Jiggetts v. Local 32BJ

KYLE JIGGETTS, Plaintiff, v. LOCAL 32BJ, SEIU, ALLIEDBARTON SECURITY SERVICES and CITY OF NEW YORK, Defendants.

10 Civ. 9082 (DAB) (JCF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 10, 2011

REPORT AND RECOMMENDATION

TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:

Kyle Jiggetts brings this pro se complaint against AlliedBarton Security Services, LLC ("AlliedBarton"), Local 32BJ, SEIU (the "Union"), and the City of New York (the "City"). The plaintiff asserts claims against AlliedBarton, his former employer, for breach of contract under its Collective Bargaining Agreement (the "CBA") with the Union, as well as for violating the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (the "ADA"). Mr. Jiggetts also maintains that the City breached the CBA, violated the ADA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and unlawfully retaliated against him for complaining about discrimination to the Equal Employment Opportunity Commission (the "EEOC"). Finally, the plaintiff alleges that the Union failed in its duty of fair representation under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 159 (the "LMRA").

All three defendants now move to dismiss the plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. AlliedBarton requests an injunction precluding Mr. Jiggetts from filing any further lawsuits against it and also requests reimbursement for its fees and expenses incurred in filing this motion. For the reasons that follow, I recommend that (1) each of the motions to dismiss be granted, (2) AlliedBarton's request for an injunction be granted, and (3) AlliedBarton's application for an award of attorneys' fees be denied.

Background

Mr. Jiggetts began working as a security guard for AlliedBarton around November 17, 2006. (AlliedBarton Employment Application for Kyle Jiggetts dated Nov. 17, 2006 ("AlliedBarton Application"), attached to Notice of Motion to Decide Case Based on Declarations and Evidence dated Dec. 27, 2010 ("Pl. Motion")). In February of 2008, Mr. Jiggetts was working at 280 Broadway, a building managed by the City's Department of Citywide Administrative Services ("DCAS"), when a DCAS supervisor, Maria Colon, requested that Mr. Jiggetts be removed from the site. (Declaration of Kyle Jiggetts dated Dec. 12, 2010 ("Jiggetts 12/12/10 Decl.") ¶ 1). As a result, AlliedBarton transferred him to another location on March 4, 2008. (Jiggetts 12/12/10 Decl., ¶ 2). On June 30, 2010, Mr. Jiggetts was laid off from his position as a security guard at AlliedBarton, and he has since remained unemployed. (Complaint ("Compl."), attached as part of Exh. A to Notice and Petition of Removal dated Dec. 3, 2010 ("Removal Notice"), ¶ 6). Since laying off Mr. Jiggetts, AlliedBarton has allegedly hired new employees and recalled security guards with less seniority. (Declaration of Kyle Jiggettsdated Dec. 27, 2010 ("Jiggetts 12/27/10 Decl."), ¶ 1).

On November 9, 2010, Mr. Jiggetts commenced this action in New York State Supreme Court, New York County, seeking monetary damages and an injunction enforcing the CBA. (Compl., ¶ 9; Removal Notice, ¶ 1). The defendants then removed the case to the United States District Court for the Southern District of New York. (Removal Notice). On December 30, 2010, the plaintiff filed his complaint in this Court. (Pl. Motion). In it, he claims that AlliedBarton discriminated against him because of a disability in violation of the ADA. (Compl., ¶ 3; Jiggetts 12/27/10 Decl., ¶¶ 2, 5). He also alleges a hybrid claim under the LMRA for breach of contract and violation of the duty of fair representation against AlliedBarton and the Union. (Compl., ¶¶ 4-8). In addition, the plaintiff claims that the Union colluded with the City in refusing to arbitrate an allegedly discriminatory poor work performance report made against him by the City. (Compl., ¶ 7; Jiggetts 12/27/10 Decl., ¶ 5; Memorandum of Law in Opposition to Defendants' Motion to Dismiss, attached to Notice of Motion dated Jan. 20, 2011, ¶ 4; Affirmation in Support of Opposition to Defendants' Motion to Dismiss dated Jan. 20, 2011, ¶ 2). Finally, the plaintiff contends that the City intentionally discriminated against him on the basis of race when it requested his transfer from 280 Broadway and that his transfer was in retaliation for his having filed complaints of race discrimination with the EEOC against the City and AlliedBarton. (Jiggetts 12/12/10 Decl., ¶¶ 2, 4; Jiggetts 12/27/10 Decl., ¶ 2).Discussion

A. Legal Standard for Motion to Dismiss

In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam); Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004). A complaint may be dismissed where it fails to plead enough facts "'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct. 1937, 1960 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The pleading must be sufficient to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 554 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at ___, 129 S. Ct. at 1949.

