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Velasquez v. Metro Fuel Oil Corp.

United States District Court, E.D. New York

March 31, 2014


Order Filed: February 18, 2014

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Antonio Velasquez, Jr., Plaintiff, Pro se, Brooklyn, NY.

For Metro Fuel Oil Corp., Apollo Petroleum Transport LLC, Defendants: Michael E. Norton, New York, NY.

For International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL-CIO) Local 553, Defendant: Cristina E, Gallo, William K. Wolf, LEAD ATTORNEYS, Friedman & Wolf, New York, NY.


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NICHOLAS G. GARAUFIS, United States District Judge.

Before the court are Plaintiff Antonio Velasquez's objections to Magistrate Judge Lois Bloom's Report and Recommendation (" R& R" ) that recommended granting summary judgment for Defendant International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL-CIO) Local 553 (" Local 553" or " the union" ) on Plaintiff's federal claims, dismissing Plaintiff's state law claims without prejudice, and denying Plaintiff's cross-motion for summary judgment. For the reasons set forth below, the R& R is ADOPTED IN FULL.


A. Factual Background

Unless otherwise noted, the following facts come from Local 553's Rule 56.1 Statement of Undisputed Material Facts (" Def.'s 56.1 Stmt." (Dkt. 53)) and were acknowledged by Plaintiff in his Response to Defendant's Proposed Finding of Facts (" Pl.'s 56.1 Resp." (Dkt. 57)). Defendants Metro Fuel Oil Corporation and Apollo Petroleum Transport LLC (collectively " the employer" ) hired Plaintiff as a fuel oil truck driver on December 15, 2008.[1] (Def.'s 56.1 Stmt. ¶ 9.) On December 29, 2008, Plaintiff spilled approximately five gallons of oil during a delivery to a customer. (Id. ¶ 48.) Plaintiff completed a spill report, explaining that although he followed written company procedure for unloading the oil, the particular truck assigned to him required a different unloading method. (Id. ¶ 52.) Plaintiff had not been fully trained in how to unload this particular truck. (Compl. (Dkt. 1) at 150.)[2] In discussing the incident with the union steward, Ken Orrichio (" Orrichio" ), and the safety supervisor, Roger Romance (" Romance" ), Plaintiff pointed out the discrepancy between the written instructions and the actual unloading procedure required for the delivery truck assigned to him. (Def.'s 56.1 Stmt. ¶ ¶ 54-55.) Romance said to him, " you are the only one who ever pointed out anything in our written policy, and that can hurt the company you know." (Id. ¶ 55; Pl.'s 56.1 Resp. ¶ 54.) The employer subsequently placed labels on the trucks requiring different unloading procedures and edited the company manual. (Def.'s 56.1 Stmt. ¶ 54; Compl. at 27.) Plaintiff believed that the employer was going to receive a $43 million grant from the government and speculates that by pointing out the error in the company manual, he may have jeopardized those funds. (Wolf Decl. in Supp. of Def.'s Mot. for Summ. J. at Ex. B (Velasquez Dep.) (Dkt. 51-2) 171:24-173:2.) Plaintiff alleges that after the spill incident, he

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suffered pay shortages, sabotage of his delivery truck, and other mistreatment in retaliation.

1. Pay Shortages

During his employment, Plaintiff reported to Orrichio that the employer was shorting his pay for overtime hours and holidays worked. (Def.'s 56.1 Stmt. ¶ 101.) Each time Plaintiff complained, Orrichio spoke to the employer on Plaintiff's behalf, and the pay shortage was remedied. (Id. ¶ ¶ 102-104.) Plaintiff maintains, however, that Orrichio grew resentful of having to address Plaintiff's repeated complaints. (Pl.'s 56.1 Resp. ¶ 103.)

