Opinion
20-CV-10802 (JPO) (OTW)
04-29-2022
DARWYN M. MORREN, Plaintiff, v. NEW YORK UNIVERSITY, UCATS LOCAL 3882, Defendants.
Honorable J. PAUL OETKEN, United States District Judge
REPORT AND RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Darwyn M. Morren brings this action against the defendants, New York University (“NYU”), and UCATS Local 3882 (“UCATS”). (ECF 2). Plaintiff alleges that:
(1) Defendants discriminated against Plaintiff on the basis of race and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York City Human Rights Law (“NYCHRL”), and the New York State Human Rights Law (“NYSHRL”); (2) Defendants discriminated against Plaintiff under the Americans with Disabilities Act (“ADA”), the NYCHRL, and the NYSHRL; (3) Defendants violated the Family and Medical Leave Act of 1993; (4) NYU breached a contract by terminating him; (5) UCATS breached the Collective Bargaining Agreement (“CBA”) with NYU by failing to submit grievances on his behalf; (6) UCATS breached their duty of fair representation to Plaintiff (ECF 2, ECF 25); (7) Defendants conspired to deprive Plaintiff of equal protection under 42 U.S.C. § 1985 (ECF 25); (8) Defendants violated Plaintiff's Civil Rights under Civil Rights Law § 79-n (ECF 25); and (9) negligent infliction of emotional distress against both Defendants. (ECF 25). Plaintiff seeks “compensatory damages in the sum of $100,000,000 [f]or emotional and psychological distress. [P]lus any punitive damages which is exclusive of the $100,000,000 demand.” (Am. Compl. 6).
II. PROCEDURAL HISTORY
Plaintiff filed a Charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) on August 25, 2020. (ECF 2). Plaintiff alleges that he received his Rights of Notice to Sue from the EEOC, dated September 21, 2020, on September 28, 2020. (ECF 2).
On December 18, 2020, Plaintiff filed his pro se Complaint against Defendants NYU and UCATS. (ECF 2). The Honorable John P. Cronan referred this case to me for General Pretrial Management and Dispositive Motion on April 14, 2021. (ECF 15). Plaintiff filed his First Amended Complaint on June 4, 2021, which adds additional details, but no additional claims. (ECF 25 (hereinafter “Am. Compl.”)). On June 9, 2021, the parties agreed to a briefing schedule for Defendants' motions to dismiss the Amended Complaint. (ECF 29, 33). Plaintiff requested a 31-day extension of the briefing schedule because of health concerns, which I granted on July 7, 2021. (ECF 37, 38). The day Defendants' submissions were due (August 9, 2021), Plaintiff attempted to amend his First Amended Complaint, without the Court's leave and without Defendants' consent. (ECF 40, 43). I denied this request as untimely. (ECF 43).
The case was reassigned earlier this year to Judge Oetken.
I reviewed ECF 40, Plaintiff's Proposed Second Amended Complaint, and do not find that Plaintiff's Proposed Second Amended Complaint alleges additional facts that would have been material to this Report & Recommendation.
Defendants filed their respective Motions to Dismiss on August 9, 2021, in accordance with the amended briefing schedule. (ECF 46, 48). Ten days later, Plaintiff sought another extension to file his opposition, which I granted. (ECF 55, 60). Plaintiff filed his opposition on October 7, 2021, and Defendants filed their replies on October 28, 2021. (ECF 65, 68, 70).
Plaintiff alleged on October 7, 2021 that NYU was continuing to retaliate against him by sending the “answer to [his] complaint to his old address.” (ECF 65 at 1). NYU filed an Affirmation and a “true and correct copy of the confirmation that Defendant's Motion to Dismiss papers were delivered” to Plaintiff's address listed on the docket. (ECF 71).
For purposes of deciding the Motion, the Court accepts as true all facts alleged by Plaintiff, see Krassner v. 2nd Ave Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007), and draws all inferences in the Plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003).
Plaintiff identifies as an “Afro-Caribbean male (black/[A]frican descent), of Trinidadian [n]ational [o]rigin” with ADHD. (Am. Compl. 22). He began working at NYU's Bobst Library in November 2016 as an “ADRSS” (Access Delivery Resource Sharing Services) assistant. (Am. Compl. at 22). His job responsibilities included “various administrative tasks in the library, including checking out, shelving, unshelving, and stacking books; creating and managing patrons' accounts; working in the course reserves section amongst other responsibilities.” (Am. Compl. 23 at ¶ 1). Upon starting work, Plaintiff joined UCATS, where Linda Wambaugh was his union representative. (Am. Compl. 23 at ¶ 2). NYU terminated Plaintiff's employment effective on December 13, 2019. (Am. Compl. 33 at ¶ 49).
To reduce the likelihood of confusion, all citations to the Amended Complaint reference PDF page numbers, ranging from one (1) to thirty-nine (39) (the entirety of ECF 25 in one PDF). Plaintiff did not include paragraph numbers until page 22. Accordingly, citations to the Amended Complaint on or after page 22 will also include paragraph citations.
1. Plaintiff is Assigned a Less Convenient Work Schedule.
Plaintiff reported to several individuals when he worked at NYU. (Am. Compl. at 23 ¶ 1). His immediate supervisor was Patricia Warrington. (Am. Compl. 23 at ¶ 1). Plaintiff and Warrington both reported to the circulation manager, Deborah Caesar, who was later replaced by Frances Rodriguez. (Am. Compl. 23 at ¶ 1).
In December 2016, Plaintiff met with “management” and was told that he “exceeded expectations” in performance and attendance. (Am. Compl. 23 at ¶ 3). At this meeting, Plaintiff complained that two coworkers were “affecting teamwork/morale, ” and were “ma[king] [the workplace] a hostile work environment.” (Am. Compl. 23 at ¶ 3). “Management” responded by telling Plaintiff, “don't worry about it, and just worry about yourself.” (Am. Compl. 23 at ¶ 3).
Plaintiff does not identify or define “management, ” nor does he identify subsequent work reviews at which he was informed he was performing adequately.
Plaintiff does not identify these individuals nor does he detail any incidents in connection with this complaint.
Management also asked that Plaintiff not wear his coat/jacket while working, even though he was cold, because the security guard had complained about the way “it looked” on Plaintiff. (Am. Compl. 23 at ¶ 3).
Around December 2016 or January 2017, Gary Speizale, Plaintiff's coworker, complained about the shift schedule. (Am. Compl. 23 at ¶ 4). Plaintiff alleges that, as a result, Plaintiff's schedule was changed so that he no longer had consecutive days off, while his coworkers, including Speziale, did. (Am. Compl. 23 at ¶ 4). Plaintiff complained to Warrington, Caesar, and Rodriguez that the new schedule was unfair, but “they” told Plaintiff that the schedule was based on seniority, and Plaintiff had the “least amount of seniority” among his coworkers because he was “the most recent hire.” (Am. Compl. 23 at ¶ 4). Plaintiff complained to Wambaugh about the schedule, explaining that he was not the most recent hire, but she also said that Speizale was senior to Plaintiff. (Am. Compl. 23-24 at ¶ 4). The Union did not file a grievance on Plaintiff's behalf. (Am. Compl. 24 at ¶ 4).
Plaintiff does not allege whether Speizale was in fact senior to him, nor does he allege why his supervisors and union representative thought Speizale was senior to Plaintiff. Plaintiff also does not allege facts about other similarly situated coworkers and their work schedules.
Article 34 of the CBA governs the Grievance and Arbitration Procedure with UCATS. (ECF 49-1, CBA at 27).
