Puchalski v. FM Constr., Inc.

ARTUR PUCHALSKI and TERESA GADOMSKA,as Executrix of the Estate of JAN GADOMSKI, Plaintiffs, v. FM CONSTRUCTION, INC., MARIC MECHANICAL,INC., GERALD MARIC, LINDA ZAHN, and FRANK MARIC, Defendants.

18-CV-1596-SJB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 16, 2020

OPINION & ORDER

BULSARA, United States Magistrate Judge:

Plaintiffs Arthur Puchalski ("Puchalski") and Jan Gadomski ("Gadomski") brought this action against Defendants FM Construction, Inc. ("FM Construction"), Maric Mechanical, Inc. ("Maric Mechanical"), Gerald Maric, Linda Zahn, and Frank Maric (collectively, "Defendants") alleging breach of contract; breach of a collective bargaining agreement in violation of section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185; violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 203, et seq., the New York Labor Law ("NYLL"), and associated wage orders codified at 12 N.Y.C.R.R. parts 137-43; and national origin discrimination and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). (Am. Compl. dated Aug. 23, 2018 ("Am. Compl."), Dkt. No. 25 ¶¶ 2-5, 99-158).

On January 16, 2020, Defendants filed a motion to dismiss. (Defs.' Mot. to Dismiss Pls.' Am. Compl. dated Jan. 16, 2020 ("Defs.' Mot."), Dkt. No. 68). On February 11, 2020, Teresa Gadomska ("Gadomska" or "Plaintiff"), as the executrix of the estate of Gadomski, sought leave to file a Second Amended Complaint. (Pl.'s Mot. to Amend the Compl. dated Feb. 7, 2020 ("Pl.'s Mot."), Dkt. No. 75).

For the reasons stated below, Defendants' motion to dismiss is granted in part and denied in part. Plaintiff's motion for leave to file a Second Amended Complaint is granted in part and denied in part.

FACTUAL AND PROCEDURAL HISTORY

The facts, which the Court accepts as true for the purposes of considering a Rule 12(b)(6) motion to dismiss, see Laurant v. City of New York, No. 17-CV-5740, 2019 WL 1364230, at *1 & n.1 (E.D.N.Y. Mar. 26, 2019), appeal dismissed (June 17, 2019), are set forth in the Amended Complaint as follows.

Defendants FM Construction and Maric Mechanical are both construction businesses incorporated in New York with their principal place of business at 19-53 46th Street, Astoria, New York. (Am. Compl. ¶¶ 10-11, 24, 29). The remaining defendants and Puchalski are New York residents. (Id. ¶¶ 8, 12-14). Gadomski was a New York resident, (id. ¶ 9), and Gadomska is a New York resident, (Second Am. Compl. ¶ 8). FM Construction and Maric Mechanical are jointly operated and owned by Gerald Maric, Linda Zahn, and Frank Maric. (Am. Compl. ¶¶ 15, 82-86).

FM Construction and Maric Mechanical employed Puchalski and Gadomski from around 2012 through 2017, (id. ¶¶ 23, 30, 33). They "performed labor and services as steam fitters on New York City Schools and New York City Housing Authority buildings." (Id. ¶ 23). As steam fitters they "assemble[d], install[ed] and maintain[ed] steam and gas pipe systems, replace[d] boilers and water heaters, paint[ed], shovel[ed] dirt, [and] assembled wood pieces in trenches." (Id. ¶ 40). They "regularly worked in excess of 40 hours per week but were only paid at [a] lower, misclassified laborer ratefor every hour they worked." (Id. ¶ 28). Puchalski and Gadomski are Polish, while Gerald Maric, Linda Zahn, and Frank Maric are Croatian. (Id. ¶ 25).

Puchalski and Gadomski were hired by a project supervisor, first name "Slobo," and entered into oral contracts with him, in which they agreed that they would be paid steamfitter wages and benefits. (Id. ¶¶ 31, 34). However, they and "other non-Croat Slavs were intentionally misclassified as laborers and required to accept the misclassified lower rate for the work they provided to Defendants as steam fitters." (Id. ¶ 35). As a result of this misclassification, they were paid lower wages. (See id.). And furthermore, due to alleged discrimination, Puchalski and Gadomski were forced to join other unions instead of the steamfitters union—the Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Machine and General Pipe Fitters of New York and Vicinity, Local Union No. 638 ("Local 638"), (Enterprise Association-Local Union 638 Working Agreement dated Aug. 28, 2017 ("CBA"), attached as Ex. F. to Defs.' Mot., Dkt. No. 68),—which only individuals of Croatian dissent were permitted to join. (Am. Compl. ¶¶ 36-37, 55, 63). Puchalski and Gadomski asked to join Local 638 but were told they "would lose their jobs if they persisted in their requests." (Id. ¶¶ 63-65, 71). They believed it would be "futile" to lodge a complaint with Local 638 about their misclassification. (Id. ¶ 68).

