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

United States District Court, E.D. New York

September 26, 2014


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

Andrew GraBois, Esq., Zachary Richard Harkin, Esq., Joy K. Mele, Esq., O'Dwyer & Bernstein LLP, Eve Irene Klein, Esq., Duane Morris LLP, New York, NY, for Defendants, Local 74.

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


JOANNA SEYBERT, District Judge.

Plaintiff Bradley Tankiewicz ("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 GRANTED.


In May 2005, Plaintiff began working for Pinelawn as a "Driver/Maintenance Worker." (Compl. ¶ 20.) Plaintiff's responsibilities included "servicing funerals, carrying caskets to graves, putting greens on graves, mowing the grass, restoring graves, gardening, setting bronzes and general lawn maintenance." (Compl. ¶ 29.)

On or about July 9, 2010, Pinelawn "assigned Plaintiff to disinter a body." (Compl. ¶ 31.) While lifting the casket, Plaintiff tore his rotator cuff and suffered an inguinal hernia. (Compl. ¶ 31.) Plaintiff immediately filed for worker's compensation benefits and was out of work for the next eleven months. (Compl. ¶ 34.) On September 9, 2013 and December 9, 2013, Plaintiff had surgeries to repair his injuries. (Compl. ¶¶ 35-36.) Plaintiff claims that he "continues to suffer extreme pain, especially when coughing, bending over or lifting heavy objects" and "also suffers from continual swelling and pain in his testicles, " notwithstanding the corrective surgeries. (Compl. ¶ 37.)

In the Spring of 2011, Plaintiff asked Pinelawn if he could return to work. (Compl. ¶ 38.) However, Pinelawn would not allow Plaintiff to return until "he could demonstrate that he was 100% healed or had no restrictions on his return to work." (Compl. ¶ 39 (internal quotation marks omitted).) On June 9, 2011, Plaintiff returned to work after obtaining a doctor's note, which, according to the Complaint, "indicat[ed] there were no restrictions on his return to work." (Compl. ¶¶ 40-41.)

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 extended leave." (Compl. ¶ 42.) Plaintiff specifically alleges that "[o]n his first day back to work, despite having never used a tamping machine before, ... Pinelawn assigned Plaintiff the physically arduous task of tamping graves." (Compl. ¶ 43.) Plaintiff alleges that he complained to Pinelawn that this task "compromised and aggravated [his] disabilities" and he "asked to be reassigned to a lighter work assignment consistent with his physical limitations." (Compl. ¶ 44.) However, Pinelawn "ignored Plaintiff's complaints and refused to re-assign" him. (Compl. ¶ 45.) Additionally, Pinelawn "began to excessively scrutinize Plaintiff's work performance." (Compl. ¶ 46.) According to the Complaint, over the next year, Pinelawn issued more than sixty written performance write-ups "for trivial or non-existent infractions." (Compl. ¶ 46.)

In September 2012, Plaintiff began to experience "severe pain in his lower back, " which his chiropractor determined "was directly attributable" to Plaintiff's tamping work. (Compl. ¶¶ 47, 49.) Plaintiff provided Pinelawn with notes from his chiropractor "outlining Plaintiff's therapy and treatment program" and again asked to be reassigned from tamping, but Pinelawn again refused to reassign him. (Compl. ¶¶ 50-51.)

In late November 2012, representatives from a private investigation firm retained by Pinelawn interviewed Plaintiff regarding an incident of arson to one of Pinelawn's bulldozers. (Compl. ¶¶ 52-55.) Plaintiff denied any knowledge or involvement in the arson but the representatives told Plaintiff that they "had reason to be believe that he was involved." (Compl. ¶ 55.) By letter dated December 2012, Pinelawn advised Plaintiff that it had "identified the person responsible for the arson." (Compl. ¶ 56.) Sometime also in December 2012, Pinelawn suspended Plaintiff for three days "for being in a dump area to dump top soil five minutes early." (Compl. ¶ 57.) Plaintiff immediately filed a grievance regarding the suspension with Local 74 but the Complaint does not explain how the suspension was unlawful or how it violated the CBA. (Compl. ¶ 58.) Additionally, in January 2013, Plaintiff discovered that Pinelawn gave Christmas bonuses to all of its employees except him. (Compl. ¶¶ 59-60.)

On March 21 and 22, 2013, after waking up with "intense lower back pain, " Plaintiff called Pinelawn "to report that he was ill and unable to work." (Compl. ¶¶ 61-62.) Plaintiff later faxed Pinelawn a note from his chiropractor stating that he was "under doctor's care until Monday, March 25, 2013." (Compl. ¶¶ 63-64.) That afternoon, Plaintiff's supervisor, George Molna, called plaintiff and told him that "it was mandatory' that he come to work the next day." (Compl. ¶ 65.) The next morning, Pinelawn's owner, Justin Locke, left a message on Plaintiff's cellphone stating: "You have been terminated as of today. We believe you had prior knowledge of the bulldozer arson." (Compl. ¶ 66.)

However, Plaintiff claims that Pinelawn terminated him because of alleged disability or perceived disability and that Pinelawn therefore breached the CBA by terminating his employment without just cause. (Compl. ¶¶ 67-69, 86.) In April 2013, Plaintiff filed a formal grievance regarding his termination with Local 74. (Compl. ¶ 72.) On April 23, 2013, Local 74 held a grievance meeting regarding Plaintiff's December 2012 suspension, and Plaintiff's suspension was upheld. (Compl. ¶¶ 73-74.) After the meeting, Plaintiff asked about the status of his grievance regarding his termination, and the Shop Steward, Mike Herron, told Plaintiff, "I'll get back to you." (Compl. ¶ 75.) According to Plaintiff, to date, Local 74 "has failed to pursue a grievance on behalf of Plaintiff regarding his discharge." (Compl. ¶ 76.) The ...

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