Ghartey v. St. John's Queens Hosp.

• Citation: 869 F.2d 160
• Decision Date: 28 February 1989
• Docket Number: M,AFL-CI,D,No. 354,354
• Parties: 130 L.R.R.M. (BNA) 2816, 57 USLW 2529, 111 Lab.Cas. P 10,985 Justina GHARTEY, Plaintiff-Appellant, v. ST. JOHN'S QUEENS HOSPITAL, Local 1199 Drug, Hospital and Health Care Employees Union, RWDSU,ary Kelly Quinn and Winifred Paul, Defendants-Appellees. ocket 88-7486.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 160

869 F.2d 160

130 L.R.R.M. (BNA) 2816, 57 USLW 2529,

111 Lab.Cas. P 10,985

Justina GHARTEY, Plaintiff-Appellant, v. ST. JOHN'S QUEENS HOSPITAL, Local 1199 Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO, Mary Kelly Quinn and Winifred Paul Defendants-Appellees.

No. 354, Docket 88-7486.

United States Court of Appeals Second Circuit.

Argued Nov. 18, 1988.

Decided Feb. 28, 1989.

Harold J. Johnson, White Plains, N.Y., for plaintiff-appellant.

Daniel J. Ratner, New York City (Eisner, Levy, Pollack & Ratner, New York City, of counsel), for defendant-appellee Local 1199.

Israel E. Kornstein, New York City (John F. Gibbons, Barbara E. Hoey, Kelley Drye & Warren, New York City, of counsel), for defendants-appellees Saint John's Queens Hosp., Mary Kelly Quinn and Winifred Paul.

Before LUMBARD, MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

Appellant Justina Ghartey filed suit alleging two causes of action arising from her termination from employment. The first cause of action named as defendants the appellees Saint John's Queens Hospital (the Hospital) and Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO (the Union). The second cause of action named as defendants the appellees Mary Kelly Quinn and Winifred Paul. The United States District Court for the Eastern District of New York, Nickerson, J., dismissed the first cause of action as untimely and the second for lack of federal subject matter jurisdiction. Ghartey appeals from that judgment. We reverse and remand.

BACKGROUND

According to the complaint, Ghartey was employed as a registered nurse by the Hospital from February 1984 until October 1986. During this period, she was a member of the Union. Ghartey was involved in an October 11, 1986 incident in which she allegedly shouted at and pushed another nurse, appellee Mary Kelly Quinn. On October 14, Hospital officials, two Union representatives and Ghartey attended a meeting at which Ghartey was informed of Quinn's account of the incident. After Ghartey submitted her written version of the incident, another meeting was held on October 16. At this meeting, also attended by Ghartey and Union representatives, Ghartey was told of the decision that she was terminated due to purported unprofessional behavior exhibited by her on a number of occasions, including the October 11 incident.

In December 1986, Ghartey met with a Union attorney in preparation for arbitration proceedings. The arbitration hearing began on January 5, 1987. On that day, the arbitrator heard the testimony of Quinn and appellee Winifred Paul, another employee of the Hospital. Paul supported Quinn's account of the October 11 incident. The arbitration hearing was adjourned until February 18, 1987. In the interim, Ghartey met with the Union attorney on one occasion, on February 12, 1987. More testimony was offered by the Hospital on February 18, when the arbitration hearing resumed. The hearing concluded on that day, with the only evidence offered by Ghartey through her Union attorney being her own testimony. The arbitrator issued his Opinion and Award on March 9, 1987, upholding the Hospital's discharge of Ghartey.

On September 8, 1987, Ghartey filed the complaint at issue here, alleging two causes of action. In her first cause of action, she alleged that the Hospital had wrongfully discharged her and that the Union had breached its duty of fair representation. In her second cause of action, she claimed that Quinn and Paul had intentionally interfered with her employment relationship with the Hospital.

The appellees filed pre-answer motions seeking dismissal of the complaint. The Union argued that the claim should be dismissed as untimely and, in the alternative, that Ghartey's demand for punitive damages should be dismissed. The Hospital, Quinn and Paul made the same arguments, together with the contention that the cause of action against Quinn and Paul was preempted by section 301 of the Labor Management Relations Act, 1947, 29 U.S.C. Sec. 185 (1982).

