Watson v. New York State United Teachers Union Local Librarians Association of the Buffalo and Erie County Public Library

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Case 1:23-cv-00356-JLS-LGF
Document 31 Filed 12/23/25 Page 1 of 37
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
TRACEY WATSON,
Plaintiff,
V.
NEW YORK STATE UNITED TEACHERS UNION LOCAL LIBRARIANS ASSOCIATION OF THE BUFFALO AND ERIE COUNTY PUBLIC LIBRARY,
REPORT and RECOMMENDATION
DECISION and ORDER
23-CV-356-JLS(F)
Defendant.
APPEARANCES:
TRACEY WATSON, Pro Se
14460 Falls of Neuse Road
Suite 149-105
Raleigh, North Carolina 27614
NEW YORK STATE UNITED TEACHERS OFFICE OF GENERAL COUNSEL
Attorney for Defendants JENNA S. BURKE, of Counsel 270 Essjay Road Williamsville, New York 14221 and JENNIFER NICOLE COFFEY, of Counsel 800 Troy-Schenectady Road Latham, New York 12110-6488
JURISDICTION
This case was referred to the undersigned by Honorable John L. Sinatra, Jr. on February 19, 2025, for all pretrial matters including preparation of a report and recommendation on dispositive motions. (Dkt. 8). The matter is presently before the court on Defendants' motion to dismiss (Dkt. 14), filed May 1, 2025, and Plaintiff's motions for leave to file a sur-reply (Dkt. 21), filed July 11, 2025, for leave to file an amended complaint (Dkt. 23), filed July 18, 2025, for an order directing the U.S.
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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Marshals Service to serve Defendant with the summons and original complaint (Dkt.
25), also filed July 18, 2025. On August 12, 2025, Plaintiff filed a motion to strike (Dkt.
28) (“Plaintiff’s Motion to Strike”)1
BACKGROUND
On April 21, 2023, Plaintiff Tracey Watson (“Plaintiff”), proceeding pro se,
commenced this race-based employment discrimination action asserting claims against
New York State United Teachers Union Local Librarians Association of the Buffalo &
Erie County Public Library,2 filing a motion for leave to proceed in forma pauperis (“IFP”)
(Dkt. 2). Plaintiff alleges Defendant breached its duty of fair representation (“breach of
duty”) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e –
2000e-17 (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), the National Labor Relations Act
(“NLRA”) §§ 8(b) and 9(a), 29 U.S.C. §§ 158(b) and 159(a), and the Labor Management
Relations Act (“LMRA”) § 301, 29 U.S.C § 185, as well as for violations of New York
State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL” or “§ 296”) and breach of
contract, and also discriminated against Plaintiff based on her race in violation of Title
VII.3 Attached to the Complaint are exhibits A through H (“Complaint Exh(s). __”).4 By
1 Although Defendant’s motion to dismiss is dispositive, as is Plaintiff’s motion for leave to file an
amended complaint if it is denied, Plaintiff’s motions for leave to file a sur-reply and for an order directing
service by the U.S. Marshal are non-dispositive. In the interest of judicial economy and clarity, all motions
are discussed in the combined Report and Recommendation and Decision and Order.
2 Defendants are incorrectly named in the caption as New York State United Teachers Union Local
Librarians Association of the Buffalo and Erie County Public Library, implying a single defendant, whereas
there are actually two defendants, including New York State United Teachers, and Librarians Association
of the Buffalo & Erie County Public Library.
3 The violations alleged by Plaintiff are not asserted as separate claims for relief.
4 Additional exhibits are attached to Complaint Exh. C. In the interest of clarity, specific page references
to the CM/ECF docket are provided for all exhibits.
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letter dated March 30, 2024, Plaintiff inquired as to the status of the case. (Dkt. 5). On
February 18, 2025, Plaintiff’s motion for IFP status was granted (Dkt. 6), with the U.S.
Marshals directed to serve copies of the summons and Complaint on Defendants.
On March 12, 2025, Jenna S. Burke, Esq. (“Burke”) filed an appearance of
counsel for New York State United Teachers (“NYSUT”) and Librarians Association of
the Buffalo & Erie County Public Library (“Union” or “Librarians Association”) (together,
“Defendants”). According to executed summons returned on March 17, 2025 (Dkt. 10),
New York State United Teachers Union Local Librarians Association of the Buffalo and
Erie County Public Library was served on March 12, 2025, with the answer due by April
2, 2025. On March 18, 2025, Jennifer N. Coffey, Esq. (“Coffey”) filed an appearance of
counsel for both Defendants. By letter to the undersigned dated March 18, 2025 (Dkt.
12), Burke clarified that NYSUT was served with process, and both Defendants waived
personal service on March 12, 2025. Burke also requested an extension of time for
Defendant to answer, which was granted on March 30, 2025 (Dkt. 13), with Defendants
given until May 2, 2025 to answer.
On May 1, 2025, Defendants filed the instant motion to dismiss the Complaint for
failure to state a claim (Dkt. 14) (“Defendants’ Motion”), attaching the Declaration [of
Burke]5 in Support of Defendants’ Motion to Dismiss the Complaint (Dkt. 14-1) (“Burke
Declaration”), exhibits A and B (Dkts. 14-2 and 14-3) (“Defendants’ Exh(s). __”), and the
Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint (Dkt.
14-4) (“Defendants’ Memorandum”). On June 12, 2025, Plaintiff filed a letter (Dkt. 18)
explaining that she inadvertently filed Plaintiff’s Response in Opposition to Defendant’s
5 Unless otherwise indicated, all bracketed material has been added.
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[sic] Motion to Dismiss (“Plaintiff’s Response”), in a different case, attaching Plaintiff’s
Response as Exhibit A (Dkt. 18 at 4-16). On June 20, 2025, Defendants filed the Reply
Memorandum of Law in Further Support of Defendants’ Motion to Dismiss the
Complaint (Dkt. 20) (“Defendants’ Reply”). On July 11, 2025, Plaintiff moved for leave
to file a sur-reply (Dkt. 21) (“Plaintiff’s Sur-Reply Motion”), attaching as Exhibit A the
putative sur-reply (“Dkt. 21 at 7-13) (“Plaintiff’s Sur-Reply”). On July 15, 2025,
Defendants filed Defendants’ Opposition to Plaintiff’s Motion for Leave to File Sur-Reply
(Dkt. 22) (“Defendants’ Sur-Reply Opposition”).
On July 18, 2025, Plaintiff filed a motion seeking leave to file an amended and
supplemental complaint (Dkt. 23) (“Plaintiff’s Motion to Amend”), attaching the Motion
and Memorandum of Law in Support of Plaintiff’s Motion for Leave to File First
Amended and Supplemental Complaint (Dkt. 23 at 4-11) (“Plaintiff’s Memorandum in
Support of Amendment”), the proposed First Amended and Supplemented Complaint
(Dkt. 23 at 16-90) (“Proposed Amended Complaint”), and exhibits A through B (Dkts.
23-1 through 23-3) (“Plaintiff’s Exh(s). __”). That same day, Plaintiff also filed a motion
seeking an order directing the U.S. Marshals Service to serve Defendants with the
summons and original complaint (Dkt. 25) (“Plaintiff’s Motion for Service of Process”),
attaching Exhibits A through D (Dkts. 25-1 through 25-5). Plaintiff also filed on July 18,
2025, an amended summons. (Dkt. 26).
