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Serrano v. USA United Transit Bus Inc.

November 3, 2009

JOSE SERRANO, LUIS BENIQUEZ, PLAINTIFFS,
v.
USA UNITED TRANSIT BUS INC., SHORELINE PUPIL TRANSPORTATION, THOMAS SCIALPI, LARRAINE LIA CASTELLANO, FRANCIS "FRANK" BRACCIA, CAROL PAPACENA, CLARENCE "JAY" JONES, AMALGAMATED TRANSIT UNION LOCAL 1181, AND NICHOLAS MADDALONE, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, U.S.D.J.

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

JOHN GLEESON, United States District Judge

Plaintiffs Jose Serrano and Luis Beniquez allege that their former employer, USA United Transit, Inc. ("United Transit") discharged them without just cause, and that their union, Local 1181-1061 of the Amalgamated Transit Union ("Local 1181") breached its duty to represent them fairly in connection with the termination proceedings. Defendants now move for dismissal of the complaint, arguing, among other things, that plaintiffs filed their complaint outside the six-month statute of limitations. Oral argument on the motions was heard on October 29, 2009. Plaintiffs concede that they brought suit more than six months after their causes of action accrued, but argue that the limitations period should be tolled on equitable grounds. For the reasons set forth below, however, plaintiffs do not present a sufficient basis for tolling the statute of limitations. Defendants' motions to dismiss the complaint are therefore granted.

BACKGROUND

A. Plaintiffs' Employment at United Transit

United Transit provides bus transportation for schools in New York City. Jose Serrano and Luis Beniquez were employed by United Transit as bus drivers. Both men were members of Local 1181, and on October 13, 2006, Serrano was elected shop steward by the employees assigned to United Transit's Bronx location. According to plaintiffs, Serrano quickly became unpopular with United Transit's management because he was an aggressive advocate for the rights of union members.

B. The December 8, 2006 Incident

On Friday, December 8, 2006, Serrano finished his shift at approximately 4 p.m. Just as he was about to leave United Transit's Bronx yard, he was approached by fellow employee Angel Laracuente. Laracuente was apparently drinking a beer, and he offered Serrano a drink. According to Serrano, drinking on a Friday afternoon -- though contrary to United Transit's rules -- was common practice at the yard. It later transpired that Laracuente was secretly acting on behalf of company principals Larraine Lia Castellano and Frank Braccia. Serrano denies drinking the alcohol Laracuente offered him, but admits that he decided to join his fellow employees and smoke a cigar.

A few minutes later, Braccia arrived and accused Serrano of drinking on company property. Braccia was accompanied by another individual who videotaped the incident. Braccia ordered Serrano to submit immediately to an alcohol saliva test. The test, which was conducted in a company trailer by United Transit employee Carol Papacena, purported to show that Serrano had been drinking alcohol. Serrano contends that the positive result was erroneous, that the equipment was past its use-by date, and that the outcome was unreliable because Papacena failed to wait more than fifteen minutes after Serrano had been smoking before taking the swab. The testing process was photographed by another employee, Clarence Jones.

Papacena told Serrano that he was also obliged to submit to a blood test. Serrano called fellow shop steward Vincent Catalano for advice; Catalano told him that the employer was entitled to require him to take the blood test. Serrano, however, refused to submit to any additional testing, and left the trailer.

After exiting the trailer, Serrano was approached by Laracuente, who Serrano says was rambling drunkenly about a private meeting that Serrano had with company principals, including Braccia and Thomas Scialpi, about thefts at the Bronx yard. Laracuente allegedly bumped Serrano in the chest three times. Serrano's friend Beniquez then intervened in the fracas on Serrano's side. As Serrano turned away, Laracuente sucker-punched Serrano on the side of his face. Serrano then sought to restrain Laracuente, but Laracuente escaped.*fn1

C. The Events of December 11, 2006

On Monday, December 11, 2006, Serrano and Beniquez arrived at work early.

Serrano had alerted a TV news crew, and held a press conference outside the yard about the events of the previous Friday. Beniquez, who was sitting nearby at the wheel of a school bus, is alleged to have used the bus to block the entrance to the yard in aid of Serrano's protest, and to have refused repeated orders from Castellano to move the bus. Later that day, Serrano's employment was summarily terminated, and Beniquez was informed that he would face a disciplinary hearing with a view to his termination.

The hearing regarding Serrano's termination occurred on December 13, 2006, and Beniquez's hearing -- which also ended in his termination -- was held on January 9, 2007. At their hearings, both men were represented by Local ...


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