistrate Judge Bloom for a Report and Recommendation (“R. & R.”). See Court
Order dated 4/17/2023. On August 7,2023, Judge Bloom issued her R. & R., recommending that
defendants’ motions be granted in part and denied in part and that plaintiff’s amended complaint
be dismissed for failure to state a claim. See R. & R. (Dkt. #34). Plaintiff filed timely objections
to the R. & R. See Pl.’s Obj. to R. & R. (“Pl.’s Obj.”) (Dkt. #35). For the reasons explained below,
plaintiff’s objections are overruled, and the R. & R. is adopted in full.
BACKGROUND
The following facts are taken from plaintiff’s amended complaint and assumed true for the
purposes of this order.
Case l:22-cv-06112-RPK-LB Document 39 Filed 09/29/23 Page 2 of 6 PagelD #: 339
Plaintiff worked as a bus operator for NYCTA from February 2021 until August 2022.
Am. Compl.
4. NYCTA has a collective bargaining agreement with TWU, which covered
plaintiff while he was an employee. Id.
5.
NYCTA initially hired plaintiff for a one-year probationary period. Id. 19. In February
2022, at the end of the one-year period, NYCTA required plaintiff to sign a stipulation extending
his probationary status. See id. If 10. Plaintiff “protested” the stipulation and filed a grievance
with TWU but did not receive a response. Id. f 11. While TWU’s collective bargaining agreement
with NYCTA establishes a disciplinary procedure allowing employees to file grievances, the
procedure does not apply to probationary employees. Am. Compl., Ex. A. § 2.1(A)(2). In August
2022, NYCTA terminated plaintiff’s employment without notice or cause. Am. Compl. 7.
Plaintiffs amended complaint brings a claim against NYCTA under Section 301 of the
LMRA, alleging a violation of the collective bargaining agreement, see id. ^1,7, and a claim
against TWU under the NLRA, alleging a violation of TWU’s duty of fair representation, id.
1,
13. Both defendants move to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), asserting that, because plaintiff is a public employee, he is covered by neither
the LMRA nor the NLRA. See Def. NYCTA’s Mem. ,of Law in Supp. of its Mot. to Dismiss
(“NYCTA’s Mot. to Dismiss”) 1 (Dkt. #25-1); Mem. of Law in Supp. of Def. TWU’s Mot. to
Dismiss the Am. Compl. (“TWU’s Mot. to Dismiss”) 4 (Dkt. #26-1). For the same reason, TWU
also moves to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). TWU’s Mot to Dismiss 5.
Judge Bloom’s R. & R. recommends granting the motions to dismiss under Rule 12(b)(6).
Judge Bloom noted that, because plaintiff alleges both that his employer breached a collective
bargaining agreement and that his union breached its duty of fair representation, plaintiff brings a
“hybrid” claim under Section 301 of the LMRA and the NLRA. R. & R. 5. But, as Judge Bloom
2
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next explained, neither the LMRA nor the NLRA apply to public employees who, like plaintiff,
work for a political subdivision of the state. Id. 6. Judge Bloom therefore concluded that plaintiff
could not bring a hybrid claim under either the LMRA or NLRA. Id. at 7.
Judge Bloom also declined to construe plaintiff’s complaint as bringing a claim under New
York’s Taylor Law, N.Y. Civ. Serv. Law § 200 et seq., which covers public employees such as
plaintiff. R. & R. 9 n.9. Judge Bloom noted that plaintiff was advised of the possibility of such a
claim at a conference held before he filed his amended complaint. Id. at 8 n.9. Judge Bloom also
noted that, at that conference, plaintiff stated he was familiar with the Taylor Law. Id. at 9 n.9.
But because plaintiffs amended complaint cites only federal law, Judge Bloom concluded that it
could not be fairly construed as raising a Taylor Law claim. Ibid. -, see generally Am. Compl.
Finally, Judge Bloom explained that the question whether an employee is covered by the
LMRA and NLRA is non-jurisdictional and that defendants’ motions to dismiss should therefore
be granted under Rule 12(b)(6) rather than 12(b)(1). Id. at 8. Judge Bloom further recommended
that plaintiff be denied leave to amend. Id. at 10. Given that plaintiff was indisputably a public
employee, Judge Bloom concluded that amendment would be futile. Ibid. Plaintiff timely objected
to the R. & R. See generally Pl.’s Objs.