2. Plaintiff is Reprimanded for Taking a Previously-Scheduled Trip to a “Religious Festival.”
Plaintiff told his employer “[b]efore [he] [s]tarted employment” in November 2016 that he had plans to attend an annual “Cultural and Religious Festival/carnival [sic]” in Trinidad. (Am. Compl. 24 at ¶ 6). Before he began working, Plaintiff alleges that he was told that he could attend this event, and that he would be paid during his absence. (Am. Compl. 24 at ¶ 6). Then, in February 2017, days before attending the “Cultural and Religious Festival/carnival in Trinidad, ” “they” told Plaintiff that he would not be paid for the time off he was taking. (Am. Compl. 24 at ¶ 6). Plaintiff went to the festival, but “was accused of misusing sick time” and upon his return, was told that he would be terminated. (Am. Compl. 24 at ¶ 8). “[Plaintiff] explained that [he] was only doing what Rodriguez told [him] to do, and that in any event, [he] had a doctor's note.” (Am. Compl. 24 at ¶ 8). Ultimately, Plaintiff was not “disciplined.” (Am. Compl. 24 at ¶ 8).
Plaintiff alleges extremely similar facts occurred in 2018. (Am. Compl. 10). It is unclear whether these facts are for the same event in 2017 and Plaintiff misstates the date, or whether this is a different event entirely. Plaintiff alleges that in 2018, he asked Rodriguez for unpaid time off to attend a “religious holiday, ” and his request was denied. (Am. Compl. 10). Plaintiff “brought up the fact that Gary Speizale gets his religious requests approved” but Plaintiff was told “to worry about [himself].” (Am. Compl. 10). Plaintiff alleges that Rodriguez told Plaintiff to “call out sick for those days, ” and told Plaintiff that he would not need a doctor's note. (Am. Compl. 10). Plaintiff followed Rodriguez's suggestion and upon returning, Caesar told Plaintiff that he had abused sick days and NYU “will have to let [him] go if [he doesn't] have a doctor's note.” (Am. Compl. 10). Plaintiff alleges that he reported he was sick, produced a doctor's note, and therefore was not terminated. (Am. Compl. 10). Plaintiff does not allege any additional facts about what Rodriguez advised him to do regarding his sick time and the festival, what doctor he saw, or what sickness, if any, he experienced.
Plaintiff does not identify “they, ” or whether “they” were supervisors.
Plaintiff also alleges that in July 2019, he requested time off for his vacation to Trinidad in February 2020, which Rodriguez denied. (Am. Compl. 15). Plaintiff alleges that Caesar had approved Plaintiff's request the past three years (which is inconsistent with his earlier allegations). (Am. Compl. 15). Plaintiff halved the vacation days he initially requested and later cancelled his flight because with fewer days, the cost was higher. (Am. Compl. 15).
3. Plaintiff's Probation is Extended.
In February 2017, Plaintiff complained to NYU and UCATS “that [his] probation period had been extended.” (Am. Compl. 24 at ¶ 7). Caeser and Rodriguez told Plaintiff that the extension was because of his “performance issues.” (Am. Compl. 24 at ¶ 7). Plaintiff was unaware of any performance issues because he had allegedly been told “numerous of times [sic] that [he] performed [his] job duties beyond expectations and [his] attendance was perfect, unlike others on probation and . . . their probation wasn't extended.” (Am. Compl. 24 at ¶ 7). Plaintiff also complained about his “coworkers not getting along with one another” at this time. (Am. Compl. 24 at ¶ 7). In response, Rodriguez told Plaintiff, “You don't fit the culture here, You have to fit the culture, you got another chance, you better not mess it up this time around.” (Am. Compl. 24 at ¶ 7). Plaintiff alleges that at the time, Warrington added, “Why don't you just go back to Trinidad to live since you['re] always complaining about what we do here?” (Am. Compl. 15). When Plaintiff told Wambaugh about this interaction, she told him that “the Employer would have fired [him], ” and only had not because Plaintiff “had ADHD, [and] they did not want any complaints.” (Am. Compl. 24 at ¶ 7). Plaintiff ultimately completed his probationary period in April 2017. (Am. Compl. 24 at ¶ 7).
Plaintiff does not provide any facts about when or to whom he disclosed his ADHD disability. He also does not plead the original length of his probationary period.
4. Plaintiff Grows Increasingly Suspicious of His Coworkers and Others.
Plaintiff alleges that one to two months into his employment (in December 2016 or January 2017), Plaintiff “complained numerous times about coworkers making false statements and claims in order to get [him] fired and sabotage [his probation].” (Am. Compl. 24 at ¶ 5).
Between 2017 and 2018, Plaintiff “repeatedly complained to Caesar that Rodriguez” was trying to get him “disciplined or fired.” (Am. Compl. 24 at ¶ 8). Caesar's response was that Plaintiff should “not worry about it.” (Am. Compl. 24 at ¶ 8). Plaintiff does not state who else, if anyone, tried to get him fired or what statements Rodriguez or others made.
On three occasions between late 2018 and April 1, 2019, Plaintiff complained to Rodriguez and Caesar that “some full-time coworkers seemed to be manipulating students and student-workers to do illegal things, who worked in the library, to look at [him] and treat [him] in a different or suspicious way.” (Am. Compl. 25 at ¶¶ 10-12). Plaintiff also complained about Chris Crowe, a Union Representative (who also allegedly lived with Speizale), engaging in this behavior. (Am. Compl. 25 at ¶ 11). Plaintiff further complained that on multiple occasions he was being “stalked” by coworkers and students, and mistreated by students, staff, and professors. (Am. Compl. 25 at ¶ 13). This included allegations that: (1) “students came into the library and pointed and laughed at [Plaintiff]”; (2) students “were recording [Plaintiff]”; and (3) a student bumped into him and another student recorded the incident, “almost as if to catch [Plaintiff] doing something to the student who bumped [him].” (Am. Compl. 25 at ¶ 13). Plaintiff verbally reiterated these complaints to Rodriguez and Caesar for the next two months. (Am. Compl. 25 at ¶ 14). Rodriguez and Caesar did not escalate the complaints; rather, Caesar called Plaintiff “paranoid.” (Am. Compl. 25 at ¶ 14). Plaintiff also complained to Wambaugh, who told Plaintiff that there was “no grievance[s] that could be filed about [his] coworkers, students, and professors doing this to [him].” (Am. Compl. 25 at ¶ 14).
At some unspecified time, Plaintiff alleges that he complained to Wambaugh about his coworkers stalking him, sabotaging his work, and making derogatory comments to him. In response, Wambaugh allegedly said, “they just don't like you” and “they don't have to be nice to you.” (Am. Compl. 9). Wambaugh did not file a grievance about Plaintiff's complaint. (Am. Compl. 9).
Plaintiff filed formal written complaints about the above actions in June and July 2019 to Rodriguez and Caesar, which complaints were then forwarded to Human Resources (“HR”). (Am. Compl. 25-26 at ¶ 15). Plaintiff did not feel comfortable discussing the matter with HR, however, because he “believed[d] that management was involved in the mistreatment.” (Am. Compl. 26 at ¶ 15). Around this time, Plaintiff also complained to Wambaugh that: (1) a new student coworker was stalking Plaintiff; and (2) Caesar was dating a coworker who was harassing Plaintiff. (Am. Compl. 26 at ¶¶ 16, 17). Wambaugh said that the Union could not file a grievance about the stalking, and that the Union and NYU knew about Caesar's relationship, but “there was nothing that could be done.” (Am. Compl. 26 at ¶¶ 16, 17). A few weeks later, Rodriguez took over Caesar's role as circulation manager and Caesar began working in HR. (Am. Compl. 26 at ¶ 18).
Plaintiff does not identify any of these individuals.
“At around the same time, ” Plaintiff alleges “that [his] electronic devices and personal, NYU email accounts and other accounts had been hacked by the Employer.” (Am. Compl. 26 at ¶ 19). Plaintiff believes he was hacked because on one occasion Plaintiff could not log into his NYU email, and on another occasion, he “learned that an NYU VPN had been created with [his] work ID and password” when he was not at work. (Am. Compl. 26 at ¶ 19).
