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Daniel v. ABM Industries, Inc.

United States District Court, S.D. New York

March 31, 2017

OTIS A. DANIEL, Plaintiff,

          OPINION & ORDER

          RONNIE ABRAMS, United States District Judge

         Otis A. 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").[1] 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.


         I. Employment at ABM

         Plaintiff 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.[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.

         Plaintiff 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.

         On 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.

         On July 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 granted.

         A 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. ¶ 79.[4]

         Early 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.

         Plaintiff 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.

         On 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.

         On 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 25.

         On 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.

         Plaintiff 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.

         During 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.

         Shortly 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.

         II. Complaint with Local 32BJ

         Plaintiff 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.[5] 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 days. Id.

         On 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.[6]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. ¶ 129.[7] Plaintiff alleges that Herrera communicated with Brager and that Brager "lied to . . . [Herrera] about the reasons or causes" for Plaintiffs layoff. Id. ¶ 25.

         On 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.

         III. NYSDHR/EEOC Complaint

         On 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.

         IV. Local 32BJ's Decision Not to Arbitrate

         On 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.

         STANDARD ...

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