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Watkins v. First Student, Inc.

United States District Court, S.D. New York

February 28, 2018


          Dorine R. Watkins Mamaroneck, New York Plaintiff Pro Se

          Leslie M. DiBenedetto Ivan R. Novich Littler Mendelson, P.C. Melville, New York Counsel for Defendant

          OPINION & ORDER

          CATHY SEIBEL, U.S.D.J.

         Before the Court is Defendant First Student, Inc.'s Motion to Dismiss. (Doc. 24.) For the reasons stated below, Defendant's motion is GRANTED, but Plaintiff may amend.

         I. Background

         The following facts are drawn from Plaintiff's Complaint, (Doc. 1 Ex. A (“Complaint”)), her letter to the Court dated May 17, 2017, requesting leave to amend the Complaint, (Doc. 12 (“May 2017 Letter”)), her letter to the Court dated June 13, 2017, detailing her demand for each claim, (Doc. 14 (“Demand Letter”)), and her brief opposing Defendant's motion to dismiss, (Doc. 22 (“P's Mem.”)).[1]

         Plaintiff Dorine R. Watkins is a White woman who began working as a school bus driver for Defendant, a student transportation business, in or about January 2009. (Complaint ¶¶ 2, 3; May 2017 Letter ¶ 1.)[2] During the course of her employment, she drove buses and vans and worked out of New Rochelle, New York and Mount Vernon, New York. (Complaint ¶¶ 3, 15; see Demand Letter ¶ 3.) She was also a member of a union, Local 338 (the “Union”). (Complaint ¶ 6.)

         A. Allegations Regarding Defendant's Pay Practices

         Plaintiff points to a number of problems with Defendant's pay practices. First, she describes a problem with the application of pay rates to certain hours. The collective bargaining agreement (“CBA”) between Defendant and the Union provided four pay rates for operatives[3]: regular pay, trip pay, non-driver pay, and safety meeting pay. (Demand Letter ¶ 4.) The regular pay rate applied to mandatory driving tasks such as performing routes, fueling the bus, or returning the bus to the garage for repairs. (Id.) The non-driver pay was “$8.00 per h[ou]r less” and applied to tasks such as performing “lot work” or attending safety meetings.[4] (Id.)

         Plaintiff filled out exception forms indicating extra work incurred outside of the regular schedule. (Complaint ¶ 4; Demand Letter ¶ 4.) Such work could include spending time in traffic and transporting buses to and from the garage. (Complaint ¶ 4.) It is not clear which pay rate applied to work shown on an exception form. Regardless, Plaintiff noticed some sort of a discrepancy between the hours she worked and her exception forms dating back to when she began working for Defendant, but did not “make a big deal out of it.” (Id. ¶ 4.) Plaintiff also noticed that many of her exception forms were denied and that the non-driver pay rate was applied to her exception form time. (Demand Letter ¶ 4.)

         Plaintiff next takes issue with the lack of compensation for certain time during her workday. Specifically, she takes issue with not receiving compensation for the time she spent waiting for a safety meeting to begin or waiting between school runs and trips. (Id. ¶ 5.) She also criticizes the method for counting regular pay time - based on the time the operative's bus was moving according to a GPS system - because it did not include the time spent walking to the bus, inspecting the bus before a trip, or waiting for other drivers to exit the lot. (Id.) Finally, Plaintiff alleges that she never received an additional hour of compensation for days where she started at 6:00 A.M. and worked until 9:00 P.M. (Id. ¶ 6.)

         In or about September 2013, Plaintiff placed a bid to become a “tripper, ” an assignment that requires availability at all times. (Complaint ¶ 5.) Plaintiff does not allege when she became a tripper but her allegations suggest she received the assignment sometime between September 2013 and February 2014. The demand placed on trippers caused Plaintiff to work many overtime hours. (Id.) Early in the school year, Plaintiff noticed that she was not receiving the correct compensation for her overtime hours - many of the hours were “going into categories not known to [Plaintiff], [and] being paid at many different rates of pay.” (Id.) The May 2017 Letter identifies four workweeks - specifically, “12/15/13, 01/05/14, 01/12/14, -1/26/14” - in which Plaintiff worked more than 40 hours but was not paid overtime wages. (May 2017 Letter ¶ 4.) And the Demand Letter identifies another 36 workweeks - different from those alleged in the May 2017 Letter - in which Plaintiff “was not appropriately compensated for [her] overtime.” (Demand Letter ¶ 7.) Plaintiff identified those 36 workweeks based on a review of her checking account. (Id.)

