Opinion
19-CV-08810 (PAE) (KHP)
06-15-2021
JESUS M. CANO, Plaintiff, v. SEIU LOCAL 32BJ, et al., Defendants.
TO: HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE.
REPORT & RECOMMENDATION
KATHARINE H. PARKER, United States Magistrate Judge.
Plaintiff Jesus M. Cano, proceeding pro se, brings this action against his former employer, Solil Management, LLC and Sol Goldman Investments, LLC (collectively, “Solil”) and his union, the Service Employees International Union Local 32BJ (“Union”). He asserts claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code §§ 8-101 et seq., the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq, and the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 158, as well as common law claims for defamation and negligent infliction of emotional distress. (ECF No. 39) Some of the claims are directed to all Defendants, whereas others are specific to Solil or the Union.
Though Plaintiff also writes that he has claims for breach of contract and wrongful termination, the Court construes these as being subsumed within his discriminatory termination claim and claim that the Defendants failed to follow the terms of the collective bargaining agreement applicable to his employment.
The Solil Defendants and, separately, the Union have moved to dismiss the Complaint. For the reasons discussed below, I respectfully recommend that the Union's Motion to Dismiss (ECF No. 47) be granted and that the Solil Defendants' motion to dismiss (ECF No. 63) be granted in part and denied in part.
BACKGROUND
Plaintiff, a 54-year-old Hispanic male of Colombian descent, was employed by Solil as a doorman and a handyman at various locations in New York City from November 2016 through his termination on or about December 13, 2018. (ECF No. 66 at p. 33) Initially, Plaintiff worked as a part-time doorman and handyman at a residential building on East 35th Street. According to Solil, in the summer of 2018, after building management received complaints from tenants at the East 35th Street location and an incident between Plaintiff and a tenant regarding whether Plaintiff was responsible for lost dry cleaning, Solil transferred Plaintiff's work location. (ECF No. 39 at p. 6) Plaintiff's new location consisted of two residential buildings on East 88th Street and East 89th Street. Plaintiff worked exclusively as a handyman in these buildings. (ECF No. 47 at p. 10)
There is some discrepancy in the documents submitted to the Court as to whether the Plaintiff's last day of work was December 12th (ECF No. 63-1 at p. 16); 13th (ECF No. 39 at pp. 9, 18, 22), (ECF No. 63-2 at p. 18); or 14th (ECF No. 39 at p. 6), (ECF No. 47 at p. 10). For purposes of this Report and Recommendation, I used the date provided by the Plaintiff in his declaration at ECF 66.
Plaintiff complains that Solil Payroll Administrator Vivian Orellana discriminated against him on account of his race in connection with the dry-cleaning dispute referenced above. (ECF No. 39 at p. 6) Plaintiff denied responsibility for the missing dry cleaning and called the police to the building to investigate. (ECF No. 63-1 at p. 13) He also requested that Orellana view a supposedly exculpatory video, but Orellana refused to view it, which Plaintiff perceived as discriminatory. (ECF No. 39 at p. 6)
In the summer of 2018 when Plaintiff began working at his new Upper East Side location, he began experiencing what he characterizes as harassment from another handyman in the building named Martin Ball (“Ball”). (ECF No. 39 at p. 6) For example, on August 7, 2018, Ball allegedly called Plaintiff a “fucking Columbian, motherfucker” and became “violent.” (ECF No. 39 at p. 6) That same day, Ball said, “I can imagine this building in a couple years being run by three old men, ” which Plaintiff interpreted as Ball indicating a preference for a younger person to fill the handyman position. (ECF No. 39 at p. 7) Finally, in connection with a dispute over how to repair an air conditioning unit, Plaintiff complains that Scott Price (“Price”), the Building Manager, said “he was usually able to snake out that line” instead of assisting Plaintiff in resolving the dispute with Ball, which Plaintiff appears to suggest evidences discrimination based on his race or national origin. (ECF No. 39 at p. 6) In addition to the disputes with Ball referenced above, it appears from the Complaint and papers submitted with it that Ball and Plaintiff had several other disagreements about how to fix certain things around the building, including air conditioning units, leaking pipes and faucets, window guards and the like, leading to arguments and name-calling by Ball. Id.
Plaintiff complained to Price and to the Building Superintendent, Edo Mehmedovic (“Mehmedovic”), “many times” that he was being harassed by Ball but that neither Price nor Mehmedovic did anything to stop Ball's behavior. (ECF No. 39 at p. 5) Plaintiff further alleges that Price and Mehmedovic each said discriminatory things to him about his race and/or national origin. Id. at pp. 5-8. For example, Plaintiff contends that Price said that he didn't like Spanish people and suggested to Plaintiff that he “should go looking for a new job ashole [sic]” and “continue” to traffic drugs in Colombia and stop wasting his time. (ECF No. 39 at p. 8) Mehmedovic purportedly told Plaintiff not to speak Spanish with co-workers in front of tenants and also told him that he didn't deserve to live in the United States, negatively referencing Plaintiff's Colombian heritage. Id. According to Plaintiff, Mehmedovic also suggested that Plaintiff was “a slave for working in the building” and had to put up with verbal abuse from a tenant. (ECF No. 39 at p. 17)
Defendants suggest that this comment came from Ball (ECF No. 47 at p. 14), however the Court interprets Plaintiff's pleading as referring to Mehmedovic. (ECF No. 39 at p. 5)
Separately from the issues he had with his co-worker and supervisors, it appears that tenants at the Upper East Side buildings may have complained about Plaintiff. The complaints included that Plaintiff was rude to them, did not perform repair work properly, and ignored requests for assistance with repairs and other maintenance jobs. (ECF No. 47 at p. 10) On one occasion, an air conditioner leaked and caused water damage after Plaintiff purportedly repaired it. (ECF No. 2-1 at p. 17) On another occasion, Plaintiff failed to notify appropriate authorities and the fire department about a gas leak from a stove. Id. Plaintiff disputes that tenants complained about him or that his performance was poor and, alternatively, contends that any criticisms about him are false/made up. (ECF No. 39 at p. 17) For purposes of this motion, the Court accepts Plaintiff's allegations as true.
Defendant Solil disciplined Plaintiff in connection with his interactions with Ball and performance as a handyman. First, on July 31, 2018, Price issued Plaintiff a verbal warning.(ECF No. 47 at p. 10) Then, on the grounds that Plaintiff's attitude and performance did not improve and that some tenants were refusing to allow Plaintiff to perform further work in their apartments, Price suspended Plaintiff without pay for two weeks starting September 14, 2018. (ECF No. 39 at p. 9) Plaintiff asserts his suspension was retaliatory based on his complaining about Ball's harassment and discriminatory based on his race and/or national origin.
Plaintiff contends he did not receive a verbal warning. The Court provides this information merely as background because it was stated in a subsequent written warning but, again, accepts Plaintiff's version of events for purposes of this motion.
