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Crean v. 125 West 76Th Street Realty Corp.

United States District Court, S.D. New York

January 17, 2017

THOMAS J. CREAN and SUSAN CREAN, Plaintiffs,
v.
125 WEST 76TH STREET REALTY CORP. et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          LAURATAYLORSWAIN United States District Judge.

         Pro se plaintiffs Thomas J. Crean (“TC”) and Susan Crean (“SC” and, together with TC, “Plaintiffs”) commenced this action against Defendants 125 W. 76 Realty Corp.[1] (the “Co-op”) and Alyson Reim Friedman (“Friedman” and, together with the Co-op, “Defendants”), seeking damages pursuant to Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (the “ADEA”), Americans with Disabilities Act of 1990 (the “ADA”), New York State Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”) for alleged employment discrimination.

         On October 5, 2015, Defendants filed a motion, which was accompanied by a number of declarations and evidentiary submissions, to dismiss the Complaint. On October 8, 2015, the Court issued an order converting the motion into one for summary judgment based on Defendants' reliance on materials outside the Complaint, and directed the parties to file statements pursuant to Local Rule 56.1 and evidentiary submissions with their argumentative briefing. (Docket entry no. 20.) The parties have done so, and Plaintiffs also filed a number of additional submissions.

         The Court has subject matter jurisdiction of the case pursuant to 28 U.S.C. §§ 1331 and 1367.

         The Court has reviewed the parties' submissions carefully. For the following reasons, Defendants' motion for summary judgment is granted.

         Background

         Except as otherwise noted, the following facts are undisputed.[2] The Co-op is an entity that owns a single, residential cooperative apartment building (the “Building”) located at 125 West 76th Street, New York, New York. (Defs.' 56.1 ¶ 1.) Defendant Friedman was, at all relevant times, the President of the Co-op. (Id. ¶ 4.)

         The Co-op employed TC as the superintendent of the Building from 2001 to 2014. (Id. ¶ 5.) S.C. is TC's wife. (Id. ¶ 6.) Defendants never considered S.C. to be an employee of the Co-op. (See id. ¶ 7.) Plaintiffs allege that, beginning at the time TC was originally hired, he was directed to submit certain reports to the Building's management by email, and that the manager told him to have S.C. type the reports if TC was unable to type the reports. (See Pls.' Resp. 56.1 at 8-9.) S.C. alleges that she typed all of the reports over the years of TC's employment and asserts that, by virtue of that work, she was a “‘Quasi-Constructive' uncompensated employee” of the Co-op. (See id.) S.C. was never compensated for such work, and SC's handwritten note on an EEOC document attached to the Complaint states “I am Not an Employee of Defendant & Never Was Susan Crean.” (Compl. at ECF p. 13; see also Pls.' Resp. 56.1 at 8.) The Co-op terminated TC's employment on November 5, 2014. (Defs.' 56.1 ¶ 8.)

         Defendants have proffered a declaration that the Co-op never had more than three employees in 2014 or 2015; tax documentation consistent with that representation is attached to the declaration. (Elgar Decl. Ex. 1.) Plaintiffs assert that “[t]he Corporation IS a ‘MULTI-EMPLOYER' with at least, 20 or more ‘contracted' and ‘sub-contracted' employees rotated on a REGULAR Full-time, Part-time (or at-will) basis. They are employees whether, or not, they have been in IRS classified status: ‘exempt' or “‘non-exempt.' All these are regular contracted employees that are (and have been) retained by the Corporation for many years.” (Pls. Resp. 56.1 at 2.) In this connection, Plaintiffs assert that the Co-op's management company and each member of the management company's staff is an employee of the Co-op because the Co-op pays the management company an annual “Administrative fee.” (Id. at 2-3.) Plaintiffs also assert that the elevator maintenance company, and roofers, painters, an exterminator, contractors and their sub-contractors who are “under contract” to service the Building regularly are “regularly contracted employees” of the Co-op. (Pls. Mem. of Law at ECF pp. 6-7.)

         On November 7, 2014, Local 32BJ, Service Employees International Union (the “Union”) filed a request to arbitrate the termination of TC's employment (the “Arbitration”). (Defs.' 56.1 ¶ 9.) The Union, on behalf of TC, claimed that his termination was arbitrary, in violation of the Collective Bargaining Agreement (“CBA”). Both parties were represented by attorneys and were given a full opportunity to offer testimony, present evidence, examine and cross-examine witnesses at the hearing held. (See “Arbitration Op., ” Margolis Decl. Ex. D at 3.) The Co-op claimed that TC had been terminated for combative and un-cooperative behavior, including making an unfounded safety complaint to the New York City Department of Environmental Protection that resulted in the shutoff of services to the Building. (Id. at 4-6.) The Union, on behalf of TC, claimed principally that TC was arbitrarily and unjustly discharged, did not fail to cooperate with the Co-op, and was terminated because he refused to work in the basement due to a threat to his health and safety. (Id. at 6.) TC testified personally, denying the Co-op's accusations and alleging that management had thwarted his ability to perform his job. (Id. at 11.) The Arbitrator found that:

[i]t is clear from the testimony of the witnesses as well as the e-mails and threatening notes from the Grievant [(TC)] that he was having problem cooperating with management . . . . The Grievant, admittedly a good worker until approximately two years prior to his termination, apparently had a change of attitude that altered his behavior toward his Employer. In the last two years, in particular the last year, there were a number of incidents which reflected his attitude that only he knew what was best for the building . . . . Based on the evidence submitted, as well as the testimony of both the Employer witnesses and the Grievant, I find that the Employer did not violate the Agreement when it terminated the Grievant.

(Id. at 11-13.) The Arbitrator further found that “although the attacks by [Plaintiffs] were particularly nasty and threatening, ” TC was not trying to provoke his own dismissal and therefore was entitled under the CBA to eleven weeks' severance pay. (Id. at 13.)

         On or about the same date that the Union filed its request to arbitrate TC's dismissal, TC filed a “Whistleblower Complaint” against Defendants with the Occupational Safety and Health Administration (“OSHA”). (Defs.' 56.1 ¶ 10.) On December 30, 2014, Plaintiffs filed notices of charges of discrimination under Title VII, the ADA, and the ADEA, against Defendants, with the Equal Employment Opportunity Commission (“EEOC”). (Id. ΒΆ 11.) By Notice of Dismissal dated February 24, 2016, the EEOC informed Plaintiffs that it was unable to conclude that the information they had provided ...


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