STANDARD OF REVIEW
The standard of review a district court should use when considering an order or
recommendation from a magistrate judge depends on whether the issue “is dispositive of a party’s
claim or defense.” Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1). If a party timely objects to a
magistrate judge’s recommendation on a dispositive issue, the district court must “determine de
novo” those parts of the ruling that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3); see
28 U.S.C. § 636(b)(l). Defendants’ motions to dismiss are dispositive matters under Rule 72. See,
e.g., Shulman v. Chaitman LLP, 392 F. Supp. 3d 340, 345 (S.D.N.Y. 2019).
3
Case l:22-cv-06112-RPK-LB Document 39 Filed 09/29/23 Page 4 of 6 PagelD #: 341
Those parts of an R. & R. that are uncontested or not properly objected to are reviewed, at
most, for “clear error.” Alvarez Sosa v. Barr, 369 F. Supp. 3d 492, 497 (E.D.N.Y. 2019) (citation
omitted); see Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citing Fed. R. Civ.
P. 72(b) advisory committee’s note to 1983 addition). Clear error will only be found if, on review
of the entire record, the court is “left with the definite and firm conviction that a mistake has been
committed.” United States v. Bershchansky, 788 F.3d 102, 110 (2d Cir. 2015) (citation omitted).
In considering objections to an R. & R., the district court “will not consider new arguments
raised in objections to a magistratejudge’s report and recommendation that could have been raised
before the magistrate but were not.” United States v. Gladden, 394 F. Supp. 3d 465,480 (S.D.N.Y.
2019) (citation omitted); see, e.g., Fischer v. Forrest, 968 F.3d 216,221 (2d Cir. 2020); 12 Charles
Alan Wright & Arthur R. Miller, Fed. Prac. and Proc. § 3070.2 (3d ed. 2021). “Further, courts
generally do not consider new evidence raised in objections to a magistrate judge’s report and
recommendation.” Lesser v. TDBank, N.A.,4fF> F. Supp. 3d438,445 (S.D.N.Y. 2020) (alteration,
quotation marks, and citation omitted); see, e.g., Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir.
1998); Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994); Pan Am. World
Airways, Inc. v. Ini’I Bhd. of Teamsters, 894 F.2d 36,40 n.3 (2d Cir. 1990). Finally, a court will
disregard an objection that “merely restates or rehashes the same arguments that [the] party
originally made” if it fails to identify any subsequent errors in the magistrate’s analysis. CDS Bus.
Servs., Inc. v. H.M.C., Inc., No. 19-CV-5759 (JMA) (SIL), 2021 WL 4458884, at *1 (E.D.N.Y.
Sept. 28, 2021); see Sunoco, Inc. v. 175-33 Horace Harding Realty Corp., No. l l-CV-2319 (JS)
(GRB), 2016 WL 5239597, at *2 (E.D.N.Y. Sept. 22, 2016), aff'dsub nom. Sunoco, Inc. (R&M)
v. 175-33 Horace Harding Realty Corp., 697 F. App’x 38 (2d Cir. 2017).
4
Case l:22-cv-06112-RPK-LB Document 34 Filed 08/07/23 Page 5 of 11 PagelD #: 296
York. No. 19-CV-6277, 2021 WL 848786, at *3 (E.D.N.Y. Mar. 5, 2021) (quoting Walker v.
Schult. 717 F.3d 119.122 n.l (2dCir. 2013)).