         She broached the issue of overtime pay with John Polomino, the operations manager, but he would tell her that her pay was correct. (Complaint ¶ 5.) Plaintiff also complained to her union representative, Christine Ciprianno, about the discrepancies in her pay, and Ciprianno would tell Plaintiff that she would speak to Polomino. (Id. ¶ 6.) And then, days later, either Polomino or Ciprianno would tell Plaintiff that her pay was correct. (Id.) In February 2014, Plaintiff went to the New York State Department of Labor (“NYSDOL”) in White Plains, New York for help, only to find that the Department could not do anything because she was represented by a union. (Id. ¶ 7.) Plaintiff does not specify when she spoke with Polomino or Ciprianno but it is reasonable to infer that these conversations occurred between September 2013 (when she placed the bid to become a tripper) and February 2014 (when she went to the NYSDOL).

         Shortly thereafter, Plaintiff's hours were reduced drastically and her bus was denied necessary repairs. (Id. ¶ 8.) In or about February 2014, Plaintiff was asked to cover what are known as “shapper runs, ” which were usually done by experienced drivers that have basic knowledge of all of the runs. (Id.) Shapper run drivers were paid a flat salary for 35-40 hours per week. (Id.) Plaintiff was forced to perform these duties for 25-30 hours per week and was assigned only a few trips. (Id.) For unspecified safety reasons, Plaintiff returned to a “regular run of 23 hours [per week].” (Id.)

         Plaintiff says she called Defendant 200 times and Ciprianno 30 times asking to file a grievance, to no avail. (Id. ¶ 9.) In or about March 2014, Plaintiff filed some sort of charges against the Union and the Defendant. (Id. ¶ 10.)[5] Three months into the investigation of Plaintiff's charges, the field investigator asked Plaintiff to drop her charges because the government would not take her case any further. (Id. ¶ 12.) Plaintiff eventually filed complaints with the National Labor Relations Board (“NLRB”) in April 2014 and September 2014 alleging improper payment of overtime wages. (P's Mem. at 2-3.)

         B. Allegations of FMLA Violations, Discrimination, and Hostile Work Environment

         In May 2014, Plaintiff “begged and pleaded” with Defendant for leave time to be with her sons, both of whom were set to have surgery in Florida. (Complaint ¶ 13; May 2017 Letter ¶ 3.) Polomino denied the request for leave and told Plaintiff that there was no one to cover her runs. (Demand Letter ¶ 1; May 2017 Letter ¶ 3.)

         That same month, on May 20, 2014, the fuel tank of Plaintiff's bus was punctured. (Complaint ¶ 13.) She was on her way to pick up students for an extracurricular activity when she noticed the bus had no fuel. (Id.) After refueling, she picked up the students and drove them to their activity. (Id.) While she was waiting for the students to return, a bystander told her that the bus was leaking fuel. (Id.) She confirmed the leak, and called the “go-to person, ” Nathaniel Martin, to let him know, but he told her that nobody was going to bring her another bus. (Id.; see P's Mem. at 3.)[6] As a result, she drove the bus back, students and all, even though the fuel tank had a leak. (Complaint ¶ 13.) She reported the issue to Defendant later that evening but Defendant was dismissive and failed to take any action. (P's Mem. at 2.) Defendant instead claimed that the problem was an overflow of antifreeze. (Complaint ¶ 13.)

         In October 2014, Plaintiff began helping Stan Outerbridge start up the vehicles every morning. (Id. ¶ 15; May 2017 Letter ¶ 1a.) When Defendant learned that Plaintiff was helping Outerbridge, an unidentified lot worker began to lock the doors of many of the vehicles, forcing Plaintiff to access them from the back. (Complaint ¶ 15; May 2017 Letter ¶ 1a.)