However, the pleadings of a pro se party should be read "'to raise the strongest arguments that they suggest.'" Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Even after Iqbal, which imposed heightened pleading standards for all complaints, pro se complaints are to be liberally construed. See Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). Dismissal of a pro se complaintis nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements. See, e.g., Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)); accord Honig v. Bloomberg, No. 08 Civ. 541, 2008 WL 8181103, at *4 (S.D.N.Y. Dec. 8, 2008), aff'd, 334 Fed. Appx. 452 (2d Cir. 2009).

B. The ADA

The ADA prohibits employment discrimination "against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). The plaintiff bears the burden of establishing a prima facie case of discriminatory discharge under the ADA. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998). To do so, he must show that "(1) [his] employer is subject to the ADA; (2) [he] suffers from a disability within the meaning of the ADA; (3) [he] could perform the essential functions of [his] job with or without reasonable accommodation; and (4) [he] was fired because of [his] disability." Id. at 869-70. An individual may qualify as disabled by showing that (1) he has a disability under 42 U.S.C. § 12102(1)(A), (2) he has "a record of" a disability under 42 U.S.C. § 12102(1)(B), or (3) he is "regarded as having" a disability under 42 U.S.C. § 12102(1)(C).

Mr. Jiggetts alleges two of the essential elements of a prima facie claim under the ADA: that he has a disability within the meaning of 42 U.S.C. § 12102(1)(A) or a perceived disability within the meaning of 42 U.S.C. § 12102(1)(C), and that he is objectively qualified for the position of an AlliedBarton security guard. (Compl., ¶ 3; Amended Complaint ("Am. Compl."), attached to Noticeof Motion [for] Civil Case to Remain in Federal Court After It's Amended, at 3; Jiggetts 12/27/10 Decl., ¶ 2; Resume, attached to Pl. Motion; AlliedBarton Application). Although he has not specifically stated what his ADA-qualifying disabilities are, the plaintiff has provided evidence that he has received treatment for depression and that he is recovering from alcoholism and drug abuse. (Letter of Denise D. Foulkes dated June 17, 2008, attached to Pl. Motion; Letter of Oona O'Connell dated Oct. 7, 2005, attached to Pl. Motion). Depression and alcoholism may qualify as impairments for the purposes of the ADA. See Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-48 (2d Cir. 2002) (holding that individuals with alcoholism can quality as disabled under ADA); MacEntee v. IBM, ___ F. Supp. 2d ___, ___, No. 08 Civ. 7491, 2011 WL 812395, at *5 (S.D.N.Y. March 3, 2011) ("Courts in this circuit have found that depression may qualify as a disability for purposes of the ADA."). However, the plaintiff fails to allege a connection between his claimed disabilities and any adverse employment action taken against him. He has not provided any evidence of discriminatory treatment resulting from his depression or alcoholism, nor does he allege that his termination was in any way related to these conditions. Thus, regardless of whether Mr. Jiggetts has a disability within the meaning of the statute, he has not plausibly alleged disability discrimination under the ADA. I therefore recommend that this claim be dismissed.

C. Duty of Fair Representation and Breach of Contract

To establish a hybrid duty of fair representation/breach of contract 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[]." White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001); accord Sanozky v. International Association of Machinists and Aerospace Workers, 415 F.3d 279, 282 (2d Cir. 2005) (citing DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65 (1983)).

1. Exhaustion of Internal Union Remedies

As a preliminary matter, AlliedBarton alleges that Mr. Jiggetts has not sufficiently pled exhaustion of the available internal Union remedies for...