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Duljia Biberaj v. Pritchard Industries

March 13, 2012

DULJIA BIBERAJ,
PLAINTIFF,
v.
PRITCHARD INDUSTRIES, INC., LOCAL 32BJ, SERVICE EMPLOYEES INTERNATIONAL UNION, GREGORY MORABITO, TOM CALDERONE, RAMIZ GJOMBALAJ, TONY AGOLLI, FRANK BOLMAN, OSCAR PINEDA & MILLIOT "DOE" AS A FICTITIOUS NAME OF A REAL INDIVIDUAL WHOSE TRUE IDENTITY IS UNKNOWN AT THE PRESENT TIME,
DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

MEMORANDUM OPINION & ORDER

Pro se Plaintiff Duljia Biberaj was formerly employed by Pritchard Industries, Inc. ("Pritchard") as an office cleaner, and is a former member of Local 32BJ of the Service Employees International Union ("Local 32BJ" or "Union"). Biberaj filed this action on September 15, 2008, alleging violations of the Labor Management Relations Act, the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"), and infliction of emotional distress. (See Cmplt.)

On November 12, 2008, Local 32BJ, Frank Booth, and Oscar Pineda (collectively "Union Defendants"), and Pritchard, Gregory Morabito, Tom Calderone, Ramiz Gjombalaj, and Maliot Balidenaj*fn1 (collectively "Pritchard Defendants") moved to dismiss the Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). On September 28, 2009, this Court issued an order granting in part and denying in part Defendants' motions to dismiss. (Dkt. No. 23)

The Court dismissed the Complaint's first and second causes of action -- for breach of the collective bargaining agreement and breach of the duty of fair representation -- to the extent that they relied on time-barred conduct set forth in Paragraphs 46-48, 50-52, 62-64, and 73 of the Complaint. This Court also dismissed the Complaint's third and fourth causes of action -- for alleged violations of the FLSA and the NYLL -- as to the Union Defendants because Local 32BJ and its agents were not Plaintiff's employer. These claims were likewise dismissed as to the Pritchard Defendants to the extent that they were based on alleged record-keeping violations and an alleged failure to provide meal time and breaks.

This Court further dismissed the fifth and sixth causes of action -- alleging retaliation in violation of the FLSA and NYLL -- because of Plaintiff's failure to allege that she had engaged in "protected activity" or that she had been retaliated against because of her participation in "protected activity." Plaintiff's seventh cause of action, which asserted a claim for respondeat superior, was dismissed because respondeat superior is not a stand-alone cause of action. The eighth cause of action -- for negligent infliction of emotional distress -- was dismissed because Plaintiff failed to allege that Defendants owed her a special duty. Finally, the ninth cause of action -- for intentional infliction of emotional distress -- was dismissed as to the Union Defendants because Plaintiff's allegations as to them did not meet the "extreme outrage" standard set by New York courts.*fn2 (Dkt. No. 23 at 31)

The Union now moves for summary judgment on the remaining claims in the first and second causes of action, set forth in Paragraphs 49, 53-61, 65-68, 72, 75, and 76 of the Complaint, arguing that these claims are either time-barred or that there is no evidence from which a reasonable factfinder could find that the Union breached its duty of fair representation. (Dkt. No. 50) The Pritchard Defendants also move for summary judgment as to the claims remaining against them. (Dkt. No. 44) For the reasons stated below, Defendants' motions for summary judgment will be granted.

BACKGROUND

Plaintiff Duljia Biberaj was employed by Pritchard, a commercial cleaning contractor doing business throughout the New York City area, as a full-time office cleaner at 5 Times Square in Manhattan from 2002 through 2009. (Def. R. 56.1 Stmt. ¶¶ 1-3; Calderone Aff. ¶ 3)*fn3 Defendant Local 32BJ, a labor organization under Section 2(5) of the National Labor Relations Act, represented Biberaj as a member of a bargaining unit of employees employed by Pritchard at 5 Times Square. (Def. R. 56.1 Stmt. ¶¶ 4-5)

The terms and conditions of Biberaj's employment were established under successive collective bargaining agreements between Local 32BJ and a multi-employer bargaining association called the Realty Advisory Board on Labor Relations, Inc. ("RAB"), of which Pritchard is a member. (Id. ¶ 11) The relevant collective bargaining agreements in this action are the 2002 Contractors Agreement (effective January 1, 2002 through December 31, 2004), the 2005 Contractors Agreement (effective October 1, 2004 through December 31, 2007), and the 2008 Contractors Agreement (effective January 1, 2008 through December 31, 2011) (individually and collectively referred to as "CBA"). (Id. ¶ 12)

Articles V and VI of the CBA contain a grievance and arbitration procedure through which Local 32BJ and Pritchard process and adjust grievances under the CBA on behalf of bargaining unit members. (Id. ¶ 13) The grievance procedure under the CBA consists of three stages: (1) the Union investigates the employee's complaint and attempts to informally adjust the complaint with employer representatives; (2) if the dispute is not resolved after the first step, and the Union believes further action is warranted, the Union may advance the dispute as a grievance to a Step II Grievance Meeting between Union and employer representatives; and

