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Francisco Veliz v. Collins Building Services

September 26, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:



Defendants Collins Building Services, Inc. ("CBS"), David Martinez, Jimmy Ramirez, and Fatos Prelvukaj*fn1 (together "the Collins Defendants") move to dismiss pro se Plaintiff Francisco Veliz's claim of discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act of 1967 ("ADEA"). Defendant Tony Tonuzi also moves to dismiss Plaintiff's claims. For the reasons that follow, both motions are granted.


The following facts are taken from (1) plaintiff Veliz's form complaint; (2) Veliz's complaint with the Equal Employment Opportunity Commission ("EEOC"); (3) the Collective Bargaining Agreement ("CBA") between Veliz's union, Service Employees International Union Local 32BJ (the "Union"), and The Realty Advisory Board on Labor Relations, Inc., of which CBS is a member; and (4) Veliz's opposition papers, which consist of affidavits of three of his former co-workers.*fn2

Veliz, a man of Peruvian origin, was employed by CBS for sixteen years. (Compl. at 3; EEOC Compl. (attached as Ex. D to Aff. of Samantha Abeysekera, Esq. in Supp. of Def.'s Mot. to Dismiss ("Abeysekera Aff.")).) During that time, he was a member of Union 32BJ and, for at least a portion of that time, his immediate supervisor was Fatos Prelvukaj, a man of Albanian origin. (EEOC Compl.; see Compl. at 3.) Veliz does not specify in what capacity the other Collins Defendants served CBS.

Veliz alleges that he was continually harassed and discriminated against during his tenure at CBS. Veliz alleges that Prelvukaj prohibited him from speaking Spanish on the job and that Prelvukaj warned him that any complaints to the Union would result in retaliation. (EEOC Compl.) Veliz also appears to allege, through the affidavit of his former co-worker Sphen Koleci, that the Union's staff was paid to ignore its members' grievances. (Koleci Aff. ¶ 5 (attached to Veliz's Aff. in Opp'n to Mot.).) Veliz further alleges that, on May 5, 2008 and January 5, 2009, CBS increased the workloads of Hispanic employees, including Veliz, while leaving the workloads of Albanian employees unchanged. (EEOC Compl.) Veliz also claims that Hispanic employees were subject to closer supervision than Albanian employees and that Albanian employees received "better floor jobs" than Veliz and other Hispanic employees. (Id.) Veliz also contends that he was suspended from work on October 2, 2008 for participating in an unspecified "protected activity." (Id.) Finally, the affidavits of Veliz's former co-workers, though difficult to understand, appear to allege that Defendants Ramirez and Martinez hated Veliz; that Defendant Tonuzi was an employee of CBS and had the authority to distribute overtime, which he gave to his "favorites;" and that the Defendants generally discriminated against Veliz on the basis of his ethnicity. (See Koleci Aff. ¶¶ 4, 7; Aff. of Jose Perez ¶ 4; Aff. of Gladys Gros ¶ 2 (all affidavits are attached to Veliz's Aff. in Opp'n to Mot.).) CBS provided Veliz a notice of termination on November 18, 2008. (EEOC Compl.) Veliz alleges that his termination was discriminatory.

The CBA between Veliz's Union and the Realty Advisory Board of which CBS is a member requires union employees to submit discrimination claims to binding arbitration pursuant to the grievance and arbitration provisions of the CBA. (See 2008 Contractors Agreement between Service Employees International Union Local 32BJ and The Realty Advisory Board on Labor Relations, Inc. ("CBA") ¶ 30, at 103-04 (attached as Ex. B to Abeysekera Aff.).) Specifically, the CBA contains a "No Discrimination" clause that provides:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, sexual orientation, union membership or any characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, 42 U.S.C. § 1981, the Age Discrimination in Employment Act . . . or any other similar laws, rules or regulations. All such claims shall be subject to the grievance and arbitration procedure (Article V and VI) as the sole and exclusive remedy for violations. (Id.)

Veliz does not allege that he attempted to resolve his claims through the grievance and arbitration procedure. Instead, he filed a complaint with the EEOC on May 26, 2009, alleging national origin discrimination and retaliation under Title VII. (See EEOC Compl.) On July 30, 2010, the EEOC issued Veliz a right-to-sue letter, and on September 7, 2010, Veliz filed this action, alleging various claims under both Title VII and the ADEA. (See EEOC Compl.; Compl. at 1.) The Collins Defendants have moved to dismiss Veliz's complaint against them under Rule 12(b)(6) based primarily on Veliz's failure to arbitrate. Defendant Tonuzi has moved to dismiss the complaint against him on the ground that it fails to state a claim against him.


"Courts ruling on motions to dismiss must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Dickerson v. Mut. of Am., 703 F. Supp. 2d 283, 290 (S.D.N.Y. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Rather, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

"A document filed pro se is 'to be liberally construed,' and a 'pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts must "read[] such submissions 'to raise the strongest arguments they suggest.'" Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, "[w]hile held to a less stringent standard, the pro se plaintiff is not relieved of pleading requirements, and failure to plead the basic elements of a cause of action may result in dismissal." Andino v. Fischer,698 F. Supp. 2d 362, 376(S.D.N.Y. 2010). ...

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