Plaintiff alleges that he “heard people in the library discussing videos [he] had watched, or things on [his] social media [ac]counts and email accounts and electronic devices, that no one but [Plaintiff] should have knowledge of.” (Am. Compl. 26 at ¶ 19). He also alleges that “Amazon web IP addresses [were] popping up on [his] phone and laptop that weren't there before.” (Am. Compl. 26 at ¶ 19).
After moving apartments in July 2019, Plaintiff alleges that NYU was sending people to stalk his whereabouts. (Am. Compl. 26-27 at ¶ 20). In response to Plaintiff's complaints about this behavior, Warrington told Plaintiff “that [he] was paranoid, ” and Wambaugh “asked [Plaintiff] what this had to do with the Union.” (Am. Compl. 27 at ¶ 20). Wambaugh did not file a grievance. (Am. Compl. 27 at ¶ 20). Plaintiff alleges, however, that after he complained about the stalking, “the Employer changed [his] address in its system back to [his] old address in the Bronx” even though he “never gave them [his] Queens address, but [he] ha[s] mailings from the Union [a]nd NYU with [his] Queens [a]ddress.” (Am. Compl. 27 at ¶ 21).
Plaintiff said that “[he] noticed people on the train looking at [him], standing next to [him], raising their phones at [him] as if they were recording [him], stomping in front of [him], and engaging in other activity that [he] viewed as an effort to agitate [him]. [He] suspected that the Employer was involved in this because it was the same behavior [he] was experiencing at the library [a]nd only started after [his] initial complaints.” (Am. Compl. 27 at ¶ 20).
At some unspecified time, Plaintiff told Rodriguez that he was having sleeping issues. (Am. Compl. 28 at ¶ 26). Plaintiff then alleges that in July or August 2019, Rodriguez recommended that Plaintiff receive treatment from his psychiatrist regarding his sleeping issues. (Am. Compl. 38 at ¶ 72).
Plaintiff alleges “[t]he meds the psychiatrist prescribed [Plaintiff], shouldn't have been prescribed, as [he] wasn't diagnosed with any of the ailments [that mandated] the medication.” (Am. Compl. 38 at ¶ 72). Plaintiff further alleges that the psychiatrist had omitted all of his “confessions of the stalking from NYU” and other misconduct by Defendants but Plaintiff does not say why the psychiatrist did this. (Am. Compl. 38 at ¶ 72).
5. Plaintiff Arrives at Work Late and Takes Time Off.
On September 30, 2019, Rodriguez told Plaintiff that he noticed Plaintiff had been “late a couple times” and warned Plaintiff that if it continued he would be “disciplined.” (Am. Compl. 27 at ¶ 23). Plaintiff responded that he “always got to the desk on time, as per [his] schedule, to deal with library patrons, ” but Rodriguez said that “didn't matter.” (Am. Compl. 27 at ¶ 23). Plaintiff told Rodriguez “that other employees had more late arrivals than [he] did, [and] were not disciplined, ” but Rodriguez “told [Plaintiff] not to worry about other workers.” (Am. Compl. 27 at ¶ 23). Plaintiff expressed to Rodriguez that he was “going through a lot, ” including that he was being stalked to and from work, his devices were being hacked, and he was “traumatized by the harassment at work.” (Am. Compl. 27 at ¶ 23). Rodriguez suggested that Plaintiff apply for FMLA leave. (Am. Compl. 27 at ¶ 23). Plaintiff alleges that he applied for FMLA leave in early October 2019. (Am. Compl. 28 at ¶ 25).
Plaintiff does not identify or describe specific acts that he believes constitute harassment other than the stalking and hacking events, and specific arguments and altercations, described in this section and Section III.11.
At this meeting, Rodriguez asked Plaintiff to sign “the verbal warning, ” but Plaintiff said he wanted to speak with a Union representative first. (Am. Compl. 27 at ¶ 23). Rodriguez then “shredded the verbal warning she asked [Plaintiff] to sign.” (Am. Compl. 27 at ¶ 23).
At another unspecified time, Plaintiff received “troubling texts” from a number he believes was “pretending to be someone else in [his] contacts.” (Am. Compl. 28 at ¶ 26). The texts made “derogatory statement[s], “question[ed]” whether Plaintiff was actually sick, and “stat[ed] that [his] meds are the reason [he] can't get any sleep.” (Am. Compl. 28 at ¶ 26).
The text messages stated “[N S] are not even human no more” and accused Plaintiff of being “involved in ‘a whole lot of gang shit.'” (Am. Compl. 28 at ¶ 26).
Plaintiff intimates that Rodriguez is the unidentified sender because he told Rodriguez he was not getting any sleep “because of the ongoing harassment from NYU.” (Am. Compl. 28 at ¶ 26).
In early October 2019, Plaintiff took some sick days. (Am. Compl. 28 at ¶ 27). On October 12, 2019, Plaintiff's coworker, Freddie Olivia, approached Plaintiff, “put [him] in a chokehold from behind, ” and asked him where he had been the past few days. (Am. Compl. 28 at ¶ 27). Plaintiff told Olivia that he was “concerned” that he was being harassed at work, and also complained that his “work in the Course Reserve Department . . . was not being used effectively” because no one would “ever take the books outor [sic] barely.” (Am. Compl. 28 at ¶ 27). Plaintiff does not describe what his “work in the Course Reserve Department” entails.
Plaintiff thinks NYU “was using Olivia to spy on [him] to see why [he] wasn't at work.” (Am. Compl. 28 at ¶ 27).
In the days following this interaction, Plaintiff alleges that “faculty members came up to [him] on several occasions and nervously told [him] why they weren't using their Course Reserve items.” (Am. Compl. 28 at ¶ 28). Plaintiff also alleges that items were showing up “on [his] account when [he] wasn't doing Course Reserve work.” (Am. Compl. 28 at ¶ 28).
Plaintiff further “suspect[ed] that this was all part of the Employer's campaign to retaliate against [him].” (Am. Compl. 28 at ¶ 28). Plaintiff does not explain the nature of his “Course Reserve” work, the relevance or significance of his conversations with these faculty members, or how these alleged facts constitute retaliation.
6. Plaintiff is Suspended for Fighting at Work.
On November 1, 2019, Plaintiff alleges that Olivia was “staring over [his] shoulder and following [his] movements.” (Am. Compl. 28-29 at ¶ 29). Plaintiff confronted Olivia about this behavior and Olivia responded by “aggressively trying to [i]ncite a fight [with Plaintiff] and [saying], ‘So [w]hat's up?!'” (Am. Compl. 29 at ¶ 29). Plaintiff began to walk away when another coworker, Robert Jameson, ran toward Plaintiff and “grabbed and/or pushed [Plaintiff].” (Am. Compl. at 29 ¶ 29). Plaintiff claims to have self-recorded audio of this interaction. (Am. Compl. 29 at ¶ 31).
That same day, Plaintiff was working alongside Adjoa Walker, a student-worker. (Am. Compl. 29 at ¶ 30). Plaintiff repeatedly asked Walker to help him check out customers until Walker began crying. (Am. Compl. 29 at ¶ 30). Plaintiff asked whether Walker was okay, and “suspect[ed] that she was crying because she was torn between harassing and agitating [him], at the request of the Employer, and doing her job.” (Am. Compl. 29 at ¶ 30). Later that day, Plaintiff was called to HR where he met with Katie O'Brien, the Assistant Director of HR, and Enrique Yanez, the Director of HR. (Am. Compl. 29 at ¶ 31). The exact order of the following events is unclear:
Plaintiff does not “recall if they told [him] that it was because of the incident with Freddy [O]livia, but in the event they didn't, [he] understood that was what the meeting was about, because it was the only incident that happened that day.” (Am. Compl. 29 at ¶ 31).
• O'Brien and Yanez left the room during the meeting because a security guard asked to speak with Plaintiff alone. (Am. Compl. 29 at ¶ 31).