In 2009, union members ratified a new collective bargaining agreement (" CBA" ), under which Plaintiff believes he was entitled to a higher wage. (Def.'s 56.1 Stmt. ¶ 107.) Plaintiff points to a notice dated March 25, 2009, announcing the vote on the CBA that was distributed by the union and states that the agreement entitles members to certain wage increases. (Pl.'s 56.1 Resp. ¶ 107 (citing Compl. at 102-03).) Plaintiff did not obtain a copy of the CBA until late 2009. (Id.) Defendants contend that because Plaintiff was hired after March 1, 2007, he is subject to an exception to the regular hourly wages under the CBA. (Def.'s 56.1 Stmt. ¶ 108.) Article XXV(B) of the CBA states:

Drivers hired on or after March 1, 2007 shall be paid Two ($2.00) dollars per hour less than the above rates during the first year of employment; Additionally, Drivers hired on or after March 1, 2007 shall receive Fifty (.50) cents per hour less during their second year of employment at the end of which time they will receive the regular rate of pay then in effect.

(Compl. at 142.) The " above rates" referenced in the CBA are the same as the wages increases detailed in the March 25, 2009, notice. (Compare id. at 142, with id. at 102.) Plaintiff does not dispute the language of the agreement. (Pl.'s 56.1 Resp. ¶ 108.)

2. May 2009 Termination

In May 2009, the employer terminated Plaintiff because he did not have a Transportation Worker Identification Credential (" TWIC" ) card, a credential issued by the Transportation Security Administration (" TSA" ) that was required for fuel tanker drivers to deliver to certain oil terminals. (Def.'s 56.1 Stmt. ¶ ¶ 85, 87.) At the time, Plaintiff's application for a TWIC card was pending with the TSA. (Id. ¶ 86.) Although the union claims the employer only became aware of Plaintiff's lack of a TWIC card in May 2009 (id. ¶ 84), Plaintiff contends that he advised the employer about the pending status of his TWIC card during pre-employment orientation (Pl.'s 56.1 Resp. ¶ 84). The employer offered to reinstate Plaintiff once he obtained a TWIC card. (Def.'s 56.1 Stmt. ¶ 88.) Plaintiff contacted the union, and a representative told him that " there was nothing the union could do for [him]" and " to give the [TSA] hell" regarding his pending application. (Id. ¶ 90.)

After his termination, Plaintiff applied for unemployment benefits, but the benefits were suspended because the employer contested Plaintiff's application by falsely asserting that Plaintiff had voluntarily quit. (Id. ¶ 94; Pl.'s 56.1 Resp. ¶ 95.) Plaintiff's benefits were reinstated after the employer failed to appear for a hearing and Plaintiff was granted default judgment by the New York Department of Labor. (Def.'s 56.1 Stmt. ¶ 95; Pl.'s 56.1 Resp. ¶ 95.) Plaintiff claims he contacted Orrichio about the employer's misrepresentations to the Department of Labor and other issues stemming from his termination. (Pl.'s 56.1 Resp. ¶ 96.) The union, however, contends that Plaintiff did not

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inform it of the any problems with his unemployment benefits until January 2010. (Def.'s 56.1 Stmt. ¶ 96.)

Plaintiff obtained a TWIC card in September 2009 and returned to work for the employer.[3] (Id. ¶ ¶ 97-98.) Plaintiff retained his original date of hire and was paid the same wage as before his termination, but he was placed at the bottom of the seniority list. (Id. ¶ at 99; Compl. at 152.)

3. Truck Tampering and Harassment

Plaintiff also made complaints to the union that his truck had been tampered with in ways that compromised his safety. Plaintiff cites incidents in which oil leaked from the back of his vehicle; the gear shift broke while Plaintiff was driving and appeared to have been hacksawed; and he discovered his truck's hose to be unexpectedly over pressurized to a dangerous degree. (Def.'s 56.1 Stmt. ¶ ¶ 111-16; Compl. at 40-47.) In addition, on at least four occasions, Plaintiff was dispatched to delivery locations on streets that did not have adequate space to safely park his truck. (Compl. at 47-49.) He relayed these incidents to Orrichio, Scott Anslwyck (a manager) (" Anslwyck" ), and the company dispatcher. (Id. at 48.)