On August 8, 2025, Defendants filed the Memorandum of Law in Opposition to
Plaintiff’s Motion for Leave to File and Amended and Supplemental Complaint (Dkt. 27)
(“Defendants’ Response”). On August 12, 2025, Plaintiff moved to strike Defendants’
Response (Dkt. 28) (“Plaintiff’s Motion to Strike”). On August 25, 2025, Defendants filed
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the Declaration [of Burke] in Opposition to Plaintiff’s Motion to Strike (Dkt. 30) (“Burke
Response Declaration”). Oral argument was deemed unnecessary.
Based on the following, Defendants’ Motion should be GRANTED; Plaintiff’s Sur-
Reply Motion is GRANTED with Plaintiff’s Sur-Reply deemed filed nunc pro tunc;
Plaintiff’s Motion to Amend should be DENIED; Plaintiff’s Motion for Service of Process
is DISMISSED as moot, and Plaintiff’s Motion to Strike is DENIED.
FACTS6
On October 7, 2021, Plaintiff Tracey Watson (“Plaintiff” or “Watson”), accepted
an offer of employment as a Part-Time Librarian I extended from Buffalo and Erie
County Public Library (“the Library”), where Plaintiff commenced working in the
Children’s Department at the Central Library location on November 6, 2021. Defendant
New York State United Teachers (“NYSUT”) is a federation of local labor unions
including Defendant Librarians Association of the Buffalo & Erie County Public Library
(“Union” or “ Librarians Association”) (together, “Defendants”). A collective bargaining
agreement between the Library and the Union (“CBA”),7 provides the terms and
conditions for all bargaining union members. On February 4, 2022, Plaintiff joined the
Librarians Association, thereby also becoming a member of NYSUT, and union dues
were then withheld from Plaintiff’s paycheck beginning February 8, 2022.
On February 15, 2022, Plaintiff was asked by her direct supervisor, Kristi
Dougherty (“Dougherty”), Manager of Children’s Services and Outreach of the Library
6 Taken from the Complaint and the attached exhibits filed in this action.
7 A copy of the CBA is filed as Defendant’s Exh. A (Dkt. 14-2).
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and the Librarians Association’s Recording Secretary to attend a Record of Counsel
meeting on February 17, 2022 (“the counseling meeting”). The counseling meeting was
to address matters of communication matters between Plaintiff and one Lucylle
Castaneda (“Castaneda”), but was not a disciplinary proceeding. In an e-mail sent
February 16, 2022, Plaintiff requested Dougherty provide Union representation at the
counseling meeting. Dougherty replied that she spoke with Judy Fachko (“Fachko”),
Assistant Deputy Director of Human Resources for the Library, and Andrew Maines
(“Maines”), the Union President, and that Union representation would be provided.
Jennifer Lelinski (“Lelinski”), a Children’s Library, represented the Union at the
counseling meeting on February 17, 2022. According to Plaintiff, during the counseling
meeting, Lelinski admitted she did not know what she was doing. The matters
discussed at the counseling meeting included communications between Plaintiff and
several co-workers relating to proper tone of voice, body language, and noise level.
Complaint Exh. C (Dkt. 1) at 19-33. On February 18, 2022, Lelinski e-mailed Plaintiff
advising Plaintiff could “reach back out to the ‘employer,’ Judy Fachko, Assistant Deputy
Director of Human Resources” about the procedure to file a grievance regarding
discrimination. Complaint ¶ 8 and Exh. G to Complaint Exh. D (Dkt. 1 at 48-49).
Sometime during the week beginning February 20, 2022, Plaintiff spoke with
Maines regarding the procedure to submit a grievance and mentioned “what I [Watson]
was experiencing.” Complaint ¶ 9. Maines responded that Plaintiff had time to submit
her grievance. On February 25, 2022, Plaintiff met with Fachko who said Plaintiff
should not have been represented at the counseling meeting by Lelinski.
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On March 14, 2022, Plaintiff submitted a grievance (“Internal Grievance”)8 to
Jeannine M. Doyle (“Doyle”), then Interim Director of the Library, and Union President
Maines, regarding Plaintiff’s alleged race discrimination, harassment, and hostile work
environment including that Plaintiff was being treated differently and unfavorably
because of her race. On March 17, 2022, Plaintiff received Doyle’s decision denying
the Internal Grievance and a few hours later, Plaintiff’s employment at the Library was
terminated. Present at the termination meeting were Plaintiff, Dougherty, Fachko, and
Maines, all of whom were aware that Plaintiff had filed the internal grievance, yet the no
statement was made on behalf of the Union which also took no action in response to the
termination of Plaintiff’s employment.
Later on March 17, 2022, after Plaintiff’s employment was terminated, Plaintiff
sent an e-mail to one John Gaff (“Gaff”),9 stating “I was wrongfully fired today,” adding
that Plaintiff wanted to participate in the Library Association’s general membership
meeting scheduled to be held the following day, March 18, 2022, via Zoom. Complaint
¶ 13 and Complaint Exh. D (Dkt. 1 at 93-94). In an e-mail sent March 18, 2022, Gaff
responded that Plaintiff was ineligible to attend Union meetings following the termination
of her employment on March 17, 2022, adding that as a probationary employee, Plaintiff
could be “removed from service without cause.” Complaint ¶ 14 and Complaint Exh. E
(Dkt. 1 at 95-96). On March 21, 2022, Plaintiff sent Gaff an e-mail advising that Union
dues were deducted from Plaintiff’s March paycheck. Complaint ¶ 15 and Complaint
Exh. F (Dkt. 1 at 97-98).
8 A copy of the Internal Grievance is filed as Complaint Exh. C (Dkt. 1 at 16-33).
9 Gaff’s position is not clear from the record but the context of Plaintiff’s e-mail suggests Gaff had some
position of authority with the Union.
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On June 4, 2022, Plaintiff filed an EEOC Charge of Discrimination regarding the
termination of her employment (“EEOC Charge”); on August 8, 2022, Plaintiff filed an
Amended EEOC Charge of Discrimination (“Amended EEOC Charge”).10 In a Position
Statement dated August 24, 2022 (“Position Statement”),11 Robert T. Reilly, Esq.
(“Reilly”), General Counsel to Defendants, responded to the Amended EEOC Charge
explaining that the Librarians Association is a labor organization of which Maines is the
president. Reilly explains that the Librarians Association did not breach its duty of fair
representation to Plaintiff because Plaintiff, as an employee of less than two years, was
not yet covered by Article 6 of the CBA pertaining to grievances and disciplinary
procedures, Position Statement at 3-4 (Dkt. 1 at 102-03), and Plaintiff did not assert in
the Amended EEOC Charge any factual allegations that the Librarians Association was
motivated by discriminatory animus. Id., at 4-5 (Dkt. 1 at 103-04). On September 14,
2022, Plaintiff replied to the Position Statement (“Position Statement Reply”).12 On
January 23, 2023, the EEOC issued its Determination and Notice of Rights (“Right to
Sue”).13 This action followed.
DISCUSSION
1. 	Motion for Service of Process
10 The court notes that no copy of the EEOC Charge is in the record, but a copy of the Amended EEOC
Charge is filed as Complaint Exh. H (Dkt. 1 at 110-18).
11 Complaint Exh. G (Dkt. 1 at 99 - 104).
12 Complaint Exh. H at 107-08.
13 Complaint Exh. H at 109.
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On July 18, 2025, Plaintiff filed Plaintiff’s Motion for Service of Process seeking
an order directing the U.S. Marshals Service to serve Defendants with the summons
and original complaint. The motion pertains to the fact that Plaintiff has named as
Defendant New York State United Teachers Union Local Librarians Association of the
Buffalo and Erie County Public Library which is the entity that the executed summons
returned on March 17, 2025 indicates was served. As stated, however, the Defendants
to this action include NYSUT and the Librarians Association. Accordingly, Plaintiff’s
Motion for Service of Process is intended to ensure both Defendants are served with
process.