IL
Plaintiffs Hybrid Claim
Plaintiff alleges that defendant TWU violated its federal duty of fair representation
(“DFR”) by failing to grieve the improper extension of his probation and that defendant NYCTA
violated the CBA when it terminated him without notice or cause.4 “[A] suit in which an employee
alleges that an employer has breached a CBA and that a union has breached its duty of fair
representation by failing to enforce the CBA is known as a ‘hybrid § 301/fair representation
claim.”’ Acosta v. Potter. 410 F. Supp. 2d 298, 308 (S.D.N.Y. 2006) (citing DelCostello v. Int'l
Bhd, of Teamsters, 462 U.S. 151, 164-65 (1983)). Section 301 of the LMRA provides that “an
individual employee may bring suit against his employer for breach of a collective bargaining
agreement.” DelCostello, 462 U.S. at 163 (1983) (citation omitted); see 29 U.S.C. § 185(a). A
union’s “duty of fair representation is a ‘statutory obligation’ under the NLRA, requiring a union
‘to serve the interests of all members without hostility or discrimination, to exercise its discretion
with complete good faith and honesty, and to avoid arbitrary conduct.’”5 Fowlkes v. Ironworkers
4 While plaintiff asserts his “discharge by defendant [NYCTA was] in violation of Plaintiffs rights under the collective
bargaining agreement,” am. compl. 16, he acknowledges his claim hinges on the extension of his probationary period
in February 2022. Id. V (“Plaintiff alleges that the true reason for his discharge was that a stipulation of extension
was made by the defendants, that made him an improper probationary employee.”) (emphasis added). If plaintiff
was a probationary employee when he was terminated, there is no dispute that NYCTA was within the bounds of the
CBA to fire plaintiff without notice or cause.
Plaintiff does not allege that the CBA required defendant NYCTA to follow certain procedures prior to extending his
probationary period. Rather, plaintiff asserts that the extension was “illegal,” opp. at 8, because it “was made, on the
last day of his probation, in violation” of New York City rules. Am. Compl. H 10. Plaintiff cites Personnel Services
Bulletin (“PSB”) 200-6, which requires, among other things, that “one month prior to the completion of the original
probationary period, the agency must notify the employee in writing that the employee's probationary period will be
be [sic] extended.” See id. (quoting PSB 200-6). However, a violation ofthis PSB does not give rise to a federal claim.
While plaintiff asserts that defendants did not comply with PSB 200-6 when extending his probation, “[s]uch a
deviation does not amount to a federal constitutional due process violation[.]” Green v. Dep't of Educ. of City of New
York. 16 F.4th 1070,1077 (2d Cir. 2021). For the reasons stated in this Report, plaintiff cannot challenge the extension
of his probationary period under the LMRA.
5 The union’s duty is implied by the structure of the National Labor Relations Act, which allows “a single labor
organization to represent collectively the interests of all employees within a unit, thereby depriving individuals in the
unit of the ability to bargain individually or to select a minority union as their representative. In such a system, if
5
Case l:22-cv-06112-RPK-LB Document 39 Filed 09/29/23 Page 6 of 6 PagelD #: 343
Plaintiffs argument fails because CPLR 217(2)(a) is a statute of limitations that does not
provide its own right of action. See Williams v. N.Y.C. Housing Auth., 458 F.3d 67, 69-70 (2d.
Cir. 2006) (identifying CPLR 217(a)(2) as providing the statute of limitations, rather than a cause
of action, for state-law claims alleging a violation of the duty of fair representation). Plaintiff
therefore cannot state a claim under CPLR 217(2)(a). See Thompson v. Thompson, 484 U.S. 174,
178-79 (1988) (affirming dismissal for failure to state claim because the statutory provision at
issue did not create a private right of action). Consequently, even if the amended complaint can
be fairly construed to invoke CPLR 217(2)(a), plaintiff cannot state a claim under that provision.
CONCLUSION
Plaintiff s objections are overruled, and the R. & R. is adopted in full. Defendants’ motions
to dismiss are granted in part, and plaintiff s amended complaint is dismissed under Rule 12(b)(6).
Because the problems with plaintiffs complaint are “substantive” ones that cannot be cured with
“better pleading,” the complaint is dismissed with prejudice. Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see Ashmore v. Prus, 510 F. App’x 47, 49 (2d. Cir. 2013) (explaining that
leave to amend is futile where barriers to relief “cannot be surmounted by reframing the
complaint”). Accordingly, the Clerk of Court is directed to enter judgment and close the case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United Slates, 369 U.S. 438,444-45 (1962).
SO ORDERED.
/s/ Rachel Kovner_________
RACHEL P. KOVNER
United States District Judge
Dated: September 29,2023
Brooklyn, New York
6
SA-6
23-7923-cv
llnitc'ii States (Cnurt of Appeals
for the
g>ecnni» (Circuit
GF R AI p NELSON,
............. .......... ..
........... . Plaintiff-AppellanE
NEW YORK CH Y TRANSIT AUTHORITY, DEPARTMENT OF BUSES.
