2003 | Cited 0 times | S.D. New York | March 27, 2003


Ellen Geaney, a pro se Plaintiff, filed this action pursuant to § 510 of Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140, and to 42 U.S.C. § 1985 (2). Plaintiff alleges that she was wrongfully terminated from her position as a Member Services Representative of the New York City District Council of Carpenters Welfare Fund, the New York City District Council of Carpenters Pension Fund, the New York City District Council of Carpenters Annuity Fund, the New York City District Counsel of Carpenters Scholarship Fund, and the New York City District Council of Carpenters Vacation Fund (the "Funds"). Defendants move to dismiss pursuant to Fed.R. Civ. Pro. 12(b)(6)

Procedural History

Plaintiff filed her complaint with the assistance of counsel on October 19, 2001, completing service on February 22, 2002. Earlier, however, on January 10, 2002, Plaintiff's counsel requested an adjournment of the initial pretrial conference to allow time for Plaintiff to retain new counsel. The Court granted this request on January 14, 2002, and adjourned the conference from January 18, 2002 to March 1, 2002.

On February 27, 2002, Plaintiff's counsel informed the Court that Plaintiff was still interviewing prospective attorneys and requested a second adjournment to allow her time to retain new counsel. Based on this information, the Court granted a second adjournment of the conference from March 1, 2002 to April 26, 2002. Shortly thereafter, in an Order dated March 4, 2002, the Court directed Plaintiff to notify the Court by March 29, 2002 whether she had retained counsel or was going to proceed with her action pro se. (Mar. 4, 2002 Order). Plaintiff submitted a letter to the Court dated March 29, 2002 in which she informed the Court that she had "not retained counsel," but was "actively attempting to do so."

On April 16, 2002, Defendants filed their motion to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.Pro. 12(b)(6). That same day, Plaintiff's counsel informed the Court that Plaintiff still had not retained new counsel and requested that he and his firm be relieved as Plaintiff's attorney. On April 19, 2002, Plaintiff's attorney repeated his application to be relieved as counsel. Pursuant to these requests, the Court ordered that unless Plaintiff objected on or before May 8, 2002, counsel's application would be granted. (Apr. 24, 2002 Order) Plaintiff did not object to this Order and has since proceeded pro se.

To date, Plaintiff has not submitted an opposition or any other response to Defendants' April 16, 2002 motion to dismiss. While she did attend a pre trial conference before Magistrate Judge Gorenstein on July 24, 2002, she has not contacted the Court in any way since that appearance. In January of 2003, this Court advised Plaintiff that if she did not respond to the pending motion to dismiss, the Court would consider the motion unopposed. (Jan. 23, 2003 Order). Plaintiff has not responded to this Order. Indeed, it has now been almost a year since the motion to dismiss was filed, and the Court has received neither opposition papers nor any other correspondence from the Plaintiff that might indicate that she intends to respond to the motion to dismiss. The Court, therefore, considers Defendant's motion unopposed.


Under Fed.R.Civ.P. 12(b)(6), a court may "dismiss a claim on the basis of a dispositive issue of law," Neitzke v. Williams, 490 U.S. 319, 326 (1989), by examining the legal sufficiency of the claim as opposed to the evidence underlying the factual issues, De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996). That said, however, a "complaint may be dismissed only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Paulemon v. Tobin, 30 F.3d 307, 309 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Therefore, when deciding a motion to dismiss, a court must accept all allegations made in a complaint as true, Barnett v. International Business Machines, 885 F. Supp. 581, 585 (S.D.N.Y. 1995). It must also construe the complaint liberally, especially when a plaintiff is proceeding pro se. Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).1

The complaint alleges the following. Plaintiff began work for the Funds in February of 1988 in Internal Auditing, after which she became a Member Services Representative in 1994. (Compl. ¶ 27). As a Member Services Representative, Plaintiff assisted union members and retirees in obtaining their employee benefits. (Compl. ¶ 27). In 1999, several retirees (the "MAC-OUT Plaintiffs") filed a lawsuit against the Funds, claiming damages for allegedly improper changes to their health insurance benefits.2 (Compl. at ¶ 35). In the spring and summer of 1999, Plaintiff assisted these plaintiffs by meeting with them and giving their counsel documents. She claims that she met with the plaintiffs and counsel at least ten and three times, respectively. (Compl. ¶ 36). She also asserts that she met with the New York State Department of Labor five times in connection with its investigation into alleged mismanagement of the Funds. (Compl. ¶ 37).

