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February 18, 1997

LUIS A. LUGO, Plaintiffs, against MILFORD MANAGEMENT CORP., Defendant.

The opinion of the court was delivered by: MOTLEY


 This action arises out of a claim brought by plaintiff, Luis A. Lugo, against defendant, Milford Management Corp., for wrongful termination of employment and false imprisonment. Defendant is a New York Corporation that is the managing agent of commercial and residential real estate in New York City. It is a member of the Realty Advisory Board ("RAB") and is a party to a collective bargaining agreement ("CBA") with Local 32B-J ("Union"). Plaintiff is a New Jersey resident who was employed by the defendant for 23 years as a security guard at One Lincoln Plaza, New York, New York, which is a residential building managed by defendant. Lugo enjoyed CBA benefits as an employee of defendant.

 According to defendant's rules of employment, employees may not consume alcohol while on the job. On March 4, 1994, plaintiff was fired for violating this rule, i.e., for "misconduct." Following his discharge and as provided in the CBA, Lugo filed a grievance and asked the Union to help him get his job back. On April 12, 1994, the Union filed a demand for arbitration of plaintiff's discharge. On April 30, 1996, plaintiff withdrew the demand for arbitration without prejudice.

 Upon his termination, Lugo also applied for unemployment insurance benefits and represented to the Unemployment Insurance Reviewing Examiner that he was taking medication and had not consumed alcohol on the day he was fired. The Examiner determined that plaintiff was entitled to benefits. Defendant objected and requested a full hearing before an administrative law judge. The hearing was held May 26, 1994 and June 17, 1994, and plaintiff (who was not represented by counsel) testified under oath at that hearing that (1) he had purchased and drank a bottle of vodka on his lunch break the day he was fired, and (2) he had not been taking medication that day. Furthermore, defendant's District Manager, Stephen Rossi, testified that Lugo had a history of working under the influence of alcohol and had received numerous warnings and suspensions prior to his termination. The ALJ, accordingly, denied plaintiff's claim for benefits and concluded that plaintiff had been fired because of misconduct.

 On August 4, 1994, plaintiff filed a verified complaint with the New York State Division of Human Rights ("Division") charging Milford with the unlawful discriminatory practice of firing plaintiff because of his disability, i.e. alcoholism. Plaintiff elected not to pursue his claim with the Division. On July 19, 1996, Lugo requested and received a "right to sue" letter in federal court. On October 17, 1995, plaintiff filed a complaint in this court based on diversity and federal question jurisdiction alleging that defendant discriminated against him on the basis of his alleged disability in violation of Title VII of the Civil Rights Act of 1964 and the Federal Rehabilitation Act of 1973. Plaintiff invoked the court's supplemental jurisdiction to hear his Human Rights Law claim which also prohibited discrimination based on disability and his common law right to privacy claim. Plaintiff acknowledged that he had testified under oath that he had drank vodka on the day he was fired, but he claimed that he did not mean what he said during the hearing. Defendant filed a 12(b)(6) motion to dismiss. Later in plaintiff's opposition papers to defendant's motion, plaintiff restated his right to privacy claim as a false imprisonment claim.

 On April 25, 1996, at oral arguments, plaintiff voluntarily withdrew his Title VII claims. From the bench, this court summarily dismissed plaintiff's Federal Rehabilitation Act claim due to plaintiff's failure to plead that defendant received federal financial assistance, an essential element under that Act which prohibits any program receiving federal financial assistance from discriminating against an otherwise qualified disabled individual. In the written opinion that followed, the court dismissed plaintiff's supplemental state law claims for lack of subject matter jurisdiction, held that New York had no common law of privacy and noted that plaintiff's Human Rights Law, right to privacy, and false imprisonment claims were extremely muddled. The court granted plaintiff leave to replead his complaint within twenty days.

 On May 13, 1996, plaintiff filed an amended complaint, thereby commencing the action now before the court. In his amended complaint, plaintiff invokes this court's diversity jurisdiction over his claims of wrongful discharge and false imprisonment. On June 17, 1996, defendant moved to dismiss plaintiff's amended complaint or, in the alternative, for summary judgment, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. This court hereby grants defendant's motions and dismisses plaintiff's complaint.


 Plaintiff alleges that up until his termination, he was a diligent and hard working security guard at defendant's building. Lugo concedes that in the past he had an alcohol dependency problem but had entered rehabilitation and was now fully recovered. Lugo claims that on March 4, 1994, his employer falsely accused him of drinking alcohol during working hours and fired him as a result. Lugo claims that he was suffering from his past alcohol dependency/disability on March 4, 1994 but denies that he drank alcohol during his lunch or working hours. He claims that his discharge was without cause or justification. Lugo also alleges that when the defendant, through its agent, Stephen Rossi, falsely accused and fired him, Rossi ordered him not to leave the premises and subjected him to a breath test and a personal search in front of his wife, Francis Lugo. Lugo claims that he was fired unjustly and falsely imprisoned by Rossi and seeks punitive and compensatory damages for the humiliation and pain he has suffered.

 III. Defendant's Motion to Dismiss

 A complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) when plaintiff can "prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Philippeaux v. North Central Bronx Hosp., 871 F. Supp. 640, 645 (S.D.N.Y. 1994). Defendant moves to dismiss plaintiff's wrongful discharge and false imprisonment actions. Defendant argues that plaintiff is not entitled to relief under his false imprisonment action because it is time barred by the statute of limitations. In reply, plaintiff asserts that the statute of limitation was tolled because he originally filed his claim with the Division and was prohibited from bringing his claim in federal court until he received a right to sue notice.

 Defendant also argues that plaintiff is not entitled to relief under his wrongful discharge action because plaintiff's state law claim is preempted by ยง 301(a) of the LMRA *fn1" and must be adjudicated through the grievance procedures provided in the CBA. In addition, defendant argues that New York does not recognize a right against unjust discharge and that this alone should be reason enough to dismiss plaintiff's claim. Defendant maintains that since plaintiff's claim is not grounded in state law it must arise, if at all, from the CBA, thereby, providing additional reason for preemption and dismissal due to plaintiff's failure to exhaust the grievance procedure.

Defendant points to the following sections of the CBA to support its argument:
Any grievance, except as otherwise provided herein...shall be presented to the RAB in writing within 120 days of its occurrence, except for grievances involving...discharge which shall be presented within 45 days.
There shall be a Joint Industry Grievance Committee and grievance try to decide all issues not covered by, and not inconsistent with, any provision of this agreement and which are not required to be arbitrated under its terms.
If any employee is unjustly discharged, he shall be reinstated without loss of seniority or rank and without deduction. The Joint Industry Grievance Committee or the Arbitrator may determine, whether, and to what extent, the employee shall be compensated by the Employer for time lost.
A Contract Arbitrator shall have the power to decide all differences arising between the parties to this agreement as to interpretation, application or performance of any part of this agreement, and such other issues ...

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