United States District Court, E.D. New York
MEMORANDUM AND ORDER
James Gallagher (“Gallagher” or
“Plaintiff”) brings claims for violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17, and the New York City Human
Rights Law, N.Y. Admin. Code § 8-107, et seq.
(NYCHRL), against three defendants. Before the Court are two
motions to dismiss pursuant to Fed.R.Civ.P. § 12(b)(6)
by defendant Theatrical Stage Employees Local 4 I.A.T.S.E.
(“Local 4”) and defendant Mike Dasaro
(“Dasaro.”). The third defendant, AEG Management
Brooklyn LLC (“AEG”), answered Plaintiff's
amended complaint and asserted cross-claims against Local 4
on January 13, 2017. ECF 27.
facts are taken from Plaintiff's Amended Complaint (ECF
24, hereinafter “Complt.”) and are presumed true
for the purposes of this motion.
Gallagher is a carpenter who has been a member of defendant
Local 4, a labor union organized under the laws of New York,
since 2002. Complt. at ¶¶ 11, 19. Local 4 placed
Gallagher in various job assignments with third party
companies, which included determining the location and the
duration of the assignment and assigning him additional
projects and tasks as needed. Id. at ¶ 23.
Local 4 determined Plaintiff's rate of compensation and
negotiated his salary with the third party companies.
Id. at ¶ 24. Gallagher alleges that he received
various benefits, including medical benefits and a pension
plan, “by virtue of his relationship” with Local
4. Id. at ¶ 26. Because he performed well on
various projects, Gallagher was assigned to be the
“head crew chief” numerous times, which position
came with a $6.00 per hour pay increase ($48.00 versus
$42.00). Id. at ¶¶ 27, 49.
pertinent events occurred during Gallagher's job
assignment with defendant AEG, which began in the fall of
2012, during which he worked as a stage hand constructing
sets at the Barclays Center in Brooklyn. Id. at
¶¶ 23, 28. AEG was responsible for paying his
wages, setting his schedule, supplying equipment, and
providing relevant manuals and training. Id. at
¶ 21. Plaintiff earned $35.00 per hour, or approximately
$1, 000 per week. Id. at ¶ 29. Gallagher was
supervised by defendant Dasaro, the head carpenter at the
Barclays job site who was also a member of Local 4.
Id. at ¶¶ 22, 29.
at work together in May 2014, Dasaro showed Plaintiff a photo
of a naked man about to receive oral sex from a woman.
Id. at ¶ 31 (the “First Photo”).
The photo was edited, or “photo-shopped, ” so
that Plaintiff's face was superimposed on the naked
man's face, and the face of another male co-worker was
superimposed on the woman's face. Id. Plaintiff
told Dasaro he was offended by the picture and unhappy that
Dasaro was showing it to other co-workers. Id. at
¶ 32. Dasaro responded by saying, “What? You
don't like Andy sucking your [penis]?” Id.
at ¶ 33. In addition, Dasaro had a second photograph
which depicted Gallagher with bare female breasts
superimposed on his chest. Id. at ¶ 34 (the
the spring and summer of 2014, Dasaro showed or text messaged
the photos to Gallagher's co-workers at least six times.
Id. at ¶¶ 35, 39. Then, twice in August
2014, Dasaro displayed the First Photo to groups of
co-workers while Gallagher was present. Id. at
¶¶ 36-37. Gallagher communicated his objection to
Dasaro each time. Id. at ¶¶ 35-37. In late
August 2014, Gallagher complained about Dasaro's behavior
to Jeff Gagliardo (“Gagliardo”), an executive
board member of Local 4 who is also Dasaro's step-father,
but Dasaro's behavior continued unabated throughout the
fall of 2014. Id. at ¶¶ 38, 39.
November 24, 2014, Plaintiff again complained that Dasaro was
harassing him, this time to his crew chief Artie Grillman
(“Grillman”), another executive board member of
Local 4 who also worked at the Barclays job site as a
manager. Id. at ¶ 40. Grillman recommended that
Gallagher write a letter to the Local 4 executive board and
also complain to the human resources department at the
Barclays Center (“Barclays HR”). Id. at
¶ 41. Grillman text messaged Gallagher the phone number
of the person he should contact at Barclay's HR.
