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Turner v. Ufcw

United States District Court, Second Circuit

September 17, 2013

OSCAR TURNER, Plaintiff,
v.
UFCW, LOCAL 888, Defendant.

REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX, Magistrate Judge.

TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE

BACKGROUND

Oscar Turner ("Turner"), proceeding pro se, commenced this action against Saint Dominic's Home and United Food and Commercial Workers Local 888 ("UFCW"), alleging unlawful employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the New York State Human Rights Law, New York Executive Law §§ 290-301. UFCW filed an answer. Saint Dominic's Home made a motion to dismiss, which was granted. (Docket Entry No. 22). Before the Court is UFCW's unopposed motion to dismiss the complaint, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

Allegations in the Complaint

In September 2010, Turner reported to Susan Smith ("Smith"), a human resources manager, that Maxine Lewis ("Lewis"), a resident manager, subjected him to oral abuse, by remarking, often, "that all Americans are stupid." Smith suggested to Turner that he "should transfer to another work site." In October 2010, an employee, Thomas Sayers ("Sayers"), threatened to slap Turner's face, while he was talking with Lewis. Turner reported this incident to Smith, who had the matter investigated. Lewis reported to the investigator that Turner provoked Sayers, but the investigator never interviewed Turner.

Turner asserted that every performance evaluation he received from Saint Dominic's Home "has been graded poor or failing work performance, " and Lewis refused to give him a copy of any of them. Moreover, Lewis discussed Turner's performance evaluations with him in front of other employees; she did not subject any other employee to such treatment.

In June 2009, Lewis assigned Turner to cooking duties, and he "cooked dinner from that date until March of 2012, " notwithstanding that "[a]ll duties are supposed to be shared by each staff member." According to Turner, in addition to his cooking duties every night, he also shared in other duties, such as "cleaning the consumers, dispensing medicine, recreation with consumers, washing clothes, etc."

On January 24, 2010, Turner's pay check was short one day's pay, and he brought this issue to Lewis's attention. Lewis said she would investigate the matter. When Turner did not see any correction on his next pay check, he called Smith, who directed him to contact the payroll department. Turner was advised by "Carol in payroll" that Lewis had to complete a requisition form to enable Turner to receive his unpaid salary, but Lewis never did that, and he never received the unpaid salary.

In December 2010, Smith conducted confidential interviews with some employees, and she told Turner that she and another person received an anonymous letter alleging that Lewis "discriminates against American employees." Smith inquired of Turner whether he believed Lewis was fair, or singled out or favored particular employees. Turner reported to Smith that Lewis discriminated against American employees and, thereafter, Smith never contacted him. When Turner returned to work after his confidential interview with Smith, Lewis asked him if he "was plotting on her." Turner also complained to "the house delegate" Kevin King ("King"), in December 2010, about his problems with Lewis.

Turner alleges that, in January 2011, he was suspended for arriving late to work, but another employee, Isaac Pemph, who arrived to work late regularly on Wednesdays and Thursdays, was not suspended for his tardiness. Similarly, Anthony Coto, who relieved Turner from duty, also arrived to work late "almost every Monday, Tuesday and Wednesday, " and "Yaw Boafoe ["Yaw"] also arrives to work late, " but "none of these men were suspended for their lateness." Turner maintains that Lewis wrote up Yaw for lateness only after Turner filed a complaint against Saint Dominic's Home with the New York State Division of Human Rights ("NYSDHR").

When Turner was suspended in January 2011, he informed King, who directed Turner to call UFCW. Turner contacted UFCW, leaving several messages for UFCW's representative. He received no response from UFCW. Turner also sent a letter to UFCW's president, Max Bruny, but received no response. Subsequently, Turner met with a UFCW representative to discuss his suspension from work and Lewis's treatment of him. Although he was told at that meeting that UFCW would contact Lewis's supervisor to discuss the matter and that Turner would be informed about the outcome, by May 31, 2011, Turner did not hear from UFCW.

Turner alleges that, after he filed the complaint with NYSDHR, from June 2009 until June 2011, he was assigned two consumers who wore "adult diapers, because no one else wanted to deal with them, even though they are on different floors, " which was against Saint Dominic's Home's policy, since "each staff member should be assigned to one bedroom each."

On September 19, 2011, Sharon Latimer wrote up Turner for arriving to work late, but she did not write up another employee, who arrived late every night to relieve Turner of his duty. In January 2012, one of the consumers passed away. Lewis told a person identified only as "Kanisha' that it was [Turner's] fault, " and "Kanisha has ...


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