(LAST NEW’ YORK DEPOT). TRANSPORTATION WORKERS
... . .. . ..... . . UN ION LOCAL UMV
—......... -........ ...........
Defendants-Appellees
ON APPEAL FROM Ti ll: UNITED STATES DISTRICT COURT
.
-FOR THE EASTERN DISTRICT OF NEW YORK------
BRIEF FOR DEFENDANT-APPELLEE
NEW YORK CITY TRANSIT AUTHORITY,
DEPARTMENT OF BUSES, (EAST NEW YORK DEPOT)
Niti. H. Abramson
Proskaltr Rose LLP
Attorneysfor Defendant-Appellee A'oiv
York City Transit Authority (ifp/q,
York City Transit Authority. Department
of fuses (East Yen fork Depot) ")
11 Tunes Square-
New York, New York 10036
(212) 969-3000
rejected this argument because the Amended Complaint directly cited federal
statutes and denied Appellant the requested relief. Id.
On November 29,2023, Appellant filed a notice of appeal of the Dismissal
Order and the R. 60(b) Order. A-3.
SUMMARY OF ARGUMENT
Appellant’s current challenge to the District Court’s exercise ofjurisdiction
should be rejected as the District Court had federal-question jurisdiction over the
action because the operative pleadings at the time of removal (i.e., the Complaint)
and under review in the Dismissal Order (i.e., the Amended Complaint) facially
established that Appellant was asserting a “hybrid” claim under the federal statutes
invoked therein. SA-1; SA-14. Moreover, these specific federal statutes have
sufficient pre-emptive force to require application of the doctrine of complete pre
emption by the District Court.
Concerning the Dismissal Order, Appellant has waived appellate review of
all aspects of that Order by virtue of his failure to (i) object to portions of the R &
R and (ii) press on this appeal those portions of the R & R he did object to.
Appellant’s waiver is further supported by his own statements on appeal conceding
the deficiency of his principal claim (the hybrid LMRA/NLRA claim) and
admitting that he did not plead the analogous Taylor Law claim. These statement
not only support Appellant’s waiver of appellate review, but they also underscore
8
the propriety of the Dismissal Order. Absent a viable hybrid LMRA/NLRA claim
or any state law claim, the District Court correctly dismissed the action in its
entirety.
Concerning the R. 60(b) Order, there is no evidence that the District Court
abused its discretion in denying the R. 60(b) motion. The record here establishes
beyond any reasonable dispute that the District Court decided the jurisdictional and
other challenges posed in Appellant’s R. 60(b) motion prior to that motion and,
further, that Appellant failed to raise any mistakes of law or fact concerning those
prior decisions as part of the motion. The rationale for and authority in support of
the R. 60(b) Order as articulated therein is sound and there is no basis to reverse.
For the reasons that follow, the Orders must be affirmed.
ARGUMENT
I.
THE DISTRICT COURT PROPERLY EXERCISED
JURISDICTION OVER THIS ACTION BECAUSE
APPELLANT PLED IN THE COMPLAINT AND
MAINTAINED IN THE AMENDED COMPLAINT A FEDERAL
CLAIM.
The standard of review for a jurisdictional challenge is de novo. Badilla v.
Midwest Air Traffic Control Serv., Inc., 8 F.4th 105,120 (2d Cir. 2021) (citing
Plumbing Indus. Bd., Plumbing Loc. Union No. 1 v. E. W. Howell Co., 126 F.3d
61,65 (2d Cir. 1997). The District Court has federal-question jurisdiction over “all
civil actions arising under the Constitution, laws, or treaties of the United States.”
9
28 U.S.C. § 1331. Federal-question jurisdiction is governed by the “well-pleaded
complaint rule” or the “independent corollary” to the “well-pleaded complaint
rule” known as the “complete pre-emption doctrine.” Caterpillar Inc. v. Williams,
482 U.S. 386, 391-93 (1987). As discussed below, under either doctrine,
Appellant’s invocation of the LMRA as the source of his breach of contract claim
in the Complaint and again in the Amended Compliant gave rise to the District
Court’s federal-question jurisdiction in this action.
A. The District Court Had Federal-Question Jurisdiction Under
The “Well-Pleaded Complaint Rule.”
