United States District Court, S.D. New York
Chirag H. MANDAVIA, Plaintiff,
COLUMBIA UNIVERSITY, et al., Defendants.
Chirag H. Mandavia, Gujarat, IN, pro se.
Susan Deegan Friedfel, Proskauer Rose LLP, New York, NY, Richard Lee Dorn, Vanessa Flores, Levy Ratner, P.C., New York, NY, for Defendants.
MEMORANDUM AND ORDER
J. PAUL OETKEN, District Judge.
This is an employment discrimination case brought by Chirag Mandavia (" Plaintiff" ) against his former employer Columbia University (" Columbia" ) and several of his former colleagues (David Figurski, Yuan Hua, and Angel Tibbs Filsaime). Plaintiff has also sued his erstwhile union, 1199 SEIU, for breach of the duty of fair representation while representing him in his grievance process with Columbia. Defendants have filed four separate motions to dismiss and Plaintiff has filed a pleading styled a motion for reimbursement of a ticket and visa costs.
For the reasons stated herein, Columbia's motion to dismiss (Dkt. No. 22) is granted in part and denied in part. The motions to dismiss filed by 1199 SEIU (Dkt. No. 48), Figurski and Hua (Dkt. No. 58), and Filsaime (Dkt. No 89) are granted. Plaintiff's motion for reimbursement of a ticket and visa costs (Dkt. No. 29) is denied.
A. Legal Standard
On a motion to dismiss, facts in a plaintiff's complaint are assumed to be true. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). " The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Moreover, when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (citations and quotation marks omitted). " [T]he Court also may take judicial notice of public filings, including charges filed with the NLRB and NLRB decisions, on a Rule 12(b)(6) motion." Pathmark, Inc. v. United Food & Commercial Workers Union, Local 342, 08 Civ. 2217, 2009 WL 2901623, at *4 (E.D.N.Y. Sept. 3, 2009). Finally, the Court may draw facts from the Plaintiff's affirmations in opposition to the motions to dismiss. Adekoya v. Fed. Bureau of Prisons, 08 Civ. 1484, 2009 WL 1835012, at *1 n. 1 (S.D.N.Y. June 18, 2009) aff'd, 382 Fed.Appx. 26 (2d Cir.2010).
The Court accordingly takes notice of Plaintiff's May 27, 2011 EEOC filing (Columbia Ex. A (" EEOC Charge I" )), Plaintiff's October 19, 2011 EEOC filing (Columbia Ex. B (" EEOC Charge II" )), the Memorandum of Agreement signed by Plaintiff on April 20, 2011 (Columbia Ex. C (" the Agreement" )), Plaintiff's June 15, 2011 NLRB filing (1199 SEIU Ex. C (" NLRB Charge" )), the August 17, 2011 NLRB decision dismissing Plaintiff's charge (1199 SEIU Ex. D (" NLRB Ruling" )), and the NLRB's ruling on Plaintiff's appeal (1199 SEIU Ex. E (" NLRB Appeal" )). The Court also accepts as true for purposes of this opinion facts contained in Plaintiff's affirmations in opposition to the several motions to dismiss. However, Plaintiff has vastly exceeded the permissible number of filings, largely by styling his additional submissions " motions in further support." ( See, e.g., Dkt. Nos. 46, 55, 68, 75, 77.) This prompted a flurry of additional filings by Defendants. The Court does not consider any facts or claims raised in these further submissions. Rather,
it relies exclusively on the five affirmations in opposition that Plaintiff submitted properly. (Dkt.Nos.33, 65, 66, 70, 97.) 
B. The Factual Narrative for Purposes of These Motions to Dismiss
Plaintiff was hired to work in Columbia's Department of Ophthalmology on November 1, 2006. (EEOC Charge I at 3.) His title was Senior Technician in Columbia's Department of Microbiology & Immunology. Starting on May 4, 2009, Plaintiff switched to a laboratory run by Figurski, a professor of microbiology. ( Id. ) Following a disputed course of events in early 2011, Plaintiff was suspended without pay in April 2011 and ultimately terminated pursuant to the Agreement. ( Id. at 3-4.) Plaintiff's last day at Columbia was May 11, 2011. ( Id. at 3.)
