Smith v. Wartburg Adult Care Cmty.

RONALD SMITH, Plaintiff-Petitioner, v. WARTBURG ADULT CARE COMMUNITY, Defendant-Respondent.

No. 18-CV-12240 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 13, 2020

OPINION & ORDER

Appearances:

Barry D. Haberman, Esq.

Zachary A. King, Esq.

Law Office of Barry D. Haberman

New City, NY

Counsel for Plaintiff-Petitioner

Eric P. Simon, Esq.

Christopher M. Repole, Esq.

Jackson Lewis P.C.

New York, NY

Counsel for Defendant-Respondent

KENNETH M. KARAS, United States District Judge:

Plaintiff-Petitioner Ronald Smith ("Plaintiff") brings this Action seeking vacatur of an August 9, 2018 arbitration award favoring Defendant-Respondent Wartburg Adult Care Community ("Wartburg," or "Defendant"). Before the Court is Plaintiff's Motion to Remand the action to New York State court ("Motion To Remand"), pursuant to 28 U.S.C. § 1447, (Not. of Mot. To Remand (Dkt. No. 14)), and Defendant's Motion To Dismiss Plaintiff's Verified Petition ("Motion To Dismiss"; with the Motion To Remand, the "Motions"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (Not. of Mot. To Dismiss (Dkt. No. 15)). For the reasons explained herein, Plaintiff's Motion To Remand is denied, and Defendant's Motion To Dismiss is denied without prejudice.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's Verified Petition (the "Petition"), documents appended to the Petition, and other matters of which the Court may take judicial notice, and are taken as true for purposes of the instant Motions.

Plaintiff is a former employee of Wartburg, which runs a "health care [and] rehabilitative care program for seniors" in Mount Vernon, New York (the "Facility"). (Not. of Removal Ex. A ("Pet.") ¶¶ 9-10 (Dkt. Nos. 4, 4-1).) Plaintiff was hired by Wartburg to work as an on-site cook in the Facility's kitchen and worked in this position for approximately 28 years. (Id. ¶ 12.) Plaintiff was a member of 1199 SEIU, United Healthcare Workers East (the "Union") and served as a Union delegate for several years, until the end of his employment at Wartburg. (Id.) Before his termination, Plaintiff had not been the subject of disciplinary action at Wartburg, and he had never received "a below satisfactory work evaluation." (Id. ¶ 13.)¹ Plaintiff generally arrived at the Facility for the morning shift, and was responsible for preparing daily food and meals for the Facility's residents. (Id. ¶ 14.) Plaintiff was required to arrive before any other employees, and while he was alone in the kitchen, he "always listened to music in the morning." (Id. ¶ 15.) At the beginning of his employment, Plaintiff listened to music on his "boom box," but as technology evolved, he began using his phone to do so. (Id.)

Morrison Community Living ("Morrison"), an external food service contractor, also contracted with Wartburg to provide "food, nutrition, and dining services" at Wartburg and the Facility. (Id. ¶ 11.) Pursuant to this relationship, some of Morrison's employees worked at the Facility. (Id. ¶ 16.) One such employee was Christopher Letterese ("Letterese"), who was Plaintiff's supervisor during the relevant period. (Id. ¶ 17.)

According to Plaintiff, on September 3, 2017, when Letterese and Plaintiff were alone in the kitchen, Letterese told Plaintiff to turn off his music, was "verbally aggressive," and threw Plaintiff's phone across the kitchen. (Id. ¶¶ 21-22.) Although there was a verbal confrontation between the two of them, Plaintiff alleges that no physical altercation occurred. (Id.) However, Letterese reported to the security desk that Plaintiff had assaulted him, and personnel at the desk called the Mount Vernon Police. (Id. ¶ 26.) Letterese also provided a written statement to his supervisor from Morrison, in which he detailed an alleged assault. (Id. ¶ 25.) Letterese reported that he had "verbally reprimanded" Plaintiff for playing music in the kitchen, which angered Plaintiff, and that Plaintiff had punched Letterese in the face. (Id. ¶ 19.) The Mount Vernon Police responded to the scene, interviewed Plaintiff and Letterese, and found no evidence of assault or injury to Letterese. (Id. ¶ 27.) Police Officer Jorge Monge ("Monge") was one of the officers who responded to the Facility. (Id. ¶ 49.) As a result of Letterese's allegations, Plaintiff was sent home on the day of the incident, and subsequently received a notice of termination, dated September 8, 2017. (Id. ¶ 28.) According to Plaintiff, Wartburg produced security camera footage for "[u]nemployment [i]nsurance proceedings," but the videos did not show Letterese, an assault, or any "visible signs of injury or distress." (Id. ¶ 23.) Plaintiff states that the "only purported evidence" of the assault were photographs that Letterese took, which Letterese alleged showed his injuries. (Id. ¶ 24.)

