Burton v. American Fed'n of Gov't Emps.
| Decision Date | 15 August 2012 |
| Docket Number | 11-CV-1416(SLT)(LB) |
| Parties | ANN BURTON, Plaintiff, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) 1988; ENA JUDD, AFGE 1988 Union President; JOHN GAGE, AFGE 1988 National President; DERRICK F. THOMAS, AFGE 1988 Regional Vice President, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Ann Burton, proceeding pro se, brings this action against her former union, the American Federation of Government Employees ("AFGE"), Local 1988, and three union officers: Ena Judd, the President of Local 1988; John Gage, the National President of the AFGE; and Derrick F. Thomas, National Vice President of AFGE District 2. Defendants now move to dismiss this action pursuant to Rules 12(b)(1), (2) and (6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted in part and denied in part,
The following facts are drawn from plaintiff's complaint and the exhibits thereto, the allegations of which are assumed to be true for purposes of this Memorandum and Order. Plaintiff is an African-American woman who, at the time this action was commenced in March 2011, was either 56 or 57 years old (Complaint at 3, 4). Between March 2004 and March 2010, plaintiff was employed by the United States Department of Veterans Affairs (the "DVA") at theSt. Albans Community Living Center (the "SACLC"), a primary and extended care facility located in St. Albans, New York (id. at 4, 5; see http://www2.va.gov/directory/guide/facility.asp?id=715). Although plaintiff alleges that she was employed as a Licensed Practical Nurse ("LPN") and a Registered Nurse ("RN") (Complaint at 3), plaintiff also alleges that she did not become an RN until July 15, 2008, and was not hired as an RN until May 8, 2010 - after she left the DVA (id. at 5).
Until at least April 2009, plaintiff was a member of Local 1988 (id. at 4 and Ex. 2). Although plaintiff was honored as Employee of the Month in June 2007 (id. at 5 and Ex. 3), she was apparently less popular with her fellow union members. Plaintiff alleges that, beginning in 2004, unspecified defendants "convened Unit A5 staff meetings against plaintiff and created a hostile work environment, which jeopardized patient safety, and affected plaintiff's work performance" (id. at 5). At some point prior to January 2008, plaintiff requested, and was granted, a transfer to Unit D3, where she worked under Nurse Manager Ruth Wilson (id.).
In a memorandum to Wilson dated January 20, 2008, plaintiff recommended a change in how nursing assistants were assigned (id. at Ex. 6). After the change was implemented, a few of the assistants complained (see id. at Ex. l, p. 1)-including one who sent an angry, anonymous letter to Wilson stating, among other things, that no one wanted to work with plaintiff (id. at Ex. 7). In addition, defendant Judd, acting in her capacity as President of Local 1988, sent a letter to Cynthia Caroselli, Associate Director of Patient Services, asserting that the change constituted "a change in working conditions" and demanding that the practice "[c]ease and desist" (id. at Ex. 5). Judd also informed the nursing assistants that they did "not have to comply with [plaintiff's] assignments" (id. at Ex. 1, p. 1).
Following this episode, Judd repeatedly failed to intervene in conflicts between plaintiff and management. The first conflict arose after plaintiff became an RN in July 2008, when the DVA twice rejected her applications for a position as an RN (id.). Plaintiff had received a scholarship to attend nursing school from the DVA's Employee Incentive Scholarship Program ("EISP"), and had signed a contract which obligated her to provide nursing services to the DVA upon her graduation (id. at 5 and Ex. 4). That contract also obligated the DVA to appoint plaintiff to a position in which she could provide those services "as soon as possible" after she completed the EISP-sponsored education and met all applicable requirements for appointment to the position (id. at Ex. 4). Plaintiff believed that the DVA's refusal to hire her was a violation of the EISP contract and a "discriminatory employment practice[]" (id. at Ex, 1, p. 1), but Judd "said and did nothing" to advocate for plaintiff (id.).
A series of conflicts arose in November and December 2008, when plaintiff was repeatedly disciplined by Ginette Joubert, another Nurse Manager (id. at Ex. 1, pp. 1-2), According to plaintiff, all of the discipline was unjustified and some disciplinary actions were taken without providing prior nonce to plaintiff (id.). Nonetheless, Judd said and did nothing in plaintiff's defense (id.).
On December 22, 2008, Joubert placed plaintiff on administrative leave (id. at Ex. 1, p.2). According to plaintiff, this action was based on "unsubstantiated written allegations, and verbal allegations," but Joubert refused to provide copies of the statements made by plaintiff's accusers (id.). Judd declined to intervene on plaintiff's behalf, instead telling her that "there was no need to obtain copies [of the statements because] . . . there were no charges against [plaintiff] . . ." (id.). The next day, plaintiff filed an EEO complaint (id.).
