Plaintiff Victor Lopez is suing his former employer, 845 WEA Management, Inc., c/o R.A. Cohen & Associates ("845 WEA"), alleging that he was discriminated against due to his race. Plaintiff is Puerto Rican. He worked for defendants for almost twenty years but was terminated on October 8, 2008. He had been serving as a doorman. In his complaint, plaintiff alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), and state tort law.
Defendants have filed a motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP").
The court grants defendants' motion to dismiss plaintiff's claims for intentional infliction of emotional distress, defamation, and discrimination and hostile work environment under the NYSHRL and NYCHRL. The court denies defendants' motion to dismiss plaintiff's discrimination and hostile work environment claims under Title VII.
The following facts are taken from plaintiff's complaint and from both parties' submissions in relation to defendants' motion to dismiss the complaint. For the purposes of this opinion, they are assumed to be true.
Plaintiff began his employment with defendant 845 WEA nearly twenty years ago. He served as a doorman at 845 West End Avenue in Manhattan (the "Property"), a residential apartment building. Plaintiff is Hispanic and is originally from Puerto Rico.
R.A. Cohen was the managing agent of the Property at the time of plaintiff's termination from employment in October 2008. Douglas Elliman Realty was a prior owner of the Property and is a party in interest.
Plaintiff was a member of SEIU Local 32BJ (the "Union"), which represents the building service workers at the Property. A collective bargaining agreement (the "CBA") was in place at the Property at operative times. The CBA requires arbitration of all claims and grievances arising out of the workplace, including without limitation, claims of discrimination under federal, state, and local law.*fn1
Plaintiff states that the employment discrimination against him began in 2000 when Pashko Preldakaj was hired by defendant as the superintendent and a management official for 845 WEA and became plaintiff's supervisor.
Around the time of Preldakaj's hiring, plaintiff alleges that he heard Preldakaj say, "Sooner or later I will get rid of all the Puerto Ricans in here." He also alleges that Preldakaj made the statement directly to him. Since becoming superintendent, Preldakaj has terminated five Hispanic employees but has not terminated any non-Hispanic employees. 845 WEA had twelve employees in total. Despite the firings, there were Hispanic employees who continued to work for 845 WEA after plaintiff was terminated, and Preldakaj hired at least one new Hispanic employee after becoming superintendent. Plaintiff disputes the significance of this hiring, stating that the new Hispanic employee was hired during the time in which a discrimination complaint of another Hispanic employee, Edgar Correa, was being investigated, and that five non-Hispanic employees have been hired.
A former superintendent of the building, Gerard Chretian, also stated that Preldakaj told him that "if he ever became super, he'd get rid of the spics." Chretian also stated, "He kept his word. He did." Chretian further stated that when he was superintendent, he used a plumbing company that was "Spanish owned" and sent out "Spanish" plumbers but that Preldakaj has stopped working with that company.
Plaintiff further alleges that Hispanic employees are treated less favorably than non-Hispanic employees in flexibility of schedules for vacation, holiday work, and time off, and that non-Hispanic employees are permitted to do private work on company time, whereas Hispanic employees are denied the same privilege. Plaintiff states that Preldakaj failed to pay plaintiff's vacation pay on time (apparently on one occasion), made unauthorized changes to plaintiff's time sheets, and falsely accused plaintiff of making threats against Preldakaj and his family.
Plaintiff also alleges that on or about September 3, 2008, Preldakaj accused plaintiff of being drunk on duty and also published the accusation in a letter to Steve Esposito, a representative of the building's managing agent. Plaintiff alleges that the statement was false.
Plaintiff was terminated in April 2008. This termination was later converted to a suspension with a final warning. On October 8, 2008, plaintiff was terminated. Plaintiff was one year short of collecting his pension.
Plaintiff alleges that he has suffered and is continuing to suffer irreparable injury, monetary damages, mental distress, anguish, and humiliation as a result of defendants' acts and discriminatory practices.
Plaintiff's complaint includes six claims for relief:
1. Discrimination in the terms, conditions, and privileges of his employment on the basis of his race in violation of Title VII.
2. Discrimination in the terms, conditions, and privileges of his employment on the basis of his race in violation of the New York State Human Rights Law ("NYSHRL").
3. Discrimination in the terms, conditions, and privileges of his employment on the basis of his race in violation of the New York ...