United States District Court, S.D. New York
OTIS A. DANIEL, Plaintiff,
ABM INDUSTRIES, INC. and LOCAL 32BJ SEIU, THE PROPERTY SERVICE WORKERS UNION, Defendants.
OPINION & ORDER
ABRAMS, United States District Judge
Daniel, proceeding pro se, brings discrimination and
retaliation claims against his former employer, ABM Security
Services, Inc. ("ABM"), and Service Employees
International Union, Local 32BJ ("Local 32BJ" or
the "Union"). Defendants move to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). For the reasons that follow, Local
32BJ's motion is granted in its entirety. ABM's
motion is granted in part and denied in part.
Employment at ABM
describes himself as a black gay man from St. Vincent and the
Grenadines. Compl. ¶¶ 50, 114. In October or
November 2013, he began working for ABM, a provider of
building facility services, as a fire safety director at
Amtrak/Penn Station in Manhattan. Id. ¶¶
1, 62, 72; Ex. 2, at 1-3. Amtrak/Penn Station was ABM's
client. Compl. ¶ 1. During Plaintiffs employment at the
Amtrak/Penn Station work site, he was a member of Local 32BJ
and his employment was subject to the terms of a collective
bargaining agreement ("CBA") between ABM and Local
32BJ. See Id. ¶¶ 1, 102. Plaintiffs
starting wage was $17.40 per hour. Id. ¶ 73.
When he left the Amtrak/Penn Station position in February
2015, he was earning $18.15 per hour. Id.
had a fraught relationship with one of his colleagues at
Amtrak/Penn Station, Johnny Arocho. Plaintiff describes
Arocho as a "White light skin Hispanic male" and
alleges that ABM gave Arocho "racial preference."
Id. ¶ 7. Specifically, Plaintiff alleges that
Arocho was "engaged in the production and distribution
of bootleg videos while on duty" and that this practice
was permitted by Plaintiffs and Arocho's supervisor,
James Petrie. Id. ¶¶ 98-99. Plaintiff also
alleges that Arocho took "excessive days off."
Id. ¶ 97. According to the Complaint, it is
"more than likely" that Plaintiff would not have
been allowed to engage in the production and distribution of
bootleg videos at work or take as many days off. Id.
¶¶ 97, 99. Arocho, like Plaintiff, worked as a fire
safety director, although Arocho was more senior.
Id. ¶ 156; Ex. 2, at 15.
March 16, 2014, Plaintiff e-mailed Petrie to complain about
Arocho's "lack of communication" about
scheduling. Ex. 2, at 6. Plaintiff told Petrie that Arocho
was "taking advantage of his close . . . friendship with
the clients" and indicated that he was prepared to share
his concerns directly with the client. Id. Plaintiff
threatened to take legal action against ABM if the problem
persisted. Id. Petrie told Plaintiff that ABM
management would handle the situation and instructed
Plaintiff not to speak directly to the client, advising him
that he would receive a written warning if he did.
Id. According to Plaintiff, Arocho, unlike
Plaintiff, was allowed to air grievances with the client.
Compl. ¶ 100; Ex. 2, at 6.
10, 2014, Plaintiff e-mailed Petrie to request a transfer
from the Amtrak/Penn Station work site, noting that he had
become "increasingly unhappy and dissatisfied" at
that location. Ex. 2, at 8. In the alternative, Plaintiff
requested medical leave due to mental health issues.
Id. Plaintiff was given two weeks' unpaid leave.
Compl. ¶ 54. On August 27, 2014, Plaintiff renewed his
request for a transfer. Ex. 2, at 13. He indicated that he
was interested in "an evening or overnight shift full
time or part time" and that he was willing to work as a
fire safety director or as a "regular security
guard." Id. His request was not immediately
series of incidents occurred in February 2015, however, that
culminated in Plaintiff being transferred to another
location. On the morning of February 24, 2015, Arocho
allegedly entered the "work area" at Amtrak/Penn
Station and began to "insult and berate" Plaintiff,
apparently without provocation. Compl. ¶ 77 ("[I]f
you don't want to be here get the fuck out, get the fuck
out of here, do your job, do your fucking job, do your
fucking job, you dumb fuck"; "I'm smarter than
your dumb ass any day you dumb fuck."). Plaintiff
alleges that Arocho then left the work area to go speak with
the client's in-house fire safety director, Gary Hearn,
only to return shortly after and "continue[ ] the loud
verbal assault." Id. ¶ 78. About fifteen
minutes later, Hearn came to the work area and instructed
Plaintiff to leave, which Plaintiff did. Id. ¶
the next morning, Plaintiff was back at work and a technician
from United Fire Protection ("UFP") arrived at the
work area. Id. ¶¶ 82-83. UFP had a
contract with Amtrak/Penn Station "to service its fire
protection detection emergency alarm systems, "
id. ¶ 86, but Plaintiff was not expecting
anyone from UFP during his shift, id. ¶ 83.