Plaintiff’s Motion for Service of Process is, however, unnecessary because in the
Notice of Appearance filed March 12, 2025, Burke indicates she is appearing as
counsel for both Defendants. Dkt. 9. Similarly, in the Notice of Appearance filed March
18, 2025, Coffey indicates she is appearing as counsel for both Defendants. Dkt. 11.
Further, in a letter to the undersigned dated March 18, 2025 (Dkt. 12), Burke clarified
that NYSUT was served with process, and both Defendants waived personal service on
March 12, 2025. Further service of process on Defendants thus is not necessary.
Plaintiff’s Motion for Service of Process is DISMISSED as moot.
2. 	Plaintiff’s Sur-Reply Motion
Plaintiff’s Sur-Reply Motion seeks leave to file a sur-reply in further opposition to
Defendants’ Motion seeking to dismiss the Complaint, attaching a copy of the proposed
Plaintiffs [sic] Memorandum Sur Reply in Further Opposition to Defendants [sic] Motion
to Dismiss (Dkt. 21 at 8-13) (“Plaintiff’s Sur-Reply”), in which Plaintiff argues a sur-reply
is necessary to permit Plaintiff to respond to arguments raised for the first time in
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Defendants’ Reply in further support of Defendants’ Motion. Plaintiff’s Sur-Reply at 9-
10. Defendants argue in opposition to Plaintiff’s Sur-Reply Motion that the requested
sur-reply is unnecessary because Defendants’ Reply did not raise any new arguments.
Defendants’ Sur-Reply Opposition at 4-5.
As relevant, the Local Rules of Civil Procedure – W.D.N.Y. provide that “[a]bsent
permission of the Judge hearing the motion, sur-reply papers are not permitted.” Loc.
R. Civ. P. 7(a)(6). Further, “‘whether to permit the filing of a sur-reply is entirely within
the Court's discretion.’” Bradshaw v. Piccolo, 772 F. Supp. 3d 331, 341 (W.D.N.Y.
2025) (quoting Marseet v. Rochester Inst. of Tech., 2022 WL 2718509, at *1 (W.D.N.Y.
July 13, 2022), and citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)
(“A district court has broad discretion to determine whether to overlook a party's failure
to comply with local court rules.”), abrogated on other grounds by Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009)).
In the instant case, Plaintiff is correct that Defendants’ Memorandum, i.e.,
Defendants’ original memorandum of law filed in support of Defendants’ Motion seeking
dismissal of the Complaint, did not address Plaintiff’s § 1981 claim. Plaintiff’s Response
at 6-7; Plaintiff’s Sur-Reply at 9. Nor does Defendants’ Memorandum address Plaintiff’s
breach of contract claim. Plaintiff’s Response at 8-9; Plaintiff’s Sur-Reply at 10.14
Nevertheless, rather than considering Defendants to have waived opposition to these
claim, as Plaintiff suggests, Plaintiff’s Response at 6-9, the undersigned finds it is more
judicially efficient to, in the exercise of discretion, Capaccio v. Zafuto, 2025 WL 723207,
14 Defendants’ failure to separately address these claims could be attributed to the fact that the various
claims in the Complaint are set forth in a single paragraph referencing the relevant statutes Plaintiff
maintains were violated, rather than as separate claims. Complaint at 2-4 (Dkt. 1 at 8-9).
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at *3 n. 14 (W.D.N.Y. Mar. 6, 2025) (“The court has discretion to consider arguments
presented in a party's reply.” (citing Am. Hotel Int'l Grp., Inc. v. OneBeacon Ins. Co., 611
F. Supp. 2d 373, 375 (S.D.N.Y. 2009) (“[T]he Second Circuit has made it abundantly
clear that a district court has discretion to consider a belatedly-raised argument [in
reply]” (emphasis original)), aff'd, 374 Fed.Appx. 71 (2d Cir. 2010)), consider
Defendants’ arguments asserted for the first time in Defendants’ Reply. Because the
undersigned will consider Defendants’ arguments asserted for the first time in their
reply, the undersigned also, in his discretion, determines that Plaintiff should be
permitted to file a sur-reply, and considers the proposed sur-reply attached to Plaintiff’s
Sur-Reply as filed nunc pro tunc.
Plaintiff’s Sur-Reply Motion is GRANTED with Plaintiff’s Sur-Reply considered as
filed nunc pro tunc.
3. 	Plaintiff’s Motion to Strike
Plaintiff moves to strike15 Defendants’ Sur-Reply Opposition (Dkt. 22), filed in
opposition to Plaintiff’s Sur-Reply Motion, and Defendants’ Response (Dkt. 27) filed in
opposition to Plaintiff’s Motion to Amend, arguing the papers were prepared by Reilly
who has not entered an appearance on behalf of Defendants as well as that the
documents were not accompanied by certificates of service indicating service was
completed in accordance with Fed.R.Civ.P. 5(d)(1) (“Rule 5(d)(1)”), and Local Rule of
Civil Procedure – W.D.N.Y. 5.1 (“Local Rule 5.1”), such that it is not clear that Plaintiff
was properly served with Defendants’ Response and Defendant’s Sur-Reply
15 Plaintiff’s Motion to Strike also sought an extension of time to file a reply in further support of Plaintiff’s
Motion to Amend. Plaintiff’s Motion to Strike at 1, 3. In a Text Order entered August 12, 2025 (Dkt. 29),
the undersigned granted that portion of Plaintiff’s Motion to Strike and the court thus does not further
address the request for an extension of time.
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Opposition. Plaintiff’s Motion to Strike at 4. Plaintiff further argues Defendants’ counsel
has engaged in tactics designed to disadvantage Plaintiff as a pro se litigant including
filing papers prepared by Reilly, failing to serve Plaintiff with papers, and raising
dispositive arguments prematurely and without proper notice. Id. Defendants have not
argued in opposition to these assertions.
Regarding Plaintiff’s argument that certain papers were prepared by Reilly who is
not an attorney of record, a plain review of such papers establishes that regardless of
who prepared them, the papers were filed by Burke. See Defendants’ Sur-Reply
Opposition (Dkt. 22), filed in opposition to Plaintiff’s Sur-Reply Motion at 5, and
Defendants’ Response (Dkt. 27) filed in opposition to Plaintiff’s Motion to Amend at 15.
There thus is no merit to this argument.
Insofar as Plaintiff moves to strike certain documents prepared by Reilly on
behalf of Defendants because she was not separately served with such documents,
Plaintiff, in moving on June 12, 2025, for electronic filing privileges (Dkt. 17) (“Electronic
Filing Motion”), specifically affirmed that she had “successfully completed the Court’s
CM/ECF e-filing training” and “reviewed the Court’s Administrative Procedures Guide for
Electronic Filing,” Electronic Filing Motion ¶ 1, “registered for a PACER Account” for
which Plaintiff bears “sole responsibility” to ensure the related information is correct
including Plaintiff’s e-mail address for notifications, id. ¶ 3, that Plaintiff “understand[s]
the technological requirements necessary to file and receive documents electronically,”
id. ¶ 4, and, significantly, that Plaintiff had “registered for electronic service.” Id. ¶ 5.