Later, on September 2, 1999, Plaintiff confided her concerns about the management of the Funds to Michael Forde, the Business Manager of Local 608 and a leading candidate for Executive Secretary/Treasure of the District Council. In this conversation, she told him that she had met with both the New York Department of Labor and the MAC-OUT plaintiffs who were suing the Funds. (Compl. ¶ 41, 42). Plaintiff alleges that shortly thereafter, on September 8, 1999, there was a meeting of the Funds' trustees in regards to the administration of the funds and that, at or around 5:00 p.m. that day, she observed Forde and Defendant Dunford, a Union Designated Trustee of the Funds, "speaking quietly and in close quarters." (Compl. ¶ 8, 43, 44). She claims that they saw her looking at them and that they "glared back at her in an intimidating manner." (Compl. ¶ 43, 44). Plaintiff believes that they were talking about her conversation with Forde from the previous week as well as the "status of her employment." (Compl. ¶ 45). The next day, September 9, 1999, Plaintiff was "let go," with the explanation that her department was being "revamped". (Compl. ¶ 46). Plaintiff states that she continued to work for several days thereafter, but was asked to remain at home for two days when the Trustees would be in the building as they did not want to see her there. (Compl. ¶ 47). Plaintiff asserts that she "ceased working at the Funds on September 17, 1999, but continued to receive her salary until on or about October 20, 1999." (Compl. ¶ 48)

Plaintiff alleges that, in fact, the department was not revamped and that the only other person that was fired was also fired in retaliation for his cooperation with the New York State Department of Labor and the United States Department of Justice. (Compl. ¶ 50). Plaintiff asserts that she was terminated by Defendants in "retaliation for her communications and cooperation with the New York State Department of Labor" in violation of § 510 of ERISA, 29 U.S.C. § 1140, and that she was also terminated in retaliation for her cooperation and future cooperation as a witness for the plaintiffs in violation of 42 U.S.C. § 1985 (2).

The Section 510 Claim

Section 501, 29 U.S.C. § 1140, provides in relevant part that:

It shall be unlawful for any person to discharge, fine, suspend, expel or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this [Act] or the Welfare Pension Plan Disclosure Act.

In their motion to dismiss, Defendants assert, inter alia, that Plaintiff's claims under § 501 of ERISA are barred by the applicable statute of limitations. While ERISA does not include a statute of limitations, this Circuit has held that § 510 ERISA claims are subject to a two year statute of limitations. Sandberg v. KPMB Peat Marwick, L.L.p., 111 F.3d 331, 336 (2d Cir. 1997) (applying the two year statute of limitations of the New York Workers' Compensation statute § 120 to ERISA claims); see also Hoodack v. International Business Machines, Inc., CIV.A No. 00-1814, 2002 WL 319503, at *2 (S.D.N.Y. Feb. 28, 2002) (same) In addition, a claim accrues under § 501 "when the employer decides to discharge an employee and communicates that decision to [her]." Barnett v. International Business Corp., 885 F. Supp. 581, 592 (S.D.N.Y. 1995); see also Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1138 (7th Cir. 1992) (holding that the former employee's § 510 ERISA claim accrued on the date that the employer decided to terminate the employee and communicated that decision to the employee and not on the employee's last day of employment), aff'd, 23 F.3d 174 (7th Cir. 1994); Green v. International Business Machines, Inc., Civ.A. No. 01-2334, 2001 WL 736811, at *2 (S.D.N.Y. June 22, 2001)

As Plaintiff stated in her complaint, she was informed of her discharge on September 9, 1999. While she continued to work in her position until September 17, 1999 and claims to have received salary through October 20, 1999, it is the date of communication of the decision to terminate her employment that controls.3 As she did not file her complaint until October 16, 2001, more than two years after she was informed that she was fired, her claim under § 501 is barred by the statute of limitations. Accordingly, Defendant's motion to dismiss is granted as to Plaintiff's § 501 ERISA claim.

