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Torres v. United Service Workers Union Local 74 and Pinelawn Cemetary

United States District Court, E.D. New York

September 26, 2014

JORGE TORRES, Plaintiff,

Edward Lee Sample, II, Esq., Farmingdale, NY, for Plaintiff.

Joy K. Mele, Esq., Zachary Richard Harkin, Esq., O'Dwyer & Bernstein LLP, New York, NY, for Defendants Local 4.

Eve Irene Klein, Esq., Eric William Ruden, Esq., Duane Morris LLP, New York, NY, for Defendants Pinelawn.


JOANNA SEYBERT, District Judge.

Plaintiff Jorge Torres ("Plaintiff") commenced this action against his former employer, defendant Pinelawn Cemetery ("Pinelawn"), and his union, defendant United Service Workers Union Local 74 ("Local 74, " and together with Pinelawn, "Defendants"), alleging that Pinelawn breached its collective bargaining agreement with the Union (the "CBA") by terminating his employment without just cause in violation of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 et seq., and that Local 74 breached its duty of fair representation under the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151, et seq. Plaintiff also asserts claims of disability discrimination and failure to accommodate under the New York State Human Rights Law ("NYSHRL"), N.Y. EXEC. LAW § 290 et seq. Currently pending before the Court are Defendants' motions to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket Entries 13, 15.) For the following reasons, Defendants' motions are DENIED.


In September 2008, Plaintiff began working for Pinelawn as a seasonal "Driver/Maintenance Worker." (Compl. ¶ 20.) In or about March 2012, Plaintiff and Defendants entered into a "Last Chance Agreement" arising out of an incident that occurred during Pinelawn's 2011 holiday party. (See Ruden Decl., Docket Entry 16, Ex. A; Compl. ¶ 24.) Although the Complaint itself does not explain the circumstances surrounding the Last Chance Agreement, according to the agreement, [2] Plaintiff apparently became intoxicated at the holiday party and "was increasingly rude, insubordinate and physically threatening" to Pinelawn's superintendent, Justin Locke. (Ruden Decl. Ex. A ¶ 2.) Specifically,

[Plaintiff] mocked Mr. Locke's financial status and management style, and told him to "step outside" with him. [Plaintiff] told Mr. Locke that the party was on "his time" and he could, therefore, speak his mind to Mr. Locke. [Plaintiff] was getting increasingly red and angry. Supervisors and co-workers did their best to restrain [Plaintiff] and keep him away from Mr. Locke. [Plaintiff] refused to listen to them, and kept attempting to engage Mr. Locke. Towards the end of the evening, [Plaintiff] was staring at Mr. Locke and nodding his head to him aggressively. [Plaintiff] then came towards Mr. Locke in a physically threatening manner and bumped into him with his drink. Several supervisors again grabbed and retrained [Plaintiff], pulling him to the side.

(Ruden Decl. Ex. A ¶ 2.) Under the Last Chance Agreement, Plaintiff would keep his job provided that, inter alia, he "refrain[ed] from abusive conduct towards Mr. Locke, his supervisors, co-workers, customers, visitors or any person having business at Pinelawn." (Ruden Decl. Ex A. ¶ 7.) Plaintiff agreed that if he failed to do so, "his employment [would] be immediately terminated, " and that "neither [Local 74] nor [Plaintiff would] have recourse to challenge his termination through the grievance and arbitration procedure of the [CBA]." (Ruden Decl. Ex A. ¶ 7.)

On or about July 29, 2013, Plaintiff climbed a six-foot wall to trim a hedge growing on it and fell and "severely injured his lower back." (Compl. ¶ 25.) Plaintiff filed for worker's compensation and was out of work for one month. (Compl. ¶ 26.) In late August 2013, Plaintiff advised Pinelawn that he wanted to return to work. (Compl. ¶ 27.) However, Pinelawn would not allow Plaintiff to return until "he could demonstrate that he was 100% healed or had no restrictions." (Compl. ¶ 28 (internal quotation marks omitted).) On or about August 30, 2013, Plaintiff returned to work after obtaining a doctor's note, which, according to the Complaint, "authorize[ed] him to return to work without restrictions." (Compl. ¶¶ 29-30.)

Plaintiff claims that after he returned to work, Pinelawn "began a campaign of harassment and intimidation against [him] on the basis of his physical disabilities and in retaliation for taking leave." (Compl. ¶ 31.) Plaintiff specifically alleges that "[o]n his first day back to work, despite five years of working experience, ... Pinelawn assigned Plaintiff bronze trimming, a task typically reserved for only probationary employees." (Compl. ¶ 32.) On September 5, 2013, Pinelawn's Assistant Superintendent, Louis Raico ("Raico") "summoned" Plaintiff to a meeting with Pinelawn's Supervisor, Melvin Vargas, "to discuss Plaintiff's injury." (Compl. ¶ 33.) The next day, on September 6, 2013, Raico "informed Plaintiff he was being terminated for violating the Last Chance Agreement." (Compl. ¶ 34.)

Plaintiff alleges that Pinelawn's stated reason for terminating his employment-i.e., a violation of the Last Chance Agreement-was "false and a pretext for invidious disability discrimination." (Compl. ¶ 35.) He alleges that he was "an individual with a disability, ' as defined by the NYSHRL, " and "that Pinelawn's decision to discharge [him] was based on [his] disabilities." (Compl. ¶¶ 36-37.) He further alleges that Pinelawn "regarded [him] as suffering from a physical impairment that prevented the exercise of normal bodily functions." (Compl. ¶ 39.) Based on these allegations, Plaintiff claims that Pinelawn breached the CBA by terminating his employment without just cause and also discriminated against him on the basis of disability and failed to accommodate his disability in violation of the NYSHRL.

In September 2013, Plaintiff filed a formal grievance regarding his termination with Local 74. (Compl. ¶ 40.) On September 9, 2013, Local 74 held a grievance meeting to discuss Plaintiff's termination. (Compl. ¶ 41.) After the meeting, Plaintiff asked the Shop Steward, Mike Herron, if Local 74 would "pursue his grievance, " and Herron responded, "I'll get back to you." (Compl. ¶ 42.) By letter dated September 27, 2013, Local 74 advised Plaintiff that, "after careful review of all the facts and circumstances relating to [the] grievance, " Local 74 had decided that it would "not be proceeding further with" the grievance.[3] (Mele Decl., Docket Entry 14, Ex. B; Compl. ¶ 43.) However, the Complaint alleges that Plaintiff's grievance was meritorious and that Local 74 "failed to investigate the grievance" and "acted arbitrarily in failing to process the grievance." (Compl. ¶ 46.) Based on these allegations, Plaintiff claims that Local 74 breached its duty of fair representation. (Compl. ¶¶ 49-55.)

Pinelawn and Local 74 have separately moved to dismiss the Complaint but assert nearly identical arguments in support. (Docket Entries 13, 15.) These ...

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