Plaintiff returned from suspension on October 3, 2018, after which there were additional problematic interactions between Ball and Plaintiff, which Plaintiff characterizes as Ball's continued harassment. (ECF No. 39 at p. 5) According to Solil, Plaintiff was refusing to perform certain work, claiming that certain work was Ball's responsibility and not his, failing to timely or adequately respond to work orders, loitering in the building's lobby, and failing to perform work satisfactorily-all resulting in tenant complaints. (ECF No. 47 at p. 11) On December 13, 2018, Defendant Solil terminated Plaintiff's employment. Based on the letter sent to Plaintiff terminating his employment, the final action leading Solil to terminate Plaintiff's employment the stated reason for the termination was Plaintiff's failure to follow proper procedures and the law regarding the reporting of the suspected gas leak (referenced above). (ECF No. 47 at p. 10) To be clear, Plaintiff asserts that all of the assertions made by tenants, Ball and Solil management about him are fabricated and that his termination from employment was both retaliation for complaining to his management about Ball's harassment and discriminatory on account of his race and/or national origin. (ECF No. 39 at p. 5) And, on a motion to dismiss, the Court accepts the Plaintiff's factual assertions as true.
To add insult to injury, Plaintiff complains that after wrongfully terminating his employment, Solil retaliated again by providing “false information to the labor department” in connection with his application for unemployment insurance. (ECF No. 39 at pp. 5-6)
In addition to the “many” informal complaints Plaintiff made to his mangers about Ball's alleged harassment, Plaintiff filed grievances with his Union while he was employed. On September 18, 2018, Plaintiff filed a grievance about his suspension, and on September 28, 2018, he filed a grievance about Ball's harassment toward him. (ECF No. 39 at p. 9) And, on December 14, 2018, upon being terminated from employment, Plaintiff filed a third grievance with his Union about his termination. Id
The Court looked at a number of documents that the Plaintiff appended to his first complaint but that were not attached to his First Amended Complaint to clarify certain dates and to the extent such documents were incorporated into the Second Complaint by reference or otherwise integral to the First Amended Complaint. (ECF Nos. 2-2 at pp. 22, 23.) See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (noting that it is “well-established” that, on a motion to dismiss, the court includes in its analysis “not only the assertions made within the four corners of the complaint itself, but also those contained in documents attached to the pleadings or in documents incorporated by reference.”)
The Union, on Plaintiff's behalf, sent cease and desist letters to Solil management and Ball, but both were sent after Plaintiff had already been terminated from employment. (ECF No. 39 at p. 9) Ultimately, by letter dated April 17, 2020, the Union advised Plaintiff that, after a review of the facts and circumstances surrounding his grievances, it had determined that they “lack[] sufficient merit for the Union to be likely to prevail in arbitration.” (ECF No. 20 at pp. 5-6) The Union noted in its letter that Plaintiff had an option of appealing its decision within 21 days. Plaintiff did not appeal. (ECF No. 47 at p. 12) Thus, Plaintiff's grievances were never arbitrated.
The Court was not provided with the cease and desist letters that the Union sent to Defendant Solil.
On November 16, 2018, Plaintiff filed charges with the National Labor Relations Board (“NLRB”) alleging that his Union “failed and refused to properly process the grievance regarding harassment on the job” and “refused to properly process the grievance of Jesus Cano concerning his two-week suspension” for arbitrary or discriminatory reasons or in bad faith. (ECF No. 39 at p. 9; ECF 63-2 p. 6) On December 18, 2018, Plaintiff filed another charge with the NLRB alleging that Solil “discriminat[ed] against [him] by discharging him in order to discourage union activities or membership because he filed grievances seeking to enforce the collective-bargaining agreement between the Employer and SEIU Local 32BJ.” (ECF No. 39 at p. 9)
On February 28, 2019, the NLRB dismissed Plaintiff's charges against the Union and Solil finding that “. . . there is no evidence that the Employer bore any hostility toward your protected activity. Thus, there is insufficient evidence to establish that your discharge was motivated by the protected Union activities rather than the alleged performance and conduct issues that the Employer cited.” Additionally, the NLRB found that the Union processed Plaintiff's harassment grievance by writing cease and desist letters to the Employer and that there “. . . is no indication that the Union processed these grievances in an arbitrary or perfunctory manner or is motivated by other unlawful reasons.” Id. Plaintiff appealed the ruling of the NLRB, which was denied by letter dated June 27, 2019. Id.
Supra Footnote 4. The Court refers here to documents appended to the original complaint to provide the language from the NLRB paperwork. (ECF No. 2-2 at pp. 57-58) The Court may take judicial notice of government agency documents. See Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir. 2003) (taking judicial notice of a National Labor Relations Board document).
On January 28, 2019, Plaintiff filed a Charge of Discrimination (“Charge”) against Solil and the Union with the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging discrimination based on national origin and age, as well as retaliation. On May 2, 2019, the Plaintiff amended his charge to include discrimination based on race. (ECF No. 39 at p. 13) In the Charge, Plaintiff provided examples of allegedly discriminatory statements made to him at work. Specifically, he asserted that Mehmedovic “told me that I was slave for working in the building and had to take all verbal abuse from tenant” and that Ball said he was a “Faggot, Fucking Colombian, Fucking Spanish.” (ECF No. 39 at p. 17) He stated in the charge that his supervisor lied about complaints from tenants and the quality of his work and that he reported Ball's harassment to his supervisor and his Union but that nothing was done. Id. Instead, he was suspended and then terminated for reporting Ball's harassment to his Union.
On June 29, 2019, instead of waiting for the EEOC to investigate his pending complaint, Plaintiff requested a Notice of Right to Sue, which the EEOC issued on July 11, 2019. (ECF No. 39 at pp. 14-15) Plaintiff then promptly filed a complaint and then an amended complaint in this Court. Thereafter, Defendants indicated they wished to file motions to dismiss Plaintiff's First Amended Complaint. This Court granted Plaintiff an extension of time to find an attorney and/or to work with the free legal assistance group, New York Lawyers Assistance Group, to prepare a Second Amended Complaint addressing alleged defects in his pleading. (ECF No. 50)
Plaintiff, however, asked that the Court accept and consider the First Amended Complaint (ECF 39) as the operative complaint and did not submit a Second Amended Complaint. (ECF No. 60)
Accordingly, the motions to dismiss are directed to the pleading at ECF 39 and are now ripe for a decision.
LEGAL STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cruz v. Beto, 405 U.S. 319, 322 (1972); Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015) (citing Ofori-Tenkorang v. Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d Cir. 2006)). The Court's analysis focuses on whether the complaint contains “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual allegations are not required, the complaint must contain more than mere “labels and conclusions or formulaic recitation of the elements of a cause of action.” Id. It must contain more than naked assertions devoid of “further factual enhancement.” Id. In connection with claims of discrimination, the Second Circuit Court of Appeals has explained that the plausibility standard means that the facts asserted in the complaint must “give plausible support to a minimal inference of discriminatory [or retaliatory] motivation” to withstand dismissal. Littlejohn v. City of New York, 795 F.3d at 310-11.
