Gallagher v. Gallagher

130 F. Supp. 2d 359, 2001 U.S. Dist. LEXIS 1677, 2001 WL 173338
CourtDistrict Court, N.D. New York
DecidedJanuary 22, 2001
DocketNo. 00-CV-1161
StatusPublished
Cited by2 cases

This text of 130 F. Supp. 2d 359 (Gallagher v. Gallagher) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher v. Gallagher, 130 F. Supp. 2d 359, 2001 U.S. Dist. LEXIS 1677, 2001 WL 173338 (N.D.N.Y. 2001).

Opinion

BACKGROUND

MUNSON, Senior District Judge.

The defendants International Brotherhood of Electrical Workers (“IBEW”) and Local 43 are labor unions. Defendant J.J. Barry is the International President of the IBEW. Plaintiff is a member of defendant Local 43, and Local 43 is signatory to a collective bargaining agreement with defendant NECA. Defendant electrical contractors are bound by the terms of the collective bargaining agreement either by being a member of NECA or by signing a letter of assent agreeing to be bound by the terms of the agreement. The collective bargaining agreement recognizes Local 43 “as the sole and exclusive represen[361]*361tative of all ... employees performing work within the jurisdiction of [Local 43] for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment.” Under the terms of the collective bargaining agreement, Local 43 operates an exclusive hiring hall that refers union members for employment with signatory electrical contractors. Plaintiff has obtained employment with these employers through the Local 43 hiring hall.

The collective bargaining agreement allegedly permits contractors to request employees from the Local 43 hiring hall who possess special skills. The agreement also purportedly also permits Local 43 members classified as “foreman” to receive preferential treatment over members not so classified. Plaintiff contends that the effect of these two provisions is to allow Local 43 and the electrical contractors to undermine the fairness of the referral procedure and to discriminate against members on the basis of age.

The complaint in this action alleges that defendant NECA violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C § 621, et seq., and the New York State Human Rights Law, Executive Law § 290-301, through NECA’s acts negotiating and administering a collective bargaining agreement that allows the defendant union and electrical contractors to discriminate on the basis of age. Plaintiff claims that defendants engaged in unlawful discriminatory practices relating to his employment through patterns and practices of failing, because of his age, to refer him for employment to positions for which he was fully qualified, by permitting electrical contractors to request younger workers in preference to older workers, to lay off older workers before younger workers, by negotiating and administrating a collective bargaining agreement that enabled the union and electrical contractors to discriminate on the basis of age, and by retaliating against him for attempting to oppose these discriminatory practices.

On February 3, 1998, plaintiff filed a complaint with the New York State Division of Human Rights naming NECA as respondent and alleging an unlawful discriminatory practice relating to employment because of age. In a Determination and Order dated and mailed March 29, 2000, the NYDHR found that there was no probable cause to believe that NECA was engaged in such practices.

On February 17, 1997, plaintiff filed an age discrimination complaint with the New York State Division of Human Rights (“NYSDHR”) naming Local 43, NECA and fourteen electrical contractors as respondents. On January 22, 1998, an amended complaint was filed naming Local 43, NECA and three electrical contractors as respondents. The complaint was also filed with the Equal Employment Opportunity Commission (“EEOC”) under the terms of a work sharing agreement between the two agencies. On May 4, 2000, plaintiff was issued a right-to-sue letter by the EEOC. This letter adopted the finding of the NYSDHR, that there was no probable cause to believe that Local 43 discriminated against plaintiff because of his age. This action was commenced on July 28, 2000, when plaintiff filed his complaint which seeks doubled compensatory damages, injunctive relief, costs and attorney’s fees.

Currently before the court is defendant NECA’s motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Although he did enter opposition to a prior identical motion before this court made by two other defendants in this case, plaintiff has not entered opposition to the present motion. The court notes that plaintiff appears pro se, however, his complaint was well prepared, he received the notice of this motion required by statute and manifests awareness of the procedural requisites of this type of motion.

DISCUSSION

A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is [362]*362analyzed under the same standard applicable to a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(c). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 115 S.Ct. 73, 130 L.Ed.2d 28 (1994). Consequently, judgment on the pleadings is appropriate only if, after drawing all reasonable inferences in favor of the non-moving party, it is apparent from the pleadings that the moving party is entitled to judgment as a matter of law. United States v. Weisz, 914 F.Supp. 1050, 1052 (S.D.N.Y.1996). In deciding a motion for judgment on the pleadings, a court may consider the factual allegations in the complaint, which are accepted as true, documents attached to the complaint as an exhibit or incorporated by reference, matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiff had knowledge of and relied upon in bringing suit. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993).

A finding that plaintiff has had notice of documents used by defendants in support of their motion for judgment on the pleadings is significant since the problem that usually arises when a court reviews statements extraneous to a complaint, is the lack of notice to the plaintiff that they may be considered. To meet this notice re-' quirement, 12(c) motions are often converted to summary judgment motions. However, when plaintiff has actual notice of all the information in movant’s papers, and has relied on these papers in framing the complaint, the necessity for turning the Rule 12(c) motion into one under Rule 56 is negated.

It is undisputed that on February 3, 1998, plaintiff filed an age discrimination complaint against NECA with the NYSDHR. In its Determination and Order, dated and mailed on March 29, 2000, the NYSDHR notified plaintiff of the results of its investigation of his charges. Defendant NECA has included a copy of this document in its motion papers. It is clear that a copy of this decision was in plaintiffs possession and he had knowledge of it contents when defendant NECA filed the current motion and, therefore, it may be considered by the court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Popat v. Levy
328 F. Supp. 3d 106 (W.D. New York, 2018)
Spang v. Katonah-Lewisboro Union Free School District
626 F. Supp. 2d 389 (S.D. New York, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
130 F. Supp. 2d 359, 2001 U.S. Dist. LEXIS 1677, 2001 WL 173338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-gallagher-nynd-2001.