The Union disputed Plaintiff's termination, and, pursuant to the Collective Bargaining Agreement ("CBA"), the matter was brought before an arbitrator with the American Arbitration Association (the "Arbitrator"). (Id. ¶¶ 29, 31.) The CBA specifically provided, "If the Union desires to contest [a] discharge or suspension, it shall give notice to . . . [Defendant] within . . . five . . . days from the date of receipt of notice of discharge or suspension. . . . If the dispute is not resolved . . . within . . . [10] working days thereafter, it shall be submitted to arbitration by either party to th[e] [CBA]." (Aff. of Eric P. Simon, Esq. in Supp. of Mot. To Dismiss ("Simon Aff."), Ex. B ("CBA"), at 28 (Dkt. No. 17-2).)² Arbitration hearings took place on April 9, 2018 and July 9, 2018. (Pet. ¶ 31.) According to the Award and Opinion (the "Arbitration Opinion"), the Arbitrator heard testimony from Plaintiff, Letterese, Letterese's supervisor, another supervisor, vice-president of human resources, an administrator, and an employee from the engineering department familiar with the layout of the kitchen and security cameras at the Facility. (Id. Ex. 1 ("Arbitrator's Op."), at 40-45 (Dkt. No. 4-1).)³ The Arbitrator also considered the record submitted by the Union and Defendant, which included photographs of Letterese's alleged injuries and a transcript of testimony by Monge at an unemployment proceeding initiated by Plaintiff. (Id. at 40-45, 47 n.8.) According to the Arbitrator, the Unionsubpoenaed Monge to testify at the arbitration, but he was not available. (Id.) The Arbitrator ultimately upheld Plaintiff's termination, and found that Wartburg had "just cause" to terminate him. (Pet. ¶ 32; Arbitrator's Op. 45-49.) In a subsequent proceeding, Plaintiff filed a duty of fair representation charge with the National Labor Relations Board ("NLRB") against the Union. (Letter from Eric P. Simon, Esq., to Court (July 1, 2019) ("July 1 Simon Letter") 1; Letter from Barry D. Haberman, Esq. to Court (July 31, 2019) ("July 31 Haberman Letter") (Dkt. Nos. 27, 31).) On December 21, 2018, an NLRB Regional Director refused to issue a complaint against the Union, and on June 19, 2019, the NLRB's General Counsel denied Plaintiff's appeal of that decision. (July 1 Simon Letter 3-4.)⁴

B. Procedural Background

On November 13, 2018, Plaintiff filed his Verified Petition in the Supreme Court of the State of New York, County of Orange. (Not. of Removal ¶ 1.) Thereafter, on December 27, 2018, Defendant filed a Notice of Removal in this Court and New York State court. (Dkt. No. 2.) Due to a filing error, Defendant's Notice of Removal was re-filed the following day. (Dkt. No. 4.) The Parties participated in a Pre-Motion Conference before the Court on March 5, 2019, and a briefing schedule for the Motions was set. (Dkt. Nos. 10, 13.) Pursuant to that schedule, on April 5, 2019, Plaintiff filed the instant Motion To Remand. (Not. of Mot. To Remand; Pl.'s Mem. of Law in Supp. of Mot. To Remand ("Pl.'s Mem.") (Dkt. No. 14-1); Aff'n of Zachary King, Esq. in Supp. of Mot. To Remand ("King Aff'n") (Dkt. No. 14-2); Aff. of Pl. in Supp. of Mot. To Remand ("Pl. Aff.") (Dkt. No. 14-3).) On the same day, Defendant filed the instantMotion To Dismiss. (Not. of Mot. To Dismiss; Def.'s Mem.; Simon Aff.) On May 10, 2019, Plaintiff filed a response to the Motion To Dismiss, (Pl.'s Mem. of Law in Opp'n to Mot. To Dismiss ("Pl.'s Opp'n") (Dkt. No. 18)), and Defendant filed a response to the Motion To Remand, (Def.'s Mem. of Law in Opp'n to Mot. To Remand ("Def.'s Opp'n") (Dkt. No. 20)). On June 7, 2019, Defendant filed a Reply in further support of its Motion To Dismiss. (Def.'s Reply Mem. of Law in Supp. of Mot. To Dismiss ("Def.'s Reply") (Dkt. No. 26).)

II. Discussion

Given that "[t]he federal courts are under an independent obligation to examine their own jurisdiction," FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), and must do so before reaching the merits, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1988), the Court first considers Plaintiff's Motion To Remand to determine whether the Court has subject-matter jurisdiction over the Petition, and then, to the extent necessary, Defendant's Motion To Dismiss.

A. Motion To Remand

Plaintiff argues that his state-law causes of action are not preempted by the Labor Management Relations Act ("LMRA"), and, therefore, the Court lacks federal subject matter jurisdiction to adjudicate his claims. (Pl.'s Mem. 1-2, 8-13.) He contends that although his employment was subject to a CBA, he has not alleged any violations or breaches of the CBA, and instead protests "the sufficiency of the arbitration proceeding itself" under New York State law and the American Arbitration Association Labor Arbitration Rules. (Id. at 2, 11-13.) Defendant argues that this Court has original jurisdiction over the Action under § 301 of the LMRA, which has "the requisite extraordinary preemptive force to support completepreemption," Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005) (citations omitted), and thus, the Action should not be remanded, (Def.'s Opp'n 1-2,...