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Maldonado v. Good Day Apartments, Inc.

United States District Court, Second Circuit

July 9, 2013



P. KEVIN CASTEL, District Judge.

Plaintiff Fernando Maldonado, proceeding pro se, brings this action against defendant Good Day Apartments, Inc. ("Good Day"), his former employer. Plaintiff filed the complaint in the Civil Court of the City of New York, Bronx County, asserting claims for "[b]reach of [c]ontract or [warranty;" "[f]ailure to pay for wages;" "[f]ailure to pay for services rendered;" "[r]efund on [d]efective [m]erchandise;" [g]oods [s]old and [d]elivered;" and "[m]onies [d]ue." (Docket No. 1 Ex. A.) Defendant removed the case to this Court asserting that section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, completely preempts plaintiff's state-law claims because the terms of employment are governed by a collective bargaining agreement (the "CBA") between plaintiffs union, SEIU, Local 32BJ (the "Union"), and the Bronx Realty Advisory Board (the "BRAB"), a collective bargaining representative. Defendant now moves for summary judgment, pursuant to Rule 56, Fed. R. Civ. P., asserting that plaintiff's claims fail to comply with requirements of section 301. For the reasons stated herein, the motion is granted.


Good Day owns a residential housing complex located at 2201 Haviland Avenue, Bronx, New York (the "Building"). (Hofer Aff. ¶¶ 1, 4; Onvel Aff. Ex. G (Maldonado Dep. at 40 (07/27/2012) (hereinafter "Dep.")).) Melanie Hofer is the President of Good Day. (Hofer Aff. ¶ 2.) Richard Hofer serves as Vice President and Managing Agent. (Id. ¶ 1.)

On or about January 31, 2000, Good Day hired plaintiff to clean and maintain the Building for residents. (Orwel Aff. Ex. C; Dep. at 27, 45.) During the period of employment plaintiff lived in the Building in a rent-free basement apartment. (Hofer Aff. ¶ 5.) Throughout the course of his employment plaintiff was a member of the Union. (Dep. at 19, 27.) A CBA between the Union and the BRAB, effective March 15, 2011 through March 14, 2015, dictated the terms of plaintiff's employment. (Hofer Aff. ¶ 6; see id. Ex. A.) With the exception of certain modifications, the March 2011 CBA "renews and extends" the terms of a CBA effective between 2008 and 2011. (Id. Ex. A; see Orwel Aff. Ex. B.)

The parties dispute whether plaintiff adequately performed his duties. According to plaintiff, his work "was only poor when work requests were not within the scope of [his] job description." (Pl. Opp. at 1-2.)[1] The parties also appear to dispute whether plaintiff's job title was that of "porter" or "assistant superintendent." (Compare Dep. at 89 with Hofer Aff. ¶ 3.)

Plaintiff asserts that defendant could not get the Building's superintendent to perform his duties, and therefore defendant insisted that plaintiff perform them instead. (Pl. Opp. at 2.) Prior to his termination, plaintiff was suspended from his position at least once when, in August of 2010, Melanie Hofer asked plaintiff to clean the inside of an apartment after a tenant had moved out, and plaintiff did not. (Dep. at 84-86.) Plaintiff testified that for years he performed the task despite it being outside of his job description. The disagreement was resolved by plaintiff and defendant's representatives without the need for arbitration, (Id. at 85.) According to plaintiff, the Union representative explained to Hofer that the assigned task was not part of plaintiff's job. The Union representative advised plaintiff that in the future he should complete the task and report the incident to the Union. (Id.)

According to plaintiff, throughout the course of his employment he complained to his Union representative numerous times about "daily harassments" and "situations [he] faced regarding Defendant." (Pl. Opp. at 2.) However, he did not document the disputes and therefore the Union did not proceed to arbitration after his termination. (Id.)

On September 16, 2011, defendant terminated plaintiff's employment by letter. (Orwel Aff. Ex. D.) The letter states:

Effective immediately, you are dismissed from your position as Assistant Superintendent of these premises.
This dismissal is based on your chronic failure to do your job diligently despite repeated warnings and suspensions, which you have disregarded again. We regret having to take this action, but your repeated misconduct is not acceptable.

(Id.) The letter cites numerous reasons for plaintiffs dismissal including, inter alia, refusing to return employer's phone calls; not cleaning the hallways; going "off the premises whenever you feel like;" failing to submit weekly logs on-time; and leaving personal belongings in common areas of the building. (Id.) The termination letter also lists instances of prior written warnings to plaintiff and advises that the CBA required plaintiff to vacate the apartment within 30 days. (Id.)

Plaintiff challenged his termination pursuant to the CBA, which provides that the dispute "arising under this Agreement... must first be submitted in writing by the party claiming to be aggrieved to the other party...." (Orwel Aff. Ex. B. at 29.) Within 14 days, a Union representative and the employer must discuss resolution of the grievance. (Id.) If no agreement is reached, "[t]he grievance shall be scheduled for the next meeting between a representative of the BRAB and the Union." (Id. at 29-30.) If still no agreement is reached, either party may submit the grievance to a contract arbitrator within 14 days. (Id. at 30.)

In September of 2011, the Union wrote defendant advising that a dispute had arisen under the CBA regarding plaintiffs discharge and that the Union sought relief including reinstatement, back pay and lost benefits. (Pl. Ex. A.) Pursuant to the terms of the CBA, plaintiff met with representatives of the Union and Melanie Hofer. (Dep. at 49.) At some point in time after the meeting, plaintiff was presented with a stipulation of agreement, which provided that he would receive $1700 to cover the costs of window gates he had installed in the apartment. The stipulation of settlement also provided that if plaintiff vacated by November 30, 2011, he would receive an additional $1350 ($750 for moving expenses and $600 for installing floor tiles in the apartment) as well as 11 weeks of pay (ten weeks severance and one week vacation). (Pl. Ex. D.) The unsigned stipulation of settlement dated September 28, 2011 is plaintiffs Exhibit D. Plaintiff chose not to sign the stipulation and instead to pursue arbitration. (Dep. at 50-51.)

In accordance with plaintiffs decision to pursue arbitration, the Union referred plaintiffs grievance for internal review in order to determine whether it would exercise its right to arbitrate. On November 1, 2011, the Union informed plaintiff by letter that after "carefully review[ing] the facts and circumstances" surrounding the grievance, it had determined that plaintiffs grievance lacked sufficient merit and was unlikely to prevail in arbitration. (Pl. Ex. A.) Therefore, the Union concluded it was not in its interests and the interests of its membership to proceed. (Id.) The same letter instructed plaintiff to write to the Grievance Appeal Board within 21 days in order to appeal this determination. A timely appeal would result in a hearing. (Id.) The Court assumes that plaintiff wrote to the Grievance Appeal Board, because the Grievance Appeal Board scheduled a hearing for February 2, 2012.[2] (Id.) On February 13, 2012, the Joint Executive Board adopted the recommendation of the Grievance Appeal Board and declined to proceed to arbitration because plaintiff's claim ...

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