         Plaintiff was also driving a van around that time, in the fall of 2014. (See May 2017 Letter ¶ 1b (discussing pre-trip inspections of Plaintiff's van).) Plaintiff alleges that the bus monitor for Plaintiff's van was “insane” and threatened Plaintiff. (Complaint ¶ 15.)[7] During the colder months - about November 2014 through February 2015 - someone would move Plaintiff's van without her knowing, thus causing her to walk all over trying to find it. (Id.; May 2017 Letter ¶ 1b.) Plaintiff alleges that Defendant had the van moved but she does not identify who moved it. (May 2017 Letter ¶ 1b.) Someone also wrote “complainer” in the dust on the back of Plaintiff's van in or around January 2015 and again in the spring of 2015. (Id. ¶ 1f; see Complaint ¶ 16.) At another unspecified time, someone urinated in the water bottle that Plaintiff stored in her van, and Plaintiff accidentally drank from the bottle. (Complaint ¶ 17.)

         Plaintiff was reprimanded ten minutes before a mandatory physical in 2014. (Id. ¶ 18.) In 2015, the safety manager sent her for a drug test thirty minutes before a mandatory physical, causing her to experience stress about possibly missing the physical. (Id.; May 2017 Letter ¶ 1g.)

         On April 23, 2015, Plaintiff picked up her son from a hospital in Florida. (Complaint ¶ 19.) He was seriously ill and Defendant was aware of his condition because the Florida hospital had sent an email or fax to Defendant's office. (Id.)

         On May 7, 2015, an unidentified employee crashed a bus into Plaintiff's car while it was located in front of Defendant's premises. (Id. ¶ 20; May 2017 Letter ¶ 1d.)[8] Plaintiff first learned of the crash the next day when Vincent Carpenter, an employee of Defendant, asked Plaintiff if she had seen the damage to her car. (Complaint ¶ 20.) Plaintiff inspected the damage and spoke to the safety manager, who refused to acknowledge that a school bus had caused the damage despite the yellow paint all over the car's bumper. (Id.) Carpenter agreed to give a witness statement but he did not provide Plaintiff with the form until a union representative arrived. (Id.) The accident report listed the driver as unknown and changed the time from 6:15 to 7:00 even though Carpenter was very clear as to the time.[9] (Id.) Plaintiff believes that someone changed the time in the report because few people drive at that time. (Id.) Plaintiff also believes that Zonar, a tracking device installed in all of the vans and buses, could have identified the driver of the bus that crashed into her car. (Id.) At an unspecified time, three unidentified men threatened Carpenter to keep his mouth shut and then, a few months later, a bus hit his car. (Id.)

         Plaintiff alleges that for years Polomino told employees to stay away from her because he thought she was “nuts, ” “a liar, ” and “trouble.” (Demand Letter ¶ 2.) Plaintiff also alleges that Polomino, on unspecified occasions, whited out, denied, or refused to pay Plaintiff based on exception forms related to trips she made to and from Mount Vernon. (Complaint ¶ 14.)

         At some point in 2015, Plaintiff filed at least one complaint with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 23; May 2017 Letter ¶ 2.) The Complaint refers to an EEOC complaint for discrimination and retaliation filed in September 2015, while the May 2017 Letter says Plaintiff reported a hostile work environment to the EEOC in July 2015. (Complaint ¶ 23; May 2017 Letter ¶ 2.) Plaintiff believes that 22 of her buses were intentionally disabled by an unidentified representative of Defendant during the period September 2015 to September 2016. (Complaint ¶ 25; May 2017 Letter ¶ 2j.) The defects with the buses ran the gamut from brakes locking up, smoke filling the bus, and brakes catching on fire to bald tires, slashed tires, and sliced windshield wipers. (Complaint ¶ 25; May 2017 Letter ¶ 2j.) Plaintiff also alleges that on September 3, 2015, Russel Robinson, a lot worker from Mount Vernon, used his car to block in Plaintiff's bus, preventing Plaintiff from going on her run. (Complaint ¶ 21; May 2017 Letter ¶ 2h.) Two weeks later, on September 17, 2015, Robinson tried to run over Plaintiff with his car. (Complaint ¶ 22; May 2017 Letter ¶ 2i.) A complaint was filed with the New Rochelle Police Department. (Complaint ¶ 22; May 2017 Letter ¶ 2i.)