(3) if the dispute is not resolved at the second step, and the Union believes further action is necessary, the Union will proceed to an arbitration hearing at the Office of the Contract Arbitrator ("OCA"). (Id. ¶ 14)

During her Pritchard employment, Biberaj made numerous complaints to the Union about Pritchard's treatment of her. The following allegations survived the Court's ruling on Defendants' motions to dismiss:

* On December 2, 2004, Biberaj was one of several Pritchard employees who filed a complaint with the Union claiming that Pritchard did not increase their wage rate as required under the CBA from 80% of the minimum rate to 100% after completing an initial 30-month period of employment. (Id. ¶ 15) Local 32BJ pursued the grievance through the third step -- scheduling the grievance for arbitration at OCA on July 8, 2005. (Id. ¶ 16) At the arbitration, Pritchard and the Union entered into a written settlement for back wages. (Id. ¶ 17) Payments were not timely made under the settlement agreement, however, and the Union resumed the grievance at an arbitration on October 17, 2006. (Id. ¶ 18) At the arbitration, the parties consented to the arbitrator issuing an award requiring Pritchard to pay the employees unpaid wages still owed. (Id.) On November 3, 2006, the Union forwarded to Biberaj a check issued by Pritchard in the amount of $748.04 for back wages due her under the arbitration award. (Id. ¶ 19) Biberaj complains that the Union should have obtained more money for her (Biberaj Dep. at 199) but cannot specify how much more in back wages she should have received. (Def. R. 56.1. Stmt. ¶ 20)

* Pritchard requires employees who will be absent to give notice to the main office at least three hours before the employee's starting time. (Id. ¶ 22) Pritchard maintained a record of absences and a call-in log at the main office. (Id.) On February 24, 2006, Pritchard issued a written warning to Biberaj because she failed to call in on February 23, 2006. (Id.) On February 27, 2006, Biberaj filed a complaint with the Union challenging the written warning. (Id. ¶ 23; Calderone Aff., Exh. A) After receiving the complaint, a Union Representative, Oscar Pineda, contacted Tom Calderone at Pritchard to discuss and object to the written warning. (Id. ¶ 24; Pineda Aff., Exh. A) On March 10, 2006, pursuant to the Union's standard practice concerning written warnings, Local 32BJ sent a letter to Pritchard objecting to the written warning and reserving the right to challenge the merits of the warning. (Id. ¶ 25). Local 32BJ did not take further action regarding the dispute. (Id.)

* On February 23, 2007, Biberaj filed a complaint with Local 32BJ concerning her supervisor's alleged threat and harassment related to her participation in a Union meeting at 5 Times Square. (Id. ¶ 27; Pineda Aff., Exh. B) After receiving Biberaj's complaint, Pineda, the union representative, contacted Calderone to object to the alleged threat. (Id. ¶ 28) The Union also sent a letter to Pritchard on April 12, 2007, per the Union's policies, objecting to the harassment of Biberaj and demanding that the responsible supervisor cease such conduct. (Id. ¶ 29; Goldman Aff., Exh. J) Although there is no provision in the CBA governing supervisor harassment, Calderone discussed the matter with Gregory Morabito, Biberaj's supervisor. Morabito assured Calderone that the only reprimands addressed to Biberaj involved work-related issues, and that no action had occurred or would be taken against Biberaj for Union-related activity. (Id. ¶ 30) Local 32BJ took no further action concerning the dispute. (Id. ¶ 31)

* On March 21, 2007, Biberaj filed a complaint with Local 32BJ challenging harassment by Morabito. (Id. ¶ 32) After receiving Biberaj's complaint, Pineda contacted Calderone to discuss the complaint, and on April 18, 2007, pursuant to the Union's practice, issued a letter to Pritchard objecting to the alleged harassment and demanding that Morabito stop the conduct in question. (Id. ¶ 33-34; Pineda Aff., Exh. C; Goldman Aff., Exh. K) The Union took no further action concerning this dispute. (Id. ¶ 35)

* On March 22, 2007, Biberaj was again issued a written warning concerning her failure to call in to Pritchard to report her absence that day. (Id. ¶ 36) On March 26, 2007, Biberaj filed a complaint with Local 32BJ challenging the written warning. (Id. ¶ 37; Pineda Aff., Exh. D) After receiving the complaint, Pineda contacted Calderone to discuss the written warning, and on April 16, 2007, the Union issued a letter objecting to the written warning and reserving the right to challenge its merits. (Id. ¶¶ 38-39; Goldman Aff., Exh. L) The Union took no further action concerning the dispute, and Pritchard maintains that there is no evidence that Biberaj complied with its call in policy that day. (Id. ¶¶ 40-41)