• Plaintiff told the security guard that “[he] had a legal right to union representation if they were going to discipline [him], and that [he] didn't want to start the meeting” without representation. (Am. Compl. 29 at ¶ 31).
• When Plaintiff requested his Union Representative join the meeting, the meeting “was called to an end.” (Am. Compl. 29 at ¶ 31).
• The security guard escorted Plaintiff out of the room. (Am. Compl. 29 at ¶ 31). No grievance was filed by Wambaugh following this incident. (Am. Compl. 29 at ¶ 32).
Plaintiff alleges that Wambaugh “should have known to file a grievance” for “racial discrimination, ” for him, since she “had the audio evidence” of the fight with Jameson. (Am. Compl. at 29 ¶ 32).
Plaintiff then alleges a series of HR meetings involving Yanez, O'Brien, Rodriguez and possibly others, but does not coherently state the topic of each meeting or the events at each meeting. (Am. Compl. 30). On November 6, 2019, a meeting was scheduled between Plaintiff, Yanez, O'Brien, and a shop steward to discuss the November 1, 2019 incident with Jameson. (Am. Compl. 29-30 at ¶ 33). Plaintiff sent an audio file of the incident to those present. (Am. Compl. 30 at ¶ 33).
From November 6 to November 19, Plaintiff does not state whether he was working, suspended, or on unpaid leave. On November 14, 2019, Yanez and O'Brien asked to meet with Plaintiff because they “had new information on the case.” (Am. Compl. 30 at ¶ 34). Plaintiff responded that he was not comfortable coming to the building because of the “[r]egular harassment [he] had been suffering from NYU”, and that he “was under the weather[].” (Am. Compl. 30 at ¶ 34). On November 18, 2019, Plaintiff was called into a scheduled meeting via conference call with Wambaugh and O'Brien to discuss a complaint Rodriguez made about Plaintiff “ma[king]” Walker cry. (Am. Compl. 30 at ¶ 35). At the meeting, Plaintiff explained to O'Brien “that [he] just asked the student to help with the long line which is her job.” (Am. Compl. 30 at ¶ 35). O'Brien reminded Plaintiff of the policy regarding how many patrons must be present for him to ask for help (which Plaintiff argued was incorrect). (Am. Comp. 30 at ¶ 35). Plaintiff additionally notes that “O'Brien stated that [Rodriguez] said she thinks [Plaintiff] felt guilty about what [he] did to the student, and labeled [his] concerns about the student as ‘small talk.'” (Am. Compl. 30 at ¶ 35). At some point, O'Brien sent Plaintiff an email allowing him to return to work the next day. (Am. Compl. 30 at ¶ 36). In this email, Plaintiff was given a “final” warning. (Am. Compl. 30 at ¶ 36). Plaintiff claims that aside from the warning about his attendance, “this is the only warning [he] had ever received.” (Am. Compl. 30 at ¶ 36).
Plaintiff does not explain what the “final warning” threatened. Plaintiff states that he told O'Brian that “[he] didn't understand how [he] was getting a final warning and suspension, when [he] had audio of the incident which proves that [he] didn't threaten or touch anyone.” (Am. Compl. 30 at ¶¶ 36-38).
On November 19, 2019, Plaintiff returned to work. (Am. Compl. 30 at ¶ 37). Plaintiff “immediately” attended a meeting with O'Brien, Yanez, and Wambaugh at which O'Brien told Plaintiff that he was suspended for three days because [Plaintiff] exhibited threatening and violent behavior.” (Am. Compl. 30 at ¶ 36). Plaintiff does not clearly allege whether his suspension was because of the fight with Jameson or his interaction with Walker. (Am. Compl. 30 at ¶ 36). Wambaugh also informed O'Brien “that the Union was filing a grievance over [his] suspension.” (Am. Compl. 30 at ¶ 38). The grievance concerned the November 19, 2019 suspension and the final written warning. HR notified Plaintiff on December 9, 2019 that “the November 19 grievance had been closed, and that the Employer was denying the grievance.” (Am. Compl. 31 at ¶ 41). (ECF 49-2, Exhibit 2 (November 21, 2019 Step 2 Grievance) at 59).
It is unclear whether this was a new suspension, or a continuation of another suspension.
7. Plaintiff Suspects Additional Foul Play from Coworkers.
On November 30, 2019, Plaintiff recognized an application (“app”) on his phone that was also on his NYU work computer, although he claims that he never installed the app. (Am. Compl. 31 at ¶ 39).
Plaintiff additionally notes that on December 9, 2019, his “phone(s) had been installed as a modems [sic], ” (Am. Compl. 31 at ¶ 41), but Plaintiff does not explain what this means.
On December 10, 2019, Plaintiff asked Warrington if he could leave early that day “because [he] wasn't feeling good as [he was] being harassed by [his] coworkers, who were stalking [him].” (Am. Compl. 31 at ¶ 43). Warrington said no. (Am. Compl. 31 at ¶ 43). Rodriguez then asked Plaintiff to attend a meeting with HR. (Am. Compl. 31 at ¶ 43). Plaintiff said he needed Wambaugh to represent him, and the meeting was rescheduled for the next day. (Am. Compl. 31 at ¶ 44). Plaintiff asked to reschedule to either a different time the next day, or to December 16. (Am. Compl. 31-32 at ¶ 44). Neither O'Brien, Yanez, nor Rodriguez responded to this request. (Am. Compl. 32 at ¶ 44).
8. Plaintiff's Employment is Suspended at Least a Second Time, and then Terminated.
Plaintiff does not clearly allege the order of the following events:
• On December 11, 2019, Plaintiff “saw some of the same suspicious Amazon IP addresses.” (Am. Compl. 32 at ¶ 47). Plaintiff alleges, however, that one of the “IP addresses” was “traceable to the Massachusetts Institute of Technology, which is an NYU partner [and that] (this IP hacked [Plaintiff's] personal email again on 5/21/20).” (Am. Compl. 32 at ¶ 47).
• At some point between December 10 and 12, 2019, Plaintiff was emailing “multiple parties” about “the harassment and retaliation that was ongoing” when Rodriguez approached Plaintiff and told him he could leave and would be paid for the rest of the time that he was scheduled to work. (Am. Compl. 32 at
¶ 45). Plaintiff again asked Rodriguez the time of the December 11 meeting.(Am. Compl. 32 at ¶ 45). Rodriguez walked away and “about two minutes later [Plaintiff] heard her speaking by the entrance of the circulation Dept and use the words ‘black man being aggressive.'” (Am. Compl. 32 at ¶ 45). Fifteen minutes later, two security guards and two NYPD officers arrived at the scene and stated that there was a complaint about Plaintiff “being aggressive, and trespassing.” (Am. Compl. 32 at ¶ 45). Plaintiff responded that he worked there and that he was being harassed. (Am. Compl. 32 at ¶ 45). O'Brien cancelled the tentatively set December 11, 2019 HR meeting. (Am. Compl. 32 at ¶ 47).
• Plaintiff states that he was suspended because “the Employer knew, through its control of [his] devices, [he] discovered the Amazon web IP addresses logged into [his] personal and NYU email accounts.” (Am. Compl. 32 at ¶ 47).
• Plaintiff asked Wambaugh “how [he] could be suspended without a meeting.” (Am. Compl. 32 at ¶ 47).
Plaintiff does not explain, and the Court cannot discern, the significance of the “suspicious Amazon IP addresses.”
Plaintiff does not allege the purpose of the December 11 meeting with the Union and Human Resources. This meeting was previously scheduled for December 10, 2021, where Plaintiff requested Human Resources be present, and Human Resources rescheduled it. (Am. Compl. 31 at ¶ 43).