The district court, in a Memorandum and Order dated May 27, 1988, held that the cause of action against the Hospital and the Union was barred by the six month statute of limitations. The court also declined to exercise jurisdiction over the second cause of action, which asserted a pendent state law claim against Quinn and Paul. Judgment for the defendants was entered on June 6, 1988, and the case was dismissed.

In this appeal, Ghartey argues that the district court erred in holding her first cause of action time-barred. She maintains that her cause of action against the Hospital and the Union accrued no earlier than the day the arbitrator issued the award, March 9, 1987, and perhaps even later, when she received notice of the award. Thus, she argues, her filing of the complaint

on September 8, 1987 was within the six month statute of limitations period. We agree that the statute of limitations does not bar Ghartey's claim, and we therefore reverse the judgment of the district court and remand the case for further proceedings.

DISCUSSION

A. The Motion to Dismiss

As a preliminary matter, we note some confusion in the record concerning procedural issues with respect to the dismissal of Ghartey's claim against the Hospital and the Union. In making their pre-answer motions for dismissal, the Hospital, Quinn and Paul cited both Fed.R.Civ.P. 12(b)(1) and (6), while the Union simply cited Rule 12(b). The judgment entered by the Clerk of the Court stated that the entire case was dismissed for lack of jurisdiction, though Judge Nickerson's Memorandum might be understood to have meant that only the pendent state law claim was to be dismissed on that basis.

Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted rather than a Rule 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter. See Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982); see also Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir.1985), cert. denied, 475 U.S. 1028, 106 S.Ct. 1230, 89 L.Ed.2d 339 (1986); 5 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1277, at 335-37 (1969 & Supp.1987). The distinction could prove significant in cases where the district court considers matters outside the pleadings. See Fed.R.Civ.P. 12(b); Gordon, 675 F.2d at 360 & n. 3; cf. Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). But in this case, the district court apparently considered only the facts asserted in Ghartey's complaint, along with the legal arguments of the parties made in support of and in opposition to the motion. Procedurally, the court's dismissal of the claim against the Hospital and the Union was thus consistent with proper Rule 12(b)(6) analysis, see Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988) (factual allegations in briefs or memoranda may not be considered in Rule 12(b)(6) motion); Nix v. Fulton Lodge No. 2 of the International Association of Machinists and Aerospace Workers, 452 F.2d 794, 797-98 (5th Cir.1971), cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972); 5 C. Wright, A. Miller & M. Kane, supra, Sec. 1364, and we consider the court to have dismissed Ghartey's first cause of action on that basis.

B. The Timeliness of the Cause of Action Against the Hospital and the Union

1. The Applicable Statute of Limitations

Ghartey's cause of action against the Hospital and the Union is technically a combination of two claims. The suit alleges both that the Hospital breached a collective bargaining agreement by wrongfully discharging her, in violation of the Labor Management Relations Act, 1947, 29 U.S.C. Sec. 185, and that the Union, by inadequately representing her in the subsequent grievance and arbitration proceedings, breached its implied duty of fair representation. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65 & n. 14, 103 S.Ct. 2281, 2290-91 & n. 14, 76 L.Ed.2d 476 (1983). The statute of limitations for this so-called "hybrid" action is six months. See id., 462 U.S. at 169-72, 103 S.Ct. at 2293-95; King v. New York Telephone Co., 785 F.2d 31, 33 (2d Cir.1986).

2. Accrual of the Cause of Action

The determinative question we must answer is did the cause of action accrue more than six months before suit was brought. Ghartey contends that her cause of action accrued no earlier than March 9, 1987, the day the arbitration award upholding "The general rule in this circuit is that a cause of action accrues when 'the plaintiff could first have successfully maintained a suit based on that cause of action.' " King, 785 F.2d at 33 (quoting Santos v. District Council, 619 F.2d 963, 968-69 (2d Cir.1980) (in turn quoting Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973))).

her discharge was issued. Thus, she argues, her filing of the complaint on September 8, 1987 was within the six month limitations period. The appellees' position, on the other hand, is that because proof of the Union's breach of duty in representing Ghartey is an essential part of her claim, see DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291, accrual occurred when the last of the Union's representative acts occurred, i.e., on the final day of the arbitration hearing, at the latest.

The appellees argue that Ghartey could have maintained her suit at any time after a breach in the Union's duty of fair representation. For example, if, as Ghartey alleges, the Union committed a breach during the arbitration hearing by failing to arrange for the testimony of a supporting witness, the appellees contend that she could have filed this suit at that moment.

We...