Puchalski and Gadomski commenced this action on March 14, 2018, (Compl. dated Mar. 15, 2018 ("Compl."), Dkt. No. 1), and amended their original Complaint on August 23, 2018, (Am. Compl.). The Amended Complaint seeks relief for Defendants' (1) breach of their oral employment contracts; (2) refusal to pay union wages in violation of the collective bargaining agreement with Local 638 and of LMRA section 301; (3) failure to pay overtime wages, as required by FLSA; and (4) failure to payovertime wages under the NYLL and the wage orders promulgated thereunder. (Id. ¶¶ 98-116). Puchalski and Gadomski also allege claims of (5) national origin discrimination in violation of Title VII; (6) national origin discrimination in violation of the NYSHRL; (7) national origin discrimination in violation of the NYCHRL; (8) constructive discharge in violation of Title VII; (9) constructive discharge in violation of the NYSHRL; and (10) constructive discharge under the NYCHRL. (Id. ¶¶ 118-60).

Following the death of Gadomski on January 31, 2019, (Letters Testamentary dated Apr. 19, 2019, attached to Letter of Appointment of Executor for Jan Gadomski's Estate dated July 22, 2019, Dkt. No. 53), the Court granted his estate's motion to substitute Gadomska, the executrix, as a plaintiff. (Order dated July 23, 2019; Mot. to Substitute Party dated July 9, 2019, Dkt. No. 50). Puchalski and Defendants submitted a joint motion for settlement on November 8, 2019, (Joint Mot. for Settlement Between Pl. Artur Puchalski and All Defs. dated Nov. 8, 2019, Dkt. No. 61), which the Court approved on November 25, 2019, (Order dated Nov. 25, 2019). The Court dismissed Puchalski's claims. (Stip. of Partial Dismissal with Prejudice dated Dec. 5, 2020 ("Puchalski Stip."), Dkt. No. 64). Upon the Court's instruction, the Defendants refiled their Motion to Dismiss on January 16, 2020. (Defs.' Mot.). On January 17, 2020, Plaintiff and Defendants submitted a revised Rule 16 Discovery Plan, in which the parties agreed the deadline to move to join new parties or amend the pleadings was February 7, 2020. (Disc. Plan Worksheet dated Jan. 17, 2020, attached as Ex. A to Letter to the Honorable Sanket J. Bulsara, Dkt. No. 72). On February 6, 2020, Plaintiff, with consent of Defendants, requested an extension of this deadline to February 11, 2020, (Mot. for Extension of Time to Amend Pleadings dated Feb. 6, 2020, Dkt. No. 74), which the Court granted, (Order dated Feb. 7, 2020). Thereafter, Plaintiff moved to filea Second Amended Complaint on February 11, 2020, the deadline to which the parties had agreed. (Pl.'s Mot.).

To the extent Defendants seek to dismiss claims asserted only by Puchalski, these portions of Defendants' motion to dismiss are moot in light of the settlement and subsequent dismissal with respect to Puchalski. (Puchalski Stip.). Therefore, all that remains for decision on Defendants' motion to dismiss is whether the Amended Complaint fails to state a claim with respect to the First, Second, Sixth and Seventh Claims pursuant to Rule 12(b)(6) and whether the Second, Third, Fourth, Sixth, and Seventh Claims can be maintained against Frank Maric.¹

DISCUSSION

I. Defendants' Motion to Dismiss

For a 12(b)(6) motion, the Court must accept the factual allegations set forth in a complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, (2007). Once the Court construes the facts in the light most favorable to the plaintiff, to avoid dismissal, there must be sufficient facts that allege a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" (quoting Twombly, 550 U.S. at 570)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. A complaint must contain more than "'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S.at 557). In other words, a plausible claim contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; accord Fed. R. Civ. P. 8(a)(2). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (footnote omitted) (citation omitted). The determination of whether a plaintiff has alleged a plausible claim is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

When deciding a 12(b)(6) claim, a district court should not consider factual allegations found in the parties' briefing materials or attached affidavits. Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) ("Thus, a district court errs when it 'consider[s] affidavits and exhibits submitted by' defendants, or relies on factual allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to...