Relevantly, the court’s Administrative Procedures Guide for Electronic Filing (“Electronic
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Filing Guide”)16 provides that “Registered users [of CM/ECF] consent to the electronic
service of all documents, and must make available an electronic mail address for
service during the registration process.” Electronic Filing Guide § 2(F)(i) (Oct. 2022).
In granting Plaintiff’s Electronic Filing Motion, the undersigned specifically
observed his authority to grant, in his discretion, “a pro se litigant who demonstrates a
willingness and capability to file documents electronically, permission to register to do
so.” June 13, 2025 Order (Dkt. 19) at 1 (citing Electronic Filing Guide at 3). The
undersigned also observed that Plaintiff’s request for permission to file electronically
was based on her financial inability to pay for copies of documents and postage. Id. at
1-2. Further, Plaintiff’s protests regarding Defendants’ papers that were prepared by
Reilly, and her failure to request any extensions of time to respond or reply to such
papers based on untimely receipt, establishes that Plaintiff did, in fact, receive such
papers by electronic service. There thus is no merit to this portion of Plaintiff’s Motion to
Strike.
Because there is no merit to Plaintiff’s argument that Defendants improperly filed
papers prepared by Reilly and failed to serve Plaintiff in accordance with (“Rule
5(d)(1)”), and Local Rule of Civil Procedure – W.D.N.Y. 5.1 (“Local Rule 5.1”), there also
is no merit to Plaintiff’s argument that by electronically filing papers prepared by Reilly,
Defendants engaged in procedural tactics designed to disadvantage Plaintiff. Nor is
there any merit to Plaintiff’s argument that Defendants have included in their papers,
albeit not specifically identified by Plaintiff, certain dispositive arguments that are
premature at this stage of the litigation. The court is well-versed in what can, and what
16 The Electronic Filing Guide may be accessed at https://www.nywd.uscourts.gov/rules-individual-local-
federal.
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cannot be considered on the various motions pending before the court, rendering
Plaintiff’s motion to strike any such arguments unnecessary.
Accordingly, Plaintiff’s Motion to Strike is DENIED.
4. 	Defendants’ Motion to Dismiss
Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) to dismiss
the Complaint for failure to state a claim for which relief can be granted. On a motion to
dismiss under Rule 12(b)(6), the court looks to the four corners of the complaint and is
required to accept the plaintiff's nonconclusory allegations as true and to construe those
allegations in the light most favorable to the plaintiff. Goldstein v. Pataki, 516 F.3d 50,
56 (2d Cir. 2008) (court is required to liberally construe the complaint, accept as true all
factual allegations in the complaint, and draw all reasonable inferences in the plaintiff's
favor). A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted if it does not plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (rejecting longstanding precedent of Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). As such, the Supreme Court requires application of “a ‘plausibility standard . . .
.’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Twombly, 550 U.S. at 570,
and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
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. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads
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facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to relief.”’ Id. (quoting Twombly, 550
U.S. at 557)
“[A] Rule 12(b)(6) motion is addressed to the face of the pleading.” Goldman v.
Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). “In considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts
alleged in the [pleading], documents attached to the [pleading] as exhibits, and
documents incorporated by reference in the [pleading].” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). In the instant case, in addition to the actual
Complaint, Plaintiff attaches to the Complaint numerous exhibits which the court may
consider in connection with Defendants’ Motion. Plaintiff also incorporates by reference
in the Complaint the CBA, as well as the Association’s By-Laws, both of which were
filed as Defendants’ Exhs. A (CBA) (Dkt. 14-2), and B (Association’s By-Laws) (Dkt. 14-
3), and are also considered in resolving Defendants’ Motion.
A court should consider the motion by “accepting all factual allegations as true
and drawing all reasonable inferences in favor of the [claimant].” Trustees of Upstate
N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “While
a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a [claimant]’s obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). Applying the standard for a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) “is ‘a context-specific task that requires the reviewing
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court to draw on its judicial experience and common sense.’” In re Amaranth Natural
Gas Commodities Litigation, 730 F.3d 170, 80 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at
679). Further, in light of distinct disadvantages faced by pro se litigants when compared
to counseled litigants, submissions by pro se litigants are liberally construed to raise the
strongest argument they suggest. See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d
Cir. 2010) (discussing “special solicitude” generally afforded to pro se litigants which is
not limited to procedures but also includes pleadings (citing cases)). The Second
Circuit instructs that district courts “should be particularly solicitous of pro se litigants
who assert civil rights claims. . . .” Id. at 102 (citing Davis v. Goord, 320 F.3d 346, 350
(2d Cir. 2003)).
In the instant case, Plaintiff's claims are asserted pursuant to 42 U.S.C. § 1983
(“§ 1983”), which permits imposing civil liability upon persons who, acting under color of
state law, deprive an individual of rights, privileges, or immunities secured by the
Constitution and laws of the United States. Patterson v. County of Oneida, New York,
375 F.3d 206, 225 (2d Cir. 2004) (quoting 42 U.S.C. § 1983). Section 1983, however, “
‘is not itself a source of substantive rights.’” Id. (quoting Baker v. McCollan, 443 U.S.
137, 144 n. 3 (1979)). Rather, § 1983 “merely provides ‘a method for vindicating federal
rights elsewhere conferred’ . . . .” Id. To succeed on a § 1983 claim, a plaintiff must
establish the challenged conduct “(1) was attributable to a person acting under color of
state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400,
405 (2d Cir. 1997).
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Plaintiff alleges Defendants engaged in discrimination and retaliation against her
with regard to the grievance process by refusing to address the Internal Grievance
complaining about race-based employment discrimination, harassment, retaliation, and
disparate treatment Plaintiff claims to have encountered throughout her tenure at the
Library from October 7, 2021 until March 17, 2022, and with regard to the termination of
Plaintiff’s employment by failing to represent Plaintiff at the meeting at which her
employment at the library was terminated or to otherwise challenge Plaintiff’s
termination. Specifically asserted are claims for violations of several federal laws
including Title VII, § 1981, the NLRA, and the LMRA, as well as for violations of
NYSHRL, and breach of contract, i.e., the CBA. The Complaint thus is examined to
determine whether any such claim is plausibly asserted.
A. 	LMRA and NLRA
“Under federal labor law, an employee may bring a complaint against her union
and/or her employer alleging (1) that the employer breached a collective bargaining
agreement and (2) that the union breached its duty of fair representation in redressing
her grievance against the employer.” White v. White Rose Food, a Div. of DiGiorgio
Corp., 128 F.3d 110, 113 (2d Cir. 1997) (citing DelCostello v. International Bhd. of
Teamsters, 462 U.S. 151, 163–64 (1983), and Vaca v. Sipes, 386 U.S. 171, 184–86
(1967)). “Section 301 of the Labor Management Relations Act, 1947 (the “LMRA”), 29
U.S.C. § 185, governs the employer's duty to honor the collective bargaining
agreement, and the duty of fair representation is implied under the scheme of the
National Labor Relations Act (the “NLRA”).” Id. at 113-14 (citing DelCostello, 462 U.S.
at 164, and Price v. International Union, United Auto. Aerospace & Agric. Implement
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Workers, 795 F.2d 1128, 1134 (2d Cir.1986) (union's duty of fair representation is
implied from § 9(a) of the NLRA, 29 U.S.C. § 159(a), specifically)). Accordingly, “[s]uch
a suit, [referred to as a “hybrid action”] as a formal matter, comprises two causes of
action. The suit against the employer rests on § 301, since the employee is alleging a
breach of the collective bargaining agreement. The suit against the union is one for
breach of the union's duty of fair representation, which is implied under the scheme of
the National Labor Relations Act.” DelCostello, 462 U.S. at 165.