The Section 1985(2) Claim

Plaintiff also alleges in her complaint that she was terminated in retaliation "for her cooperation/and or to impede her future cooperation as a witness in support of the MAC-OUT Plaintiffs in violation of 42 U.S.C. § 1985 (2)." (Compl. at ¶ 56). In the relevant part, § 1985(2) proscribes "two or more persons" from conspiring to:

deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified. . . .

42 U.S.C. § 1985 (2). The Second Circuit has defined the elements that a plaintiff must establish to bring a claim under this section.

The essential allegations of a § 1985(2) claim of witness intimidation are (1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter, which (3) results in injury to the plaintiff.

Chalal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984).

As to the first element, Plaintiff has not alleged sufficient facts to show a conspiracy. To withstand a motion to dismiss, a plaintiff alleging a violation of § 1985(2) must allege a "conspiracy between two or more persons." 42 U.S.C. § 1985 (2). Under the intra-corporate conspiracy doctrine, "officers, agents, and employees of a single corporate entity are legally incapable of conspiring together. . . ." Solla v. Aetna Health Plans of New York, Inc., 14 F. Supp.2d 252, 257 (E.D.N.Y. 1998), aff'd, 182 F.3d 901 (2d Cir. 1999). The Second Circuit has imported the doctrine in § 1985(2) jurisprudence, and has dismissed a § 1985(2) claim of conspiracy against trustees, officers and employees of a non-profit institution. Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978). ("Everyone of the defendants who was involved in the so-called conspiracy was either a trustee or faculty member of the Brooklyn Law School which is admittedly an educational corporation and was acting in that capacity in connection with the discharge.").

Here, Plaintiff's complaint can be read to allege that Defendants Forde and Dunford and "trustees" conspired to have her terminated. However, she does not allege that these individuals and trustees are members of different corporate entities. In fact, she states that "[t]he Defendant Funds are jointly Trusted Funds." (Compl. at ¶ 21). As such, Plaintiff does not satisfy the first necessary allegation to her § 1985(2) claim.

Plaintiff also fails to present sufficient facts in her complaint as to the second necessary allegation: that she was a witness within the meaning of § 1985(2). The Supreme Court has noted that "[t]he gist of the wrong at which § 1985(2) is directed is . . . intimidation or retaliation against witnesses in federal-court proceedings." Haddle v. Garrison, 525 U.S. 121, 125 (1998) (emphasis added). To that end, in Chalal v. Paine Webber Inc., the Second Circuit has interpreted the "the word `witness' liberally to mean not only a person who has taken the stand or is under subpoena but also one whom a party intends to call as a witness." Chalal, 725 F.2d at 24. Still, the Second Circuit did not imply that all persons that are in some way connected to a federal court proceeding qualify as a witness within the meaning of § 1985(2).

In Chalal, the Second Circuit found that the plaintiffs sufficiently established a claim under § 1985(2) where one of the witnesses that they intended to call had been threatened with the loss of his job if he continued to participate in the plaintiffs' lawsuit. The plaintiffs had engaged a securities expert to complete a report on the regulatory practices of their brokers. The expert did so, and filed an affidavit on their behalf in connection with their federal lawsuit. Id. at 22. In the interim, the expert had accepted a position with a large investment firm in New York. The plaintiffs alleged that the Paine Webber defendants contacted that new firm and pressured it to threaten the expert witness with regard to his participation in the lawsuit against Paine Webber. The plaintiffs alleged that the expert witness then called them, asking to withdraw his affidavit as he "had been told that he would have to resign from this participation in the case if he wished to continue his employment." Id. at 23. The plaintiffs maintained in their complaint that they had intended to obtain witness testimony from the expert and that they had been prevented from doing so in violation of § 1985(2). The Second Circuit found these allegations sufficient to support a claim and that "[a]dditional details could be obtained by way of discovery." Id. at 24.