According to the Complaint, Plaintiff asked the UFP
technician to identify himself, and in response the
technician became "angry, uncooperative and verbally
argumentative." Id. The technician eventually
identified himself to Plaintiff, but left the work area
"visibl[y] upset" and told Plaintiff that he was
going to call Arocho. Id. The technician later came
back to the work area with a colleague, where they worked
alongside Plaintiff for several hours without incident.
Id. ¶¶ 84-85.
had another shift later the same day. Id. ¶ 87.
When he arrived, Arocho informed him that he was being
removed from the work site at the client's request.
Id. Arocho spoke with ABM's field supervisor,
Sylvan Campbell, on the telephone, and Campbell later arrived
at the work site and confirmed that Plaintiff was being
removed. Id. ¶¶ 87-88. According to the
Complaint, Campbell told Plaintiff not to worry about his
removal because ABM was "desperate" for fire safety
directors and would be able to give Plaintiff another
position. Id. ¶ 90.
February 27, 2015, two days after he was notified of his
removal from Amtrak/Penn Station, Plaintiff e-mailed Petrie
and three other ABM employees claiming that Petrie and Arocho
had "arranged [his] removal." Ex. 2, at 16.
Plaintiff indicated that he was trying to get assigned to
another site, but that Petrie was impeding those efforts.
Id.; see also Compl. ¶¶ 16, 44, 91.
Plaintiffs e-mail was forwarded to ABM's investigations
department the same day. Ex. 2, at 18. On March 1, 2015,
Plaintiff e-mailed the same group accusing Petrie and Arocho
of "deliberate, malicious, racist favoritism and
lies" and "treating employees, especially black
male workers as if they are second class citizens."
Id. at 23. Plaintiff indicated that he intended to
file a lawsuit or a complaint with the U.S. Equal Employment
Opportunity Commission ("EEOC"). Id.
Plaintiff made similar assertions in a March 2, 2015 e-mail
to Kathryn Ciallella, an ABM human resources manager who had
contacted Plaintiff to discuss the Amtrak/Penn Station
incident. Id. at 21-22.
March 3, 2015, Petrie e-mailed Plaintiff to offer him a new
fire safety director position. Id. at 24. The
position was full-time and paid $15.50 per hour, and was
covered by ABM's contract with Allied International
Union. Id.; Compl. ¶ 102. Plaintiff sent a
reply rejecting the position because the shift was during the
day and he could only work evening or night shifts. Ex. 2, at
24. Plaintiff again asserted that Petrie had
"maliciously and deliberately fabricated [the] reason[ ]
for [Plaintiffs] removal" from the Amtrak/Penn Station
site. Id. Hal Brager, ABM's Director of Labor
Relations, responded to Plaintiffs e-mail, stating that the
client had requested Plaintiffs removal and that ABM would
send Plaintiff a "layoff letter." Id. at
March 6, 2015, Plaintiff spoke with Ciallella, and Ciallella
offered Plaintiff a position as a security guard at Riverside
Church. Id. at 28; Compl. ¶ 106. Plaintiff
accepted this position on March 9, 2015, even though the
position paid only $13.00 per hour. Ex. 2, at 28. Like the
position that Petrie had offered, the position at Riverside
Church was covered by ABM's contract with Allied
International Union, not Local 32BJ. Compl. ¶ 125. On
March 11, 2015, Ciallella informed Plaintiff that ABM had
conducted an investigation into his removal from the
Amtrak/Penn Station site and had found no policy violation or
misconduct. Ex. 3, at 1. Plaintiff disputes that this
investigation actually took place. Compl. ¶ 105.
was not at Riverside Church for long. On March 19, 2015,
Plaintiff was at work and was approached by Abideen Bakare,
the shift fire safety director and supervisor. Id.
¶ 109. Plaintiff and Bakare, a black male, discussed an
e-mail that Bakare had supposedly received from Leroy Thomas,
ABM's security director at Riverside Church. Id.
¶¶ 108-09; Ex. 2, at 36. According to the
Complaint, Bakare told Plaintiff that Thomas had complained
in his e-mail about the security guards at Riverside Church
being "ghetto." Compl. ¶ 110. Thomas also
allegedly described the guards as "unprofessional, rude,
disrespectful, dirty street thugs" who "walk around
with headphone[s] in their ears and pants down their
waist." Id. Thomas's remarks were
apparently not directed at Plaintiff, but Bakare said that he
was sharing them with Plaintiff because Bakare did not
"want [Plaintiff] to have this problem" and
"jeopardize [his] job." Id.
the same conversation, Bakare allegedly confronted Plaintiff
about Plaintiff having made a homophobic remark during a gay
wedding at the Church on March 14, 2015.
Id.¶\\\. Plaintiff asserts that Bakare was
"questioning [Plaintiffs] sexual orientation and nothing
else." Id. ¶ 112. Plaintiff was angered by
the exchange with Bakare and left the work site. Id.
after the exchange with Bakare, Plaintiff e-mailed Ciallella
and Petrie, informing them of the incident, and announcing
that he would visit ABM's office the next day to
"further clarify [the] matter and to discuss [his]
employment option(s)." Ex. 2, at 36. On March 20, 2015,
Plaintiff met with Ciallella and Brager. Compl. ¶ 119.