* On April 4 and 5, 2007, Biberaj was issued two written warnings. The first concerned her leaving garbage outside a tenant's doorway. The second warning involved a tenant complaint that Biberaj had left garbage in the tenant's reception area three times in the prior two weeks. (Id. ¶ 42) On April 5, 2007, Biberaj filed a complaint with Local 32BJ challenging the written warning issued on April 4, 2007. (Id. ¶ 43) The Union does not have a record of Biberaj filing a complaint challenging the April 5, 2007 written warning. (Id. ¶ 43, n.10; Goldman Aff. ¶ 34) On May 4, 2007, the Union sent a letter to Pritchard objecting to the April 4, 2007 written warning and reserving the right to challenge the merits of the warning. (Id. ¶ 44; Goldman Aff., Exh. M) The Union took no further action, and Pritchard did not believe there was any basis for rescinding either warning. (Id. ¶¶ 45-46)

* On April 26, 2007, Biberaj was suspended for two days after again not calling in to report her absence. (Id. ¶ 47) Pritchard believed that the suspension was warranted given its prior warnings to Biberaj. (Id.) On April 30, 2007, Biberaj filed a complaint with the Union challenging the suspension. (Id. ¶ 48; Pineda Aff., Exh. E) Pineda again contacted Calderone to discuss and object to Biberaj's suspension. (Id.

¶ 49) Local 32BJ advanced the dispute to a Step II grievance meeting at OCA on July 31, 2007. (Id. ¶ 50) At the meeting, the Union offered evidence that Biberaj had at least attempted to contact her supervisor on the day in question. (Id.) Representatives from Pritchard and Local 32BJ then negotiated a written settlement of the grievance that provided for withdrawal of the suspension and reimbursement to Biberaj for two days of lost wages. (Id. ¶ 51) Union representative Frank Booth was present during the meeting and explained the terms of the agreement to Biberaj. (Id.

¶ 53) The terms of the agreement were also translated into Albanian for Biberaj during the meeting. (Id. ¶ 54) The settlement was reduced to writing in English and signed by Pritchard, Local 32BJ, and Biberaj. (Id. ¶ 52) Biberaj received a copy of the settlement agreement, and had her children translate it from English to Albanian the next day. (Id. ¶ 55; Biberaj Dep. at 224) The Union withdrew the grievance and took no further action concerning this dispute. (Id. ¶ 57)

* On September 25, 2007, Biberaj was suspended for two days for failing to vacuum a tenant area on several consecutive nights. (Id. ¶ 58) The tenant had filed a written complaint with Pritchard. (Id.) The next day, Biberaj filed a complaint with Local 32BJ challenging the two-day suspension. (Id. ¶ 59) After receiving Biberaj's complaint, Booth scheduled a meeting on October 3, 2007 with Pritchard and Biberaj, in an attempt to resolve the complaint under Step I of the grievance procedure. (Id. ¶ 60) At the meeting, the Union, Pritchard, and Biberaj agreed to settle the grievance on the following terms: Pritchard would reduce Biberaj's suspension from two days to one day, and Biberaj agreed to improve her job performance. The parties further agreed that this settlement resolved all past and current grievances against Pritchard.

(Id. ¶ 61; Goldman Aff., Exh. P) The settlement was reduced to writing in English, and signed by Pritchard, Local 32BJ, and Biberaj. (Id. ¶ 52) Biberaj received a copy of the settlement agreement, and had her children translate it from English to Albanian the next day. (Id. ¶¶ 61, 63) The Union withdrew the grievance and took no further action concerning this dispute. (Id. ¶ 65)

* On January 22, 2008, Biberaj field a complaint with Local 32BJ challenging Pritchard's refusal to allow her to work on the Martin Luther King holiday on January 21, 2008. (Id. ¶ 67) After receiving the complaint, Booth contacted Calderone at Pritchard to discuss this issue. (Id. ¶ 68) Under the CBA, the MLK holiday is designated as an "elective" holiday, which means that if an employee elects it as a holiday, the employee will not be scheduled to work that day but will still be paid for that day. (Id. ¶ 69) Biberaj testified that although she was paid for the day as a holiday, she should have been allowed to work that day and receive additional pay. (Id. ¶ 70) Booth concluded that Biberaj was not eligible to work on the MLK holiday because she had designated it as an elective holiday. (Id. ¶ 71) Booth notified Biberaj by telephone that he was withdrawing the complaint because it lacked merit, and the Union took no further action concerning it. (Id. ¶¶ 72-73)

* On March 13, 2008, Biberaj filed a complaint with Local 32BJ challenging harassment by her supervisor and an excessive workload. (Id. ¶ 74) After receiving Biberaj's complaint, Booth contacted Calderone to discuss these issues. (Id. ¶ 75) On March 20, 2008, pursuant to its standard practice, the Union sent Pritchard a letter objecting to the harassment of Biberaj and demanding that the responsible supervisor cease such conduct. (Id. ¶ 76; Goldman Aff., Exh. R) Booth also discussed this complaint with Pineda, who reported to Booth that he had recently held a meeting at 5 Times Square with Calderone to address employee complaints about supervisor Morabito. ...


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