When ruling on a motion to dismiss, the Court may consider not only the complaint but also “the plaintiff[']s relevant filings with the EEOC and other documents related to plaintiff's claim, even if they are not attached to the complaint, so long as those filings are either incorporate[d] by reference or are integral to and solely relie[d] upon by the complaint.” Littlejohn, 795 F.3d at 305 n.3 (alteration in original) (citation and internal quotation marks omitted); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (courts “may consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference ... and documents possessed by or known to the plaintiff and upon which [he] relied in bringing the suit.”). The Court also “may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment.” See Evans v. N.Y. Botanical Garden, No. 02 Civ. 3591, 2002 U.S. Dist. LEXIS 16434, at *4 (S.D.N.Y. Sept. 4, 2002); see also Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir. 2003) (taking judicial notice of a National Labor Relations Board document).
In the case of a pro se plaintiff, the Court is obligated to construe the complaint liberally, Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and to interpret the claims as raising the strongest arguments that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). The obligation to read a pro se litigant's pleadings leniently “applies with particular force when the plaintiff's civil rights are at issue.” Jackson v. NYS Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However, even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Id. (quoting Twombly, 550 U.S. at 555).
DISCUSSION
A. DISCRIMINATION CLAIMS AGAINST DEFENDANT SOLIL
Plaintiff asserts that he was subjected to a hostile work environment on the basis of his race and/or national origin when working for Solil. Although Ball appears to be the principal person responsible for the alleged harassment, Plaintiff also appears to assert that Price and Mehmedovic contributed to the hostile work environment by making discriminatory statements and not doing anything to stop Ball's harassment notwithstanding his many complaints to them about Ball. He claims that his termination was discriminatory based on race and/or national origin and age. And, finally, Plaintiff asserts that his suspension and termination were retaliation for his complaints about Ball's harassment.
1. Hostile Work Environment Harassment Based on Race/National Origin and Age
Harassment can be a form of discrimination. The EEOC defines harassment as unwelcome conduct that is based on a person's protected characteristic such as race or national origin. https://www.eeoc.gov/harassment (last visited June 10, 2021). When such conduct “is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive, ” it is unlawful under both Title VII and Section 1981. See Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006); Amaya v. Ballyshear LLC, 295 F.Supp.3d 204 (E.D.N.Y. 2018). The bar for establishing a claim under both statutes is relatively high insofar as a plaintiff must demonstrate that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Demoret, 451 F.3d 149; Amaya, 295 F.Supp.3d 204. In determining whether a plaintiff meets the “severe or pervasive” standard, courts consider the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the plaintiff's job performance. Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003) (quotation marks omitted).
Courts have found that a series of racist comments directed at an employee can create a hostile work environment. See Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997) (“[I]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments”); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986) (stating that for racist comments, slurs, and jokes to constitute a hostile work environment, there must be “more than a few isolated incidents of racial enmity”). Petty slights and isolated incidents generally do not rise to the level of illegal harassment under federal law. https://www.eeoc.gov/harassment (last visited June 10, 2021). Thus, when a plaintiff asserts that he experienced a hostile work environment based on racial slurs or other offensive comments, courts look at “the quantity, frequency, and severity” of the verbal abuse to determine if the cumulative impact created an unlawful hostile environment. Schwapp, 118 F.3d at 111. (quoting Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir. 1994).
Until recently, the standard for establishing a hostile work environment claim under the NYSHRL mirrored the federal standard. On October 11, 2019, however, amendments to the NYSHRL came into effect that eliminated the ‘severe and pervasive' standard. N.Y. Exec. Law § 300. The new standard requires a plaintiff to show that he or she was subjected to “inferior terms, conditions or privileges of employment because of the individual's membership in one or more . . . protected categories.” Id. The new standard is similar to the standard for stating a hostile work environment claim under the NYCHRL, discussed below. However, the amendment to the NYSHRL is not retroactive, meaning that the “severe and pervasive” standard applies to claims arising from conduct predating the effective date of the amendments. McHenry v. Fox News Network, LLC, No. 19 Civ. 11294 (PAE), 2020 WL 7480622, at *8 (S.D.N.Y. Dec. 18, 2020); Wellner v. Montefiore Med. Ctr., No. 17 Civ. 3479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019); Ahmad v. New York City Health & Hosps. Corp., No. 20 CIV. 675 (PAE), 2021 WL 1225875, at *12 (S.D.N.Y. Mar. 31, 2021). Because Plaintiff's claims are based on conduct that occurred in 2018, the Court applies the “severe and pervasive standard” to Plaintiff's NYSHRL hostile work environment claim.
The “severe and pervasive” standard does not apply to claims under the NYCHRL. Rather, a Plaintiff need only demonstrate that he was treated “less well” than other employees because of his protected characteristic such as race or national origin. Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir. 2013); see also Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 78 (N.Y.App.Div. 2009) (holding federal “severe and pervasive” standard does not apply to claims under the NYCHRL; rather, “liability should be determined by the existence of unequal treatment”).
Solil seeks dismissal of Plaintiff's hostile work environment claims on the ground that the alleged discriminatory comments by Ball, Price and Mehmedovic are sporadic, stray remarks insufficiently severe and pervasive to state a claim. It argues the other allegedly harassing conduct to which Plaintiff points to such as altering Plaintiff's work orders, blaming Plaintiff for preexisting mechanical problems, and expecting Plaintiff to fix things he had not fixed before consists of petty slights and inconveniences insufficient to state a claim. (ECF No. 63-1 at pp. 36-37.) However, whether conduct is severe or pervasive enough to successfully state a claim for hostile work environment is generally inappropriate to determine on a motion to dismiss. Amaya, 295 F.Supp.3d at 224; see also Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (explaining that “whether a particular work environment is objectively hostile is necessarily a fact-intensive inquiry”).
