Cano v. Seiu Local 32BJ

OPINION & ORDER

PAUL A. ENGELMAYER, District 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").^[1] Cano 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 §§ 8401 et seq., the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 et seq., the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 158, and common law claims for defamation and negligent infliction of emotional distress. Some claims are directed to all defendants; others are specific to Solil or the Union.

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Defendants have moved to dismiss all of Cano's claims. For the reasons that follow, the Court adopts in its entirety the Report and Recommendation (the "Report") of the Hon. Katharine H. Parker, United States Magistrate Judge, as to the disposition of this motion.

I. Factual Background^[2]

Cano is a 54-year-old Hispanic male of Colombian descent. Dkt. 39 ("Amended Complaint," or "AC") at 4. Between November 2016 and December 2018, Solil employed Cano as a doorman and handyman at various locations in Manhattan.^[3] Id. at 9; Dkt. 66 at 30. In late April 2018, after an incident in which Cano was believed to be potentially responsible for a tenant's lost dry-cleaning, Solil transferred Cano from his position as a doorman at a building on East 35th Street to one as a handyman at a building on the Upper East Side.^[4] AC at 6; Dkt. 2 at 33-34; Dkt. 66 at 31.

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Most of the relevant alleged discrimination and harassment occurred in summer and fall 2018, following Cano's transfer. Cano and another handyman at the building, Martin Ball, did not get along. The two found themselves in numerous disputes about work-related issues such as how to fix appliances around the building and who had to work where and when. As relevant here, Cano claims that Ball engaged in harassing behavior, including severe name-calling, on the basis of Cano's race, national origin, and age. For example, on August 7, 2018, Ball allegedly called Cano a "fucking Columbian [sic], motherfucker" and became "violent." AC at 6-7. That day, Ball also stated, "I can imagine this building in a couple years being run by three old men" and that he wanted a younger person to fill in the handyman position, as the previous handyman had been 73 years old and had "leg problems," leaving Ball "to do all the hard ph[y]sical work for years." Id. On an unspecified date, Ball also allegedly called Cano a "faggot, fucking Colombian, fucking Spanish." Id. at 17.

Cano complained about Ball's behavior to building superintendent Edo Mehmedovic "many times," but Mehmedovic "did nothing to correct the situation." Id. at 5, 8, 17. To the contrary, Cano alleges that on September 17, 2018, in response to his complaints, he was notified that he would be suspended without pay for two weeks. Id. at 8; see also Dkt. 2-1 at 10. Cano alleges that Mehmedovic also directly made discriminatory comments. For instance, when Mehmedovic delivered Cano the suspension letter, he stated, "you don't belong here, fucking Colombian, you don't even deserve[] to live in this country, and I will get you fired soon." AC at 8. At one point, Mehmedovic also allegedly told Cano that he was a "slave for working in the

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building and had to take all verbal abuse from tenant[s]." Id. at 17. On October 3, 2018, Cano returned to work.

Solil, for its part, argues that it suspended Cano because of his poor work performance and problematic interactions with tenants. See, e.g., Dkts. 2-1 at 17; 47 at 1-3. But Cano alleges that both Mehmedovic and property manager Scott Price (who signed Cano's suspension letter) fabricated tenant complaints as a pretext for taking disciplinary action against Cano. AC at 17; see Dkt. 2-1 at 10. For instance, Cano claims that Price "wrote false statements" regarding Cano's suspension and eventual termination, and that Mehmedovic wrote down "fake work orders" to create the appearance that Cano "was doing unsatisfactory work." AC at 5, 8. Cano also alleges that Price never issued a verbal warning on July 31, 2018, despite there being a written record of as much in Cano's employee file-the implication being that Price fabricated and planted that record. See Id. at 8; Dkt. 2 at 47. At the pleadings stage, the Court must accept Cano's allegations as true.

