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Gallagher v. AEG Management Brooklyn, LLC

United States District Court, E.D. New York

May 30, 2017

JAMES GALLAGHER Plaintiff,
v.
AEG MANAGEMENT BROOKLYN, LLC, THEATRICAL STAGE EMPLOYEES LOCAL 4 I.A.T.S.E., and MIKE DESARO, individually Defendants.

          MEMORANDUM AND ORDER

          I. Leo Glasser, Judge

         Plaintiff 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.”).[1] 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.

         BACKGROUND

         These facts are taken from Plaintiff's Amended Complaint (ECF 24, hereinafter “Complt.”) and are presumed true for the purposes of this motion.

         Plaintiff 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.

         The 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.

         While 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 “Second Photo”).

         Throughout 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.

         On 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.

         Gallagher 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.

         Sometime 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.

         Plaintiff 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.

         LEGAL STANDARD

         A 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.

         The 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).

         DISCUSSION

         Plaintiff 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.

         I. Claims Against Local 4

         Plaintiff 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.

         A. Discrimination Claims

         1. Title VII

         Plaintiff 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 ...


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