Forkin v. Local 804 Union

394 F.Supp.3d 287

John FORKIN, Plaintiff,

v.LOCAL 804 UNION (IBT) and United Parcel Service, Inc. (UPS), Defendants.

18-CV-3397 (MKB)

United States District Court, E.D. New York.

Filed August 20, 2019

John Forkin, New York, NY, pro se.

Joseph Cornelius O'Keefe, Jr., Proskauer Rose LLP, Newark, NJ, Larry Cary, Serge Ambroise, Cary Kane LLP, New York, NY, Nathaniel K. Charny, Charny & Wheeler, Rhinebeck, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge

Plaintiff John Forkin, proceeding pro se , commenced the above-captioned action against the International Brotherhood of Teamsters (IBT), Eddie Villalta, Joe Forcelli, Danny Betancourt, United Parcel Service (UPS), and Joe Remo on June 11, 2018, pursuant to section 8 of the National Labor Relations Act, 29 U.S.C. § 151 et. seq. ("NLRA"), section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 et seq. ("LMRA"), 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq. ("Title VII"), and the applicable collective bargaining agreement. (Compl., Docket Entry No. 1.) Plaintiff alleged claims of unlawful discharge and unfair labor practices, state law fraud, as well as a violation section 1001 of the federal criminal laws, 18 U.S.C. § 1001(a). (Id. ) Plaintiff filed an Amended Complaint on June 26, 2018, (Am. Compl., Docket Entry No. 12), and a Second Amended Complaint ("SAC") on October 19, 2018, asserting claims only against Local 804 Union (IBT)¹ ("Local 804") and United Parcel Service, Inc. ("UPS"), and alleging the same claims except Plaintiff did not replead the section 1983 claim, (SAC, Docket Entry No. 34). The Court liberally construes the SAC as alleging: (1) a NLRA claim for breach of the duty of fair representation; (2) a LMRA hybrid section 301/breach of duty of fair representation claim; (3) an ADA disability discrimination claim and reasonable accommodation claim; (4) a Title VII discrimination claim; (5) a 18 U.S.C. § 1001(a) claim; and (6) a state law fraud claim.²

Currently before the Court are two separate motions to dismiss the SAC filed by UPS and Local 804 for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ; Plaintiff opposes Defendants' motions and moves to amend the SAC by filing a proposed third amended complaint.³ For the reasons set forth below, the Court grants in part and denies in part Defendants' motions to dismiss the SAC and denies Plaintiff's motion for leave to file the proposed third amended complaint. The Court grants Plaintiff leave to file a corrected, third amended complaint within thirty (30) days of this Memorandum and Order.

I. Background

The Court assumes the truth of the factual allegations in the SAC for the purposes of this Memorandum and Order. In light of Plaintiff's pro se status, the Court also considers and assumes the truth of the factual allegations in Plaintiff's opposition and supplemental opposition. See Walker v. Schult , 717 F.3d 119, 122 n.1 (2d Cir. 2013) (finding that district courts may consider factual allegations made by a pro se party in his papers opposing a motion to dismiss).

a. Plaintiff's employment

On June 6, 2005, UPS hired Plaintiff as a summer intern for its corporate security program in Atlanta, Georgia. (Pl. Suppl. Opp'n 1.) UPS subsequently employed Plaintiff as a "revenue recovery clerk, unloader, and eventually promoted [him] to hub supervisor in Latham, NY, for approximately 1 year." (Id. ) Thereafter, Plaintiff left UPS with "positive rehire status directly after graduating" from the "State University of New York at Albany in 2007." (Id. )

On or about June 20, 2008, UPS hired Plaintiff as a package car driver and assigned him to UPS' facility in Maspeth, New York. (SAC 3; Pl. Suppl. Opp'n 2.) Plaintiff alleges that "during the first [seven] years of employment, [his] Employee Disciplinary History (‘EDH’) was nearly spotless." (Pl. Suppl. Opp'n 2.)

In 2015, Plaintiff became an alternate steward and "actively campaigned for the former Executive Board," but the former board lost to Local 804. (Id. ) Plaintiff alleges that after Local 804 took office, his "disciplinary history skyrocketed to an astonishing (approximately) [twenty-eight] new incidents on his EDH." (Id. )

b. Collective bargaining agreement

During all relevant times, UPS and IBT were parties to a National Master Agreement ("NMA"), to which Local 804 was also bound. (Local 804 Mem. 2–3; UPS Mem. 2; NMA, annexed to Decl. of Serge Ambroise ("Ambroise Decl.") as Ex. 1, Docket Entry No. 48-3.) UPS and Local 804 were also parties to a local supplemental agreement to the NMA (the "Supplemental Agreement"), which was in effect during all relevant times. (Local 804 Mem. 3; UPS Mem. 2; Suppl. Agreement, annexed to Ambroise Decl. as Ex. 2, Docket Entry No. 48-4.) Plaintiff's employment was covered by the NMA and the Supplemental Agreement.⁴ (Local 804 Mem. 3; UPS Mem. 2.)

c. Plaintiff's grievances

i. January 23, 2017 incident and grievance

On January 23, 2017, UPS "placed plaintiff on a Discharge [f]or 72 [hours] for purchasing a beverage on company time." (Local 804 Grievance Form for Jan. 23, 2017 Grievance ("January 2017 Grievance"), annexed to Pl. Suppl. Opp'n as Ex. 12, Docket Entry No. 43.) Plaintiff alleges that he "was placed on several 72 hour notices for drinking water and doing exactly what UPS has instructed him to do" but that "[o]ther similarly situated employees were never disciplined for the exact same behavior." (Pl. Opp'n 3.) Plaintiff reported the incident to Local 804 and discussed the incident with his supervisor on January 25, 2017, at which time he admitted "to stealing time." (Jan. 2017 Grievance.)