“[T]he ‘well-pleaded complaint rule,’... provides that federal jurisdiction
exists only when a federal question is presented on the face of the plaintiffs
properly pleaded complaint.” Caterpillar, 482 U.S. at 392; Fax
Telecommunicaciones Inc. v. AT<& T, 138 F.3d 479,486 (2d Cir. 1998) (citing
Caterpillar to hold “removal is proper only if the federal question appears plainly
on the face of a ‘well-pleaded complaint.’”) This rule makes plaintiff, “the master
of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state
law.” Caterpillar, 482 U.S. at 392.
Appellant satisfied the “well-pleaded complaint rule” by expressly invoking
in the initial Complaint the LMRA as the source of his breach of contract claim
against NYCTA. SA-1 (“Plaintiff brings this action under, [sic] 301 of the Labor
10
Management Relations Act (29 U.S.C. § 185; Fed. R. Civ. P. 8 (a)) referred to as
the Act.”). Indeed, on appeal, Appellant admits that the Complaint did not plead a
state law claim. Opening Br. at 13 (“Nelson had no state claims in his original
complaint, or his amended complaint.”). Consequently, the District Court’s
exercise of its federal-question jurisdiction over this action upon NYCTA’s
removal of the action was proper. Caterpillar, 482 U.S. at 392; Fax
Telecommunicaciones, 138 F.3d at 486.
In the Amended Complaint, Appellant elected to re-plead an identical claim
for breach of contract under the LMRA. SA-14 (“Plaintiff brings this action under,
[sic] 301 (a),(b) [sic] of the Labor Management Relations Act (29 U.S.C. § 185;
Fed. R. Civ. P. 8 (a)) referred to as the Act[.]”). Consequently, the District Court’s
continued exercise of its federal-question jurisdiction over this action was proper.
Caterpillar, 482 U.S. at 392; Fax Telecommunicaciones, 138 F.3d at 486.
B. The District Court Had Federal-Question Jurisdiction Under
The “Complete Pre-Emption” Doctrine.
The “complete pre-emption doctrine” recognizes that the “pre-emptive force
of a statute” may be “so ‘extraordinary’ that it ‘converts an ordinary state common
law complaint into one stating a federal claim for purposes of the well-pleaded
complaint rule.’” Caterpillar, 482 U.S. at 393 (citation omitted). The LMRA is
the quintessential example of such a statute. Id. (“The complete pre-emption
corollary to the well-pleaded complaint rule is applied primarily in cases raising <
claims pre-empted by § 301 of the LMRA.”); Nelson v. Loc. 1181-1061,
I
Amalgamated Transit Union, AFL-CIO, 652 F. App'x 47, 48 (2d Cir. 2016)
|
(“Section 301 confers ‘an especially broad jurisdiction’ on the federal courts in
f
actions involving collective bargaining agreements.”) (citation omitted). On
I
' I appeal, Appellant has made plain that his pleadings were limited to his claim
: I arising under the LMRA. Opening Br. at 13 (“Nelson had no state claims in his
I’ original complaint, or his amended complaint.”), id. at 20 (“Nelson only pleaded
I’
301 Labor management and wrongful termination.”). In light of the pre-emptive
force of the LMRA, the District Court’s exercise of federal-question jurisdiction
over an expressly pled LMRA action was appropriate. Caterpillar, 482 U.S. at
393; Nelson, 652 F. App’x at 48.
II.
THE DISTRICT COURT PROPERLY DISMISSED THE
ACTION PURSUANT TO FED. R. CIV. P. 12(B)(6).
The standard of review for a District Court’s dismissal pursuant to Fed. R.
Civ. P. 12(b)(6) is de novo. Bacon v. Phelps, 961 F.3d 533,540 (2d Cir. 2020)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147,152 (2d Cir. 2002)). As set
forth below, Appellant has waived appellate review of all portions of the Dismissal
Order by a combination of his failure to object to various portions of the R & R
and his failure to press all portions on this appeal. Notwithstanding and without
12
SA-7
Case: 23-7923,11/25/2024, DktEntry: 83.1, Page 1 of 6
mandate
Nelson v. New York City Transit Authority,
Department of Buses
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURTS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX ORAN ELECTRONIC DATABASE
(WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of September, two thousand twenty-four.