Although the employee may choose to sue only the employer or the union, “‘the
two claims are inextricably interdependent’” and the employee must allege violations on
the part of both the employer and union. DelCostello, 462 U.S. at 165 (quoting United
Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66 (1981) (quoting Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 570-71 (1976)). The action thus is considered a “hybrid
§ 301/fair representation claim” under the collective bargaining agreement. Id. (citing
UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 702 (1966)). Accordingly, an employee
may bring claims under the federal labor statutes, against her union and/or her
employer, if: (1) the employer breached a collective bargaining agreement, and/or (2)
the union breached its duty of fair representation in redressing the employee’s
grievances against the employer. White v. White Rose Food, 128 F.3d 110, 113-14 (2d
Cir. 1997) (the duty of fair representation arises under the NLRA and governs a union's
obligations in negotiating and enforcing collective bargaining agreements whereas §
301 of the LMRA governs breaches and interpretations of collective bargaining
agreements). In the instant case, Plaintiff sues only the Union and NYSUT, but not the
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Library, her former employer. Accordingly, Plaintiff’s federal labor law claims against
Defendants for breach of the duty are pursuant to the NLRA.
To state a duty of fair representation claim, Plaintiff must plausibly allege two
elements: first, that Defendants acted in a manner that is arbitrary, discriminatory, or in
bad faith; and second, “a causal connection between the union's wrongful conduct and
[her] injuries.” Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010)),
aff'd sub nom. Williams v. MTA Metro N. R.R., 2022 WL 1053265 (2d Cir. 2022). “[A]
union's actions are arbitrary only if, in light of the factual and legal landscape at the time
of the union's actions, the union's behavior is so far outside a wide range of
reasonableness as to be irrational.” Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67
(1991) (internal citation omitted). To breach the duty of fair representation, the test is
whether the union’s conduct or omission is “so egregious, so far short of minimum
standards of fairness to the employee and so unrelated to legitimate union interests as
to be arbitrary.” N.L.R.B. v. Local 282, Int’l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., 740 F.2d 141, 147 (2d Cir. 1984). Further, “[a]
showing of ‘[b]ad faith requires a showing of fraudulent, deceitful, or dishonest action.’”
White, 237 F.3d 174, 179 (2d Cir. 2001) (quoting Sim v. New York Mailers’ Union No. 6,
166 F.3d 465, 472 (2d Cir. 1999)). Neither conclusory allegations nor a union’s “mere
negligence” in enforcing a collective bargaining agreement is sufficient to state a claim
for breach of a union’s duty of fair representation. Mancus v. The Pierre Hotel, 45
Fed.Appx. 76, 77 (2d Cir. 2002)). Here, none of Plaintiff’s allegations state a plausible
claim against Defendants for breach of the duty of fair representation.
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In particular, Plaintiff complains that the Union breached its duty of fair
representation by assigning to represent Plaintiff Lelinski “who admitted during the
[counseling meeting that] she did not know what she was doing.” Complaint ¶ 7 (Dkt. 1
at 7). According to Plaintiff, not only was Lelinski, at the time of the counseling meeting,
a new hire, but Lelinski, and thus the Union, said nothing during the counseling meeting,
let alone to “defend [Plaintiff’s] interest or rights.” Amended EEOC Charge (Complaint
Exh H), Dkt. 1 at 116. Plaintiff also maintains Defendants failed to advocate on her
behalf in connection with the termination of Plaintiff’s employment. Complaint ¶¶ 12-14
(Dkt. 1 at 8). These allegations fail to state a plausible claim for breach of the duty of
fair representation.
As Dougherty repeatedly advised Plaintiff, the counseling meeting was not a
disciplinary proceeding. Dkt. 1 at 37, 44, 46. Significantly, the CBA does not provide
for Union representation at counseling meetings, see Defendants’ Exh. A (Dkt. 14-2)
(passim), and Plaintiff does not argue otherwise. Further, the termination of Plaintiff’s
employment was “without cause,” rather than for disciplinary reasons. Complaint Exh.
E (Dkt. 1 at 95-96). Even assuming, arguendo, that the counseling meeting and the
termination of Plaintiff’s employment were disciplinary proceedings, Defendants’ duty to
represent Plaintiff with regard to grievances and disciplinary proceedings is governed by
Article 6 of the CBA. Dkt. 14-2 at 41-47 (CBA Article 6 setting forth grievance and
disciplinary procedures and the Union’s responsibilities to Union members with regard
to both). The CBA, however, plainly states that part-time librarians, the position Plaintiff
held throughout her tenure with the Library, are not entitled to “any benefits provided by
any of the articles of this [Collective Bargaining] Agreement except . . . (i) They shall be
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covered by Article 6 of this Agreement upon completion of two (2) years of service[,
and] (ii) They shall be entitled to the health insurance offering contained in [Article]
3.2.1.1(e).” CBA § 3.4 (Dkt. 14-2 at 34). Because Plaintiff’s employment as a part-time
librarian was for fewer than six months, see Facts, supra, at 5, 7, Plaintiff was not
entitled to Union representation at the counseling meeting even if the meeting were a
disciplinary proceeding, or with regard to the termination of her employment. Where a
union’s failure to provide representation is permitted under a CBA, no duty of fair
representation is breached. See Jordan v. Viacom Outdoor Group, 475 F.Supp.2d 440,
445 (S.D.N.Y. 2007) (holding a union is not required to pursue every grievance and so
long as the union’s decision not to pursue a grievance is reasonable and not based on
arbitrary conduct, discrimination, or bad faith, the decision does not breach the duty of
fair representation). Plaintiff thus has not stated a plausible violation of the duty to fair
representation under the NLRA based on a failure to provide Plaintiff with effective
representation at the counseling meeting.
Nor does Plaintiff’s assertion, Complaint ¶¶ 11-12 (Dkt. 1 at 7-8), that the Union
breached its duty of fair representation by failing to pursue Plaintiff’s Internal Grievance
to arbitration plausibly state a claim. So long as a union’s decision not to pursue
arbitration was not arbitrary and was made in good faith, the union’s decision is
accorded non-actionable discretion. See O’Neill, 499 U.S. at 78. Further, although “a
union may not arbitrarily ignore a meritorious grievance or process it in perfunctory
fashion, . . . the individual [does not have] an absolute right to have h[er] grievance
taken to arbitration regardless of the provisions of the applicable collective bargaining
agreement.” Vaca, 386 U.S. at 184 - 86.
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Here, the Union’s responsibility to provide Plaintiff with representation in
connection with the Internal Grievance is provided under Article 6 of the CBA which did
not apply to Plaintiff because she was employed by the Library for fewer than the
requisite two years. CBA § 3.4. That Maines, as the Union’s president, may have
erroneously implied Plaintiff could file a grievance, see Complaint ¶ 9 (Dkt. 1 at 7),
cannot create an obligation to pursue the grievance to arbitration contrary to the
express terms of the CBA, and Plaintiff does not so contend. Accordingly, the
allegations of the Complaint, taken as true, fail to plausibly establish that Defendants’
decision not to pursue Plaintiff’s Internal Grievance to arbitration was arbitrary and not
made in good faith. The Complaint thus fails to plausibly allege a violation of
Defendants’ duty of fair representation based on the Union’s failure to pursue Plaintiff’s
Internal Grievance.
