United States District Court, D. New Jersey
September 9, 2005.
FREDERICK STAMPONE, Plaintiff,
FREEMAN DECORATING CO., JOSEPH V. POPOLO, JR., and DON FREEMAN, Defendants.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
This matter comes before the Court upon motion by Defendants
Freeman Decorating Company, Joseph V. Popolo, Jr., and Don
Freeman (collectively, "Defendants") to dismiss the Complaint
filed against them by pro se Plaintiff Frederick Stampone
("Plaintiff"). No oral argument was heard pursuant to Rule 78 of
the Federal Rules of Civil Procedure. After carefully considering
the submissions of the parties and for the following reasons, it
is the finding of this Court that the Defendants' motion to
dismiss is granted.
Plaintiff filed the Complaint on August 31, 2004 alleging
violations of a lengthy list of various federal statutes, federal
and state constitutional provisions, and other broad legal
claims. On December 12, 2004, Defendants filed the instant motion
to dismiss. Plaintiff filed a brief in opposition on January 6,
2005. Defendants filed a reply brief on February 3, 2005.
The Court accepts as true the factual allegations in
Plaintiff's Complaint for the purposes of this motion. Plaintiff asserts that he has been a member of the
United Brotherhood of Carpenters ("UBC") since July 20, 1978.
(Complaint at ¶ 2.) Plaintiff placed his named on the UBC's
out-of-work list on August 6, 2004. (Id. at ¶ 4.) Plaintiff
alleges that he was called to work for Freeman Decorating Company
on August 17, 2004 at the Republican National Convention Center
in Madison Square Garden. (Id. at ¶ 5.) Plaintiff began work on
August 18, 2004. (Id. at ¶ 6.) At the end of the next work day,
a representative from Freeman Decorating Company informed
Plaintiff that he was laid off. (Id.) Plaintiff maintains that
he was laid off because he was over 51 years of age. (Id.)
Plaintiff immediately requested his paycheck and was informed it
would be mailed on August 26, 2004. (Id.) Plaintiff maintains
that he never received his paycheck. (Id. at ¶ 7.) Plaintiff
claims that Defendants have denied him his paycheck, right to
work, and union benefits. (Id. at ¶ 8.)
A. Standard of Review
When deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), all allegations in the Complaint must be
taken as true and viewed in the light most favorable to the
plaintiff. See Worth v. Selden, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc.,
140 F.3d 478, 483 (3d Cir. 1988); Robb v. Philadelphia,
733 F.2d 286, 290 (3d Cir. 1984). In evaluating a Rule 12(b)(6)
motion to dismiss, a court may consider only the Complaint,
exhibits attached to the Complaint, matters of public record, and
undisputedly authentic documents if the plaintiff's claims are
based upon those documents. Pension Benefit Guar. Corp. v. White
Consol Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
Additionally, Rule 8(a) of the Federal Rules of Civil Procedure
requires that a complaint contain "a short and plain statement of
the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). Due to an understandable difference in legal
sophistication, a complaint drafted by a pro se litigant must
be held to a less exacting standard than a complaint drafted by
trained counsel. Haines v. Kerner, 404 U.S. 519 (1972).
Nonetheless, a court should dismiss the case pursuant to Rule
8(a), "if a pro se complaint is so confusing or unintelligible
that no party could possibly understand or reply to it." Cole v.
Commonwealth Federal, 1994 WL 618464, *1 (E.D.Pa.); citing
King v. Fayette County, 92 F.R.D. 457, 458 (W.D.Pa. 1981);
Brown v. Califano, 75 F.R.D. 497 (1977).
B. Plaintiff Failed to Follow the Proper Administrative
Remedies Under 42 U.S.C. § 2000e(5)(1).
Title VII of the Civil Rights Act of 1964 establishes special
procedures for the prevention of unlawful employment practices,
including the creation of the Federal Equal Employment
Opportunity Commission ("EEOC") to investigate charges of such
unlawful employment practices. 42 U.S.C. §§ 2000e. Accordingly,
before instituting a Title VII action, individuals must file a
claim with the EEOC within 180 days of the alleged unlawful
discriminatory act and obtain a right to sue letter from the
agency. 42 U.S.C. 2000e-5(e). These conditions are
"non-jurisdictional prerequisites, akin to a statute of
limitations." Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982). Accordingly, claims made under Title VII may be
dismissed for failure to exhaust such administrative remedies.
Anjelino v. The New York Times Co., 200 F.3d 73, 87-88 (3d Cir.
Here, Plaintiff has failed to produce any evidence he filed a
claim with the EEOC with regard to his age discrimination
allegation. Also, Plaintiff has not disputed Defendants' argument
in their motion to dismiss that he failed to do so. As such,
because Plaintiff failed to follow the proper administrative
remedies under 42 U.S.C. § 2000e(5)(1), namely that he satisfy
the condition precedent of filing a timely claim with the EEOC for recovery
under Title VII, Defendants' motion to dismiss Plaintiff's age
discrimination claim is granted.
C. Plaintiff Failed to Exhaust Grievance Procedures Required
under His Contract with His Union.
Under federal labor law policy, "individual employees wishing
to assert contract grievances must attempt use of the contract
grievance procedure agreed upon by the employer and union as the
mode of redress." Republic Steel Corp. V. Maddox, 379 U.S. 650,
652-3 (1965). Unless otherwise agreed to, "the employee must
afford the union the opportunity to act on his behalf." Id. at
653. Furthermore, "if the wrongfully discharged employee himself
resorts to the courts before the grievance procedures have been
fully exhausted, the employer may well defend on the ground that
the exclusive remedies provided by such a contract have not been
exhausted." Vaca v. Sipes, 386 U.S. 171, 184-5 (1967).
In the present matter, the New York Trade Show Contractors'
Association ("the Association") and the District Council of New
York City and Vicinity of the UBC and Joiners of America, AFL-CIO
entered into the Convention and Exhibition Field Agreement ("the
Agreement"). The Agreement governs work performed for exhibit
shows between July 1, 2001 through July 30, 2006. As a member of
the Association, Defendants are governed by the Agreement. Also,
as a member of the UBC, Plaintiff is subject to the provisions of
Article XII, Section 1 of the Agreement provides that "in the
event there shall exist any claim, demand, dispute or controversy
between the parties hereto . . . the parties hereto shall first
attempt to settle and adjust such dispute, claim, demand or
controversy by negotiation." Article XII, Section 2, further
provides that "any grievance not resolved shall be submitted to
arbitration." Here, Plaintiff has failed to follow proper grievance
procedures as set forth in and required by the Agreement. As a
member of the UBC, Plaintiff should have exhausted all grievance
procedures available to him under the Agreement before resorting
to this Court for relief. As such, Defendants' motion to dismiss
Plaintiff's contract claims for failure to follow proper
procedures is granted.
For the reasons stated, it is the finding of this Court that
Defendants' motion to dismiss Plaintiff's complaint is granted.
An appropriate Order accompanies this Opinion.
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