PRESENT:
Barrington D. Parker,
Beth Robinson,
Circuit Judges,
Vernon D. Oliver,
District Judge. *
Gerald Nelson,
Plaintiff-Appellant,
v.
No. 23-7923
New York City Transit Authority,
Department of Buses, (East New York
’ Judge Vernon Dion Oliver, of the United States District Court for the District of Connecticut,
sitting by designation.
MANDATE ISSUED ON 11/25/2024
Case: 23-7923, Q9/36/2024, DktEntry: 89.1, Page 2 of 6
Depot), Transportation Workers Union
Local 100,
Defendants-Appellees.
FOR APPELLANT:
Gerald Nelson, pro se, Brooklyn,
NY.
FOR APPELLEE NEW YORK CITY
TRANSIT AUTHORITY:
Neil H. Abramson, Proskauer
Rose LLP, New York, NY.
FOR APPELLEE TRANSPORTATION
WORKERS UNION LOCAL 100:
Jade L. Morrison, Colleran
O'Hara & Mills L.L.P., Woodbury,
NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Kovner, Judge).
UPON
DUE
CONSIDERATION,
IT
IS
HEREBY
ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Representing himself, plaintiff Gerald Nelson sued the New York City
Transit Authority, Department of Buses (the "Transit Authority") in state court,
citing violations of § 301 of the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185. A bus operator hired for a one-year probationary period expiring in
February 2022, Nelson alleged that he was made to sign a stipulation that extended
the probationary period, in violation of various rules and regulations.
2
He
Case: 23-7923, 09/30/2024, DktEntry: 89.1, Page 3 of 6
protested, but Transportation Workers Local 100 (the "Union") did not help him—
allegedly in violation of its duty of fair representation-and he was eventually
fired without prior notice or cause.
The case was removed to federal court.
At an initial conference in
anticipation of a motion to dismiss, the magistrate judge explained to Nelson that
he appeared to be bringing a "hybrid" § 301/duty of fair representation claim.
Counsel for the Transit Authority advanced its view that the Authority could not
be sued under the LMRA and commented on Nelson's ability to bring a New York
Taylor Law claim (N.Y. Civ. Serv. Law §§ 200, et seq.) instead. Nelson responded
that he was familiar with Taylor Law claims and his other options under state and
federal law. However, Nelson's eventual amended complaint did not add a Taylor
Law claim.
The Transit Authority and the Union moved to dismiss. The magistrate
judge recommended dismissal, reasoning that Nelson failed to state a viable
hybrid claim because the MTA was a political subdivision excluded from the reach
of the LMRA; his duty of fair representation claim, which was derivative of his
LMRA claim, failed as well. Nelson v. New York City Transit Authority, Department
of Buses (East New York Depot), No. 22-cv-6112,2023 WL 5979174, at *4-5 (E.D.N.Y.
3
Case: 23-7923, 09/30/2024, DktEntry: 89.1, Page 4 of 6
Aug. 7, 2023) (Bloom, Mag.). The magistrate judge observed that Nelson had not
added a Taylor Law claim to his amended complaint despite being on notice of
that option. Id. at *5 n.9.
The district court adopted the report and recommendation over Nelson's
objections. Nelson v. New York City Transit Authority, Department of Buses (East New
York Depot), No. 22-cv-6112,2023 WL 6370773, at *3 (E.D.N.Y. Sept. 29,2023). After
the court denied a subsequent motion under Fed. R. of Civ. P. 60(b), Nelson
appealed. We assume the parties' familiarity with the remaining facts, the issues,
and the procedural history.
Our review of an order dismissing a complaint under Fed. R. Civ. P. 12(b)(6)
is de novo—that is, without any deference to the district court—and ordinarily
assesses whether the facts of the complaint, taken as true and with all reasonable
inferences drawn in the plaintiff's favor, states a plausible claim to relief. Noto v.
22nd Century Group, Inc., 35 F.4th 95, 102 (2d Cir. 2022). Since Nelson has
represented himself throughout, his filings are liberally construed to raise the
strongest arguments they suggest. Sharikov v. Philips Medical Systems MR, Inc., 103
F.4th 159,166 (2d Cir. 2024).