Although not separately alleged as a claim in the Complaint, Plaintiff, Plaintiff
attached to the Internal Grievance a copy of e-mails exchanged on March 3, 2022
between Plaintiff and one Ashley Ligammari, Library Personnel Clerk, Human
Resources (“Ligammari”), regarding whether Plaintiff was eligible to receive a $ 750
signing bonus provided for in the CBA. Internal Grievance Exh. S (Dkt. 1 at 85-87).
Ligammari responded that the signing bonus was only available to employees in active
status as of October 21, 2021, the date of the CBA’s ratification by the Library’s Board
of Trustees, and that because Plaintiff’s official start date of her employment with the
Library was November 6, 2021, Plaintiff was not eligible for the signing bonus. Id.
Plaintiff then, on March 3, 2022, e-mailed Maines inquiring when the CBA for the years
2021, 2022, 2023 and 2024 was ratified. Internal Grievance Exh. T (Dkt. 1 at 90).
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Maines replied that same day that the CBA “was signed into effect on 2/2/2022 and the
initial tentative agreement was signed in Fall 2021. The contract is retroactive to
1/1/2021 with the previous contract in effect until the new one was signed.” Id. In the
Amended EEOC Charge filed against Defendants, Plaintiff asserted that she was
denied a “signing bonus” that was provided to white employees of the Library.
Amended EEOC Charge, Dkt. 1 at 111. Defendants argue that insofar as Plaintiff seeks
to allege such claim here, because the terms of the CBA establish that Plaintiff was not
eligible for the signing bonus, Defendants did not breach the duty of fair representation
to Plaintiff by failing to pursue the issue to arbitration. Defendants’ Memorandum at 5,
9-10.
As Defendants argue, Defendants’ Memorandum at 5, 9-10, the CBA provides
that “upon ratification” of the CBA, “all Librarians employed at the time of the vote” shall
be entitled to a one time, lump-sum signing bonus. CBA § 3.1.1 (italics added). The
signing bonus for part-time librarians was $ 750. Id. Significantly, Plaintiff does not
dispute Ligammara’s statement, corroborated by Maines, that the CBA was ratified on
October 21, 2021, i.e., before Plaintiff was in active status. Moreover, because Plaintiff
had not yet been employed for two years, the benefits provided under Article 6 of the
CBA requiring the Union to pursue grievances to arbitration were not yet available to
Plaintiff. Accordingly, Plaintiff has not plausibly alleged Defendants breached their duty
of fair representation in connection with Plaintiff’s failure to receive a signing bonus.
Nor were Defendants required to provide Plaintiff with representation in
connection with the Library’s termination of Plaintiff’s employment. First, it is not clear
from the record that Plaintiff’s termination was for cause such that the termination could
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be construed as a disciplinary proceeding. Significantly, Plaintiff does not dispute Gaff’s
statement to Plaintiff on March 18, 2022, that her employment was terminated without
cause. See Complaint Exh. E (Dkt. 1 at 95-96). Even if Plaintiff’s termination was for
cause, because Plaintiff was employed by the Library for fewer than two years, the
Union was not required to represent Plaintiff in connection with the termination of her
employment. See Defendants’ Exh. A, CBA § 3.4 (Dkt. 14-2 at 26-27). Plaintiff thus
fails to plausibly state that Defendants breached their duty of fair representation in
connection with the termination of Plaintiff’s employment.
Defendants’ Motion thus should be GRANTED insofar as Plaintiff fails to state
any plausible claim for relief under the LMRA or the NLRA.
B. 	Title VII, § 1981, and NYSHRL
Plaintiff also asserts her breach of the duty of fair representation claims pursuant
to Title VII, § 1981, and NYSHRL. “To bring a Title VII discrimination claim against a
union concerning the manner in which the union handled a member's workplace
complaints, the plaintiff must demonstrate that (1) the Union breached its duty of fair
representation to plaintiff; and (2) that the Union's conduct was motivated by animus
toward the plaintiff[’]s protected status.” Dillard v. SEIU Loc. 32BJ, 2015 WL 6913944,
at *4 (S.D.N.Y. Nov. 6, 2015). See also Blaizin v. Caldor Store # 38, 1998 WL 420775,
at * (S.D.N.Y. July 27, 1998) (“It is well established that a duty of fair representation
claim can fall within Title VII if a union allowed the breach to go unrepaired and plaintiff
can show that the Union’s actions were motivated by discriminatory animus.”). Further,
“where a plaintiff claims that a union violated Title VII based on its failure to represent a
member, courts in this Circuit generally incorporate the duty of fair representation as
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one of the elements of the alleged Title VII violation.” Beachum v. AWISCO New York,
785 F. Supp. 2d 84, 103 (S.D.N.Y. 2011) (citation and quotation marks omitted), aff'd
sub nom. Beachum v. AWISCO New York Corp., 459 Fed.Appx. 58 (2d Cir. 2012). See
also Ross v. Commc'n Workers of Am., Local 1110, 1995 WL 351462, at *7 (S.D.N.Y.
June 9, 1995) (“[T]he issue of whether a union breached its [duty of fair representation]
is necessarily involved in determining the validity of . . . a Title VII claim in which an
employee complains that her union failed properly to press her grievance against her
employer.”).
In the instant case, it is undisputed that Plaintiff’s protected status is as a Black
woman. Nevertheless, not only has Plaintiff failed to allege a breach of Defendants’
duty of fair representation in connection with the counseling meeting, the Internal
Grievance including the signing bonus, and the termination of Plaintiff’s employment,
see Discussion, supra, at 20-24, but the record is devoid of any allegations that
Defendants’ actions were motivated by racially-discriminatory animus, requiring
Plaintiff’s Title VII breach of duty claim be dismissed for failure to state a claim.
Moreover, insofar as some courts have applied the same Title VII standard for
discrimination claims brought against a union pursuant to § 1981, McIntyre v. Longwood
Cent. Sch. Dist., 658 F. Supp. 2d 400, 422 (E.D.N.Y. 2009), aff'd, 380 Fed.Appx. 44 (2d
Cir. 2010), as well as NYSHRL, Cano, 2021 WL 4927166, at * 13, Plaintiff’s breach of
duty claims asserted under § 1981 and NYSHRL should be dismissed for the same
reasons.
Alternatively, Plaintiff’s breach of the duty claim asserted under § 1981 should be
dismissed because Plaintiff has not alleged a violation of any right secured to him her
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under § 1981. Specifically, “[t]o establish a § 1981 claim, a plaintiff . . . must show: (1)
that she is a member of a racial minority; (2) an intent to discriminate on the basis of
race by the defendant; and (3) that the discrimination concerned one or more of the
activities enumerated in § 1981.” Lauture v. Int'l Bus. Machines Corp., 216 F.3d 258,
261 (2d Cir. 2000) (citing cases). The activities enumerated in § 1981 include the right
“to make and enforce contracts, to sue, be parties [to lawsuits], give evidence, and to
the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens . . . .” 42 U.S.C.A. § 1981(a). Here, Plaintiff
asserts Defendants, by failing to represent Plaintiff in connection with the counseling
meeting, the Internal Grievance, the termination of Plaintiff’s employment, and signing
bonus, interfered with Plaintiff’s contractual rights under the CBA. This argument fails,
however, because, as discussed, Discussion, supra, at 20-24, the CBA’s provisions
regarding the signing bonus, CBA § 3.1.1, arbitration of grievances, CBA §§ 6.1-6.3,
and, disciplinary proceedings (insofar as the counseling meeting and the termination of
Plaintiff’s employment can be construed as disciplinary in nature), CBA §§ 6.4, did not
apply to Plaintiff during the tenure of her employment with the Library. Accordingly,
Plaintiff has not alleged any facts plausibly supporting her § 1981 claim.
