Tavarez v. 32BJ

Background

The court had previously construed Orfelina Tavarez's complaint as asserting two possible types of claims: a hybrid claim under Section 301 of the federal labor law and the union's duty to represent her fairly, and an employment-discrimination claim based on a complaint to the New York State Division of Human Rights. The court's November 1, 2019 order gave Tavarez 60 days to amend her complaint.

Tavarez filed an amended complaint on November 14, 2019 using the court's employment-discrimination form. The opinion states that she checked the box for Title VII of the Civil Rights Act of 1964, but did not identify whether the alleged discrimination involved race, color, religion, sex, or national origin. She also left blank the section asking for supporting facts and did not otherwise allege facts indicating discrimination based on a protected characteristic.

The amended complaint also stated that Tavarez had not filed a charge with the Equal Employment Opportunity Commission or another government agency and had not received a notice of the right to sue. The court noted that an arbitrator's August 28, 2018 award indicated that she had filed a charge with the New York State Division of Human Rights, and it stated that any discrimination claim appeared potentially untimely.

Court's Analysis

The court found that the amended complaint was insufficient to state a hybrid Section 301/duty-of-fair-representation claim. The court had previously determined that Tavarez did not allege facts suggesting that 32BJ acted arbitrarily, discriminatorily, or in bad faith, or that Triangle Services breached the collective bargaining agreement.

The court also found that the amended complaint was insufficient to state an employment-discrimination claim because it contained no facts showing mistreatment or retaliation based on a protected characteristic. Because Tavarez was representing herself, the court relied on the rule that a self-represented plaintiff generally must receive an opportunity to amend when a liberal reading of the complaint suggests that a valid claim might be stated.

Ruling

Judge Colleen McMahon granted Tavarez one final opportunity to amend her complaint. The second amended complaint had to comply with the standards described in the court's November 1 order, be labeled a “Second Amended Complaint,” use docket number 18-CV-8517 (CM), and be submitted to the Pro Se Intake Unit within 30 days of the order. It had to state the relevant facts for each claim and defendant, including who acted, what happened, when and where it happened, how the conduct violated federally protected rights, the injuries suffered, and the requested relief.

The court explained that the second amended complaint would replace, rather than supplement, the original and amended complaints. It warned that if Tavarez did not timely comply and could not show good cause, the court would dismiss the action for failure to state a claim upon which relief could be granted. No summons would issue at that time. The court also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal.

Effect of the Order

The opinion does not dismiss the action in this order. It gives Tavarez one final opportunity to plead sufficient facts. The order also directs the Clerk of Court to mail her a copy and note service on the docket.