On December 14, 2019, Plaintiff saw an email regarding his termination effective on
December 13, 2019. (Am. Compl. 33 at ¶ 49). The email stated that “[Plaintiff] denied [a] meeting with management and HR . . . and that [he] was aggressive and insubordinate . . . which required the Employer to call the police to escort [him] out of the building.” (Am. Compl. 33 at ¶ 49). Plaintiff alleges that “[his] suspension was converted to a termination because the Employer, having hacked [his] phone, knew that [he] had gone to the doctor to start FMLA leave, which would have given [him] job protection, and also went [to] a lawyer on December 12.” (Am. Compl. 33 at ¶ 49).
9. Plaintiff Engaged in a Post-Termination Grievance Process.
On December 19, 2019, Plaintiff asked Wambaugh “how [he] could be terminated without even having the suspension meeting.” (Am. Compl. 33 at ¶ 51). Wambaugh told Plaintiff that she would file a grievance about Plaintiff's suspension and termination. (Am. Compl. 33 at ¶ 52). Plaintiff also asked Wambaugh to “file a grievance alleging ADHD discrimination, ” which Wambaugh said she would do. (Am. Compl. at 33 ¶ 51); (ECF 49-2, Exhibit 3 (January 16, 2020 Step 1 Grievance)). Plaintiff alleges that he “turned down” severance and unemployment benefits. (Am. Compl. 33 at ¶ 51).
Plaintiff also asked Wambaugh about “the final warning grievance, and the Employer's failure to respond to the information request in time.” (Am. Compl. 33 at ¶ 51). Plaintiff does not clarify what information he sought and whether any information was conveyed by Wambaugh.
On December 20, 2019, Plaintiff reached out to Wambaugh about the status of his suspension and termination grievances. (Am. Compl. 33 at ¶ 52). Plaintiff requested a grievance be filed about the grievance process along with an ADHD discrimination grievance. (Am. Compl. 34 at ¶¶ 51, 53, 57) On the same day, Peter Lanzo, a New York State United Teachers representative, was assigned to Plaintiff's case. (Am. Compl. 34 at ¶ 54). Plaintiff asked Lanzo to give him access to his NYU email records, which Plaintiff was initially denied because he was “rightfully terminated.” (Am. Compl. 34 at ¶ 53); (Am. Compl. 36 at ¶ 62). Lanzo responded that he would speak with NYU regarding the email account access. (Am. Compl. 36 at ¶ 62).
Plaintiff alleges that Wambaugh told Plaintiff that she was not going to file the ADHD discrimination grievance and that she had not known that Plaintiff had ADHD. (Am. Compl. 33-34 at ¶ 52).
Plaintiff wanted his NYU emails because he sought proof that Defendants were being dishonest about the grievances they filed. (Am. Compl. 13). Plaintiff suggests that Defendants withheld his emails so that he “wouldn't have proof during arbitration.” (Am. Compl. 13).
On January 6, 2020, Plaintiff informed Lanzo that the grievances UCATS filed were missing important information; on January 22, 2020, Plaintiff asked that they be corrected. (Am. Compl. 34 at ¶ 56); (Am. Compl. 35 at ¶ 58). The grievances were amended to reflect this missing information on January 23, 2020. (Am. Compl. 35 at ¶ 58).
Plaintiff also had intended to file a grievance about the grievance process, which Lanzo allowed, but Wambaugh said was not done. (Am. Compl. 33 at ¶ 51); (Am. Compl. 34 at ¶ 57).
The amended document shows the provision violated changed from “Article 5 - No Discrimination and all other Articles that apply” to “Article 37 - Health and Safety.” The nature of grievance was further amended from “Mr. Morren was discriminated against based on having a disability” to “The university failed in its obligation and policy's [sic] to maintain a healthy and safe working conditions [sic].” (ECF 49-2, Exhibit 3 (January 16, 2020 Step 1 Grievance) (Amended 1/22/2020 Step 1 Grievance)).
In May 2020, Plaintiff spoke with Lanzo and Marc Laffer, Lanzo's supervisor, who assured Plaintiff that the grievances were filed on time. (Am. Compl. 36 at ¶ 64). Lanzo and Laffer suggested that Plaintiff start the grievance process without the emails. (Am. Compl. 36 at ¶ 64). Plaintiff does not plead any facts about the grievance process, its timing, or any other details. Plaintiff alleges that he had wanted to set up a meeting with “management, ” which Lanzo suggested was not a good idea. (Am. Compl. 36 at ¶ 64).
A few days later, Plaintiff received an email from O'Brien asking Plaintiff to confirm a grievance meeting that Lanzo had attempted to schedule. (Am. Compl. 36-37 at ¶ 65). Plaintiff declined the meeting because he did not want to move forward with the meeting without his emails. (Am. Compl. 37 at ¶ 65).
Around the end of May or beginning of June 2020, Plaintiff alleges that he emailed Lanzo alerting him that the grievances were filed late. (Am. Compl. 37 at ¶ 66). Plaintiff alleges that Lanzo said, “let's see if the employer notices.” (Am. Compl. 37 at ¶ 66). Lanzo “took responsibility for the grievances being filed late.” (Am. Compl. 37 at ¶ 66).
Plaintiff alleges that his suspension and termination grievances are still open and that the grievances he asked Wambaugh to file were never filed. (Am. Compl. 37 at ¶ 67).
10. Plaintiff's Other Factual Allegations
On or about September 30, 2019, Rodriguez suggested that Plaintiff take FMLA leave. (Am. Compl. 27 at ¶ 23). Plaintiff asked Rodriguez for instructions, and Rodriguez told Plaintiff that he needed “to get certification” from his medical provider. (Am. Compl. 27 at ¶ 23). Wambaugh told Plaintiff the same thing. (Am. Compl. 27 at ¶ 24). Plaintiff also alleges that both Rodriguez and Wambaugh incorrectly gave him FMLA instructions that applied to non-union employees. (Am. Compl. 28 at 17). Plaintiff alleges that he applied for FMLA leave through “Lincoln Financial” in early October, but did not hear anything back for several months. (Am. Compl. 29 at ¶ 25).
On December 12, 2019, Plaintiff was “in the process” of pursuing FMLA leave and visited a health care provider. (Am. Compl. 32-33 at ¶ 48). Plaintiff mentions that he has a diagnosis of ADHD, but that the doctor also “wanted to include a diagnosis of insomnia and major depression, ” which Plaintiff avers he had “never been tested for or diagnosed with.” (Am. Compl. 32-33 at ¶ 48). Plaintiff's medical provider said that he would send Plaintiff's diagnosis to the insurance company so that Plaintiff could pursue FMLA leave. (Am. Compl. 32-33 at ¶ 48). On or about December 24, 2019, Plaintiff called Lincoln Financial to see if they received his FMLA leave request, which they said they did not. (Am. Compl. 34 at ¶ 54).
On December 26, 2019, however, Lincoln Financial notified Plaintiff that his claim had been denied “because [he] was no longer employed.” (Am. Compl. 34 at ¶ 54). Then in February 2020, Plaintiff “learned that Lincoln Financial . . . without [his] permission, opened up another claim for [him], and approved a leave claim, which [he] wasn't qualified for or asked for ([i]nsurance fraud).” (Am. Compl. 35 at ¶ 61). Through his own research, Plaintiff “learned the FMLA instructions given to [him] by [NYU] and [UCATS] was [sic] in fact incorrect information, which was later confirmed by Lanzo.” (Am. Compl. 36 at ¶ 61). Plaintiff confronted Lincoln Financial and NYU. Plaintiff alleges Lincoln Financial apologized; NYU never responded. (Am. Compl. 36 at ¶ 61).
Plaintiff further alleges:
“[T]hey said I requested FMLA while I was employed, they said that was false. Lincoln Financial also informed me that their point of contact at the Employer was Enrique Yanez. NYU, between the 24th and the 26th, how did they get in contact with Enrique Yanez, At home on his personal time? [A]nd, I note that Yanez is not the person who handles leave claims at NYU. As such, I believe that my claim was denied because the Employer is retaliating against me.” (Am. Compl. 34 at ¶ 54).
