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Benjamin v. T.U.C.S.

United States District Court, S.D. New York

June 29, 2015

T.U.C.S., Defendant.



On April 23, 2014, pro se plaintiff Eugene T. Benjamin filed this action initially alleging that defendant, T.U.C.S. Cleaning Service, Inc., had subjected him to age-based discrimination and retaliation. (ECF No. 2.) On October 15, 2014, plaintiff filed the operative Second Amended Complaint ("SAC") changing his claim to one of gender discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and New York City Human Rights Law ("NYCHRL"). (ECF No. 16.) This action arose after defendant awarded a full-time position to a female employee who was less senior than the male plaintiff, though the position was female only and plaintiff was not the most senior male on the stand-by list of employees.

Initially before this Court was defendant's motion to dismiss the Second Amended Complaint. (ECF No. 20.) Despite being mailed a copy of the motion to dismiss (ECF No. 24), plaintiff missed his initial deadline to respond and has not otherwise responded to defendant's motion. The Court is to accordingly consider the motion unopposed but nonetheless consider its merits. See Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir. 2010) (explaining that district courts should consider the merits of a motion to dismiss rather than automatically grant the motion if a plaintiff fails to respond).

On May 1, 2015, the Court converted this motion to one for summary judgment under Rule 56, pursuant to Rule 12(d). (ECF No. 29.) It did so in order to examine documents that were outside the pleadings, namely several documents defendant filed through the Declaration of Cindy Schmitt Minniti in support of its motion to dismiss. (ECF No. 22.) The Court set a schedule for plaintiff to "present all the material that is pertinent to the motion" and respond to defendants' documents, which had already been served on him. (Id.) The Court subsequently extended that deadline to June 15, 2015, upon request by plaintiff. (ECF No. 31.) Defendants submitted a statement pursuant to Local Civil Rule 56.1 and additional declarations in support of the motion. (ECF Nos. 33-37.) Plaintiff once again failed to file anything.

For the reasons set forth below, the Court hereby GRANTS defendant's motion and dismisses this case.


Plaintiff is an employee of the defendant, which provides building maintenance services to both public and private companies. (SOF ¶¶ 3, 6.) Plaintiff is also a member of Local 32BJ, Service Employees International Union ("Local 32BJ"), which has a collective bargaining agreement (the "CBA") with the defendant. (Id. ¶¶ 5, 8.) One of defendant's clients is Port Authority, where plaintiff had worked as a cleaner since 2002. (Id. ¶ 5.) As part of its business with the Port Authority, defendant is required to operate within the policies implemented at Port Authority. (Id. ¶ 11.) As such, defendant is required to abide by applicable collective bargaining agreements when staffing positions at Port Authority, including any seniority provisions. (Id. ¶ 12.)

In July 2009, the Port Authority requested that, due to budgetary reasons, defendant reduce hours and services; accordingly, defendant laid off several employees and moved others to stand-by positions. (Id. ¶¶ 13-14.) In accordance with the CBA, employees were laid off and placed on stand-by in reverse seniority order. (Id. ¶ 15.) Plaintiff was moved to a stand-by position as part of the reduction in force. (Id. ¶ 16.)

Plaintiff alleges that defendant engaged in gender discrimination and retaliation pursuant to Title VII and NYCHL. (SAC at 3.) Specifically, plaintiff alleges that he was discriminated and retaliated against on the basis of his gender when defendant allegedly failed to honor the seniority rules of the CBA with his union, Local 32BJ. (Id.) According to a February 24, 2011 letter from the National Labor Relations Board ("NLRB"), plaintiff alleged that defendant awarded a vacant full-time position at the Port Authority to a woman on the stand-by list, "despite her being less senior than several men on the list." (Decl. of Cindy Schmitt Minniti in Supp. of Def.'s Converted Motion for Summary Judgment ("Minniti Decl."), Ex. B, ECF No. 33.) The NLRB found, however, that plaintiff was not qualified for the position: "You were not the most senior man on the list and so by strict seniority you would not have been entitled to the position." (Id.) The position was, in fact, a "female only" position by job description and posting, though it had previously been staffed by men, and the NLRB found no basis to contest the re-designation of the position as female only. (Id.) Defendant asserts that the Port Authority required a "female only" cleaner because the job involved spending the majority of working time inside female lavatories while the facilities remained open to the public for use. (SOF ¶¶ 27-32.) The female employee who was awarded the position was the most senior woman on the stand-by list at the time. (Id. ¶ 39.) Plaintiff was only the third most senior qualified male employee at the time of the cleaner position vacancy. (Id. ¶ 37.)

Plaintiff was ultimately awarded a full-time position in 2011. (Id. ¶ 52.) He remains employed by defendant on a full-time basis. (Id. ¶ 53.)


The Court converts defendant's motion to one for summary judgment. "If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (quoting Fed.R.Civ.P. 12(d)).

Summary judgment may not be granted unless the movant shows, based on admissible evidence in the record placed before the court, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the ultimate burden on a particular claim or issue, it need only make a showing that the non-moving party lacks evidence from which a reasonable jury could find in the non-moving party's favor at trial. Id. at 322-23. In making a determination on summary judgment, the court must "construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor." Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).

Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must set out specific facts showing a genuine issue of material fact for trial. Price v. Cushman & Wakefield, Inc., 808 F.Supp.2d 670, 685 (S.D.N.Y. 2011); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment, " as "[m]ere conclusory allegations or denials... cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citations omitted); see also Price, 808 F.Supp.2d at 685 ("In seeking to show that there is a genuine issue of material fact for ...

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