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Romero v. DHL Express, Inc.

United States District Court, S.D. New York

March 24, 2015

DHL EXPRESS, INC. AND LOCAL 295, I.B.T., Defendants.


VALERIE CAPRONI, District Judge.

Pro se Plaintiff Mauricio Baez Romero ("Baez"), a former courier of Defendant DHL Express Inc. ("DHL" or the "Company"), and former member of the collective bargaining unit represented by Defendant Local 295, I.B.T. (the "Union"), brings this suit against DHL and the Union alleging seventeen causes of action following his termination by DHL in August 2011. Inter alia, Baez alleges that DHL subjected him to a hostile working environment and to discriminatory and retaliatory treatment as a result of his race, national origin and disability after he filed for Workers' Compensation Benefits. Baez further alleges that the Union breached its duty of fair representation by processing his grievances in bad faith and in a manner that was arbitrary and discriminatory.

Now pending before the Court are the Union's Motion for Summary Judgment as to Plaintiff's Sixteenth cause of action, and DHL's Motion for Partial Summary Judgment as to Plaintiff's Second, Fourth, Eighth, Thirteenth, Fifteenth and Seventeenth causes of action. For the reasons stated below, the Union's Motion for Summary Judgment is GRANTED, and DHL's Motion for Partial Summary Judgment is GRANTED in part and DENIED in part.


At the time of his termination, Baez was employed as a "vacation relief" courier driver for DHL. See Defendants' Joint Rule 56.1 Statement ("Defs.' 56.1 Statement") ¶ 1. The Union and DHL are parties to a collective bargaining agreement ("CBA") governing couriers employed at DHL. Id. ¶¶ 2-3.

On June 2, 2011, Baez was injured while loading a DHL truck. Defs.' 56.1 Statement ¶¶ 6-7. Baez filed a Workers' Compensation claim, id. ¶ 8, Broderick Decl., Ex. E, and reported his injury and intention to file for Workers' Compensation benefits to his manager, John Montecalvo. Am. Compl. ¶ 19. Montecalvo allegedly insulted and harassed Baez for filing a Workers' Compensation claim. Id. ¶¶23-28. Following this conversation, Baez filed a grievance against Montecalvo. Defs.' 56.1 Statement ¶ 24; Kane Decl., Ex. D; Plaintiff's Response to Defendants' Joint 56.1 Statement ("Pl.'s 56.1 Resp.") ¶ 24.

Baez received Workers' Compensation benefits and was out of work from June 3, 2011 through July 24, 2011. Defs.' 56.1 Statement ¶ 8. When Baez returned to work on July 25, 2011, his supervisor, Jide Dawodu, allegedly assigned him to "off-load" operations in violation of his "light duty" status and also required him to work eight hours consecutively without a meal break. Am. Compl. ¶¶ 41, 43. Baez alleges that Dawodu also called him a "stupid Dominican" in front of two of his co-workers, id. ¶ 45, and "constantly mock[ed] [his] accent." Id. ¶ 44. Whenever a mistake was made, Dawodu would allegedly blame Plaintiff saying "only a stupid Dominican like Baez would do something like this." Id. ¶ 48.

On August, 2, 2011, Baez and Dawodu argued regarding Baez's claim that Dawodu was "short[ing]" his hours. Defs.' 56.1 Statement ¶ 26; Am. Compl. ¶¶ 52-64. During the argument, which was recorded on video and witnessed by Plaintiff's shop steward, Ignacio Garcia, and another DHL supervisor, Dave Gabrielli, Dawodu allegedly insulted Baez and threatened to punch him. Am. Compl. ¶¶ 58-64; Baez Decl., Ex. F at ECF p. 3-4. Following the argument, Baez filed a police report, Defs.' 56.1 Statement ¶ 33; Kane Decl., Ex. M, and a grievance against Dawodu. Defs.' 56.1 Statement ¶ 33; Pl.'s 56.1 Resp. ¶ 33; Kane Decl., Ex. E. Dawodu left for vacation on August 3, 2011. Defs.' 56.1 Statement ¶ 34; Kane Decl., Ex. A (Transcript of Deposition of Mauricio Baez Romero dated September 17, 2013 ("Pl. Dep.") at 190:12-13.

Between Baez's absence on Workers' Compensation leave and the absence of others who were involved in the grievance process, the Union did not take immediate action to investigate Plaintiff's grievances. On August 5, 2011, Garcia and Jack Ruggiero, a business agent and member of the Union's Executive Board, met with Plaintiff regarding his grievances. Defs.' 56.1 Statement ¶¶ 46, 50-52; Pl. Dep. at 172:2-12, 177:13-16. At the meeting, Garcia and Ruggiero said that it would take several weeks to schedule a "Step 2" meeting. Defs.' 56.1 Statement ¶ 54; Pl. Dep. at 173:11-22.