Plaintiff then alleges:
“I believe that the approval of the short-term claim was part of the Employer's retaliation against me. I also believe that the Employer was engaged in a conspiracy with my doctor to retaliate against me, which led to medical malpractice, doctoring of my medical records, and prescribing me with medication for ailments I was not diagnosed with, which causes suicide and other life threatening diseases. Maliciously [i]nciting a suicide attempt is attempted murder.” (Am. Compl. 36 at ¶ 61).
11. Plaintiff's Other Allegations of Stalking, Harassment, and Spying.
Plaintiff alleges that from April 2019 to February 4, 2020, several unidentified individuals had acted on Defendants' behalf to stalk and harass Plaintiff, but does not tie these allegations to any Defendants:
• On February 4, 2020, Plaintiff went to T-Mobile, where the representative helping him engaged in “unusual conversation” and had spent an hour setting up Plaintiff's phone when it should have only taken 10 minutes. (Am. Compl. 35 at ¶ 59).
o During this interaction, a man with sunglasses standing across the street kept looking at Plaintiff, and got into his car when Plaintiff walked past him. (Am. Compl. 35 at ¶ 59).
• On February 5, 2020, Plaintiff's phone had “the same amazon.com [IP] addresses that were being used by [NYU] in [his] phone[.]” (Am. Compl. 35 at ¶ 59).
• On February 9, 2020, Plaintiff was at a store across from a different T-Mobile store where someone “follow[ed] . . . and harass[ed]” him in the store, which other patrons allegedly noticed. (Am. Compl. 35 at ¶ 60).
• Plaintiff's landlord, Tevia Clarke, who is an NYU alumna, has “harass[ed] . . . and agitat[ed]” Plaintiff from July 2019 to April 2020, by “hacking [Plaintiff's] electronic devices and taking and/or tampering with . . . packages sent to [his] house . . . calling [him] ‘weird' or stating [he is] crazy . . . [and] constantly trying to start arguments in the apartment to get a violent reaction out of [him].” (Am. Compl. 37 at ¶ 68).
o Plaintiff alleges that one time he had not been receiving messages from Clarke and when he made her aware of this, “she pressed something on her phone and all of the text messages from her and other people, voicemails came thr[ough] at the exact same time.” (Am. Compl. 37 at ¶ 68).
o On April 27, 2020, Plaintiff alleges “[he] saw Tevia Clarke Verizon IP address in [his] personal VPN account . . . which is linked to [his] personal email address and is password protected.” (Am. Compl. 37 at ¶ 68).
o Plaintiff alleges that Clarke is being bribed by Defendants to retaliate against him. (Am. Compl. 37 at ¶ 68). To support this allegation, Plaintiff notes that “[he] received mailings from the Union in May 2019 or June 2019, which had the Queens address on it, even though [he] did not move or change [his] address until mid July 2019.” (Am. Compl. 37 at ¶ 68). Further, Plaintiff alleges Clarke gave Plaintiff's address to NYU UCATS. (Am. Compl. 37 at ¶ 68).
• Plaintiff alleges that “NYU has been contacting lawyers to either not take or diminish [his] case at[ ]least since December 2019 . . . since filing [his] case on 12/18/20.” (Am. Compl. 38 at ¶ 74).
• On January 31, 2021, Plaintiff discovered text messages from Cindy Morren (his sister and an NYU student) and his mother, in which Cindy was texting from Plaintiff's phone number through iMessage and “pretending to be [Plaintiff] and pretending to have a good relationship with [his] mother.” (Am. Compl. at 38). Plaintiff alleges that his sister got his Apple ID through his ex-girlfriend, who also worked at NYU. (Am. Compl. 38 at ¶ 74).
• Plaintiff alleges that on June 3, 2021, his mother “called mental help officials.” (Am. Compl. 39 at ¶ 74). Plaintiff alleges that “[he] was not mentally ill and that she was just trying to harass [him] and deter [him] from making further complaints ....” (Am. Compl. 39 at ¶ 74).
• Plaintiff alleges in 2019-2020, Defendant NYU contacted his psychiatrist Dr. Rudoy “to diminish [his] complaints, and prescribe [him] wrong medication for illness he or his other doctors never diagnosed [Plaintiff] with.” (Am. Compl. 39 at ¶ 74). Plaintiff was prescribed the medication in August 2019 following his complaints to Defendant NYU. (Am. Compl. 39 at ¶ 74). According to Plaintiff, Dr. Rudoy did not document any of Plaintiff's complaints and did not tell Plaintiff why. (Am. Compl. 39 at ¶ 74).
IV. DISCUSSION
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive such a motion, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). More specifically, the plaintiff must allege enough facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For a claim to sufficiently “raise a right to relief above the speculative level, ” it must be grounded on factual allegations. Twombly, 550 U.S. at 555. A claim grounded on mere suspicion is not enough to meet this standard. Id. “‘[L]abels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (internal citation omitted, alteration in original).
As relevant here, a court is “obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Therefore, this Court must interpret Plaintiff's submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal citations omitted). “However, the liberal treatment afforded to pro se litigants does not excuse a pro se party ‘from compliance with relevant rules of procedural and substantive law.'” Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (quoting Maisonet v. Metro Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 347 (S.D.N.Y. 2009)). Accordingly, the Court may not “invent factual allegations that a plaintiff has not pled.” Daly v. Westchester Cty. Bd. of Legislators, No. 19-CV-4642 (PMH), 2021 WL 229672, at *4 (S.D.N.Y. Jan. 22, 2021) (alterations and quotations omitted) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation marks omitted). As mentioned, however, the Court may consider facts raised in opposition papers, depending on the circumstances. Davila v. Lang, 343 F.Supp.3d 254, 267 (S.D.N.Y. 2018).
In reaching its conclusions, the Court is aware that issues of fact, credibility, and the weight of the evidence are not properly considered on a motion to dismiss, and the Court has not considered them here. Hughes v. Ester Co., 930 F.Supp.2d 439, 461-62 (E.D.N.Y. 2013) (“[I]ssues concerning the weight that should be given to this study cannot be resolved on a motion to dismiss. . . .”).
1. Breach of Duty of Fair Representation
Plaintiff brings a “hybrid” claim against UCATS and NYU under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, and based on a union's duty of fair representation, arising from the National Labor Relations Act (“NLRA”). Liberally construed, Plaintiff alleges that NYU violated the CBA when it discriminated against him, and that UCATS breached its duty of fair representation when it: (1) failed to file grievances on Plaintiff's behalf, and (2) misled Plaintiff about the deadline for filing grievances. (Am. Compl. 12-14).
i. Applicable Law
The duty of fair representation arises out of a union's status as the exclusive bargaining agent with the employer. See Greco v. Commc'ns Workers of Am., Loc., 1104, 824 F.Supp.2d 351, 356 (E.D.N.Y. 2011). Accordingly, the duty requires a labor organization “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998) (quotation marks omitted).
It is well established that an employee can sue their employer for breach of a CBA. Smith v. Evening News Ass'n., 371 U.S. 195 (1962). Usually, an employee must exhaust any grievance or arbitration process set forth in the CBA before bringing suit. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). In DelCostello v. International Brotherhood of Teamsters, however, the Supreme Court recognized that such an exhaustion requirement may result in an “unacceptable injustice” when the union representing the employee in these processes acts in “a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” DelCostello, 462 U.S. at 164. In such a case, an employee can sue both the employer and the union, regardless of the grievance or arbitration proceeding. Id. In doing so, the plaintiff must allege that the union has breached its duty of fair representation and that the employer has breached its CBA. Id. A plaintiff has six months from the time he “knew or should have known of the breach of the duty of fair representation” to bring suit. See White v. White Rose Food a Div. of DiGiorgio Corp., 128 F.3d 110, 114 (2d Cir. 1997).
