Marshall v. National Association of Letter Carriers BR36, 03 Civ. 1361 (LTS) (AJP) (S.D.N.Y. 11/7/2003)

• Decision Date: 07 November 2003
• Docket Number: 03 Civ. 1361 (LTS) (AJP).
• Parties: GUY MARSHALL, Plaintiff, v. NATIONAL ASSOCIATION OF LETTER CARRIERS BR36, NATIONAL ASSOCIATION OF LETTER CARRIERS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NATIONAL LABOR RELATION BOARD, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, POSTMASTER GENERAL, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

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GUY MARSHALL, Plaintiff, v. NATIONAL ASSOCIATION OF LETTER CARRIERS BR36, NATIONAL ASSOCIATION OF LETTER CARRIERS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NATIONAL LABOR RELATION BOARD, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, POSTMASTER GENERAL, et al., Defendants.

03 Civ. 1361 (LTS) (AJP).

United States District Court Southern District of New York.

November 7, 2003.

To the Honorable Laura Taylor Swain, United States District Judge:

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Guy Marshall brought this action against his former employer, the United States Postal Service ("USPS"), his union (and its local chapter) (collectively, the National Association of Letter Carriers ("NALC")), the National Labor Relation Board ("NLRB"), the Equal Employment Opportunity Commission ("EEOC"), and numerous employees of the above organizations, alleging, inter alia, violations of Title VII, conspiracy under 42 U.S.C. §§ 1981, 1983, 1985 and 1986, breach of a collective bargaining agreement, and defamation and libel. (Dkt. No. 2 Compl.) This action is at least the fourth lawsuit by Marshall in this Court relating to the same events, i.e., his employment and termination by the USPS. Judge Swain dismissed two of those actions, 00 Civ. 3167 and 01 Civ. 3086, and this Court denied Marshall's recent motion for a preliminary injunction in this action. Marshall v. National Ass'n of Letter Carriers Br. 36, 03 Civ. 1361, 2003 WL 22119882 (S.D.N.Y. Sept. 15, 2003) (Peck, M.J.); Marshall v. National Ass'n of Letter Carriers Br. 36, 00 Civ. 3167, 01 Civ. 3086, 2003 WL 223563 (S.D.N.Y. Feb. 3, 2003) (Swain, D.J.).¹ Presently before the Court are motions to dismiss Marshall's latest complaint by defendants USPS, NALC, EEOC and the NLRB.

For the reasons set forth below, all motions to dismiss should be granted, and this action should be dismissed in its entirety, with prejudice, against all defendants.

FACTS

Marshall's 00 Civ. 3167 Complaint ("Marshall I")

On June 26, 2000, Marshall filed an amended complaint against NALC, USPS, Desmond Bailey, and Kenneth Wavpovitch. (00 Civ. 3167, Dkt. No. 4: Marshall I Am. Compl.) Marshall alleged that he was harassed and terminated by his supervisors for discriminatory reasons. Among other confusing claims, he alleged "a conspiracy under 42 U.S.C. 1983, 42 U.S.C. 1985, and 42 U.S.C. 1986," "defamation (libel and slander) in federal employment" and "Discrimination and Harassment in his employment under Title VII." (Marshall I Am. Compl. ¶¶ 4, 6-7.) In support of these allegations, Marshall described post office charges that he titled "Delaying the Mail" and "Late Lunch." The "Delaying the Mail" charge related to a 1993 incident in which Marshall was charged with delaying the mail. (Marshall I Am. Compl. at 3-8.) Marshall claimed that he was innocent, that Mr. Wavpovitch violated his rights during the grievance procedures, that his union representative was negligent in representing him, and that the union then covered up the actions of its union members. (Marshall I Am. Compl. at 3-8.) Marshall also alleged that NALC discriminated against him and defamed him during the grievance process. (Am. Compl. at 6.) The "Late Lunch" charge related to a 1998 incident in which Marshall's partner was caught drinking an alcoholic beverage while on duty. (Marshall I Am. Compl. at 9-13.) USPS charged Marshall for taking a late lunch on that day. Marshall alleged that NALC and USPS discriminated and conspired against him when they attempted to fire him in order to save his partner's job. (Marshall I Am. Compl. at 9-13.) Marshall alleges that "[t]he last overt act occurred when [Marshall] was wrongfully and unjustly terminated in October 1999. [Marshall] was charged with, (1) delaying the mail, (2) failure to follow instruction of a supervisor, (3) refusal to deliver priority mail, (4) falsifying the integrity of the mail count." (Marshall I Am. Compl. at 13 n.3.)

Marshall's 01 Civ. 3086 Complaint ("Marshall II")

On January 25, 2001, Marshall filed his second in this series of complaints, for Title VII discrimination, against Wavpovitch, USPS and NALC. (01 Civ. 3086, Dkt. No. 1: Marshall II Compl.) In the section directing the plaintiff to describe the alleged discriminatory conduct, Marshall checked off "Unequal terms and conditions of my employment" and typed in "Harassment" next to the space provided for "Other acts." (Marshall II Compl. ¶ 4.) Marshall alleged that the discriminatory conduct occurred on November 23, 1993, and that as of the date of the complaint the acts were not still being committed. (Marshall II Compl. ¶ 5.) In the section of the complaint asking for facts, Marshall typed "SEE Attached Documents, Docket # 00 Civ. 3167." (Marshall II Compl. ¶ 8.) The documents that Marshall attached were all dated between 1993 and 1995, and concern his various grievances and suspensions during that time period. (Marshall II Compl. Att.)