In this case, Plaintiff asserts that from in or about July 2018 through November 2018, he was subjected to unlawful harassment based on his race and/or national origin. This included comments by his co-worker Ball, who allegedly called Plaintiff a “Fucking Colombian, motherfucker” and a “Faggot, Fucking Colombian, Fucking Spanish;” a statement by Price, the Building Manager, that “I don't like fucking Spanish people, you don't deserved [sic] to work here and you should go looking for a new job ashole [sic], you should continue drug trafficking in Colombia and stop wasting my fucking time;” and comments by Mehmedovic, the Building Superintendent, that “you don't belong here, fucking Colombian, you don't even deserved [sic] to live in this country, and I will get you fired soon, ” to not speak Spanish with co-workers in front of tenants and that Plaintiff was a “slave” to the building. (ECF No. 39 at p. 5, 6, 8, 17) Plaintiff also asserts that Price and Mehmedovic heard the abuse by Ball and did nothing to stop it even after Plaintiff's “many” complaints to them about Ball. That the comments, which all are derogatory of Plaintiff being Hispanic, speaking Spanish and/or Columbian heritage, were made by a co-worker and supervisors during a short period of employment and not addressed after Plaintiff complained, together with allegedly trumped up criticisms of his performance in order to create a justification for terminating his employment, are sufficient to raise a plausible claim of hostile work environment harassment based on Plaintiff's race and/or national origin under federal law and the NYSHRL. See, e.g., Bernardi v. New York State Dep't of Corrections, 2021 WL 1999159 (S.D.N.Y. May 19, 2021) (denying motion to dismiss hostile work environment claim under Title VII and the NYSHRL based on comments by colleagues to “go back to his own country, ” using Italian slurs, and saying his “guinea food stinks”); Brown v. Montefiore Medical Center, 2021 WL 1163797 (S.D.N.Y. Mar. 25, 2021) (denying motion to dismiss hostile work environment claim under Section 1981, the NYSHRL and the NYCHRL where complaint alleged only circumstantial evidence of racism by several staff members he supervised and Union representative informed plaintiff that some of the conduct was motivated by racism); see also Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 388 (2d Cir. 2020) (“Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.”).
To the extent Plaintiff pleaded sufficient facts to allege a hostile work environment under federal law, he also has sufficiently pleaded a claim under the NYCHRL. See Taylor v. City of N.Y., No. 15-cv-7454 (RA), 2016 WL 4768829, at *7 (S.D.N.Y. Sept. 13, 2016).
The cases Solil cites in support of dismissal are all distinguishable insofar as they were decided at the summary judgment stage, did not involve the type of claim in this case, or comments by both supervisors and co-workers within a period of months accompanied by a failure to address the plaintiff's complaints of harassment. See Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (claim dismissed on summary judgment; involved two derogatory comments about black cooking and no evidence that other workplace decisions were racially motivated); Fleming v. MaxMara USA, Inc., 371 Fed.Appx. 115, 119 (2d Cir. 2010)(summary judgment decision; one isolated comment pertaining to plaintiff's race); Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018) (offensive comments by hiring manager made early in Plaintiff's tenure did not support claim that other decisions denying Plaintiff promotions and/or demoting plaintiff created a retaliatory hostile work environment); Maines v. Last Chance Funding, Inc., No. 17-cv-5453, 2018 WL 4610898, at *1 (E.D.N.Y. Sept. 25, 2018) (permitting motion to amend to add claims under the NYSHRL against two individuals who made discriminatory remarks) Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416 (KMK), 2019 WL 3202747, at *1 (S.D.N.Y. July 16, 2019) (dismissing hostile work environment claims involving co-worker comments not aimed at the plaintiff and no detail about frequency or severity).
Accordingly, I recommend that Solil's motion to dismiss Plaintiff's hostile work environment harassment claims be denied.
2. Discriminatory Termination Based on Race/National Origin and Age
To state a claim of discrimination under Title VII, Section 1981, the ADEA and the NYSHRL, a plaintiff must demonstrate that he is a member of a protected class, that he was qualified for his job, that he suffered an adverse employment action, and that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Once the plaintiff meets this burden, the burden of persuasion shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment decision. Provided the employer articulates such a reason, the burden shifts back to the plaintiff to show that the adverse employment was motivated by discriminatory animus in the case of Title VII and the NYSHRL or was “because of” the Plaintiff's age under the ADEA or because of his race under Section 1981. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); Littlejohn v. City of New York, 795 F.3d 297, 307-08 (2d Cir. 2015); Alexander v. N.Y.C. Dep't of Educ., No. 19 Civ. 7023 (AJN), 2020 WL 7027509, at *3, 9 (S.D.N.Y. Nov. 30, 2020) (discussing burden-shifting under the ADEA).
Both ADEA and Section 1981 have the “but for” causation formulation. Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009, 1015 (2020) (To prevail on a motion to dismiss, “a plaintiff must initially plead . . . that, but for race, [she] would not have suffered the loss of a legally protected right” under Section 1981.); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2345, 174 L.Ed.2d 119 (2009) (A plaintiff must prove that age was the “but-for” cause of the employer's adverse decision.)
Importantly, at the pleading stage, a plaintiff does not need substantial evidence of discriminatory intent. Rather, the facts pleaded need only give plausible support to a minimal inference of discriminatory intent. Littlejohn, 795 F.3d at 311-312.
Here, Solil seeks dismissal of Plaintiff's discriminatory termination claims on the grounds that Plaintiff was not qualified for his job and that the alleged discriminatory remarks do not raise a plausible inference that the termination decision was motivated by Plaintiff's race or national origin or because of Plaintiff's age.
Solil's argument about Plaintiff's qualifications can be quickly disposed of. To demonstrate that he is qualified for his job, a plaintiff must show that his or her performance was of “sufficient quality to merit continued employment.” Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978). Here, Plaintiff pleads that he was qualified for the job and that his performance criticisms were fabricated. It is also undisputed that Plaintiff was sufficiently qualified as a handyman to be hired and transferred to a new work location after more than a year of employment. These facts are sufficient at the pleading stage to render it plausible that Plaintiff was qualified to be a handyman. See Amarnare v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 611 F.Supp. 344, 350 (S.D.N.Y. 1984), aff'd sub nom. Aharnare v. Merrill Lynch, 770 F.2d 157 (2d Cir. 1985) (whether plaintiff was qualified for her job was a question of fact that could not be resolved on a motion to dismiss).
To the extent Solil argues that certain documents Plaintiff submitted in connection with his initial complaint but not with his Amended Complaint confirm that Plaintiff is not qualified and Solil's suspension and termination decisions were not discriminatory but instead based on legitimate concerns about Plaintiff's performance, those arguments are not appropriately addressed at this stage of the case as they require an interpretation of documents and determination of fact disputes. Such arguments are more appropriately addressed after discovery on a motion for summary judgment.
Turning to Solil's second argument, the Court evaluates whether facts have been pleaded that give rise to an inference of animus based on race, national origin or age. Discriminatory intent may be inferred when a similarly situated employee outside of the plaintiff's protected class received different treatment. Tappe v. Alliance Capital Mgmt., L.P., 177 F.Supp.2d 176, 185 (S.D.N.Y. 2001) (“Tappe 1”). Discriminatory intent also may be inferred from criticism of plaintiff's performance in invidious or ethnically degrading terms, invidious comments about others in plaintiff's protected group, or the sequence of events leading to the negative employment action. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). In general, for verbal comments to raise a plausible inference of discrimination, there must be a nexus between the comments and an adverse employment decision. LaSalle v. City of New York, 13-cv-5109 (PAC), 2015 WL 1442376, at *5, 2015 U.S. Dist. LEXIS 41163, at *13-*14 (S.D.N.Y. Mar. 30, 2015). Courts consider a number of factors to determine whether an allegedly discriminatory remark is probative of discriminatory intent, including:
(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level coworker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
As noted above, Plaintiff contends that his supervisors, Price and Mehmedovic, both made derogatory remarks about his race and national origin. Price purportedly said that he didn't like Spanish people and suggested to Plaintiff that he “should go looking for a new job ashole [sic]” and “continue” to traffic drugs in Colombia and stop wasting his time. Mehmedovic purportedly said “you don't belong here, fucking Colombian, you don't even deserved [sic] to live in this country, and I will get you fired soon, ” not speak Spanish with co-workers in front of tenants and that Plaintiff was a “slave” to the building.