On or around August 15, 2011, Dawodu returned from vacation. Defs.' 56.1 Statement ¶ 34; Pl. Dep. at 201:25-202:3. Baez decided to leave work because he did not want to be near Dawodu, even though another supervisor had offered him work on another floor. Defs.' 56.1 Statement ¶¶ 36-37; Pl. Dep. at 202:4-203:14, 448:16-22. Before leaving work, Baez filed another grievance, Defs.' 56.1 Statement ¶ 42, Kane Decl., Ex. F, and told a supervisor that he was not coming back due to the unsafe and hostile working environment. Defs.' 56.1 Statement ¶¶ 36-37; Pl. Dep. at 90:17-20; Am. Compl. ¶¶ 85-86. Garcia advised Baez to call in sick every day that he was not reporting to work. Defs.' 56.1 Statement ¶¶ 21, 40-41; Pl. Dep. at 210:18-212:2; Kane Decl., Ex. B (Transcript of Deposition of Ignacio Garcia dated March 18, 2014 ("Garcia Dep.") at 118:22-119:11, 168:19-169:8. Baez did not report to work on August 16 and 17, nor did he call in sick or otherwise communicate with his supervisors. Defs.' 56.1 Statement ¶ 43; Pl. Dep. at 214:20-24. Baez's only communication with the Company during this time was with a DHL Human Resources representative. Defs.' 56.1 Statement ¶ 43; Pl. Dep. at 214:20-24.

Baez was terminated on August 18, 2015 for unauthorized failure to report to work for three consecutive days. Defs.' 56.1 Statement ¶ 11; Broderick Decl., Ex. H. Baez promptly filed a grievance for "unjust termination, " stating that he had left work because he could not work with Dawodu and that he had asked another supervisor to call him "when [Montecalvo] and Human Resources were ready to address [his] case." Defs.' 56.1 Statement ¶ 45; Broderick Decl., Ex. I. On or about September 16, 2011, Baez, Garcia and Ruggiero attended a "Step 2" grievance meeting with a DHL Labor Relations Officer and Montecalvo, during which DHL denied Baez's grievances and upheld its termination decision. Defs.' 56.1 Statement ¶ 56; Broderick Decl., Ex. I. After the Step 2 meeting, Baez filed an NLRB complaint against the Union for breaching its duty of fair representation; that complaint was subsequently withdrawn after an NLRB field attorney convinced Baez that the Union's decision to proceed with arbitration demonstrated that the Union was acting in good faith. Am. Compl. ¶¶ 98-99, Exs. W, Y; Defs.' 56.1 Statement ¶ 114; Kane Decl., Ex. I.

The arbitration occurred on November 18, 2011. Defs.' 56.1 Statement ¶¶ 13-14. During the arbitration, counsel for the Union focused on Baez's termination, rather than his earlier grievances against Montecalvo and Dawodu. Pl. Dep. at 96:23-97:10; Garcia Dep. at 258:13-262:10. Baez testified at the arbitration, however, and discussed his first grievance. Pl. Dep. at 166:7-24. With respect to Plaintiff's unfair termination claim, counsel for the Union argued that because Baez had been in contact with Human Resources on August 15, 16 and 17th, he was not a "no call no show" employee. Garcia Dep. at 358:14-24. Counsel also questioned two supervisors as to whether Baez's August 15, 2011 departure was unauthorized, Garcia Dep. at 292:7-294:25; Am. Compl. ¶¶ 146-47, but the Union did not call Montecalvo, Dawodu, Garcia or Gabrielli to testify. Defs.' 56.1 Statement ¶¶ 66-71; Am. Compl. ¶ 114. DHL showed a portion of the video of the August 2, 2011 argument between Baez and Dawodu, and counsel for the Union did not object or request that the entire video be shown. Garcia Dep. at 211:23-213:9. Counsel for the Union also chose not to present a note from Baez's doctor indicating that his mental health had suffered as a result of his termination. Am. Compl. ¶ 115; Kane Decl., Ex. N. The arbitrator upheld Baez's termination. Defs.' 56.1 Statement ¶ 17; Broderick Decl., Ex. J.

On or around January 30, 2012, Baez filed a second NLRB complaint against the Union for breach of its duty of fair representation. Kane Decl., Exs. I, J. On April 20, 2012, the NLRB Regional Director dismissed Baez's complaint. Kane Decl., Ex. K. Baez appealed that decision to the NLRB Office of Appeals; his appeal was dismissed on July 23, 2012. Kane Decl., Ex. L. Baez also filed a discrimination complaint with the New York State Workers' Compensation Board, alleging "retaliation for filing work-related injury, hostile environment and wrongful discharge." Am. Compl. ¶ 12; Broderick Decl., Ex. L. at ECF p. 2.

Plaintiff initiated this litigation on March 15, 2012. DHL promptly moved to affirm the arbitration award. Dkts. 16-18. Judge Kaplan, to whom this case was previously assigned, granted DHL's motion, Dkt. 73, and then ...

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