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Cappelli v. Jack Resnick & Sons, Inc.

United States District Court, S.D. New York

August 22, 2014

LAURENCE CAPPELLI, Plaintiff(s),
v.
JACK RESNICK & SONS, INC., BROADWAY & 56TH STREET ASSOCIATES, L.P., and SERVICE EMPLOYEES INTERNATIONAL UNION, 32BJ SERVICE EMPLOYEES INTERNATIONAL UNION, as aider and abettor, Defendant(s)

OPINION & ORDER

GREGORY H. WOODS, District Judge.

Plaintiff Laurence Cappelli ("Plaintiff"), a former building superintendent at 235 West 56th Street, New York, NY ("235 West 56th St.") brings claims against Defendant Jack Resnick & Sons, Inc. ("Resnick"), the property manager of 235 West 56th St., Defendant Broadway & 56th Street Associates, L.P. ("Broadway Associates"), the owner of 235 West 56th St., and Defendant 32BJ Service Employees International Union (the "Union"), which represented him while he was employed there, alleging age and sex discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-101 et seq. Before the Court are Defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure Rules 12(b)(1) and 12(b)(6). For the reasons set forth below, Defendant Union's motion is GRANTED and Defendants Resnick's and Broadway Associates's motion is DENIED.

I. BACKGROUND

A. Facts[1]

Between October 19, 2009 and March 2, 2012, Plaintiff was employed as a building superintendent at 235 West 56th St., a building owned by Defendant Broadway Associates and managed by Defendant Resnick. Am. Compl. ¶¶ 13, 26; Weinberg Decl. ¶ 2. Plaintiff alleges that around January 2010, Barbara Elliot, Plaintiff's superior, and Ibrahim Paljevic, an assistant to Plaintiff, began engaging in "sexually explicit behavior" and continued to do so even after he complained. Am. Compl. ¶¶ 16-18. On November 17, 2011, Plaintiff received a disciplinary warning, and on February 1, 2012, Plaintiff received a negative performance review following a confrontation with a tenant. Id. ¶¶ 21-22. Plaintiff felt that he was experiencing harassment and filed a complaint with the Union. Id. ¶¶ 23-24. Plaintiff also filed a charge of discrimination against Defendant Resnick with both the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"), [2] alleging sex discrimination and retaliation.[3] Id. ¶ 25; Am. Compl. Ex. A (EEOC Charge). On March 2, 2012, Defendant Resnick discharged Plaintiff, then 57 years old, and "transferred his responsibilities to a much younger employee." Id. ¶¶ 26, 28-29; Weinberg Decl. ¶ 4. Plaintiff filed a complaint about his unjust discharge with the Union, and was informed that the Union would not arbitrate his claim. Am. Compl. ¶¶ 27, 30. Plaintiff received a Dismissal and Notice of Rights from the EEOC on February 25, 2013, and he filed this lawsuit on May 23, 2013. See Am. Compl. Ex. B; Compl., Dkt. 1.

B. Procedural History

Plaintiff commenced this action on May 23, 2014, culminating in an Amended Complaint on October 28, 2013. Dkt. 24. On November 14, 2013, Defendant Union filed a motion to dismiss the Amended Complaint pursuant to Rule 12(b)(6) on the grounds that (1) Plaintiff failed to file an administrative charge with the EEOC against the Union and the time to do so has passed, barring his Title VII and ADEA claims; (2) Plaintiff failed to allege any facts supporting his discrimination claims against the Union; (3) Plaintiff's state and local discrimination claims are preempted by the federal duty of fair representation; and (4) to the extent Plaintiff is alleging that the Union breached its duty of fair representation, Plaintiff's claim is barred by the applicable six-month statute of limitations and otherwise lacks sufficient factual support. Dkt. 27. On November 18, 2014, Defendants Resnick and Broadway Associates filed a motion to dismiss the complaint pursuant to pursuant to Rules 12(b)(1) and 12(b)(6) on the grounds that Plaintiff (1) is required to mediate and arbitrate his claims of discrimination pursuant to the terms of a collective bargaining agreement that governed his employment, (2) cannot demonstrate that the Union breached its duty of fair representation, and (3) failed to file an administrative charge with the EEOC and the time to do so has passed, barring his Title VII and ADEA as to Defendant Broadway Associates. Dkt. 29.

On August 8, 2014, Defendants Resnick and Broadway Associates filed a supplemental motion to compel arbitration. Dkt. 45. At a telephonic conference with the Court on August 22, 2014, Defendants Resnick and Broadway Associates withdrew from their motion to dismiss the claim that Plaintiff is required to mediate and arbitrate his claims of discrimination pursuant to the terms of the Collective Bargaining Agreement and the related Supplemental Agreement and Protocol. Dkt. __. Those Defendants also withdrew their separate motion to compel arbitration. Id.

II. MOTION TO DISMISS

A. Standard of Review

"Normally, motions to dismiss for lack of [subject matter] jurisdiction pursuant to Rule 12(b)(1) must be decided before motions pursuant to other Federal Rules of Civil Procedure are considered, " Liberty Ridge LLC v. RealTech Sys. Corp., 173 F.Supp.2d 129, 134 (S.D.N.Y. 2001), "since if [the court] must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). (internal citation and quotation omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists, " Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), and the court must "accept as true all material factual allegations in the complaint." Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). "Although courts are generally limited to examining the sufficiency of the pleadings on a motion to dismiss, on a challeng[e] [to] the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings." Flores v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (citations omitted).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must allege facts, when accepted as true, "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a claim need not assert "detailed factual allegations, " Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, legal conclusions, unsupported by factual assertions, are insufficient. Ashcroft v. Iqbal, 556 U.S. at 664. "[A] district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citation omitted). "When documents are integral, known of and possessed by the plaintiff, and there is no dispute as to their authenticity, the Court may consider them on a motion to dismiss." Zustovich v. Harvard Maint., Inc., 73 Fed. R. Serv. 3d 462, at *5 (S.D.N.Y. 2009) (citations omitted). Further, "[j]udicial notice may be taken of public filings, " such as an EEOC charge. Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir. 2003); see also Kouakou v. Fideliscare New York, 920 F.Supp.2d 391, 394 (S.D.N.Y. 2012) ("Because the EEOC Charge is part of an administrative proceeding, the Court may take judicial notice of it without converting Defendant's motion into a motion for summary judgment.").

B. Subject Matter Jurisdiction

Generally, "a district court lacks subject matter jurisdiction over parties not named in an EEOC charge." Gagliardi v. Universal Outdoor Holdings, Inc., 137 F.Supp.2d 374, 379 (S.D.N.Y. 2001); see also 42 U.S.C. § 12117(a); 42 U.S.C. 2000e-5(f)(1). This requirement provides an alleged discriminator with "notice of the alleged violation and an opportunity to voluntarily remedy the situation before the plaintiff resorts to filing a complaint in federal court." Gagliardi, 137 F.Supp.2d at 379. However, "[b]ecause these charges generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements, [the Second Circuit has] taken a flexible stance in interpreting Title VII's procedural provisions, ' so as not to frustrate Title VII's remedial goals." Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991), quoting Egelston v. State University College at Genesco, 535F.2d 752, 754, 755 (2d Cir. 1974) (additional citations omitted). Thus, courts may exercise jurisdiction over a party not named in an EEOC charge "where there is a clear identity of interest ...


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