Price's statement demonstrates animus toward Plaintiff because he is Hispanic and is also tied into a statement indicating a belief that Plaintiff should not be working at the building and was more suited to trafficking drugs based on his national origin. Although it is unclear what Price's precise role was in Plaintiff's termination, there is no dispute he is a Building Supervisor and played some role in supervising Plaintiff because he was involved in resolving disputes between Ball and Plaintiff and someone to whom Plaintiff complained and someone who Plaintiff believes was involved in providing false statements about his work to justify his termination. Additionally, Price's statement appears to have been made within less than two months of Plaintiff's termination from employment. Mehmedovic's statements similarly reference Plaintiff's race and/or national origin in the context of specific employment actions he supposedly was going to take against Plaintiff. In particular, it was when Mehmedovic handed Plaintiff his suspension letter that Mehmedovic said that Plaintiff “[doesn't] belong here, fucking Colombian, you don't deserve to live in this country and I will get you fired soon.” These comments are sufficient at the pleading stage to give rise to a plausible inference of race and/or national origin discrimination under Title VII, Section 1981 and the NYSHRL. Chukwueze v. NYCERS, 891 F.Supp.2d 443, 455 (S.D.N.Y. 2012) (Title VII termination claim is sufficient to survive Defendant's motion to dismiss); Jaffery v. Downtown Pharmacy, Inc., No. 20 CIV. 3437 (GBD), 2021 WL 1199074, at *3 (S.D.N.Y. Mar. 30, 2021) (The Court held that Plaintiff adequately alleged an inference of race discrimination under § 1981); Green v. Jacob & Co. Watches, Inc., 248 F.Supp.3d 458, 468 (S.D.N.Y. 2017) (The Court held that the Plaintiff adequately alleged claims against defendants pursuant to the NYSHRL.) Thus, to the extent Plaintiff states a plausible claim of discriminatory termination based on race and/or national origin under federal and state law, he also states one under the NYCHRL.
The Court reaches a different conclusion as to Plaintiff's claim of discriminatory termination based on age. The sole basis for the age discrimination claim appears to be a statement made by his co-worker, Ball. According to Plaintiff, on August 7, 2018 Ball became upset and complained about how “ingratefull [sic] the company was with him, ” after everything he did for them, saying “I can imagine this building in a couple years, being run by three old men.” (ECF No. 39 at p. 7.) Even assuming Ball's statement reflects an ageist attitude on the part of Ball, there are no facts in the complaint to suggest that anyone from management had such an attitude or that Plaintiff was treated differently from similarly situated younger workers. Ball's comment if anything is merely a stray remark that alone is insufficient to support a claim of age discrimination under the ADEA and the NYSHRL. See Luka v. Bard Coll., 263 F.Supp.3d 478, 487 (S.D.N.Y. 2017) (dismissing claims under Rule 12; comments by a defendant who was not the “ultimate decisionmaker” were “[i]solated comments, [that] while potentially offensive, do not lead to an inference of discriminatory intent.”). Similarly, even though the standard for stating a plausible claim of discrimination under the NYCHRL is lower than under federal and state law, given the absence of any facts suggesting that Solil management was motivated by ageism in terminating Plaintiff's employment, the age claim under the city law also should be dismissed. Dimitracopoulos v. City of New York, 26 F.Supp.3d 200, 216 (E.D.N.Y. 2014) (On a motion to dismiss, the Court held that the Plaintiff failed to state a plausible NYCHRL claim for age discrimination.)
3. Retaliation
Plaintiff contends that Solil retaliated against him for complaining about Ball's harassment by suspending him without pay and terminating his employment for bogus reasons. He also takes issue with certain unspecified information Solil provided to the New York State Department of Labor in connection with Plaintiff's application for unemployment insurance benefits.
Retaliation claims are evaluated using the three-step burden shifting analysis under McDonnell Douglas. Russell v. N.Y. Univ., 739 Fed.Appx. 28, 32 (2d Cir. 2018). To establish a prima facie case of retaliation under Title VII, Section 1981, NYSHRL, and the NYCHRL a plaintiff must establish that: (1) he or she engaged in a statutorily protected activity; (2) the defendant was aware of plaintiff's participation in the protected activity; (3) the defendant took an adverse employment action against plaintiff; and (4) a causal connection existed between the protected activity and the adverse employment action. See Tekula v. Bayport-Blue Point Sch. Dist., 295 F.Supp.2d 224, 229 (E.D.N.Y. 2003) (Section 1981 claims are analyzed under the same standards as Title VII claims); Hagan v. City of New York, 39 F.Supp.3d 481, 503 (S.D.N.Y. 2014) (The NYSHRL and NYCHRL contain anti-discrimination and retaliation provisions analogous to those in Title VII. N.Y. Exec. L. § 296(1)(a), (e); N.Y.C. Admin. Code § 8-107(1)(a), (7)); Deveaux v. Skechers USA, Inc., No. 19 Civ. 9734 (DLC), 2020 WL 1812741, at *6-7 (S.D.N.Y. Apr. 9, 2020) (because plaintiff's retaliation claims met Title VII/NYSHRL standard, they also satisfied the NYCHRL standard). Under federal law, a plaintiff must demonstrate that a desire to retaliate was the actual “but-for” cause of the challenged employment action. Alexander v. City of New York, 957 F.Supp.2d 239, 249 (E.D.N.Y. 2013), amended, No. 11-CV-4638(NG)(MDG), 2014 WL 12829215 (E.D.N.Y. Dec. 30, 2014) (a plaintiff making out the causal connection under § 1981 must show that “the desire to retaliate was the but-for cause of the challenged employment action, ” and not just a motivating factor.) See Benzinger v. Lukoil Pan Americas, LLC, 447 F.Supp.3d 99, 125 (S.D.N.Y. 2020) (NYSHRL requires a but-for causation formulation). Under New York City law, while the plaintiff must establish the same factors laid out above, a Plaintiff is not required to show but-for causation. McHenry v. Fox News Network, LLC, No. 19 CIV. 11294 (PAE), 2020 WL 7480622, at *11 (S.D.N.Y. Dec. 18, 2020)
What constitutes an “adverse action” for purposes of federal retaliation claims is broader than under federal discrimination claims and broader still under state and city law. In all cases, a suspension or termination would constitute an adverse action.