Plaintiff also complained to the union that he was subjected to harassment and verbal and physical intimidation by the employer. (Def.'s 56.1 Stmt. ¶ 117.) For example, Anslwyck accused Plaintiff of being unproductive and getting paid to do nothing. (Id.; Compl. at 29.) When Plaintiff complained about his safety concerns, Anslwyck would respond dismissively, telling Plaintiff to " shut up" or that " there are a lot of people out of work." (Compl. at 29, 37.) Plaintiff complained repeatedly to Orrichio about the mistreatment. (Def.'s 56.1 Stmt. ¶ 118.) On at least one occasion, Orrichio angrily responded " No one here is out to get you!" (Id. ¶ 119.) In addition, a rubber rat was placed in the employee locker room shortly after the spill incident. (Def.'s 56.1 Stmt. ¶ 131; Pl.'s 56.1 Resp. ¶ 131.) Plaintiff speculated that the rat was directed at him, but " did not think much about the plastic rat." (Def.'s 56.1 Stmt. ¶ ¶ 132-33; Pl.'s 56.1 Resp. ¶ ¶ 132-33.) Plaintiff also complained that his workload was very heavy. (Id. ¶ 100.)

4. Discrimination

Plaintiff claims that he faced discrimination on the job. For example, in December 2009, Plaintiff reported to Anslwyck that his identification card was missing, and Anslwyck responded " Did you look for it in the crack of your ass, you stupid spic!" (Id. ¶ ¶ 125-26; Pl.'s 56.1 Resp. ¶ 125.) Plaintiff reported the statement to another employee but did not tell a representative of the union. (Def.'s 56.1 Stmt. ¶ ¶ 127-28.) The union claims that this was the only incident " where Plaintiff believed that he was discriminated against on the basis of his identity as a 'Hispanic American' and his 'international heritage.'" (Id. ¶ 129.) Plaintiff maintains that while this comment was the only " verbally articulated [discriminatory] statement made against him," there were other " physical demeanors," " facial expressions," and " adverse employment acts," such as the incidents discussed above, that he claims are evidence of discrimination. (Pl.'s 56.1 Resp. ¶ 129.) Plaintiff could not provide any other specific examples of discrimination

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during his deposition. (Def.'s 56.1 Stmt. ¶ ¶ 122-124.)

Plaintiff has put forward different reasons for his alleged mistreatment by the employer and the union. During his deposition, he testified that he claimed discrimination on the basis of race, color, national origin, sex, and age because he did not know the actual reason for Defendants' actions. (Id. ¶ 134.) He stated that he " later learned that it had to do with the spill complaint the [he] filled out" and testified that he sought to amend his Complaint to allege only retaliation instead of the other bases for discrimination. (Id. ¶ 134; Velasquez Dep. 148:9-150:25.) In his Rule 56.1 Response, however, Plaintiff points out that Orrichio, who is Italian American, was responsible for a thousand-gallon spill but was later promoted to shop steward by the union (Pl.'s 56.1 Resp. ¶ 134), an indication that Plaintiff still intends to pursue a Title VII claim for discrimination of the basis of national origin.

5. January 2010 Termination

On January 12, 2010, Plaintiff delivered approximately 350 gallons of fuel to the wrong address.[4] (Def.'s 56.1 Stmt. ¶ 57.) The delivered fuel was the wrong grade for the customer's building. (Id. ¶ 58; Compl. at 51.) Plaintiff did not follow the employer's safety procedures when making the delivery or reporting the incident. (Def.'s 56.1 Stmt. ¶ 60.) Plaintiff left the location of the wrong delivery, delivered the remainder of the fuel to the correct customer, and began to drive to the next customer before reporting the incident. (Id. ¶ 61.) While Plaintiff admits this, he contends that Defendants' mistreatment of him " had a direct adverse effect on [his] ability to reason with logic and rationalize correctly, and as a direct result, [he reported the incident] . . . at the time [he] deemed safe and appropriate." (Pl.'s 56.1 Resp. ¶ 60.) The union claims that to remedy the error, the entire contents of the first customer's fuel tank had to be pumped out and replaced with the proper fuel grade at the employer's expense of $8,000. (Def.'s 56.1 Stmt. ¶ 59.)