Plaintiff describes himself as a " long-term employee of Columbia University with almost 5 years of service accomplished, and ... a member of the Union [1199 SEIU] in good standing." (Dkt. No. 70 at 4.) He reports that he has " always been a dedicated and conscientious employee" and that " there have never been any complaints against [him] for any reason until the incident" at issue in this case. (EEOC Charge I at 3.)
As described in Plaintiff's statement to the EEOC, the course of events leading to his suspension and termination began during his tenure in Figurski's laboratory. (EEOC Charge I at 3.) In that lab, he worked with three females: Hua, Filsaime, and a non-party named Karin E. Kram. ( Id. ) Kram was his supervisor, Hua held the same position as Plaintiff, and Filsaime was a student. ( Id. ) Plaintiff claims that he suffered disparate treatment, even though he worked harder than his colleagues, and states that his colleagues took credit for his work. ( Id. ) Plaintiff alleges that he was " required to follow more stringent rules and regulations than other people in the lab," even as his co-workers " were allowed to do whatever they wanted to do in the lab including, coming in late, not being present in the lab, surfing the internet, and not doing their fair share of work." ( Id. ) He specifically alleges that " I was treated differently [than Kram, Hua, and Filsaime] because I am male." ( Id. ) He adds that Kram often screamed at him, stating on " several occasions" that " I was foreign and should not be in the lab; that I was lucky to still be here; and that I should have been fired long ago." ( Id. ) He reports that his complaints to Figurski went unheeded. ( Id. ) He concludes that " I believe that [Kram] was abusive toward me because of my sex, race and national origin," observing that Kram " did not treat the other lab employees in this way." ( Id. )
The story took a darker turn in February 2011, when Plaintiff allegedly overheard Kram talking to Hua " about what she should do to get me fired." ( Id. ) Plaintiff asked Figurski to intervene, but Figurski informed him " there was no higher authority" and " that if I was unsatisfied with his actions, I should seek another position." ( Id. ) A complaint was later filed against Plaintiff for sexual harassment, leading to Plaintiff's suspension without pay on March 23, 2011. ( Id. ) Plaintiff " believe[s] that [Kram] led these complaints against me and that they were made because of my race and national origin, in retaliation for my complaints about the disparate treatment that I received in the lab, and in retaliation for my complaints about the abuse I was subjected
to by [Kram]." ( Id. at 4) He adds that the allegations of sexual harassment were false and that the investigation into these charges was " superficial because of my race and national origin." ( Id. )
After an investigation of these charges, Plaintiff signed the Agreement. ( Id. ) In relevant part, the Agreement provides that Plaintiff would " resign effective immediately," use all fifteen days of unused vacation and personal sick leave prior to his last day of employment, receive two weeks of additional pay, and receive a letter of reference from Figurski. It states that " as required by your H1B visa, if you request it, we will provide you with a non-refundable ticket to return to the last country of residence." Plaintiff affirms that " he was fully and fairly represented by the Union." The Agreement also provides: " It is understood that settlement of this matter by Columbia University is to terminate all controversy between and among the parties and that the Union and [Plaintiff] hereby release Columbia University and its agents from any and all claims arising from the facts and circumstances at issue herein." The Agreement consists of nine brief paragraphs of text, together comprising one page, with a second page for signatures.
1199 SEIU provided Plaintiff with a union representative, Bennett Battista, during negotiations over the Agreement. (EEOC Charge I at 4.) In his EEOC Complaint, Plaintiff contends that he signed the Agreement " under duress because I felt like I had no other option," noting that Battista " informed [him] that I should sign the agreement because he had never seen anyone go back to the job." ( Id. ) Plaintiff elaborates upon this position in various affirmations in opposition to the present motions to dismiss. He writes that the Agreement was " unwillingly executed by me under duress and under coercion and subtle threats from Union representative Bennett Battista." (Dkt. No. 33 at 2.) He contends that " [P]laintiff was coerced, manipulated, and forced into signing a settlement with Columbia University that was clearly not in his favor and that led to termination of his employment." (Dkt. No. 70 at 3.)
