The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Leon Duggan has brought this action against Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine, Air Conditioning, and General Pipefitters (hereinafter, "Local 638" or "the Union"), alleging that, as a union member, he has been discriminated against based upon his race with respect to work referrals, and that he has been subjected to retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), 42 U.S.C. § 1981, Section 296 of the New York Human Rights Law, and Section 8-107 of the New York City Administrative Code.
Local 638 has moved pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the First Amended Complaint ("Amended Complaint") on the following grounds: (1) the doctrine of res judicata bars all claims because of plaintiff's prior lawsuit against Local 638, Duggan v. Local 638, 419 F. Supp.2d 484 (S.D.N.Y. 2005) (hereinafter "Duggan I"); and (2) the statute of limitations bars all claims under Title VII because the conduct occurred more than 300 days before plaintiff filed his most recent Equal Employment Opportunity Commission ("EEOC") charge. For the reasons that follow, Local 638's motion is granted in part and denied in part. Specifically, the motion to dismiss on res judicata grounds is granted, except with respect to Duggan's retaliation claim as it relates to alleged conduct since the filing of the complaint in Duggan I. The motion to dismiss the Amended Complaint on statute of limitations grounds is denied.
Duggan is an African-American male with over 30 years experience as a professional welder and pipe fitter. (Am. Compl. ¶ 8.). Local 638 is a local trade union that organizes construction and service pipe fitters, steamfitters, welders, and related labor to perform work within the New York City Metropolitan area, including Kings County. (Id. ¶ 9.)
According to the complaint, Local 638 is controlled by white members who are officers and business agents of the Union. (Id. ¶ 10.) These individuals allegedly have maintained control over the Union through favoritism and racism and have referred work opportunities mostly to their relatives and friends. (Id.) Local 638 does not maintain a hiring hall, does not have any formal records of available jobs or of steamfitters seeking work, and does not have any formal mechanism for making work referrals. (Id. ¶ 11.) However, it allegedly exerts considerable influence over work assignments for its members by referring contractors to individual members and by informing members of contractors who are hiring, which operates to give white members advantages in obtaining employment. (Id.)
In United States v. Local 638, 360 F. Supp. 979 (S.D.N.Y. 1973), the court found that Local 638 had violated Title VII by discriminating against non-whites in its admission of members and in its work referral practices and granted certain injunctive relief.*fn2 (Am. Compl. ¶¶ 13-14.)
Beginning in May 2000, Duggan applied for membership in Local 638, but his application was rejected. (Id. ¶ 14.) He was subsequently admitted into Local 638 in 2002, after threatening legal action against Local 638 for race discrimination. (Id.) According to the complaint, after joining Local 638, Duggan actively sought employment and work referrals from Local 638 by contacting its business agents, officers and/or employees, but received almost none, while relatives, friends, and other white members allegedly received high employment and work referrals from the Union. (Id. ¶ 15.) In particular, since Duggan became a Local 638 member in 2002, he allegedly received less than 1,000 hours of work referrals (which occurred only after persistent requests), while white members received over 6,000 hours of work referrals from the Union, even though Duggan has over 30 years of professional experience. (Id. ¶ 16.) Duggan alleges that he received less work because of retaliation by the Union for his assertion of his right to join the Union and for opposing the Union's discriminatory practices. (Id.)
On or about February 24, 2003, Duggan filed a complaint against Local 638 with the United States Equal Employment Opportunities Commission ("EEOC") and was issued a "Notice of Right to Sue" by the EEOC on or about February 27, 2004. (Id. ¶ 17.) On or about April 26, 2004, Duggan commenced an action in the United States District Court for the Southern District of New York against Local 638. See Duggan I, 419 F. Supp. 2d 484. Duggan's main claim in Duggan I was the same as that being made here - namely, that Local 638's "`nepotistic and cronyistic [work] referral practices' prevented him from receiving adequate work assignments" - which the court concluded made the case more of a "disparate treatment" case than one claiming "disparate impact" Id. at 489-90 (quoting Duggan's complaint). However, the court found Duggan's claim "deficient under both theories." Id. at 490. In the absence of any direct evidence of discriminatory treatment, the court focused on Duggan's statistical evidence and found that such evidence was not sufficient to survive Local 638's summary judgment motion because Duggan had failed to meet his prima facie burden. Id. at 492-93. In particular, with respect to the disparate treatment claim, the court found that "[p]laintiff's statistical analysis does not suffice to demonstrate that plaintiff was treated differently than similarly situated non minority union members under circumstances giving rise to an inference of discrimination." Id. at 492. Moreover, with respect to the disparate impact claim, the court concluded that Duggan "fares no better" because "the purported statistical disparities are not substantial enough to raise an inference of causation." Id. at 493 (quotations and citations omitted). In addition, the court concluded that Duggan's retaliation claim must also fail:
Logic dictates that plaintiff's claim cannot proceed under a retaliation theory either. Assuming that plaintiff has shown that he engaged in a protected activity of which defendant was aware, plaintiff has not shown that he suffered any adverse employment action. Since plaintiff has not demonstrated that he was treated differently than other similarly situated union members, he has not shown that his lack of work referrals constituted an adverse employment action.
Id. (citation omitted). Finally, the court denied Duggan's request to reopen discovery, finding that "there does not appear to be any additional evidence that plaintiff could adduce that would affect the outcome of this motion. Id. at 493 n.11. Duggan did not appeal from that November 21, ...