100 F. Supp. 3d 225
E.D.N.Y.2015Background
- Michael Peacock, a Suffolk Bus Corp. (SBC) driver since 2006, received positive reviews but reported multiple passenger safety incidents in 2011–2012.
- After reporting incidents and being involved in a minor bus accident (with negative drug/alcohol test), SBC suspended and then terminated Peacock in July 2012 following investigatory meetings and a hearing.
- Peacock requested union (TWU Local 252) grievance representation; a second-level hearing occurred without his notice and he was not reinstated; his requests for further participation went unanswered.
- Peacock sued in 2014 asserting (1) 42 U.S.C. § 1985 civil conspiracy (based on whistleblower status), (2) retaliation under 49 U.S.C. § 31105 (STAA), and (3) an equity-based wrongful discharge claim; he also attempted to argue a duty-of-fair-representation claim in opposition papers.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6); the court granted dismissal in full and denied leave to amend as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1985 conspiracy pleaded | Peacock alleges defendants conspired to retaliate against him as a whistleblower | Defendants argue § 1985 requires membership in a protected class and particularized facts; whistleblowers are not protected | Dismissed — Peacock not in a § 1985 protected class and allegations are conclusory |
| Whether STAA (49 U.S.C. § 31105) supports a private suit | Peacock claims STAA retaliation claim supports his federal lawsuit | Defendants argue STAA provides an exclusive administrative scheme and no private right of action | Dismissed — no private right of action; administrative procedures not followed |
| Whether New York recognizes wrongful discharge and whether LMRA § 301 preempts state claim | Peacock asserts a wrongful discharge/equity remedy for his termination | Defendants assert New York doesn’t recognize wrongful discharge and any claim is preempted by § 301 because it implicates the CBA | Dismissed — New York disallows the tort; alternatively § 301 preempts the claim |
| Whether a duty of fair representation claim is viable though first raised in opposition | Peacock argued the Union breached its duty of fair representation (raised in opposition) | Defendants note the claim is not pleaded and would be time-barred (six-month limitations) | Not considered — new claim improperly raised in opposition and, if considered, barred by the six-month limitations period |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility; conclusory allegations insufficient)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (inadequate to allege mere conclusory conspiracy; plausibility requirement)
- Griffin v. Breckenridge, 403 U.S. 88 (1971) (§ 1985 requires class-based, invidiously discriminatory animus)
- Gleason v. McBride, 869 F.2d 688 (2d Cir. 1989) (plaintiff must show membership in a protected class for § 1985 claim)
- DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983) (six-month limitations period for hybrid § 301 / duty of fair representation claims)
- Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (describing STAA’s administrative enforcement scheme)
- Lobosco v. N.Y. Tel. Co./NYNEX, 96 N.Y.2d 312 (2001) (New York does not recognize a tort of wrongful discharge)