Breach of duty of fair representation is difficult to plead because “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, ” subject to good faith and honesty in exercising its discretion. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). A breach of this duty only occurs if a union's conduct toward a member of the collective bargaining unit are “shown to have arbitrarily, discriminatorily, or in bad faith foreclosed the employee's opportunities to vindicate such wrong through the grievance process.” Castro v. New York City Bd. of Educ., 777 F.Supp. 1113, 1118 (S.D.N.Y.), No. 89-CV-4114 (KTD), aff'd, 923 F.2d 844 (2d Cir. 1990). “[M]ere negligence, even in the enforcement of a collective-bargaining agreement, would not state a claim for breach of the duty of fair representation.” United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372-73 (1990).
To support allegations of discrimination in a breach of duty of fair representation claim, a plaintiff must plead facts that show a defendant's conduct was motivated by discriminatory animus. Rivera v. Communications Workers of America, No. 16-CV-1673, 2017 WL 4338754, at *5 (E.D.N.Y. Sept. 29, 2017). A plaintiff must then allege “a causal connection between the union's wrongful conduct and their injuries.” White v. White Rose Food, a Div. of DiGiorgio Corp., 237 F.3d 174, 179 (quoting Spellacy, 156 F.3d at 126).
ii. Plaintiff's Fair Representation Claims are Time-Barred.
As an initial matter, all of Plaintiff's claims for breach of duty of fair representation are time-barred. This Circuit has established that a plaintiff's duty of fair representation claim accrues “at the latest” by the date of his National Labor Relations Board (“NLRB”) charge. Kavowras v. N.Y. Times Co., 328 F.3d 50, 55 (2d Cir. 2003) (“His bringing of the NLRB charge establishes that he had actual knowledge of the breach by [the date of his NLRB filing]. It is beyond dispute that his claim had accrued by that date.”).
Plaintiff filed an unfair labor practice (“ULP”) charge with the NLRB on June 15, 2020, alleging that UCATS failed to fairly represent him. (See ECF 65, Ex. 5 (Plaintiff's filed EEOC Charge)). As a matter of law, Plaintiff knew or should have known of UCATS's alleged breach of the duty of fair representation when he filed his ULP. Plaintiff filed his Complaint on December 18, 2020. Thus, any alleged breaches that Plaintiff knew or should have known about before June 18, 2020 (6 months prior to the date of this action), are time-barred. Plaintiff does not argue that this statute of limitations should be tolled. Accordingly, his claim of a breach of duty of fair representation stemming from his June 15, 2020 NLRB charge should be dismissed. See Kavowras v. N.Y. Times Co., 328 F.3d 50, 55 (2d Cir. 2003). Accordingly, I recommend that Plaintiff's claims against UCATS for breach of their duty of fair representation be dismissed. Additionally, because Plaintiff's claims against UCATS are “inextricably interdependent” with his claim against NYU, I recommend that Plaintiff's claim for breach of the CBA against NYU also be dismissed. See DelCostello, 462 U.S. at 164; Tomney v. Int'l Ctr. For Disabled, 357 F.Supp.2d 721, 738 (“The Union did not violate its DFR, and so Tomney's claims against [the employer] for violating the CBA are dismissed.”).
Allegations about Wambaugh allegedly giving Plaintiff the “incorrect FMLA leave Request Instructions (Am. Compl. at 6), and UCATS' failure to file a grievance-all of which occurred before June 18, 2020 (Am. Compl. at ¶¶ 7, 9, 14-16, 17, 20, 37-38, 40, 41) (Am. Compl. at 6)-are time barred. Even if these claims were not time-barred, however, Plaintiff has not alleged any facts that support his claim that UCATS declined to file grievances on Plaintiff's request with an improper intent, purpose, or motive. Without any supporting facts, this assertion is conclusory, and insufficient to state a claim for breach of the duty of fair representation. See Stoner v. Walsh, 772 F.Supp. 790, 806-07 (S.D.N.Y. 1991) (Mukasey, J.). Where Plaintiff alleges slightly more, the allegations are still conclusory and circular, and should be dismissed.
2. Breach of Contract
Reading the Complaint most liberally, Plaintiff may be seeking to bring additional breach of contract claim(s) against NYU and UCATS. Plaintiff makes references to the “Union” or “Ucats” contract, but does not include any other facts about, or even references to, any other contracts. (Am. Compl. 20) (“WRONGFUL TERMINATION PURUSANT TO . . . BREACH OF CONTRACT”); (Am. Compl. 24 at ¶ 5) (“I complained about potential contract violations to the Employer and to the Union ....”); (Am. Compl. 23 at ¶ 4) (“which it states in the Ucats Contract”); (Am. Compl. at 14) (“The Union Contract does not contain a clear and unmistakable waiver of my right to sue.”).
NYU is correct that any state-law breach of contract claim Plaintiff brings against NYU is preempted by Section 301 of the LMRA. (ECF 46 at 20). Although the LMRA does not preempt claims for a violation of the CBA, if Plaintiff is claiming that Defendants violated the CBA, those claims are time barred. See Section V. Cunningham v. Local 30, Int'l Union of Operating Eng'rs, 234 F.Supp.2d 383, 395 (S.D.N.Y. 2002). Similarly, to the extent Plaintiff complains about UCATS's failure to pursue grievances on his behalf, these would be claims for breach of fair duty of representation, addressed in Section 1, supra.
3. Employment Discrimination
To state a claim for employment discrimination, a plaintiff must allege that: (i) he is a member of a protected class, (ii) he was qualified for his position, (iii) he suffered an adverse employment action (“AEA”), and (iv) there are facts suggesting an inference of discriminatory motivation. Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015). Specifically, Plaintiff must show either that he “suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or . . . demonstrate] that harassment on one or more of these bases amounted to a hostile work environment.” Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (citing Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001)). Similarly, to state a claim for disability discrimination, Plaintiff would need to plausibly allege that (1) Defendants are subject to the relevant statutes; (2) he suffers from a disability within the meaning of the statute; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability.
Employment discrimination claims under Section 1981 and the NYSHRL are analyzed under the same framework as Title VII. McGill v. University of Rochester, 600 Fed.Appx. 789, 790 (2d Cir. 2015). “[C]ourts must analyze NYCHRL claims separately and independently from any federal and state law claims, construing the NYCHRL's provisions broadly in favor of discrimination [to] plaintiffs, to the extent that such a construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (internal quotation marks omitted). “[T]o state a claim for discrimination under the NYCHRL, a plaintiff must only show differential treatment of any degree based on a discriminatory motive; ‘the NYCHRL does not require either materially adverse employment actions or severe and pervasive conduct.'” Carter v. Verizon, No. 13-CV-7579 (KPF), 2015 WL 247344, at *5 (S.D.N.Y. Jan. 20, 2015) (quoting Gorokhovsky v. N.Y.C. Hous. Auth., 552 Fed.Appx. 100, 102 (2d Cir. 2014)).
Aside from the NYSHRL and NYCHRL having a broader definition of “disability, ” “[t]he standard for pleading a claim for disability discrimination under the NYSHRL and the NYCHRL is virtually identical to the ADA.” Marquez v. Starrett City Assocs., 406 F.Supp.3d 197, 207 (E.D.N.Y. 2017).
To survive a motion to dismiss, a plaintiff must allege facts that plausibly suggest that the employer discriminated against him because of his race, national origin, or disability. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). “An inference of discrimination can arise from circumstances including, but not limited to, the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312 (internal quotation marks omitted).
