Jusino v. FEDERATION OF CATHOLIC TEACHERS, INC., 2024 NY Slip Op 50315, – Sup Ct. Richmond Co, March 25, 2024:
“The plaintiff in this action, Ramon K. Jusino (hereinafter
“Plaintiff”), was a high school theology teacher employed by Notre Dame
Academy of Staten Island (hereinafter “NDA”), a Catholic high school. In
this capacity, Plaintiff was a member of the Federation of Catholic
Teachers, Inc. (hereinafter “Defendant”), the defendant in this action,
which serves as a labor organization representing teachers employed by
Catholic schools. Plaintiff commenced this action by filing a summons
and complaint on August 10, 2023, wherein he asserted causes of action
for breach of contract and unlawful discrimination.
Defendant argues herein that Plaintiff’s claim for breach of contract
must be dismissed as it was filed outside of the applicable statute of
limitations (CPLR 3211 [a] [5]). Defendant further argues that
Plaintiff’s claims for both breach of contract and unlawful
discrimination must be dismissed because the complaint failed to state
proper causes of action (id. 3211[a][7]). Plaintiff filed
opposition, to which Defendant filed a reply. Oral argument was heard on
January 25, 2024, with Plaintiff appearing as an unrepresented litigant
and Defendant appearing by counsel. The motion was marked as fully
submitted, and the Court’s decision was reserved.
Plaintiff’s causes of action arise from the termination of
Plaintiff’s employment with NDA, which predicated arbitration pursuant
to the collective bargaining agreement between Defendant and NDA, with
Defendant retaining counsel for Plaintiff within the arbitration.
Plaintiff contemporaneously filed an action against NDA in federal
court, as an unrepresented litigant, asserting a claim of unlawful
discrimination. Article XXIX of the collective bargaining agreement
provides that “neither [NDA] nor [Defendant] shall discriminate against
teachers on the basis of … race, color, [or] national origin …” In
preparing for the arbitration, Defendant advised Plaintiff that its
position would be based only on a “just cause” theory, and not include a
discrimination claim similar to Plaintiff’s position in his separate
litigation. Plaintiff now seeks recovery for Defendant’s refusal to
pursue a discrimination claim which, he argues, amounted to
discrimination in and of itself, and a breach of Defendant’s collective
bargaining agreement, whereunder Plaintiff was covered.
I. Plaintiff’s Cause of Action for Breach of Contract
The Court will first address the issue of timeliness with respect to
the cause of action for breach of contract. On a motion to dismiss a
cause of action on such grounds (CPLR 3211[a][5]), a defendant bears the
initial burden of establishing, prima facie, that the time in which to sue has expired (Wells Fargo Bank, N.A. v Burke, 155 AD3d 668, 669
[2d Dept 2017]). Within the verified complaint, Plaintiff asserted that
the cause of action arose on May 17, 2019, when Defendant confirmed
with the arbitrator that the hearing would be based upon the question of
whether Plaintiff’s employment was terminated for just cause, rather
than unlawful discrimination. Defendant argues that the claim should be
governed by the statute of limitations for a cause of action for a
breach of duty for fair representation, which requires commencement
within four months (CPLR. 217[2][a]; see Dolce v Bayport — Blue Point Union Free Sch. Dist., 286 AD2d 316
[2d Dept 2001]). Such a deadline would have expired on September 17,
2019, almost four years prior to Plaintiff’s commencement of this
action.
The burden then shifts to the plaintiff to “aver evidentiary facts
establishing that the action was timely or to raise an issue of fact as
to whether the action was timely” (Wells Fargo Bank, N.A., 155 AD3d at 669, quoting Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611
[2d Dept 2009]). “The plaintiff has the burden of establishing that the
statute of limitations has not expired, that it is tolled, or that an
exception to the statute of limitations applies” (Federal Natl. Mtge. Assn. v Schmitt, 172 AD3d 1324, 1325 [2d Dept 2019], quoting Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 844
[2d Dept 2014]). Plaintiff does not argue any of these factors but,
instead, that this claim should be governed by the statute of
limitations for an action concerning a contractual obligation, which is
six years (id. 213 [2]), placing it comfortably within the statutory time for commencement. The Court disagrees.
The statute of limitations for an alleged breach of duty for fair
representation applies to proceedings against an organization subject to
the Public Employees’ Fair Employment Act (Civil Service Law § 201 [5]) or the New York State Labor Relations Act
(Labor Law § 701 [5]). Defendant is subject to the latter, as a labor
organization “which exists and is constituted for the purpose, in whole
or in part, of collective bargaining, or of dealing with employers
concerning grievances, terms or conditions of employment, or of other
mutual aid or protection” (id.), despite the non-public employment of its members (see New York State Empl. Rels. Bd. v Christ the King Regional High Sch., 90 NY2d 244 [1997]).