Id. at ¶ 42.
followed Grillman's recommendations. On December 16,
2014, he met with Barclays HR and made a sexual harassment
complaint against Dasaro. Id. at ¶ 43. Barclays
investigated his allegations, found them to be substantiated,
and implemented a sexual harassment training course in
response. Id. Gallagher also wrote a letter to the
Local 4 executive board “detailing the sexual
harassment he was facing.” Id. at ¶ 41.
Soon after making that complaint, Local 4
“significantly reduced” Gallagher's work
hours, and “the number of jobs he was called to work
reduced by at least one-third.” Id. at ¶
44. On January 5, 2015, Gallagher approached Grillman to
discuss the reduction in his job assignments. Id. at
¶ 45. On March 19, 2015, Plaintiff met with the Local 4
executive board “to discuss the sexual harassment he
had been facing” and the decrease in his work
assignments. Id. at ¶ 46.
thereafter, Dasaro, Gagliardo, and Sean Dasaro (Dasaro's
brother, also a Local 4 member), initiated union charges
against Gallagher. Id. at ¶ 47. They claimed
that Gallagher had violated an unwritten union policy which
forbade him from complaining to Barclays HR instead of
keeping his complaints “in-house.” Id.
Following a hearing before the Local 4 executive board on
April 24, 2015, Gallagher was found “guilty” of
the charges, fined $1, 000 and precluded for one year from
being named “head crew chief.” Id. at
¶¶ 48-49. Plaintiff estimates lost income of at
least $25, 000 as a result. Id. at ¶ 48.
filed discrimination charges with the Equal Employment
Opportunity Commission and received two Notices of Right to
Sue, dated June 10, 2016. Id. at ¶¶ 5, 6;
see also ECF 1 at pp. 14-15. He initiated this
action within 90 days thereafter, on August 25, 2016. Local 4
and Dasaro have moved pursuant to Fed.R.Civ.P. §
12(b)(6) to dismiss all of the claims asserted against them.
plaintiff's pleading must contain “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim has facial plausibility “when the
plaintiff pleads factual content that allows the Court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. at 679.
Second Circuit has warned that courts should be careful to
avoid the hasty dismissal of civil rights cases. See
e.g., Gregory v. Daly, 243 F.3d 687, 691 (2d
Cir. 2001) (citations omitted). To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff alleging employment
discrimination need not plead facts to establish a prima
facie case. Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 (2002); see also Littlejohn v. City of New
York, 795 F.3d 297, 311 (2d. Cir. 2015). Nonetheless,
“the claim must be facially plausible and must give
fair notice to the defendants of the basis for the
claim.” Barbosa v. Continuum Health Partners,
Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y. 2010) (citation
and quotation omitted).
asserts five causes of action against Local 4 for
discrimination and retaliation under Title VII and the
NYCHRL, and two causes of action against Dasaro for
discrimination and retaliation under the NYCHRL only. For the
reasons stated herein, Local 4's motion is GRANTED in
part and DENIED in part. Dasaro's motion is DENIED.
Claims Against Local 4
asserts five claims against Local 4: (1) discrimination in
violation of Title VII; (2) retaliation in violation of Title
VII; (3) discrimination in violation of NYCHRL §
8-107(1); (4) retaliation in violation of NYCHRL §
8-107(7); and (5) discrimination in violation of NYCHRL
§ 8-107(13). See generally Complt.
alleges that Local 4 discriminated against him because of his
sex by creating a hostile work environment in violation of
Title VII, 42 U.S.C. § 2000e et seq. Title VII
prohibits employers from “discriminat[ing] against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . sex.” 42 U.S.C. §
2000e-2(a)(1). A plaintiff may assert Title VII claims
against a union either in its capacity as an employer or as a
labor organization. Kern v. City of Rochester, 93
F.3d 38, 46 (2d Cir. 1996); see also Yerdon v.
Henry, 91 F.3d 370 ...