The Court does not, however, evaluate the pleadings under the burden-shifting framework. Rather, at this stage of the case, the plaintiff is only required to give fair notice of the retaliation claim and the grounds upon which it rests sufficient to raise a plausible inference of retaliatory motive in order to defeat the present motion. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514-15 (2002); Littlejohn, 795 F.3d 297, 309 (2d Cir. 2015).
Solil focuses its motion to dismiss on the first and second prongs of the prima facie test, arguing that Plaintiff failed to engage in protected activity and/or that his complaints were too vague to put Solil on notice that they pertained to unlawful discrimination or harassment based on race and/or national origin. With respect to the first prong, “protected activity” can “take the form of less formal protests, such as making complaints to management, writing critical letters to customers, or expressing support of co-workers who have filed charges.” Del Castillo v. Pathmark Stores, 941 F.Supp. 437, 438-439 (S.D.N.Y. 1996). However, such informal complaints must be sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII or Section 1981. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011). Complaints that are centered on general allegations of harassment unrelated to race or national origin are not protected activity. Thomas v. iStar Fin., 438 F.Supp.2d 348, 365 (S.D.N.Y. 2006) (holding that complaints about supervisor's treatment, such as complaint that supervisor falsely accused plaintiff of sexually harassing a co-worker, could not form basis of retaliation claim), aff'd, 629 F.3d 276 (2d Cir. 2010). As to the second prong, defendants must have “knowledge” of the protected activity to be able to “engage in retaliation.” Gordon v. Kings County Hosp. Ctr., 95-CV-3006, 2000 WL 1868091, at *6 (E.D.N.Y. Oct. 25, 2000).
Plaintiff contends that Ball harassed him by calling him, among other things, “a Faggot, Fucking Columbian, Fucking Spanish.” Ball made the quoted statement in or about July 2018. Plaintiff states that he reported this incident and other alleged harassment and discrimination by Ball to his supervisor “many times” but that his supervisor did not address his complaint. Plaintiff's complaints to his supervisor constitute protected activity. Furthermore, to the extent he reported the specific comment made by Ball to a supervisor, such a complaint would be sufficient to put Solil on notice that Plaintiff was complaining about unlawful discrimination/harassment. Plaintiff also alleges that in November of 2018 he confronted Price and asked him why he was helping Ball. In response, Price allegedly said he didn't like “fucking Spanish people” and that Plaintiff didn't deserve to work at the building. Though Plaintiff does not provide the precise words he used when confronting Price about his failure to help with Ball, he asserts generally that he complained about harassment and discrimination. At the pleading stage, the Court finds this is sufficient, given the specificity of the earlier complaint to Price, to render it plausible that Plaintiff's later complaints also constituted protected activity and would have put Solil on notice. Plaintiff also filed a grievance with his Union on September 28, 2018 asserting that Ball was harassing him. The Complaint does not state whether Solil had notice of the grievance at that time-it states only that the Union sent a cease and desist letter to Ball in January 2019 when presumably Solil also would have been on notice of the grievance. Therefore, it is unclear whether Solil was aware of Plaintiff's grievance before it terminated Plaintiff's employment. Nevertheless, at the pleading stage, Plaintiff has pleaded sufficient facts to satisfy the first and second prongs of a prima facie case of retaliation by virtue of his complaints to Price.
Plaintiff was suspended on September 14, 2018 and then terminated on December 13, 2018. His suspension occurred within three months after he complained about Ball's first offensive comment mentioned above. His termination occurred within two months after he confronted Price about why he was not helping to resolve the situation with Ball. Causation can be proven indirectly by showing that the protected activity was followed closely by discriminatory or retaliatory treatment. See Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). While Solil does not argue a failure to meet causation and while there is no “bright line” for determining when temporal proximity is sufficient to plausibly allege causation, courts within the Second Circuit generally have held that “the temporal nexus between the protected activity and the adverse employment action must be three months or less to establish a causal connection.” Jackson v. N.Y. State Office of Mental Health, No. 11-cv-7832 (GBD)(KNF), 2012 WL 3457961, at *11 (S.D.N.Y. Aug. 13, 2012) (collecting cases). Thus, the complaint is sufficient to satisfy the pleading standard for a claim of retaliation with respect to Plaintiff's suspension and termination.
Plaintiff also alleged that Solil “retaliated against [him] [by] providing false information to labor department about [his] termination alleging violent reaction with a coworker.” (ECF No. 39 at p. 5.) The Plaintiff did not provide any additional information regarding the false information provided to the labor department. Without more information, it is unclear and too vague to understand how it would qualify as actionable retaliation. See generally, Talyansky v. Xerox Corp., 22 F.Supp.2d 55, 56 (W.D.N.Y. 1998), aff'd, 182 F.3d 901 (2d Cir. 1999) (Court found that the Plaintiff's retaliation claim was vague where Plaintiff alleged that defendants were providing potential employers with negative references in retaliation.) Thus, the claim of retaliation with respect to information provided to the Labor Department should be dismissed.
B. NLRA AND LMRA CLAIMS AGAINST ALL DEFENDANTS AND CLAIMS OF DISCRIMINATION AGAINST THE UNION
Under federal labor law, a union-represented employee may bring a court action against his employer and union in what is referred to as a hybrid claim. White v. White Rose Food, a Div. of DiGiorgio Corp., 237 F.3d 174, 179 (2d Cir. 2001). “To establish a hybrid § 301/duty of fair representation (“DFR”) claim, a plaintiff must prove both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union member[ ].” Id. at 178.
Here, Plaintiff does not point to the provision of the applicable collective bargaining agreement that was breached. However, he does assert a “breach of contract” claim, which the Court assumes refers to Solil's actions of suspending and then terminating Plaintiff's employment and alleged failure to address alleged harassment by Ball consistent with collective bargaining agreement procedures, based on Plaintiff's responses to Defendants' motions and because these are the actions for which Plaintiff filed grievances.
As to the second aspect of a hybrid claim, a union is required to serve the interests of all of its members without hostility or discrimination, exercise its discretion in that representation with complete good faith and honesty and avoid arbitrary conduct. Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015). In order to establish a breach of the duty of fair representation, the Plaintiff must show both that Union's conduct towards the Plaintiff was “arbitrary, discriminatory, or in bad faith” and that the damages he suffered were caused by the Union's breach. See Sanozky v. Int'l Ass'n of Machinists & Aerospace Workers, 415 F.3d 279, 282-83 (2d Cir. 2005), (citing Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998)).