On May 23, 2017, a UPS/Local 804 Panel (the "May 2017 Panel") issued a final and binding determination as to the January 2017 Grievance,⁵ which states that Plaintiff's grievance was "settled in executive session." (Teamsters Local 804 and United Parcel Service Grievance Panel dated May 23, 2017, annexed to Pl. Suppl. Opp'n as Ex. 4, Docket Entry No. 43.) Plaintiff appears to have entered into a settlement agreement which included a "final warning." (Settlement Agreement between UPS, Local 804, and Grievant John Forkin, annexed to Pl. Suppl. Opp'n as Ex. 5, Docket Entry No. 43.) Plaintiff contends that, on May 23, 2017, Local 804 breached its duty of fair representation "by pressuring [P]laintiff into agreeing to discharge settlements for ... baseless discharges UPS had accumulated against" him. (Pl. Suppl. Opp'n 6; Teamsters Local 804 and United Parcel Service Grievance Panel dated May 23, 2017.) Plaintiff also alleges that two of the union representatives failed in their duties to Plaintiff because "Eddie ... never showed [up] to the hearing" and "Tony showed up after the panel finished." (Pl. Suppl. Opp'n 17–18.)

ii. Plaintiff's medical condition and leave

On June 6, 2017, during a meeting at UPS's Maspeth facility to discuss Plaintiff's attendance, Plaintiff informed several members of UPS's management team of his disability.⁶ (Pl. Suppl. Opp'n 4.)

During the week of June 12, 2017, while Plaintiff was on a previously approved vacation, Plaintiff met with a dermatologist and was diagnosed with "a skin disorder." (Id. ) The dermatologist issued a prescription note "instructing UPS that Plaintiff should ‘not shave.’ " (Pl. Suppl. Opp'n 4; Dr. Samer H. Jaber's Prescription Note ("Prescription Note"), annexed to Pl. Suppl. Opp'n as Ex. 2, Docket Entry No. 43.) When Plaintiff appeared for work, and without his union representative, UPS instructed Plaintiff to go home and to file for a variance from UPS' appearance standards. (Pl. Suppl. Opp'n 4–5.) Thereafter, Plaintiff submitted an Application for a Variance to UPS Personal Appearance Standards. (Id. at 2, 5.) UPS reviewed and approved Plaintiff's Application for a Variance on June 28, 2017. (Email from UPS H.R. Service Center dated June 28, 2018 ("Variance Approval Email"), annexed to Pl. Suppl. Opp'n as Ex. 2, Docket Entry No. 43.)

iii. Plaintiff's termination and grievance

On June 22, 2017, prior to the approval of Plaintiff's application for a variance on June 28, 2017, UPS issued Plaintiff a Notice of Discharge "for violation of the final warning that he received from the [Panel] inclusive of but not limited to failure to follow instructions with methods and procedures, attendance, and appearance." (Letter from Joe Reimo dated July 14, 2017 ("Reimo Letter"), annexed to Pl. Suppl. Opp'n as Ex. 3, Docket Entry No. 43.)

Plaintiff alleges that his discharge was "without just cause" and in violation of Article 12, sections 1 and 2 of the Supplemental Agreement⁷ and the LMRA. (SAC 3.) In response, Plaintiff contacted Local 804 and was "assured" that they would "file the proper grievances." (Pl. Suppl. Opp'n 5.)

Plaintiff contacted Steve South, an IBT representative, and Steve set up a meeting between Local 804 and UPS. (Id. ) According to Plaintiff, the meeting was held on or about July 12, 2017, at which time "UPS purported confusing and contradictory standards for appearance variance." (Id. ) Plaintiff also alleges that UPS "asserted that they would consult with other managers when they returned from vacation" as to whether Plaintiff could return to work pending arbitration but that Local 804 "completely disregarded [P]laintiff's rights to work pending arbitration." (Id. at 5–6.)

On October 17, 2017, a Local 804 and UPS Grievance Panel (the "October 2017 Panel") conducted a hearing, denied the grievance, and upheld Plaintiff's termination. (SAC 4; Suppl. Agreement 245.) Plaintiff alleges that on or about "October 17, 2017," Local 804 "intentionally and with malice breached its duty to fairly represent" him by "failing to process" his grievance. (SAC 4.) In addition, Plaintiff alleges that Local 804 acted "in bad faith by not preparing a proper written opening...