On January 6, 2009, plaintiff was reassigned to clerical duties at the SACLC and was placed in an office close to Joubert and two other supervisors (id.). Plaintiff apparently was not told why she was being re-assigned, but was informed by Judd that she was "charged with negligence pending an investigation" (id.). After plaintiff complained to Judd that being forced to work in close proximity to "adversaries" - presumably, people she had named in her EEO complaint - was subjecting her "to a hostile work environment," plaintiff was transferred to an adjoining office which was "scented with perfume" (id.). When plaintiff complained that she could not work in a "perfumed environment" because of her allergies, Judd threatened to transfer her to another campus and told Joubert to place plaintiff on administrative leave for the rest of the day (id.).
Plaintiff was still at SACLC as of January 28, 2009, when an investigator arrived at St. Albans to speak with plaintiff about the negligence charge (id. at Ex. 1, p. 3). Judd had not informed plaintiff that the investigator would arrive on that day. Since no union representatives were available, plaintiff was advised by "an unknown messenger" for one of the absent union representatives that she "must not meet with the investigator" (id.). According to plaintiff's complaint, the delay in this investigation prejudiced plaintiff because it had the potential to "delay [her] transition from LPN to RN" (id.). However, the complaint also alleges that the investigator submitted his findings to the Nursing Site Manager, William Kosel, on January 30, 2009, concluding that the charges were unfounded (id.).
On January 30, 2009, plaintiff sent a Report of Contact ("ROC") to Kosel, complaining that Joubert had arrived at the office "smelling like a perfumed skunk" (id.). A few days later, Joubert "retaliated" by reassigning plaintiff to the "NY VA Mental Health Care Line Division"effective February 5, 2009 (id.). Plaintiff responded by sending Joubert an e-mail, which was copied to Judd, in which plaintiff alleged that the reassignment would "cause a hardship" (id.). When plaintiff continued to report to SACLC on February 5 and 6, 2009, Judd approached plaintiff and asked plaintiff to explain the "hardship" (id.). Plaintiff explained that the reassignment would force her either to "endanger [her] life" by "waiting at a bus stop at 5am in a high crime neighborhood" or to relocate to Manhattan (id.).
Joubert then issued a "Detail," directing plaintiff to work at the NY VA from 8:15 a.m. to 3:15 p.m. each day "pending investigation" (id.). Plaintiff alleges that, because of the "[t]ravel time" involved, this "Detail" mandated that she work overtime, in violation of the collective bargaining agreement (id.). In addition, plaintiff alleges that "[t]he Detail was retaliatory and occurred after the investigation was concluded to be unfounded" (id.). Again, Judd took no action on plaintiff's behalf (id.).
On February 24, 2009, plaintiff sent a letter to defendant Thomas, with a copy to defendant Gage, complaining of Judd's actions "or lack thereof (id. at Ex. 1, p. 1). At the start of her letter, plaintiff stated that she was writing to inform Thomas of how Judd's actions "constitute[d] a breach of contract" and to describe how Judd "collaborated with . . . Joubert, to have [plaintiff] removed from St Albans Community Living Center . . ." (id.). The letter then described the various conflicts that plaintiff had had with management between mid-2008 and February 2009 (described above), and accused Judd of saying and doing nothing to defend plaintiff (id. at Ex, 1, pp. 1-3). Plaintiff ended the letter by stating, "I have no other recourse than to take further action regarding a Breach of Contract and non-representation" (id. at Ex. 1, p. 3).
Plaintiff did not receive a written response from Thomas or Gage (id. at 5). On April 6, 2009, plaintiff revoked her authorization for union dues to be deducted from her salary (id. at Ex. 2). Plaintiff continued to work for DVA for another year, until she was terminated on March 19, 2010 (id. at 7). During the fourteen months after she was reassigned from SACLC, plaintiff was was reassigned another six times (id. at 6).
On March 21, 2011, plaintiff commenced this action - the second of 13 cases which plaintiff filed with this Court between December 23, 2010, and November 11, 2011. The first action - Burton v. Shinseki, No. 10-CV-5318 (SLT)(LB) - alleged, inter alia, that employees of the DVA discriminated against plaintiff on the basis of her race, color and national origin in violation of Title VII of the Civil Rights Act of 1964. In a Memorandum and Order dated January 24, 2011...
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