“‘[A] union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational.'” Sanozky, 415 F.3d at 282-83; See also Drozd v. Teamsters Local 449, Union President, Buffalo NY 14206, 18-cv-185, 2020 WL 6049618 (Sept. 21, 2020) (recommending dismissal of duty of fair representation and discrimination claim against union; failure to present certain evidence of an alleged discriminatory remark at grievance meeting and arbitration was insufficient to state a claim). “A union's acts are discriminatory when ‘substantial evidence' indicates that it engaged in discrimination that was ‘intentional, severe, and unrelated to legitimate union objectives.'” Vaughn v. Airline Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010) (citing Amalgamated Ass'n of St., Elec., Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971)). A Union acts in bad faith if it engages in fraudulent, deceitful, or dishonest conduct. White, 237 F.3d at 179. Courts must be highly deferential when evaluating a union's representation because union's have wide latitude in carrying out their bargaining responsibilities. Alen v. U.S. Airways, Inc., 526 Fed.Appx. 89, 91 (2d Cir. 2013); Mancus v. The Pierre Hotel, 45 Fed.Appx. 76, 77 (2d Cir. 2002).
To start, no union-represented employee has the absolute right to have his grievance presented for arbitration, even where he can establish that the grievance might have been meritorious. Vaca v. Sipes, 386 U.S. 171, 191, 194-95 (1967). A union acts arbitrarily in failing to initiate or process a grievance when it “ignores or perfunctorily presses a meritorious claim.” Samuels v. Air Transport Local 504, 992 F.2d 12, 16 (2d Cir. 1993). In contrast, a union does not act arbitrarily where it “fails to process a meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to error in evaluating the merits of the grievance.” Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994). Furthermore, “[t]actical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach.” Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989). Thus, as a general matter, neither a Union's decision to not pursue an employee's complaint through the full grievance procedure of the collective bargaining agreement, “nor the employee's dissatisfaction with the manner in which the union conducted the representation” constitutes grounds for finding a breach of duty. Saidin v. New York City Dept. of Ed., 498 F.Supp.2d 683, 689 (S.D.N.Y. 2007), reconsideration denied, 245 F.R.D. 175 (S.D.N.Y. 2007). Rather, to survive a motion to dismiss, a plaintiff must set forth concrete facts from which one can infer a union's discrimination, bad faith, or arbitrary exercise of discretion. Vaca, 386 U.S. at 191.
Construed liberally, Plaintiff appears to allege that the Union acted discriminatorily, in bad faith or arbitrarily by delaying the processing of his September 2018 grievances concerning his suspension and Ball's harassment and by failing to pursue his December 2018 grievance about his termination through arbitration. Plaintiff, however, offers absolutely no facts to suggest that the Union was more than simply negligent in its three-month delay in issuing a cease and desist letter or making scriveners errors in those letters. He does not claim that he was subjected to different treatment than other members of the Union. Nor does he assert any facts suggesting bad faith or illegitimate objectives. Although at this stage of the case Plaintiff is not required to provide proof that his grievances were meritorious, or that the Union failed to investigate, there still must be some facts to suggest a plausible claim of discriminatory, arbitrary or bad faith conduct. AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003) Here, there are no such facts. See Ponticello v. County of Suffolk, 225 A.D.2d 751, 640 N.Y.S.2d 169 (2d Dep't 1996) (Neither a union's decision not to pursue an employee's grievance to every level of the applicable procedure, nor the employee's dissatisfaction with the manner in which the union conducted the representation, constitutes sufficient grounds warranting a finding of a breach of the duty of fair representation.); see also Vaca v. Sipes, 386 U.S. 171, 191 (1967). (“[A] union member has no absolute right to have his or her grievance taken to arbitration”).
Although not entirely clear from the pleading, the Court also construes the complaint as asserting a claim of discrimination based on race/national origin against the Union. In order to demonstrate that a Union discriminated against a member based on race/national origin in violation of Title VII, Section 1981, the NYSHRL, or the NYCHRL, a plaintiff must first show that the Union breached its duty of fair representation and that the discrimination was motivated by the member's race or national origin. Beachum v. AWISCO N.Y., 785 F.Supp.2d 84, 103 (S.D.N.Y. 2011), aff'd sub nom. Beachum v. AWISCO N.Y. Corp., 459 Fed.Appx. 58 (2d Cir. 2012); Figueroa v. Foster, 864 F.3d 222 (2d Cir. 2017) (holding NLRA does not preempt claim of discrimination under the NYSHRL against union). Plaintiff offers no facts whatsoever to demonstrate that any of the Union's alleged actions were motivated by animus against Plaintiff because of his race or national origin. Accordingly, he has failed to state a claims for breach of the duty of fair representation and discrimination against the Union. Thus, these claims against the Union should be dismissed, as should the Section 301 claim against Solil. See Drozd, 18-cv-185, 2020 WL 6049618, *2-3. See also Reyes v. Fairfield Properties, 661 F.Supp.2d 249, 269 (E.D.N.Y. 2009) (dismissing discrimination claim where the complaint “fail[ed] to allege any facts relating to race, other than a conclusory statement that defendants retaliated and discriminated against plaintiffs based on their being African- American”); Saidin, 498 F.Supp.2d at 689 (vague conclusory assertion that union representative and employer conspired to replace plaintiff with younger person is insufficient to state a claim).
There are no facts that suggest a claim of age discrimination against the Union, so the Court does not construe the complaint as asserting one and does not address the Union's argument on this point.
The rationale of Figueroa applies equally to the NYCHRL.
Plaintiff also appears to complain that a lawyer from the Union mishandled his personal immigration case, but provides no details as to why the Union was assisting in a personal matter or how the immigration case was mishandled. This allegation does not fall within the rubric of a duty of fair representation claim and is otherwise too vague to state a claim under any other theory of liability asserted in the Complaint.
Defendants correctly argue that some of Plaintiff's claims are time-barred and should be dismissed for this separate reason as well. Hybrid claims under the LMRA and NLRA are subject to a six-month statute of limitations that “begins to run when a plaintiff knows or reasonably should know that the union has breached its duty of fair representation.” Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995). Because Plaintiff filed charge with the NLRB on November 16, 2018 asserting that the Union improperly failed to process his grievances about his suspension and Ball's alleged harassment, he knew by this date at the latest that he had a claim for a breach of the duty of fair representation. This action was filed on September 23, 2019--more than six months after Plaintiff knew or should have known he had claims against his Union with respect to the processing of the September grievances. Thus, his hybrid claims with respect to these grievances are time-barred.
Additionally, the NLRA and LMRA claim with regard to his termination grievance should be dismissed for the separate reason of failure to exhaust. Before bringing a hybrid claim and filing suit in federal court, an employee must exhaust intra-union procedures. See Maddalone v. Local 17, United Bhd. of Carpenters & Joiners of Am., 152 F.3d 178, 186 (2d Cir. 1998) (quoting Clayton v. Int'l Union, United Auto., Aerospace, and Agric. Implement Workers of Am., 451 U.S. 679, 689 (1981) (dismissing hybrid claim where employee failed to exhaust intra-union procedures). The union, not the member, bears the burden of demonstrating that the member failed to exhaust intra-union grievance procedures, see Johnson v. Gen. Motors, 641 F.2d 1075, 1079 (2d Cir. 1981), and “courts have discretion to decide whether to require exhaustion of internal union procedures, ” Clayton, 451 U.S. 679, 689 (1981). In determining whether or not a plaintiff should be required to exhaust internal union remedies, courts look at three factors: (1) whether union officials are so hostile such that the grievant could not expect a fair hearing of his or her claim; (2) whether or not the union's internal appeals process is adequate to provide the relief sought by the grievant; and (3) whether exhaustion would unreasonably delay the grievant's opportunity to obtain a judicial hearing on his or her claim. Id. (citing Clayton, 451 U.S. 679 (1981)).