The following day, Romance fired Plaintiff. (Def.'s 56.1 Stmt. ¶ 65.) Plaintiff asked Orrichio, the union steward, to grieve the termination. (Id. ¶ 67.) On January 26, 2010, Plaintiff, Orrichio, Romance, the union president Jack Dresch (" Dresch" ), and a senior manager Anthony Peretta (" Peretta" ) attended the grievance meeting. (Id. ¶ ¶ 71-72.) Immediately before the grievance meeting, Plaintiff briefed Dresch about his case. (Id. ¶ 68; Pl.'s 56.1 Resp. ¶ 74.) There is some dispute about how the meeting began. Plaintiff claims that after everyone sat in silence for a while, he asked if Dresch was going to say anything on his behalf, and Dresch replied " No, you speak." (Pl.'s 56.1 Resp. ¶ 74.) The union's facts strike a different tenor, contending that " Mr. Dresch gave Plaintiff the opportunity to speak first." (Def.'s 56.1 Stmt. ¶ 74.) Plaintiff then relayed his complaints about pay shortages, the truck sabotage, the employer's misrepresentation related to his unemployment benefits, his termination for the TWIC card, and other mistreatment. (Id. ¶ 75.) Peretta stated that the purpose of the meeting was to discuss Plaintiff's termination due to the wrongful delivery. (Id. ¶ 75.) Plaintiff claims he offered to pay the company $8,000 in damages, but Orrichio said that such an arrangement would be illegal. (Velasquez

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Dep. 232:17-22.) Plaintiff asked if he would be rehired, and Peretta responded no. (Def.'s 56.1 Stmt. ¶ ¶ 78-79.) Plaintiff then walked out of the meeting. (Id. ¶ 75; Velasquez Dep. 232:23-233:5.) Plaintiff claims he left the meeting because it became clear that Defendants were only there to humiliate him and he was also suffering pain and discomfort. (Pl.'s 56.1 Resp. ¶ 80; Velasquez Dep. 233:18-25.)

B. Procedural History

On January 28, 2010, Plaintiff filed a complaint with the New York State Division of Human Rights (" NYSDHR" ) against the employer and the union, alleging discrimination and retaliation. (Compl. at 12-16.) The complaint alleged discrimination by Romance, Anslwyck, and Dresch on the basis of age, arrest record, race/color or ethnicity, sex, and retaliation. (Id. at 12-13.) As for the specific acts of discrimination, Plaintiff alleged that he was fired, demoted, harassed or intimidated, denied benefits, paid a lower salary than others with the same title, given a disciplinary notice, and suffered " verbal abuse by supervisor[,] denial of privileges and due process of law." (Id. at 14.) Specifically regarding the union, Plaintiff alleged that after his January 2010 termination, the union " failed to render due process" at the grievance meeting. (Id. at 15.) On December 28, 2011, the NYSDHR dismissed Plaintiff's complaint and annulled the election of remedies pursuant to Plaintiff's request. (Id. at 20-21.) A December 8, 2011, NYSDHR letter acknowledging Plaintiff's request for dismissal stated " [w]here a complaint is dismissed on the grounds that the election of remedies annulled, any subsequent Human Rights Law action must be brought in state court within three years from the original date that the discrimination occurred." (Id. at 18.)