Here, Plaintiff does not allege that the MAC-OUT plaintiffs intended to call her as a witness. She states only that she "was a likely witness for the MAC-OUT Plaintiffs in their pending federal court action." (Compl. at ¶ 36). While Plaintiff alleges that she assisted the MAC-OUT plaintiffs in their investigation, she does not claim that the plaintiffs ever contacted her with regard to her serving as witness in their lawsuit. Nor does she allege that she ever testified or was even subpoenaed in the MAC-OUT lawsuit. Furthermore, the MAC-OUT plaintiffs' case was closed in June of 2001, three months before Plaintiff filed this suit, foreclosing any notion that she might be called in the future.

Plaintiff's allegations, thus, stand in stark contrast to those made by the plaintiffs in Chalal. In Chalal, the plaintiffs themselves alleged their intention to call the witness in question in their pending lawsuit. Furthermore, the intended witness had been hired to help plaintiffs with their case and had filed an affidavit to the federal court on their behalf, corroborating plaintiffs' assertion that he was an intended witness. Here, Plaintiff only alleges that she aided the MAC-OUT plaintiffs in obtaining information for their lawsuit. Her speculation that she was a "likely" witness is insufficient to afford her protection under the witness protection provisions of § 1985(2).

Plaintiff's claims, if anything, appear to allege a dispute between her and her employer with regard to her participation in an investigation of Defendants' business practices. In this way, Plaintiff's case is similar to that of the plaintiff in Arroyo-Torres v. Ponce Federal Bank, F.B.S., 918 F.2d 276 (1st Cir. 1990), where the plaintiff's complaint did not allege that she "was prevented from testifying in a federal court, but rather that she was discharged because she provided information to federal investigators concerning . . . violations by her employer." Id. at 279. As the First Circuit explained in Arroyo-Torres, such allegations are not sufficient to allege a § 1985(2) claim, as "[i]t is crystal clear that section 1985(2) was not intended to create a federal tort remedy for employer-employee grievances." Id.; see also Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 348 (5th Cir. 1981) ("Section 1985(2) was not designed as a vehicle to remedy . . . allegedly tortuous acts of employers against employees."). Indeed, this Court cannot find on the basis of Plaintiff's allegations that she could prove a set of facts that would allow her to be deemed a "witness" as defined in Chalal, and, therefore, Plaintiff has failed to satisfy an essential allegation of a § 1985(2) claim. Chalal, 725 F.2d at 23.

The Court, accordingly, dismisses Plaintiff's § 1985(2) claim without prejudice. The Court grants Plaintiff leave to amend her complaint within 30 days to plead sufficient facts with respect to both her allegation of conspiracy and her allegation that she is a witness under § 1985(2). Barrinq such amendment, Plaintiff's claim will be dismissed with prejudice and the case will be closed.


Plaintiff's § 501 ERISA claim is dismissed with prejudice. Plaintiff's § 1985(2) claim is dismissed without prejudice; however, the claim will be dismissed with prejudice unless Plaintiff amends her complaint within 30 days to rectify the deficiencies in her claims.


1. While Plaintiff had the assistance of counsel in drafting her complaint, since she currently proceeds in this action pro se and has not submitted a response to this motion, the Court construes her complaint liberally.

2. The MAC-OUT plaintiffs filed a lawsuit in this district in 1999. See Patrick Enright et al. v. New York City District Council of Carpenter Welfare Funds. et al., 99 Civ. 0671 (SAS).

3. The Court notes that at the time Plaintiff filed her lawsuit, she was represented by counsel.

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