Cano v. SEIU Local 32BJ

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.^[1] (ECF No. 39) Some of the claims are directed to all Defendants, whereas others are specific to Solil or the Union.

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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.^[2] (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 88^th Street and East 89^th Street. Plaintiff worked exclusively as a handyman in these buildings. (ECF No. 47 at p. 10)

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

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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

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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^[3] 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)

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.

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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.^[4](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 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

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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)^[5] And, on December 14, 2018, upon being terminated from employment, Plaintiff filed a third grievance with his Union about his termination. Id

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)^[6] 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

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days. Plaintiff did not appeal. (ECF No. 47 at p. 12) Thus, Plaintiff's grievances were never arbitrated.

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...