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Abraham Mussafi v. Michael Fishman

November 13, 2012

ABRAHAM MUSSAFI,
PLAINTIFF,
v.
MICHAEL FISHMAN, PRESIDENT, LOCAL 32BJ, SERVICE EMPLOYEES INTERNATIONAL UNION, TOWNHOUSE COMPANY, LLC C/O SOLOW MANAGEMENT CORP., AND REALTY ADVISORY BOARD ON LABOR RELATIONS, INC.,
DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The plaintiff, Abraham Mussafi, brings this action against Service Employees International Union, Local 32BJ ("the Union"); its president, Michael Fishman; and Townhouse Company, LLC c/o Solow Management ("the Employer") (collectively, "the defendants").*fn1 After the Employer terminated the plaintiff's employment, the Union filed a grievance on the plaintiff's behalf and submitted the dispute to an arbitrator, who denied the grievance and held that the plaintiff was discharged for just cause. The plaintiff then brought the present action in the New York State Supreme Court, New York County. The action was removed to this Court, and the plaintiff filed an Amended Complaint alleging six causes of action.

The first cause of action alleges that the Union breached its duty of fair representation and that the Employer breached the Collective Bargaining Agreement ("CBA"). The second cause of action seeks to vacate the arbitration award due to the arbitrator's alleged partiality. The third cause of action alleges that the arbitration proceeding violated the plaintiff's right to due process. The fourth cause of action alleges that the plaintiff's discharge was a pretext for illegal discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. The fifth cause of action alleges that the plaintiff's discharge was a pretext for illegal discrimination in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296, and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. The sixth and final cause of action alleges that the defendants' conduct caused the plaintiff to suffer emotional distress. The Union and its president, as well as the Employer, now move to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

II.

The following facts are accepted as true for the purposes of this motion to dismiss, unless otherwise indicated.

Since in or about 2002, the plaintiff was employed as a porter and doorman at 265 East 66th Street in New York City. (Am. Compl. ¶ 1.) At some point during his employment, personality conflicts arose between the plaintiff and his co-workers. (Am. Compl. ¶ 2.) The plaintiff's disciplinary history consisted of five disciplinary incidents from August 2004 through August 2010, but the plaintiff alleges that this disciplinary history was a pretext to fire him for discriminatory reasons. (Am. Compl. ¶¶ 3-4.) A series of events then occurred in November 2010 that led to the plaintiff's termination on November 23, 2010. (Opinion and Award dated Nov. 30, 2011 ("Award"), Strom Decl. Ex. A, at 3-8.) After the Employer terminated the plaintiff's employment, the Union filed a grievance on the plaintiff's behalf and submitted the dispute to arbitration pursuant to the CBA between the Union and the Employer. (Award at 1-2.) The CBA contained provisions establishing grievance and arbitration procedures, as well as a provision stating that discrimination claims were subject to these procedures "as [the] sole and exclusive remedy." (Weinberg Certif. Ex. C at 13-18, 95-96.) The stipulated issue at the plaintiff's arbitration was whether the plaintiff had been discharged for "just cause." (Award at 2.) On November 30, 2011, the arbitrator issued an opinion and award denying the grievance and holding that the plaintiff had been discharged for just cause. (Award at 11.)

In upholding the discharge, the arbitrator considered the plaintiff's entire disciplinary history. (Award at 3.) The plaintiff had incurred a number of disciplinary actions, each time for his failure to follow established rules: on August 26, 2004, he was given a written warning; on September 2, 2005, he was suspended for one day; on October 27, 2006, he was suspended for two days; and on March 21, 2008, he was suspended for five days. (Award at 3.) With the intervention of the Union, the five-day suspension was reduced to three days but was accompanied by a note stating that "Mr. Mussafi understands this is a FINAL WARNING." (Award at 3.) More recently, on August 23, 2010, the plaintiff was given a warning for not wearing his white gloves. (Award at 3.)

The arbitrator made the following findings regarding the November 2010 events leading up to the plaintiff's termination.

At that time, Anthony Calicchio was the executive responsible for the premises and Geovanni Bernardino was the resident manager. (Award at 2.) On November 15, 2010, the plaintiff responded "intemperate[ly]" when Arelis Lendeborg, the building's concierge, told him to check the basement door according to Bernardino's instruction. (Award at 4, 10.) Lendeborg wrote an incident report to Bernardino that day, and four days later Bernardino issued the plaintiff an Employee Warning Notice termed a "2nd Warning." (Award at 4, 5.) On November 17, 2010, the plaintiff was given another warning for harassing doorman Danny Morales about Morales having a better schedule than the plaintiff. (Award at 4-5.) At a meeting that day, the plaintiff was advised to discontinue "the negative remarks towards Danny [Morales] or any other co-worker" or else face "possible suspension or termination." (Award at 5.)

On November 20, 2010, the plaintiff ignored Lendeborg's greeting and later accused her of causing him to receive the warning notice. (Award at 5-6.) On the morning of November 21, 2010, Lendeborg became upset when the plaintiff continued to ignore her, and she began talking to Bernardino about the plaintiff and the hostile environment he created. (Award at 6.) When the plaintiff saw them talking and approached them, Bernardino told the plaintiff to stop harassing Lendeborg and physically escorted him to the door. (Award at 6.) Shortly after this encounter, the plaintiff called the police, who arrived within minutes, took statements, and left. (Award at 7.) Bernardino claims that the plaintiff then said "[h]e would make everything go away" if Bernardino gave him a weekday shift, but the plaintiff denies this encounter. (Award at 9.)

The plaintiff also filed an incident report with building management, stating that Bernardino "jumped on [him], grabbed [him] by the neck and pushed [him] about 15 feet to the door . . . ." (Award at 8.) However, the arbitrator found that the video capturing some of the incident (hereinafter "the lobby incident") did not support dragging or hitting, nor did he observe Bernardino's hands on the plaintiff's neck. (Award at 6-7.) According to the arbitrator, the plaintiff acknowledged on cross-examination that Bernardino had only placed his hand on the small of the plaintiff's back and that the plaintiff did not feel physically threatened at the time. (Award at 9.)

On November 22, 2010, Bernardino met with Calicchio to update him on the recent events, show him the video footage, and recommend the plaintiff's discharge. (Award at 7.) Calicchio reviewed the plaintiff's file and the several incident reports filed by the plaintiff, Lendeborg, and others. (Award at 7.) The next day, Calicchio discharged the plaintiff ...


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