         C. Grievance About Irregular Pay Goes Unanswered

         In February 2016, Plaintiff's peers elected her to represent them as shop steward for the Union. (Complaint ¶¶ 24, 26.) The Complaint alleges that the Union ignored requests to meet about pay practices, (id. ¶ 24), but Polomino and Martin did meet with the Union to discuss irregular pay practices in May 2016, (P's Mem. at 3). Plaintiff alleges that she made her grievances known to Polomino and Martin at these meetings. (Id.) Some employees filed a grievance regarding some of the pay practices but it is not clear if this grievance was sent to the Union or to Defendant. (Id.) Plaintiff alleges the grievance was ignored - five months passed and nothing was done. (Complaint ¶ 24.) Pursuant to the CBA, it takes about 40 days before a grievance goes to arbitration. (Id.)

         In or about September 2016, Plaintiff, in her role as shop steward, explained to the Union representative that the employees need representation and the Union was not providing it. (Id. ¶ 26.) Plaintiff was then relieved of her duties as shop steward. (Id.) In September 2016, Plaintiff filed unspecified charges with the National Labor Relations Board (“NLRB”) against the Union. (Id. ¶ 27.)

         D. The Experience of Other White, Female Employees

         When Plaintiff was first stationed in New Rochelle, she was aware of only one other White, female operative at that location, a woman named Renee. (Demand Letter ¶ 3.) Renee left sometime in 2013. (Id.) While Plaintiff was working out of Mount Vernon in 2015, Barbara Porier was the only White, female operative of whom Plaintiff was aware. (Id.) Porier told Plaintiff that her car was vandalized and someone slashed her tires. (Id.) According to Plaintiff, office personnel sat by and laughed at Porier while Plaintiff helped Porier change her tires. (Id.)

         When Plaintiff returned to the New Rochelle location in September 2015, there were two new White, female employees: Lisa Skiko and Maria Alleotta. (Id.) Alleotta never spoke to anyone, quit during the school year, and came back a few months later. (Id.) Skiko experienced many problems with her bus and was also missing money from her paychecks, an issue Plaintiff took up with the Union when Plaintiff became shop steward. (Id.) Skiko was never properly compensated and at the end of the school year stopped working for Defendant. (Id.)

         E. Plaintiff's Termination

         On September 27, 2016, while students were on the bus, the door to Plaintiff's bus would not close. (Complaint ¶ 28.) Plaintiff called Defendant and Maria Poleski, the Harrison Transportation Director, but nobody answered her calls. (Id.) The doors eventually closed and Plaintiff brought the students to school. (Id.) Plaintiff then called Polomino to tell him that he was playing a “very dangerous game” and to inform him that someone needed to cover her run because she was going to visit Poleski. (Id.; May 2017 Letter ¶ 2q.) Plaintiff then went to Poleksi and told her what was going on. (Complaint ¶ 28.) While Plaintiff was in Poleski's office, Polomino called Poleski and told her that Plaintiff had had a psychotic breakdown and abandoned her bus. (Id.) At the time of Polomino's call, Plaintiff's bus was sitting in front of the middle school where Poleski's office is located. (Id.) Polomino fired Plaintiff later that day. (Id.)

         F. Procedural History

         Plaintiff filed this action in state court on November 1, 2016, (Complaint at 1), and Defendant removed the case on February 28, 2017, (Doc. 1). The Complaint alleges that Plaintiff was the subject of sabotage and retaliation and that she lost income through illegal pay practices. (Complaint ¶¶ 29, 31.)

         Defendant sent a letter requesting a pre-motion conference on May 5, 2017, (Doc. 9), and Plaintiff responded by letter dated May 17, 2017, (May 2017 Letter). Plaintiff requested leave to amend the Complaint to remedy certain problems pointed out in Defendant's pre-motion conference letter. (Id. at 1.) On June 6, 2017, the Court held a pre-motion conference. (Minute Entry dated June 6, 2017.) At the pre-motion conference, the Court granted Plaintiff the opportunity to file an amended complaint by June 27, 2017 and referred Plaintiff to the Southern District of New York's pro se legal clinic. Plaintiff did not follow through on filing an amended complaint, (Doc. 16), so Defendant moved to dismiss the original complaint, (Doc. 24).

         II. Legal Standard

         “To survive a motion to dismiss, a complaint 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.” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure from the hyper technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.

         In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth, ” and then determines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679. Deciding whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of ...

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