As an alternative regarding Plaintiff’s breach of duty claim asserted under
NYSHRL, although not addressed by the Second Circuit, district courts within the
Second Circuit have held that “[s]ate law claims are preempted if they arise out of or are
encompassed by a breach of the duty of fair representation.” Agosto v. Corr. Officers
Benev. Ass'n, 107 F. Supp. 2d 294, 310 (S.D.N.Y. 2000) (granting defendant labor
union summary judgment on the plaintiff’s breach of duty of fair representation claim
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asserted under NYSHRL). See also Daniel v. ABM Industries, Inc., 2017 WL 1216594,
at * 6 (S.D.N.Y. Mar. 31, 2017) (“In the Second Circuit, ‘the weight of well-reasoned
authority . . . finds that claims against a union . . . under the [NYSHRL] . . . are
subsumed by the duty of fair representation when the gist of the claim is the failure to
represent the plaintiff in a fair and non-discriminatory manner.” (citing Morillo v. Grand
Hyatt N.Y., 2014 WL 3498663, at *4 (S.D.N.Y. July 10, 2014))).
As a further alternative, should the District Judge agree with the undersigned’s
recommendation that all the federal claims over which the district court has original
jurisdiction should be dismissed for failure to state a claim, then the court, pursuant to
28 U.S.C. § 1367(c)(3) (providing for supplemental jurisdiction over pendant state law
claims) should also refrain from exercising supplemental jurisdiction over the NYSHRL
claim. See Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Medical Centers
Retirement Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 726 (2d Cir. 2013)
(“‘[I]in the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.’” (quoting Valencia ex rel. Franco v.
Lee, 316 F.3d 299, 306 (2d Cir.2003)).
Accordingly, Defendants’ Motion should be GRANTED as to Plaintiff’s claims
asserting Defendants breached their duty of fair representation in violation of Title VII, §
1981, and NYSHRL.
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C. 	Breach of Contract
Although “[o]rdinarily, an employee’s only claim against a union for violation of
the terms of a collective bargaining agreement is for a violation of the duty of fair
representation,” McKoy v. Potter, 2002 WL 31028691, at *11 (S.D.N.Y. Sept. 11, 2002)
(citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-75 (1990), in limited
circumstances, an employee may state a claim for a violation of a collective bargaining
agreement pursuant to the third-party benefit doctrine. Int’l Bhd. of Elec. Workers v.
Hechler, 481 U.S. 851, 861, 864-65 (1987). To state a plausible claim against a union
for breach of contract, the employee “must be able to point to language in the collective
bargaining agreement specifically indicating an intent to create obligations enforceable
against the union by the individual employees.” Rawson, 495 U.S. at 374.
In the instant case, Plaintiff maintains that following the termination of her
employment, she was wrongfully denied the opportunity to attend the Association’s
general membership meeting on March 18, 2022. Complaint ¶ 14 (Dkt. 1 at 8). The
Constitution and Bylaws of the Librarians Association of the Buffalo and Erie County
Public Library (“Bylaws”)17 provides for general membership meetings of the Librarians
Association to be held at least twice a year. Bylaws Art. VII (Dkt. 14-2 at 5).
Membership in the Librarians Association, however, is limited to, as relevant here, part-
time librarians who are employed by the Library. Bylaws Art. IV § 1. Because Plaintiff
was not employed by the Library on March 18, 2022, her employment having been
terminated the previous day, Plaintiff was not a part-time librarian employed by the
Library on March 18, 2022 and, thus, was not eligible to attend the general membership
17 Filed as Defendants’ Exh. B (Dkt. 14-2), and incorporating by reference the CBA. See Bylaws Art. XI
(Dkt. 14-3 at 7).
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meeting on that date. Significantly, Plaintiff fails to indicate any provision in the CBA or
the Bylaws that would permit Plaintiff to attend the Librarian Association’s general
membership meeting on March 18, 2022, when Plaintiff was no longer a Library
employee. Plaintiff thus has failed to plausibly state a breach of contract claim based
on Defendants’ denial of the request to attend the Librarian Association’s general
membership meeting on March 18, 2022.
Defendants’ Motion should be GRANTED as to Plaintiff’s breach of contract
claim.
5. 	Plaintiff’s Motion to Amend
Plaintiff moves for leave to file an amended complaint to assert additional factual
allegations, to add as Defendants Lelinski and Maines (“Proposed Defendants”), to
assert claims for disparate treatment pursuant to Title VII against Defendants, Proposed
Amended Complaint, Dkt. 23 ¶¶ 128-133 (“Proposed First Claim”), retaliation under Title
VII against Defendants, id. ¶¶ 134-40 (“Proposed Second Claim”), race discrimination in
violation of § 1981 against Defendants and Proposed Defendants, id. ¶¶ 141-48
(“Proposed Third Claim”), retaliation in violation of § 1981 against Defendants and
Proposed Defendants, id. ¶¶ 149-55 (“Proposed Fourth Claim”), race-based
interference with contractual representational rights in violation of § 1981 against
Defendants and Proposed Defendants, id. ¶¶ 156-62 (“Proposed Fifth Claim”), and
common New York law breach of contract claim against Defendants, id. ¶¶ 163-68
(“Proposed Sixth Claim”). Defendants argue in opposition to Plaintiff’s Motion to Amend
that the proposed amendments should be disallowed as futile. Defendants’ Response
at 7-15.
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“The ability of a plaintiff to amend the complaint is governed by Rules 15 and 16
of the Federal Rules of Civil Procedure which, when read together, set forth three
standards for amending pleadings that depend on when the amendment is sought.”
Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021), cert. denied, ––– U.S. –––
–, 142 S. Ct. 1112, (2022). Generally, a motion to amend pleadings is governed by
Rule 15(a) which, as relevant, provides “[t]he court should freely give leave when justice
so requires.” Fed.R.Civ.P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 181 (1962)
(leave to file an amended complaint “shall be freely given when justice so requires.”).
“[A] plaintiff may freely amend her pleadings pursuant to Rule 15(a)(1) as of right
without court permission.” Sacerdote, 9 F.4th at 115 (citing Fed.R.Civ.P. 15(a)(1)
(permitting a plaintiff to amend as of right within 21 days after serving the initial
complaint and within 21 days after answer)). “After that period ends - either upon
expiration of a specified period in a scheduling order or upon expiration of the default
period set forth in Rule 15(a)(1)(A) — the plaintiff must move the court for leave to
amend, but the court should grant such leave “freely . . . when justice so requires”
pursuant to Rule 15(a)(2).” Id. “This is a ‘liberal’ and ‘permissive’ standard, and the
only ‘grounds on which denial of leave to amend has long been held proper’ are upon a
showing of ‘undue delay, bad faith, dilatory motive, [or] futility.’” Id. (quoting Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)). “The
period of ‘liberal’ amendment ends if the district court issues a scheduling order setting
a date after which no amendment will be permitted. It is still possible for the plaintiff to
amend the complaint after such a deadline, but the plaintiff may do so only up a
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showing of the ‘good cause’ that is required to modify a scheduling order under Rule
16(b)(4).” Id. (citing Parker v. Columbia Pictures, 204 F.3d 326, 340 (2d Cir. 2000)).
In the instant case, although the filing of a motion to dismiss permits a plaintiff to
file an amended pleading without leave of the court, Rule 15(a)(1)(B), such filing as a
matter of course must take place within 21 days of being served with a motion to
dismiss. Id. Because here, Plaintiff did not move to amend for more than 21 days after
the filing of Defendants’ Motion, Plaintiff needs to receive leave of the court to amend.