On November 19, 2018, Cano confronted Price to ask why "he was helping Mr. Ball." AC at 8. In response, Price told Cano, "1 don't like fucking Spanish people, you don't even deserve[] to work here and you should go looking for a new job as[s]hole, you should continue drug trafficking in Colombia and stop wasting my fucking time." Id. On December 12, 2018, Solil notified Cano that his employment would be terminated. Id. at 9; Dkt. 2-2 at 50-51.

Both before and after his termination, Cano filed multiple grievances with his Union, Service Employees International Union Local 32BJ. On September 18, 2018, Cano filed a grievance claiming that he had been "unjustly suspended"; on September 28, 2018, Cano filed a grievance claiming that Ball had been harassing him "during the performance of their work duties" and sought "to have this harassment cease and desist"; and on December 14, 2018, Cano

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filed a grievance claiming that he had been "unjustly discharged" and that Mehmedovic and Price had been harassing him "during the performance of their work duties" and sought "to have this harassment cease and desist." AC at 9; see Dkt. 2 at 21-23. On December 14, 2018, the Union sent a cease-and-desist letter to Solil regarding Mehmedovic's alleged harassment. AC at 9. On January 8, 2019, the Union sent a separate cease-and-desist letter to Solil regarding Ball's and, potentially, Mehmedovic's or Price's alleged harassment.^[5] Id. By those dates, however, Cano had already been terminated. He was not reinstated.

On July 8, 2019, Cano sent the Union an "Arbitration Request Letter" regarding his termination. Dkt. 20 at 3. On April 17, 2020, the Union determined that Cano's claims lacked "sufficient merit for the Union to be likely to prevail in arbitration" and informed Cano that it would not bring the case forward. Id. at 4. Cano did not appeal from the decision.

Cano also filed charges with the National Labor Relations Board ("NLRB"). On November 16, 2018-between Cano's suspension and termination-Cano filed two charges, each alleging that the Union failed to properly process the grievances he filed "for arbitrary or discriminatory reasons or in bad faith." AC at 9; Dkt. 63-2 at 6, 12. On December 14, 2018, Cano filed a charge with the NLRB alleging that Solil retaliated against him by firing him "for filing grievances seeking to enforce a collective-bargaining agreement." AC at 9; Dkt. 63-2 at 18. On Februaiy 28, 2019, the NLRB dismissed the charges, finding "no evidence that [Solil] bore any hostility toward [Cano's] protected activity" and that the Union did not "breach[] its duty of fair representation." Dkt. 2-2 at 57. Cano appealed from the decision. On June 27, 2019, the NLRB denied the appeal. Id. at 60; Dkt. 63-2 at 21.

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Cano separately filed charges with the Equal Employment Opportunity Commission ("EEOC"). On January 28, 2019, Cano filed charges against Solil and the Union, alleging discrimination and retaliation on the basis of national origin and age. AC at 17-18. On July 11, 2019, unable to process Cano's charge within 180 days of its filing, the EEOC issued Cano a notice of right to sue. Id. at 14.

II. Procedural Background

On September 23, 2019, Cano filed suit in this Court. Dkt. 2. On November 25, 2020, Cano amended his complaint; his AC is the operative version today. See generally AC.^[6] On December 9, 2020, the Union moved to dismiss the AC. Dkt. 46. On February 25, 2021, Solil moved to dismiss the AC. Dkt. 63.

On June 15, 2021, Judge Parker issued a Report and Recommendation to this Court, recommending that the Union's motion to dismiss be granted in full and that Soli's motion to dismiss be granted in part and denied in part ("Report"). Dkt. 75. On June 29, 2021, Solil filed a letter setting forth its objections to the Report ("Solil Obj."). Dkt. 77. On July 1, 2021, Cano filed a letter setting forth his own objections ("Cano Obj."). Dkt. 79. On July 7, 2021, and July 14, 2021, the Union and Solil, respectively, filed their oppositions to Cano's objections. Dkts. 80, 82. On July 15, 2021, Cano filed his opposition to Solil's objections. Dkt. 84.^[7]

For the following reasons, the Court adopts the Report in its entirety.

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III. Legal Standards

A. Standard of Review for a Report and Recommendation

In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of a report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8,...