Further, Plaintiff notes that he " may also have suffered indirect manipulation and coercion from the university, in addition and through the union, in trying to address his grievance and discriminatory charges." (Dkt. No. 97 at 2.) In one filing, he explains that " Columbia University did not honor multiple requests and emails from the Plaintiff for meetings and to address his grievances[,]" describes Columbia's " unwillingness to listen or meet with him and address his grievances and discrimination charges[,]" and argues that " based on the current attitude of the University towards the Plaintiff, it is becoming increasingly clear that Columbia University coerced and manipulated the Plaintiff, thereby committing an act of continued discrimination against the Plaintiff." ( Id. ) In another filing, Plaintiff describes his experience of signing the Agreement. He indicates that although he " has significant education and business experience, [he] had never encountered or dealt with a situation such as this before," that he " had possession of the release for only about an hour, and was asked to make a decision right then and there in the Union office ... he was not allowed to [take the Agreement home to confer with his family and relatives]," that he " had no active role in the negotiations [,]" that he found the language of the Agreement confusing and unclear, that " he had no legal counsel or advice at the time of signing the Agreement[,]" and that he was " tricked into accepting benefits as parts of a settlement that he was entitled to anyway." (Dkt. No. 70 at 6-7.)
Plaintiff adds that he was " under duress by undue influence and coerced into accepting the release crafted and executed by Columbia University by his own Union representative Bennett Battista," ( id. at 7), and that he " experienced significant duress and life-changing adverse events as a result of the direct actions of Columbia University," ( id. at 8.)
In his EEOC Complaint, Plaintiff indicates that he " immediately regretted signing the agreement and rescinded it," though his " attempts to rescind the agreement have been ignored by both the union and Respondent." (EEOC Charge I at 4.)
Plaintiff left Columbia on May 11, 2011. On May 27, 2011, he filed a charge of discrimination with the EEOC. ( Id. at 1.) On October 19, 2011, Plaintiff amended his charges to include an act of retaliation by Columbia; to wit, Columbia tried " to withdraw my approved I-140 (green card) application that actually belongs to me." (EEOC Charge II at 1.)
On June 15, 2011, Plaintiff filed a complaint with the NLRB alleging that 1199 SEIU " has failed and refused, for reasons which are arbitrary, invidious, and discriminatory, to properly process" his grievances pertaining to his suspension and ultimate termination. (NLRB Charge at 1.) Specifically, Plaintiff alleged that 1199 SEIU " coerc[ed] him into entering into a settlement of those grievances. ( Id. ) On August 17, 2011, the NLRB dismissed the charge:
[I]t appears from the evidence that based upon its good-faith evaluation of your case, the Union recommended to you that you enter into a settlement of your grievance, and you agreed to do so. You did not present and the investigation did not uncover any evidence that the manner in which the Union processed your grievance was influenced by arbitrary, invidious, or otherwise unlawful considerations.
(NLRB Ruling at 1-2.) Plaintiff then appealed this decision and his appeal was denied on September 30, 2011. (NLRB Appeal at 1.)
Notwithstanding this disposition of his NLRB charge, Plaintiff argues that 1199 SEIU did not " proactively investigate [his] claims of employment discrimination[,]" " did not support or do anything on [his] behalf instead of just communicating and forcing the University's bidding upon [him,]" engaged in " biased treatment" of Plaintiff, and coerced him into signing an agreement " that the Union recognized and admitted to [him] was clearly not in his favor." (Dkt. No. 65 at 3.) Plaintiff alleges that during meetings to discuss his grievance, Battista said things like " you are not entitled to shit," " I am getting tired of this," " I have seen many innocent people suffer and you should not be pursuing this," and " I have seen very few people win grievances against the University." ( Id. at 2.) Plaintiff elaborates:
[These] statements were not made in good faith or in a civilized way, but rather were threatening in nature and made in a high commanding voice, amounting to shouting and verbal intimidation. There was significant waving of hands while talking and rough and uncouth manner, implying physical intimidation. In addition, Plaintiff was isolated from contacting the University, and the Union representative often delayed significantly before responding, amounting to a disorganized and unclear discourse. Bennett Battista also went back on his words several times, not agreeing in subsequent meeting to conditions of settlement agreed upon in previous meeting, indicating he never said so.
( Id. at 3.) Plaintiff adds that the Union's " credibility and [ ] supposedly well-meaning
intentions ... in trying to address the discrimination charges and grievances of the Plaintiff" are called into question by the fact that the Union is representing ...