During the meeting, Plaintiff was told to seek employment
with another company. Id. ¶¶ 115-16. Also
on March 20, Ciallella sent Plaintiff a letter confirming
that Plaintiffs employment with ABM at Riverside Church had
been terminated. Ex. 3, at 2. The letter stated that
Plaintiff had "requested to be removed from [the] job
site, " and that Plaintiff was being laid off because
there were no other available positions. Id.
Plaintiff has not been recalled by ABM since his layoff.
Compl. ¶¶ 117-18.
Complaint with Local 32BJ
also filed a complaint at the Local 32BJ office on March 20.
Id. ¶ 120. The Union's intake form states
that Plaintiff claimed "that he was unjustly or
improperly laid off from his work location effective
3/24/2015." Ex. 2, at 38. Plaintiff alleges that
"J.P., " the union representative who assisted him
with his complaint, "put words in [his] mouth and rushed
[him] through the process." Compl. ¶ 121. J.P.
initially told Plaintiff that he only had twenty days to
submit a grievance and that his grievance might therefore be
untimely. Id. After consulting with an attorney,
however, J.P. informed Plaintiff that he actually had 120
March 24, 2015, Plaintiff spoke with Johnny Herrera, a Local
32BJ representative, by telephone. Id. ¶ 122.
Herrera informed Plaintiff that the deadline for filing a
grievance was in fact twenty days and that Local 32BJ might
not be able to assist Plaintiff. Id. Herrera also
advised Plaintiff that under the terms of the CBA, ABM should
have transferred Plaintiff to another position covered by the
CBA with a comparable job title and pay rate after his
removal from the Amtrak/Penn Station site. Id.
¶ 123. Plaintiff alleges that he was not aware of his
rights under the CBA or his deadline for filing a grievance
before he spoke with Herrera on March 24. Id. ¶
126.According to Plaintiff, if he had been
aware, then he would not have accepted the Riverside Church
position (which was not a Local 32BJ position), and would
have sought to file a grievance sooner. Id. During
the March 24 call, Herrera told Plaintiff that he would speak
with Brager and get back to Plaintiff. Id. ¶
Plaintiff alleges that Herrera communicated with Brager and
that Brager "lied to . . . [Herrera] about the reasons
or causes" for Plaintiffs layoff. Id. ¶
March 24, Dan Wilson, Local 32BJ's Complaint and
Arbitration Coordinator, sent a letter to Brager notifying
him of Plaintiff s complaint. Ex. 2, at 40. Wilson sent
another letter on March 31, 2015, noting that the Union and
ABM had "been unable to resolve the dispute" and
that the Union was submitting the grievance for arbitration.
Id. at 41. Both letters stated that Plaintiff
alleged "that he was unjustly removed from his work
location effective February 24, 2015." Id. at
40-41. Plaintiff alleges that ABM did not respond to either
of the letters. Compl.¶¶ 119, 131.
April 23, 2015, Plaintiff filed a complaint with the New York
State Division of Human Rights ("NYSDHR") alleging
that ABM discriminated against him on the basis of race and
color. Id. ¶ 134; Ex. 1, at 53-64. Plaintiff
alleged that Local 32BJ was aware of ABM's
"discriminatory practices and helped to facilitate
[ABM's conduct]." Compl. ¶ 134. Plaintiff also
filed a complaint with the EEOC. Id. On October 16,
2015, the NYSDHR issued a final determination and order and
dismissed Plaintiff s complaint. Id. ¶ 138; Ex.
1, at 11-14. On December 2, 2015, the EEOC adopted the
findings of the NYSDHR and issued Plaintiff a right to sue
letter. Compl. ¶ 139.
Local 32BJ's Decision Not to Arbitrate
December 11, 2015, Local 32BJ notified Plaintiff that it had
"carefully reviewed the facts and circumstances
surrounding [Plaintiffs] grievance and . . . determined that
it lack[ed] sufficient merit for [Local 32BJ] to be likely to
prevail in arbitration." Ex. 7, at 9. Plaintiff was
informed of his right to appeal Local 32BJ's decision,
which he exercised the next day. Id.; Compl.
¶¶ 159-60. The appeal hearing was scheduled for
January 14, 2016. Ex. 7, at 15; Compl. ¶ 160. On January
6, 2016, Plaintiff met with Local 32BJ associate general
counsel Amie Ravitz to discuss the appeal process. Compl.
¶ 161. Following that meeting, Plaintiff e-mailed Ravitz
to inform her that he did not intend to pursue his appeal.
Id. ¶ 162; Ex. 7, at 31-35. Plaintiff alleges
that the Union never investigated his complaint, and never
intended to do so. Compl. ¶ 135.