Querim v. E.E.O.C.

• Decision Date: 06 March 2000
• Docket Number: No. 97 Civ. 4031(RPP).,97 Civ. 4031(RPP).
• Citation: 111 F.Supp.2d 259
• Parties: John QUERIM, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Spencer H. Lewis, individually and in his private capacity as District Director of the Equal Employment Opportunity Commission, New York Newspaper Printing Pressmen's Union # 2, Edward Fleming, individually and in his official capacity as President of the New York Newspaper Printing Pressmen's Union # 2, the New York Times Company, John O'Brien, individually and in his corporate capacity as Deputy General Manager of the New York Times Company, Defendants.
• Court: U.S. District Court — Southern District of New York

111 F.Supp.2d 259

John QUERIM, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Spencer H. Lewis, individually and in his private capacity as District Director of the Equal Employment Opportunity Commission, New York Newspaper Printing Pressmen's Union # 2, Edward Fleming, individually and in his official capacity as President of the New York Newspaper Printing Pressmen's Union # 2, the New York Times Company, John O'Brien, individually and in his corporate capacity as Deputy General Manager of the New York Times Company, Defendants.

No. 97 Civ. 4031(RPP).

United States District Court, S.D. New York.

March 6, 2000.

COPYRIGHT MATERIAL OMITTED

John Querim, New York City, pro se.

Proskauer Rose LLP, by Fredric C. Leffler, Lloyd B. Chinn, New York City, for Defendants the Times and O'Brien.

Skadden, Arps, Slate, Meagher & Flom LLP, by Lawrence A. Marcus, Carl G. Guida, New York City, for Defendants the Union and Edward Fleming.

EEOC Office of Legal Counsel, by Jeffrey T. Rosen, Washington, DC, for Defendant the EEOC.

Mary Jo White, United States Attorney, Southern District of New York, for Defendant Lewis.

OPINION AND ORDER

PATTERSON, District Judge.

All defendants move to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motions are granted as to all eight counts of the First Amended Complaint.

Background

The following facts are alleged in plaintiffs First Amended Complaint, dated August 22, 1997.

Plaintiff John Querim ("Querim") has been employed by the New York Times Company (the "Times") as a casual nonunion pressman since 1992 and was, at the time of the First Amended Complaint, listed on the Times' casual seniority hiring list. (First Am. Compl. ¶ 2.) On or around April 3, 1995, the Equal Employment Opportunity Commission ("EEOC") and the Times and the New York Newspaper Printing Pressmen's Union # 2 (the "Union") entered into a Title VII Consent Decree (the "Decree").

The Decree sets out an Affirmative Action Program to be implemented by the Times and the Union, the aims of which are:

to achieve a goal of twenty-five percent (25%) minority and female representation on the Casual List and a goal of twenty-five percent (25%) minority and female representation among the Junior Pressmen, certified by the Joint Apprenticeship Committee and offered membership in the Pressmen's Union, in the Times Co. bargaining unit represented by the Pressmen's Union.

(First Am. Compl., Ex. 3, ¶ 12(a).)

The Decree describes a delisting procedure, by which those persons on the Casual List who did not shape at least one shift between January 1, 1994 and June 30, 1994 are removed from the Casual List, with some exceptions. (First Am. Compl., Ex. 3, ¶ 11(a)-(b).) During the effective period of the Decree, persons on the Casual List are required to shape a minimum of forty-four shifts during each calendar year, with some exceptions. (First Am. Compl., Ex. 3, ¶ 11(c)-(d).)

The Affirmative Action Program includes a reformulation of the Casual List after the delisting: the Casual List is to start with the two most senior non-minority males, followed by the two most senior females or minority males, followed by the three next most senior non-minority males, followed by the next two most senior females or minority males, with the 3/2 reordering continuing until the list is exhausted. (First Am. Compl., Ex. 3, ¶ 13(a).) The Decree requires each female or minority male to sign and deliver to the Times a Release within sixty days of the entry of the Decree as a condition of having his/her position on the Casual List adjusted. (First Am. Compl., Ex. 3, ¶ 13(b).) Additional procedures are described in the Decree, to be implemented if the delisting and reformulation procedures do not result in at least 25% female and/or minority representation on the Casual List. (First Am. Compl., Ex. 3, ¶ 14(a).)

In or around July 1995, plaintiff's seniority was adversely affected by having at least ten minorities and females with less experience and seniority than plaintiff be placed above him on the Casual List. (First Am. Compl. ¶ 34.) Some eligible females and minorities declined to sign the Release required by ¶ 13(b) of the Decree within the designated time and, therefore, did not benefit from the reformulation of the Casual List in July 1995. (First Am. Compl. ¶ 35.) One of the stated goals of the Decree, 25% female and/or minority representation on the Casual List, was achieved before September 1996. (First Am. Compl. ¶ 36.)