4
Case: 23-7923, (59/30/2024, DktEntry: 89.1, Page 5 of 6
Despite this liberal construction, however, Nelson does not raise any
challenge in his brief to the district court's determination that he could not state a
hybrid § 301/duty of fair representation claim because he is a public employee. We
generally will not reach issues or argument that a pro se litigant abandons, and we
decline to do so here. See Green v. Department of Education of City of New York, 16
F.4th 1070,1074 (2d Cir. 2021)?
Instead, Nelson challenges the district court's jurisdiction; for instance, he
argues that his complaint was fraudulently removed to federal court.
But a
complaint can be removed to federal court if it could have been brought there in
the first place, see 28 U.S.C. § 1441(a), and federal question jurisdiction exists for
"all civil actions arising under the Constitution, laws, or treaties of the United
States," 28 U.S.C. § 1331. In deciding whether to remove a case, a court looks to
If we reached the question, we would reach substantially the same conclusion as the district
court and magistrate judge. In particular, we agree that Nelson could not, as a public employee,
pursue his hybrid claim under the National Labor Relations Act ("NLRA") as amended by the
Labor Management Relations Act ("LMRA"). Employees of political subdivisions of a state are
not covered by the NLRA, as amended by the LMRA. Green v. Department of Education of City of
New York, 16 F.4th 1070,1075 (2d Cir. 2021). The Metropolitan Transportation Authority ("MTA")
is a political subdivision of New York state. See Rose v. Long Island R.R. Pension Plan, 828 F.2d 910,
915 (2d Cir. 1987) (concluding, in context of a different federal statute that the MTA is a political
subdivision of New York state). And, because Nelson's duty of fair representation claim is
derivative of his § 301 claim against the employer, it too fails. See Jusino v. Federation of Catholic
Teachers, Inc., 54 F.4th 95,101 (2d Cir. 2022).
5
Case: 23-7923, (59/36/2024, DktEntry: 89.1, Page 6 of 6
the face of the complaint to see if "plaintiff's statement of his own cause of action
shows that it is based on federal law." Romano v. Kazacos, 609 F.3d 512,518 (2d Cir.
2010) (internal quotation marks omitted). Nelson's complaint explicitly relied on
§ 301 — a federal statute. That gave the federal court jurisdiction and made removal
proper. The fact that he can't actually state a hybrid claim under § 301 relates to
the merits of his claim, not the district court's jurisdiction to decide it. See Green,
16 F.4th at 1076. Thus, his complaint was removable even before he amended it.
♦
*
*
We have considered Nelson's remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court
SECOND
-CIRCUIT , I
A True Copy
Catherine O’Hagan Wj
United States CounTSf Appeals,\Second circuit
Lf SECOND Vt
|
SA-8
Case: 23-7923,11/06/2024, DktEntry: 82.1, Page 1 of 1
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
6th day of November, two thousand twenty-four.
Gerald Nelson,
Plaintiff - Appellant,
ORDER
Docket No: 23-7923
V.
New York City Transit Authority, Department of Buses,
(East New York Depot), Transportation Workers Union
Local 100,
Defendants - Appellees.
Appellant, Gerald Nelson, filed a petition for panel rehearing, or, in the alternative, for
rehearing en banc. The panel that determined the appeal has considered the request for panel
rehearing, and the active members of the Court have considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
SA-9
Supreme Court of the United States
Office of the Clerk
Washington, DC 20543-0001
May 27, 2025
Scott S. Harris
Clerk of the Court
(202) 479-3011
Mr. Gerald Nelson
293 Ralph Avenue
Floor 2
Brooklyn, NY 11233
Re: Gerald Nelson
v. New York City Transit Authority, et al.
No. 24-7004
Dear Mr. Nelson:
The Court today entered the following order in the above-entitled case:
The petition for a writ of certiorari is denied.
Sincerely,
Scott S. Harris, Clerk
SA-10
Supreme Court of the United States
Office of the Clerk
Washington, DC 20543-0001
October 6, 2025
Scott S. Harris
Clerk of the Court
(202) 479-3011
Mr. Gerald Nelson
293 Ralph Avenue
Floor 2
Brooklyn, NY 11233
Re: Gerald Nelson
v. New York City Transit Authority, et al.
No. 24-7004
Dear Mr. Nelson:
The Court today entered the following order in the above-entitled case:
The petition for rehearing is denied.
Sincerely,
Scott S. Harris, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.