The complaint asserts no facts to suggest that Union officials were hostile to Plaintiff. Rather, the Union sent cease and desist letters on Plaintiff's behalf after receiving his complaints about harassment. Additionally, it appears that a Union representative met with Plaintiff and Solil management to evaluate his grievance concerning his termination from employment insofar as it wrote to Plaintiff on April 17, 2020 to advise him that it had determined that his termination grievance lacked sufficient merit to be pursued in arbitration. (ECF No. 20 at p. 5). The Union also advised Plaintiff of his right to appeal this decision and that his grievance would not be closed until the 21-day time to appeal had passed without an appeal. That Plaintiff understood how to submit a grievance and received a letter describing the appeals process with respect to internal Union decisions demonstrates that the Union's appeals process is adequate. Finally, nothing about the timing of the processing of Plaintiff's grievance suggests that exhaustion would unreasonably delay judicial review. Thus, there is no basis not to require Plaintiff to exhaust internal Union procedures with respect to his termination grievance before seeking relief in federal court. See Russo v. 210 Riverside Tenants, Inc., No. 10 CIV 914 DLC, 2011 WL 166928, at *1 (S.D.N.Y. Jan. 19, 2011) (Cote, J.) (On a motion for summary judgment, the Court determined that Union 32BJ showed adequate Union appeal procedures and found that the Plaintiff failed to exhaust his Union remedies.). There is no dispute that Plaintiff did not appeal the Union's decision not to pursue arbitration. Indeed, he filed his complaint in this action on September 23, 2019, before the Union completed its internal process and advised Plaintiff that it would not pursue arbitration. Hence, Plaintiff's claims under the NLRA and LMRA with respect to his termination also should be dismissed for failure to exhaust administrative remedies.
C. COMMON LAW CLAIMS
Plaintiff also asserts claims of defamation and negligent infliction of emotional distress. They are addressed in turn below.
1. Defamation
To state a claim for defamation, a plaintiff is required to plead that defendant made (1) a false, defamatory statement of fact about plaintiff, (2) that was published to a third party, (3) was made with the applicable level of fault, (4) was either defamatory per se or caused the plaintiff special harm, and (5) was not protected by privilege. Chandok v. Klessig, 632 F.3d 803, 814 (2d Cir. 2011). Although the defamatory statement need not be plead in haec verba, “a pleading is only sufficient if it adequately identifies the purported communication, and [indicates] who made the communication, when it was made, and to whom it was communicated.” Camp Summit of Summitville, Inc. v. Visinski, No. 06-cv-4994 (CM) (GAY), 2007 WL 1152894, at * 10 (S.D.N.Y. Apr. 16, 2007) (internal quotations omitted). See also Allen v. St. Cabrini Nursing Home, Inc., No. 00-cv-8558 (CM), 2001 WL 286788, at *5 (S.D.N.Y. Mar. 9, 2001) (“plaintiff must allege the particular words complained of as well as the time, place, and manner of the false statement, and specify to whom it was made”), aff'd, 64 Fed.Appx. 836 (2d Cir. 2003).
Plaintiff's Amended Complaint is devoid of the specifics necessary to state a defamation claim. The Court assumes that Plaintiff is referring to the ‘false statements' that Solil employee, Edo Mehmedovic, provided to the Labor Department or false statements about his performance. (ECF No. 39) Plaintiff does not state the substance of any alleged defamatory statement, to whom it was made, when it was made or why it was defamatory. The absence of such details required dismissal of the defamation claim. See Camp Summit of Summitville, Inc., at *12 (S.D.N.Y. Apr. 16, 2007) (Dismissing claim of defamation that failed to identify who made the defamatory remarks and to whom the comments were made) (collecting cases holding the same). There are no facts whatsoever to support such a claim against the Union, so to the extent one is asserted, it too should be dismissed.
See al Martin v. Curran, 303 N.Y. 276 (1951) (requiring allegation that every single member of union participated in, authorized, or ratified tortious conduct).
2. Negligent Infliction of Emotional Distress
To state a claim for negligent infliction of emotional distress a plaintiff must plead facts showing that the defendant's negligence unreasonably threatened plaintiff's physical safety. DeAguiar v. County of Suffolk, 289 A.D.2d 280, 281 (2d Dep't 2001); Doe v. Archbishop Stepinac High School, 286 A.D.2d 478, 479 (2d Dep't 2001). Further, while a plaintiff is not required to show that he suffered physical injury as part of his claim for negligent infliction of emotional distress, “the circumstances under which recovery may be had for purely emotional harm are extremely limited, ” and, therefore, the plaintiff's claim “must generally be premised upon breach of a duty owed directly to plaintiff which either endangered the plaintiff's physical safety or caused the plaintiff fear for his or her own physical safety.” Blake v. Race, 487 F.Supp.2d 187, 219 (E.D.N.Y. 2007). In this case, Plaintiff does not allege that his physical safety was threatened or that he suffered any physical injury. Without any additional facts alleged from the Plaintiff, his negligent infliction of emotional distress claim should be dismissed.
This claim also should be dismissed as against the Union for the separate reason that it is preempted by the NLRA. United Steelworkers of America v. Rawson, 495 U.S. 362, 371-72 (1990).
CONCLUSION
For the reasons set forth above, I respectfully recommend that the Union's motion to dismiss (ECF 47) be granted in its entirety with prejudice and that Solil's motion to dismiss (ECF 63) be denied as to the claims for hostile work environment, suspension and termination based on race/national origin and/or retaliation under Title VII, Section 1983, the NYSHRL and the NYCHRL and granted with prejudice as to the claims under the ADEA, LMRA and common law.
The dismissals with prejudice are recommended because Plaintiff was given a lengthy amount of time to find counsel and file a Second Amended Complaint after working with a free legal clinic before briefing on the motions to dismiss, but Plaintiff did not do either and asked the Court to act on his Amended Complaint. See McHenry v. Fox News Network, LLC, No. 19 CIV. 11294 (PAE), 2020 WL 7480622, at *22 (S.D.N.Y. Dec. 18, 2020).
NOTICE
Plaintiff shall have seventeen days, and Defendants shall have fourteen days, from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). If any party files written objections to this Report and Recommendation, the plaintiff shall have seventeen days to serve and file a response. Defendants shall have fourteen days to serve and file any response. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).