On or about July 7, 2010, Plaintiff also filed a charge with the National Labor Relations Board (" NLRB" ), alleging violations of the National Labor Relations Act (" NLRA" ) by the employer and the union. (Id. at 23-60.) On August 26, 2010, the NLRB dismissed the charge, stating in part that " [w]ith respect to your charge against the Union, again, it is able to show that its decision not to pursue your discharge grievance, or your claim regarding contractual wages, was not outside the bounds of the discretion the law allows." (Id. at 159.) Plaintiff's appeal of this decision was also denied. (Id. at 162.)

Plaintiff also filed a charge with the EEOC alleging Defendants' discriminatory conduct. (Id. at 4.) On February 6, 2012, the EEOC issued him a Right to Sue letter, noting that Plaintiff " wishes to pursue the matter in Court." (Id. at 22.) On March 29, 2012, Plaintiff filed this action against the employer and the union, alleging that they violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq. (" Title VII" ) and the Age Discrimination in Employment Act of 1967, 29 § § 621, et seq. (" ADEA" ), and other state law causes of action. (Compl. at 1, 3.) The union and Plaintiff both moved for summary judgment, and this court referred the motions to Magistrate Judge Lois Bloom for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Oct. 9, 2013, Order (Dkt. 63).)

On February 18, 2014, Judge Bloom issued the R& R, recommending that the court (1) grant summary judgment for the union on Plaintiff's federal claims, (2) dismiss Plaintiff's state law claims without prejudice, and (3) deny Plaintiff's cross-motion for summary judgment. (R& R at 23-24.) The court granted Plaintiff's request for an extension of time to file objections

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to the R& R. (Mar. 3, 2014, Order (Dkt. 66).) Plaintiff then timely filed his objections and supplemental supporting documents. (Pl.'s Obj. (Dkt. 67); Pl.'s Mar. 25, 2014, Ltr. (Dkt. 70).) Plaintiff also filed a motion for a settlement conference, a motion to disqualify the union's counsel, and a motion to appoint pro bono counsel. (Dkts. 68-69.)


When a magistrate judge issues an R& R on a dispositive motion, and the R& R has been served on the parties, a party has fourteen days to object. Fed.R.Civ.P. 72(b)(2). If the district court receives timely objections to the R& R, the court makes " a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The district court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). However, to obtain this de novo review of a magistrate judge's R& R, an objecting party " must point out the specific portions of the report and recommendation to which [he] object[s]" U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012).

If a party " makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008); see also Mario v. P& C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (holding that a plaintiff's objection to an R& R was " not specific enough" to " constitute an adequate objection under . . . Fed.R.Civ.P. 72(b)" ). Portions of the R& R to which a party makes no objection are also reviewed for clear error. U.S. Flour, 2012 WL 728227, at *2.


Plaintiff's objections comprise nine pages, of which the first six cite statutes, federal rules, and case law related to the scope of magistrate judge authority. (Pl.'s Obj. at 1-6.) Following that is a section entitled " Plaintiff's Prima Facie Factual Allegations," which largely repeats the claims in Plaintiff's Complaint and cites to documents filed with the Complaint. (Id. at 6-7.) The final two pages contain further objections divided into two sections: " Partial Errors of Facts in Magistrate's Report" and " The Errors of Fact in the Magistrate Judge's R& R." (Id. at 8-9.)

Because Plaintiff is proceeding pro se, the court reads his objections " liberally and will interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (" A document filed pro se is to be liberally construed." ). However, the court " need not argue a pro se litigant's case nor create a case for the pro se which does not exist." Molina v. State of N.Y., 956 F.Supp. 257, 259 (E.D.N.Y. 1995).

Under this charitable reading, the court finds that Plaintiff has put forward a number of objections to specific portions of the R& R, which shall be reviewed de novo. The remaining objections are conclusory or general and therefore require, along with the unobjected to portions of the R& R, clear error review. See U.S. Flour, 2012 WL 728227, at *2.

A. Specific Objections

1. Referral of the Motions to Judge Bloom

The court construes the first two sections of Plaintiff's ...

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