An Agreement and Order was entered on September 3, 1996, by which the parties to the Decree agreed to an additional period during which eligible females and minorities could elect to sign the Release and have his/her placement on the Casual List adjusted as if he/she had signed the Release during the time originally proscribed by the Decree. (First Am. Compl., Ex. 4, Agreement and Order at 2-4.) The Agreement and Order explained that this opportunity was being given because: 1) "certain [eligible] females and minority males ... did not exercise their right to have their placement on the Casual List adjusted"; 2) "certain of those females and minority males now seek to sign the Release ... and to have their placement on the Casual List adjusted"; 3) a charge had been filed with the EEOC that the Decree was retaliatory under Section 704(a) of Title VII "insofar as it results in a failure to adjust the Casual List placement of minorities who did not exercise their rights" under the Decree; and 4) "the parties desire, in order to effectuate the purposes of the Consent Decree, to provide a further opportunity for females and minority males to have their placement on the Casual List adjusted pursuant to the Consent Decree." (First Am. Compl., Ex. 4, Agreement and Order at 1-2.)

Because of the second reformulation pursuant to the Agreement and Order, plaintiffs position on the Casual List was again "pushed back" on or around December 26, 1996. (First Am. Compl. ¶ 38.)

Plaintiffs First Amended Complaint contains a total of eight counts against six defendants. First, he complains of breach of the collective bargaining contract, in violation of 28 U.S.C. § 185, against the Times and the Union. (First Am. Compl. ¶ 43-51.) Second, he complains of breach of the duty of fair representation, in violation of 29 U.S.C. § 185, by the Union. (First Am. Compl. ¶ 52-54.) The Third Count of the First Amended Complaint alleges deprivation of the right to contract, in violation of 42 U.S.C. § 1981, by the Times and the Union. (First Am. Compl. ¶ 55-57.) The Fourth Count alleges Title VII employment discrimination by the Times, the Union, Edward Fleming ("Fleming"), President of the Union, and John O'Brien ("O'Brien"), Deputy General Manager of the Times. (First Am. Compl. ¶ 58-65.) Fifth, plaintiff complains of conspiracy by the Times, the Union, Fleming, and O'Brien to deprive plaintiff of his constitutional right to make and enjoy contracts and substantive and procedural due process, in violation of 42 U.S.C. § 1985(3), 42 U.S.C. § 1981, and the Fifth Amendment. (First Am. Compl. ¶ 66-69.) The Sixth Count alleges violation of 42 U.S.C. § 1986 by the Times, the Union, Fleming, and O'Brien. (First Am. Compl. ¶ 70-74.) The Seventh Count is against the EEOC, for going beyond its statutory and constitutional authority, in violation of the Administrative Procedures Act ("APA") and the Fifth Amendment. (First Am. Compl. ¶ 75-80.) Finally, the Eighth Count of the First Amended Complaint is a Bivens claim against Spencer H. Lewis ("Lewis"), the District Director of the New York Division of the EEOC, for violation of plaintiff equal protection and substantive and procedural due process rights under the Fifth Amendment. (First Am. Compl. ¶ 81-88.)

All defendants filed motions on January 27, 1998. Defendants O'Brien and the Times filed a motion to dismiss or, in the alternative, for summary judgment. The Union filed a motion to dismiss the First and Second Counts of the First Amended Complaint. Defendant EEOC filed a motion to dismiss. Finally, defendant Lewis filed a motion to substitute the United States as a party, to dismiss the First Amended Complaint or, in the alternative, for summary judgment, and for a stay of discovery. The Court will consider only defendants' motions to dismiss, not their motions for summary judgment, because discovery has not been completed in this case.

Discussion

I. Standard for Motion to Dismiss

When ruling on a motion for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor. See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). The complaint may only be dismissed where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The latter principle is to be applied with "particular strictness" when the plaintiff complains of a civil rights violation. See, e.g., Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir.1985); Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.1979); Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.1970). In evaluating the adequacy of pleadings on a motion to dismiss, the pleadings in a pro se complaint are held to a "less stringent standard than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In addition, a pro se complaint is to be liberally read when it implicates vindication of civil rights or civil liberty. Nilsson v. Coughlin, 670 F.Supp. 1186, 1188 (S.D.N.Y.1987).

II. Motion to Dismiss of the Times and O'Brien

Defendants the Times and O'Brien move to dismiss Counts 1, 3, 4, 5 and 6 of the First...