Judge Swain's February 3, 2003 Decision Dismissing Marshall I & II

All defendants named in Marshall I and Marshall II (NALC, NALC Br. 36, Desmond Bailey, Kenneth Wavpovitch, and USPS) filed motions to dismiss the two complaints. Judge Swain issued an opinion on February 3, 2003 dismissing the Marshall I and Marshall II complaints. See Marshall v. National Ass'n of Letter Carriers Br. 36, 00 Civ. 3167, 01 Civ 3086, 2003 WL 223563 (S.D.N.Y. Feb. 3, 2003) (Swain, D.J.).² Due to the confusing way that Marshall wrote his pro se pleadings, the claims alleged in Marshall I and Marshall II were unclear, and Judge Swain had to determine what were the most likely claims being asserted by Marshall. Judge Swain construed the Marshall I and II complaints as follows:

The Court has previously held that the complaint in Marshall I will be construed as a hybrid duty of fair representation/breach of collective bargaining agreement action under the Postal Reorganization Act ("PRA"), 39 U.S.C. section 1208(b), (c). See Marshall v. NALC, et. al, No. 00 Civ. 3167, Order at 4-5 (J. Mukasey, April 26, 2000). Plaintiff's second suit, which has been assigned docket number 01 Civ. 3086 ("Marshall II"), refers to the Marshall I complaint and asserts employment discrimination, harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, naming as defendants Kenneth Wavpotich, USPS and Branch 36.

. . . .

The Amended Complaint in Marshall I details 1993 "delaying mail" and 1998 "late lunch" disciplinary proceedings and related grievances, and allegations of irregularities in connection therewith. In the amended Marshall I complaint, Plaintiff further alleged conspiracy and, contrary to Judge Mukasey's direction in the April 2000 order, reiterated civil rights claims and asserted a Title VII claim as well. Plaintiff did not allege receipt of, or attach, a right to sue letter.

The Marshall I complaint generally alleges breaches of duty of fair representation and of a collective bargaining agreement in connection with disciplinary actions, grievances and related proceedings arising in the course of Plaintiff's employment with USPS. The complaint further alleges that all of the disciplinary actions and alleged procedural irregularities were part of a conspiracy to deprive Plaintiff of civil rights in violation of 42 U.S.C. sections 1983, 1985 and 1986. The complaint alleges a conspiracy which began with the 1993 disciplinary actions and continued through the October 15, 1999, termination of Plaintiff from USPS employment. . . .

The Marshall II complaint alleges discriminatory conduct on the basis of race consisting of unequal terms and conditions of employment in violation of Title VII, as well as harassment and retaliation. This complaint contains no new factual allegations, referring to the Marshall I complaint for the relevant facts. Plaintiff also attaches an Equal Employment Opportunity Commission ("EEOC") right to sue letter, apparently arising from a 1995 administrative complaint against the USPS. Plaintiff alleges that he was disciplined for delaying the mail and for being involved in two motor vehicle accidents.

Marshall v. National Ass'n of Letter Carriers Br. 36, 2003 WL 223563 at *1-3.

Judge Swain granted the USPS's and NALC's motions to dismiss both the Marshall I & II complaints in their entirety, for the following reasons: (1) NALC's motion to dismiss Marshall I was granted because the fair representation and breach of collective bargaining agreement claims against NALC were time-barred and because the civil rights claims were previously dismissed, id. at *4-5; (2) the USPS defendants' motion to dismiss Marshall I was granted because of untimeliness, sovereign immunity, and failure to state a claim under 42 U.S.C. § 1983, Marshall v. National Ass'n of Letter Carriers Br. 36, 2003 WL 223567 at *5-7; (3) the USPS defendants' motion to dismiss the Marshall II complaint was granted because of untimeliness, insufficient facts to support a racial discrimination claim, and failure to state a viable retaliation scheme, id. at 7-9; and (4) NALC's motion to dismiss the Marshall II complaint was granted because Marshall nowhere alleged that he had received a right to sue letter against NALC, which is a requirement before bringing a federal suit under Title VII, id. at *9.

Marshall's Current Complaint ("Marshall III")

Marshall's current complaint appears to list twelve claims: (1) Title VII discrimination and retaliation "involving the last two cases"; (2) "43 USC 81, 83, 85, 86" conspiracy³; (3) Continuing violation doctrine; (4) 5th Amendment violation; (5) Disparate treatment; (6) Bivens Action; (7) 8th Amendment — cruel and unusual punishment; (8) Constitutional ex post facto; (9) Defamation, libel and slander; (10) Involuntary servitude under the Thirteenth Amendment; (11) Bias and prejudice civil action; and (12) Pattern and practice action. (Dkt. No. 2: Compl. at 3) Defendants in Marshall III are...