Leave to amend is particularly inappropriate where “the problem with [plaintiff's]
cause[ ] of action is substantive.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
In the instant case, insofar as Plaintiff seeks to add claims or to clarify claims that
Defendants breached the duty of fair representation under the CBA, no such claim lies
because the provisions for that duty is found in Article 6 of the CBA which, as discussed
above, does not apply to Library employees of less than two years. Accordingly,
Plaintiff’s Motion to Amend should be DENIED insofar as Plaintiff seeks to add claims or
additional factual allegations pertaining to a breach of duty by Defendants or Proposed
Defendants.
Preliminarily, inasmuch as Plaintiff’s Motion to Amend seeks to add claims
pursuant to § 1981 against Lelinski and Maines, i.e., Proposed Defendants, in their
official capacities as Union representatives, it is well-established that “union agents” are
not personally liable for acts performed on the union's behalf. See Atkinson v. Sinclair
Refining Co., 370 U.S. 238, 247-49 (1962), overruled in part on other grounds by Boys
Markets, Inc. v. Retail Clerk's Union. Local 770, 398 U.S. 235, 241 (1970). It is also
well-settled in this circuit that individual union members are specifically immune from
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suits for breach of the duty of fair representation, Morris v. Local 816, 169 F.3d 782, 784
(2d Cir.1999), which is a prerequisite to liability under § 1981. Beachum, 785 F. Supp.
2d at 103. Because Union officers and employees are not individually liable for acts
performed as representatives of the Union, Plaintiff has no recourse against Lelinski or
Maines for a claim of breach of fair representation. Further, because individual
defendants are not subject to liability under Title VII, Wrighten v. Glowski, 232 F.3d 119,
120 (2d Cir. 2000), there can be no Title VII liability against either Lelinski or Maines.
In this case, Plaintiff seeks to allege she was subjected to disparate treatment on
the basis of her race in violation of Title VII against Defendants, First Proposed Claim,
and in violation of § 1981 against Defendants and Proposed Defendants, Third
Proposed Claim, when she was denied full Union protection in connection with the
counseling meeting, the denial of a signing bonus, Plaintiff’s Internal Grievance and the
termination of Plaintiff’s employment. As discussed above in connection with Plaintiff’s
current claims in the original Complaint, however, Discussion, supra, at 20-24, the
viability of these claims depends on the applicability of the CBA to Plaintiff’s
employment situation, but the CBA’s provisions regarding the signing bonus, CBA §
3.1.1, arbitration of grievances, CBA §§ 6.1-6.3, and, disciplinary proceedings (insofar
as the counseling meeting and the termination of Plaintiff’s employment can be
construed as disciplinary in nature), CBA §§ 6.4, did not apply to Plaintiff during the
tenure of her employment with the Library. Accordingly, the Proposed First and Third
Claims are futile.
As regards Plaintiff’s attempt to allege Defendants or Proposed Defendants
retaliated against her for filing the Internal Grievance in violation of Title VII (Proposed
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Second Claim) and § 1981 (Proposed Fourth Claim), unions are forbidden under both
Title VII and § 1981 from taking such retaliatory action. See Ferguson v. New Venture
Gear, Inc., 2009 WL 2823892, at * 7 & n. 4 (N.D.N.Y. Aug. 31, 2009) (analyzing Title VII
and § 1981 retaliation claims asserted against the defendant union pursuant to the
same standard); Nweke v. Prudential Ins. Co. of Am., 25 F.Supp.2d 203, 230 (S.D.N.Y.
1998) (citing Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). Generally, a
retaliation claim against a union requires a plaintiff show (1) participation in protected
activity known to the defendant union, (2) an employment action disadvantaging the
person engaged in the protected activity, and (3) a causal connection between the
protected activity and the adverse employment action. Johnson v. Palma, 931 F.2d
203, 207 (2d Cir. 1991). Further, “[a] dispute with the union arises only after the
employee becomes dissatisfied with the extent of representation by the union in the
resolution of the dispute.” Id. at 208.
Here, Article 6 of the CBA provides that Defendants were not required to provide
Plaintiff with any representation in connection with the Internal Grievance given that
Plaintiff was an employee of less than two years, or to challenge the termination of
Plaintiff’s employment or otherwise advocate on Plaintiff’s behalf in connection with any
disciplinary proceedings. Neither Defendants nor Proposed Defendants thus ever
undertook to represent Plaintiff in connection with any dispute. Accordingly, Plaintiff
could not become dissatisfied with any Union representation and Plaintiff thus cannot
allege a retaliation claim under Title VII or § 1981 against Defendants or Proposed
Defendants for failing to pursue the Internal Grievance to arbitration or to represent
Plaintiff in connection with the termination of Plaintiff’s employment.
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Insofar as Plaintiff seeks to allege race-based contractual interference in violation
of § 1981 against Defendants and Proposed Defendants, Proposed Fifth Claim, as
discussed, Discussion, supra, at 20-24, the CBA’s provisions regarding the signing
bonus, CBA § 3.1.1, arbitration of grievances, CBA §§ 6.1-6.3, and, disciplinary
proceedings (insofar as the counseling meeting and the termination of Plaintiff’s
employment can be construed as disciplinary in nature), CBA §§ 6.4, did not apply to
Plaintiff during the tenure of her employment with the Library. Nor can Plaintiff assert a
common law breach of contract claim under New York law, Proposed Sixth Claim,
against Defendants. Again, the only contract at issue is the CBA, and the only
provisions of the CBA under which Plaintiff could possibly allege a breach of contract
claim are those governing the signing bonus, CBA § 3.1.1, arbitration of grievances,
CBA §§ 6.1 – 6.3, and representation in connection with disciplinary proceedings. CBA
¶ 6.4, which do not apply to Plaintiff’s situation. See Discussion, supra, at 20-24.
Accordingly, permitting Plaintiff to file an amended complaint to assert contractual
interference in violation of § 1981 against Defendants and Proposed Defendants, as
well as a common law breach of contract claim against Defendants is futile.
In short, substantive issues prevent Plaintiff from asserting against Defendants
and Proposed Defendants any breach of the duty of fair representation claims,
discrimination claims, or retaliation claims under Title VII or § 1981, as well as any §
1981 interference with contractual rights claims rendering granting leave to amend
particularly inappropriate in this case. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000). Plaintiff’s Motion to Amend should, therefore, be DENIED with prejudice.
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CONCLUSION
Based on the foregoing, Defendants’ Motion (Dkt. 14) should be GRANTED;
Plaintiff’s Sur-Reply Motion (Dkt. 21) is GRANTED with Plaintiff’s Sur-Reply deemed
filed nunc pro tunc; Plaintiff’s Motion to Amend (Dkt. 23) should be DENIED with
prejudice; Plaintiff’s Motion for Service of Process (Dkt. 25) is DISMISSED as moot, and
Plaintiff’s Motion to Strike (Dkt. 28) is DENIED.
SO ORDERED, as to Plaintiff’s Sur-Reply
Motion, Plaintiff’s Motion for Service of
Process, and Plaintiff’s Motion to Strike.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, as to Defendants’ Motion
And Plaintiff’s Motion to Amend,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	December 23, 2025
Buffalo, New York
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Any appeal of this Decision and Order must be taken by filing written objection
with the Clerk of Court not later than 14 days after service of this Decision and
Order in accordance with Fed.R.Civ.P. 72(a).
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Plaintiff and
to the attorneys for the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	December 23, 2025
Buffalo, New York
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