Plaintiff conceded as much in his verified complaint, wherein he
stated, “Defendant …is a labor organization as defined by the New York
State Human Rights Law § 292(3), and the New York City Human Rights Law
§ 8-102.”
Therefore, Plaintiff’s cause of action for a breach of contract will
be dismissed as time-barred. The Court will dispense with considering
whether this claim should be dismissed under any other provision, as
such a discussion would be academic.
II. Plaintiff’s Causes of Action for Unlawful Discrimination
Defendant seeks dismissal of the discrimination claims based on
Plaintiffs’ failure to state a cause of action (CPLR 3211 [a][7]). In
considering dismissal under this theory, the complaint should be
liberally construed in the light most favorable to the plaintiff, and
all allegations must be accepted as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
Initially, the sole criterion is whether the pleading states a cause of
action, and if, from the pleading’s four corners, the court discerns
factual allegations that, when taken together, manifest any cause of
action cognizable at law, the motion will fail (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Steve Elliot, LLC v Teplitsky, 59 AD3d 523 [2d Dept 2009], citing Guggenheimer, 43 NY2d 268).
With respect to the second and third causes of action in his verified complaint, Plaintiff alleges that:
“Defendant wantonly and willfully colluded with [NDA] by
intentionally refusing to make any claim of retaliation on Plaintiff’s
behalf during the entire grievance and arbitration process. Defendant,
in effect, aided and abetted [NDA]’s retaliatory conduct towards
Plaintiff, squarely making Defendant a co-conspiring perpetrator of
unlawful discrimination/retaliation against Plaintiff.“
The New York State Human Rights Law identifies an “unlawful
discriminatory practice” as any action by a labor organization to “…
discriminate against any person because he or she has opposed any
practices forbidden under this article or because he or she has filed a
complaint, testified or assisted in any proceeding…” (Executive Law §
296[1][e]).
The New York City Human Rights Law identifies an “unlawful
discriminatory practice” as any action by a labor organization to “…
represent that membership is not available when it is in fact available,
or to discriminate in any way against any of its members …” based
upon “actual or perceived … race, … color, … [or] national
origin…” (NYC Admin. Code § 8-107 [1] [c]). The statute further
identifies an “unlawful discriminatory practice” as any action to
“retaliate … against any person because such person has (i) opposed
any practice forbidden under this chapter, (ii) filed a complaint …
under this chapter, (iii) commenced a civil action alleging … an
unlawful discriminatory practice under this chapter, … or (vi)
provided any information to the commission pursuant to the terms of a
conciliation agreement” (id. § 8-107[7]).
Both statutes further dictate that “[i]t shall be an unlawful
discriminatory practice for any person to aid, abet, incite, compel or
coerce the doing of any of the acts forbidden under this [provision], or
to attempt to do so” (Executive Law § 296[6]; NYC Admin. Code §
8-107[6]).
To prove retaliation, Plaintiff would need to show that (1) he has
engaged in protected activity, (2) his employer was aware that she
participated in such activity, (3) he suffered an adverse employment
action, and (4) a causal connection between the protected activity and
the adverse action (Asabor v Archdiocese of NY, 102 AD3d 524, 528 [1st Dept 2013], citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312-313 [2004]).
Under the circumstances alleged, it would be NDA’s participation in
discrimination that “serves as the predicate for the imposition of
liability on others for aiding and abetting” a discriminatory practice (Santana v Yonkers City Sch. Dist., 2023 NY Slip Op 23386, quoting Murphy v ERA United Realty, 251 AD2d 469, 472
[2d Dept 1998]). Defendant may be held liable for aiding and abetting
the discriminatory conduct if it “actually participated” in NDA’s
conduct that gave rise to the discrimination claim (see Valentin v Staten Is. Univ. Hosp., 2011 NY Slip Op 33343[U], 13-14 [Sup Ct, Richmond County], citing Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d 886 [2d Dept 2010]).
Plaintiff attached to his verified complaint, two emails from his
counsel during the arbitration, dated September 23, 2018 and May 1,
2019, wherein said counsel informed Plaintiff that he was retained by
Defendant solely on the issue of whether Plaintiff was terminated for
just cause, and not on the issue of discrimination. In the body of the
verified complaint, Plaintiff asserted that Defendant’s decision to
eschew the discrimination claim, despite the express prohibition against
such conduct within the collective bargaining agreement, shows that
Defendant “willfully colluded” with NDA in the alleged retaliation.
The Court finds that these factual allegations manifest a cause of
action for aiding and abetting an unlawful discriminatory practice
cognizable at law (Guggenheimer, 43 NY2d at 275; Executive Law § 296[1][e]; NYC Admin. Code § 8-107[1][c]; id. § 8-107[7]).
III. Decision and Order
Accordingly, it is hereby ORDERED that Defendant’s motion is GRANTED
to the extent that Plaintiff’s first cause of action for breach of
contract is hereby dismissed. Any items of relief sought by the motion
that are not addressed herein are deemed to be DENIED.”