Under the McDonnell Douglas framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination or retaliation. Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). The evidence necessary to satisfy this initial burden is “minimal and de minimis.” Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, 381 (2d Cir. 2001) (internal quotations omitted). The burden then shifts to the defendant to provide a legitimate, non-discriminatory reason for its actions. Id. If defendant does so, the burden shifts back to the plaintiff to demonstrate that defendant's reason is merely a pretext for discrimination or retaliation. Id. In other words, the Court only evaluates “pretext” if Plaintiff adequately alleges a prima facie case.
Evaluating his claims under those laws, Plaintiff fails to allege that he experienced any adverse employment action under circumstances that give rise to an inference of discrimination. (Am. Compl. 13). Plaintiff complains that: (1) he was unable to take vacations or sick leave for “religious/cultural event[s]” in Trinidad; (2) his seniority was miscalculated resulting in a less convenient schedule; (3) he experienced a “hostile work environment” because he had been subjected to derogatory comments, was “mocked daily, ” “ostracized, ” harassed, cyberstalked, and stalked; (4) NYU “retaliated” against Plaintiff for complaining about these events by “wrongfully suspend[ing] [him] twice” and eventually terminating his employment; and (5) NYU failed to provide him reasonable accommodations for his ADHD (Am. Compl. 14). I evaluate all of Plaintiff's claims for discrimination on the basis of race or national origin first, and then turn to Plaintiff's disability discrimination claim.
i. Plaintiff Does not Allege Discrimination on the Basis of Race or National Origin
I evaluate Plaintiff's first two discrimination claims under a disparate treatment analysis, and in the alternative, a disparate impact analysis. See Gonzalez v. Police Com'r Bratton, 2000 WL 1191558, at *20 (S.D.N.Y. Aug. 22, 2000) (acknowledging hostile work environment and disparate treatment claims are “distinct” from one another and “require[ ] different pleading and proof”); Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, 617 n.10 (S.D.N.Y. 2009) (“[I]t bears emphasis that the analysis of adverse employment actions involving disparate treatment claims is different [from] that involving retaliation claims.”). Notwithstanding the differences between disparate treatment and retaliation, “[t]he burden of proof in retaliation claims follows the general disparate treatment analysis in McDonnell Douglas Corp....” Shah v. New York State Dep't of Civ. Serv., 341 Fed.Appx. 670, 673 (2d Cir. 2009).
a. Plaintiff does not Allege Defendants Had a Full Prohibition on Vacation or Restricted his Sick Leave.
Plaintiff alleges that in 2017 or 2018, Plaintiff went to a “Religious/Cultural” festival in Trinidad. Rodriguez instructed Plaintiff to use sick leave during his absence and said Plaintiff would not need a doctor's note. (Am. Compl. 10 & 24 at ¶ 8). Plaintiff alleges that he complained that his coworker, Speziale was treated differently because he “gets religious requests approved” while he did not. Upon return, Caesar told Plaintiff NYU “will have to let [him] go if [he doesn't] have a doctor's note” for the time he was out. (Am. Compl. 10).
Ultimately, Plaintiff reported that he was sick, produced a doctor's note, and therefore was not terminated for taking his trip[s] to Trinidad. (Am. Compl. 10).
Although it is unclear whether Plaintiff actually lost or was denied vacation time, a loss or denial of vacation time “does not generally rise to the level of an adverse employment action.” Chukwuka v. City of New York, 795 F.Supp.2d 256, 261 (S.D.N.Y. 2011); see Drouillard v. Sprint/United Mgmt. Co., 375 F.Supp.3d 245, 272 (E.D.N.Y. 2019). Courts in this District have declined to recognize an employer's denial of a vacation request as an adverse employment action where this denial did not constitute a “complete bar” on a plaintiff's taking vacation. Boyd v. Presbyterian Hosp. in City of New York, 160 F.Supp.2d 522, 537 (S.D.N.Y. 2001) (“The particular timing of a vacation is not so disruptive that it crosses the line from ‘mere inconvenience' to ‘materially adverse' employment action.”); see also Roff v. Low Surgical & Med. Supply, Inc., No. CV-033655 (SJF) (JMA), 2004 WL 5544995, at *4 (E.D.N.Y. May 11, 2004). Plaintiff here did not allege that NYU completely forbade him from taking vacation; indeed, Plaintiff states at one point that NYU approved Plaintiff's request to go to Trinidad for this event three years in a row. (Am. Compl. 15).
b. Plaintiff's Seniority Miscalculation Does Not Result in an AEA.
Plaintiff alleges that he was given a worse work schedule than his coworkers, who were less senior to him. (Am. Compl. 23 at ¶ 4). Plaintiff states that both NYU supervisors and UCATS's representative Wambaugh believed Speizale to be senior to Plaintiff, which Plaintiff disputed. Loss of “seniority” in this context is not an adverse employment action because unfavorable work schedules are not an adverse employment action, and Plaintiff alleges no other ramifications or less favorable treatment because of the seniority miscalculation. See Antonmarchi v. Consol. Edison Co. of New York, No. 03-CV-7735, 2008 WL 4444609, at *14 (S.D.N.Y. Sept. 29, 2008) (finding denial of transfer to position with better hours was not an adverse employment action) ajf'd, 514 Fed.Appx. 33 (2d Cir. 2013); Daniels v. Connecticut, No. 12-CV-0093, 2015 WL 4886455, at *8 (D. Conn. Aug. 17, 2015) (“[Plaintiff] also suggests that the . . . position is a ‘preferred working schedule for officers,' but an unfavorable schedule is not an adverse employment action.”) (citing Albuja v. Nat'l Broad. Co. Universal, 851 F.Supp.2d 599, 608 (S.D.N.Y. 2012)).
c. None of the Alleged Adverse Employment Actions Give Rise to an Inference of Discrimination.
Even if changes to Plaintiff's vacation time and work schedule were considered adverse employment actions, Plaintiff still does not state a claim for employment discrimination because none of Plaintiff's alleged AEAs-including suspension, termination, and hostile work environment-occurred under circumstances that give rise to an inference in discrimination.“A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). “In order to make such a showing, the plaintiff must compare herself to employees who are ‘similarly situated in all material respects.'” Id. “Employment characteristics which can support a finding that two employees are ‘similarly situated' include ‘similarities in education, seniority, performance, and specific work duties.'” Sollazzo v. Just Salad Rest., No. 15-CV-252 (ER), 2018 WL 1273661, at *6 (S.D.N.Y. Mar. 5, 2018) (quoting DeJesus v. Starr Tech. Risks Agency, Inc., No. 03-CV-1298 (RJH), 2004 WL 2181403, at *9 (S.D.N.Y. Sept. 27, 2004)). A plaintiff also “must show that [his] co-employees were subject to the same performance evaluation and discipline standards.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d. Cir. 2000). While “all material respects” varies, a plaintiff must typically “plead comparators' relevant experience and length of employment in order to raise an inference of discrimination.” LeeHim v. New York City Dep't of Educ., No. 17-CV-3838 (PAE), 2017 WL 5634128, at *6 (S.D.N.Y. Nov. 21, 2017).
Indeed, “[b]eing forced to endure a hostile work environment is one type of adverse employment action.” Dietrich v. City of New York, No. 18 CIV. 7544 (CM), 2020 WL 4226591, at *16 (S.D.N.Y. July 23, 2020).
The Amended Complaint lacks factual allegations to support an infererence that similarly situated non-Black or non-disabled employees were treated differently from Plaintiff. The only comparator Plaintiff alleges is Gary Speizale, who he alleges is white, less senior to him, and gets his holiday vacation time approved. (Am. Compl. 10). Plaintiff conclusorily alleges that Speizale is “similarly situated” to him in “all material respects, ” and does not identify any other comparator. Wegmann v. Young Adult Inst., Inc., No. 15-CV-3815 (KPF), 2016 WL 827780, at *10 (S.D.N.Y. Mar. 2, 2016) (finding plaintiff was not similarly situated to comparators where she did not plead facts about their positions, responsibilities, tenure, or experiences). Accordingly, the Complaint's conclusory allegations of differential treatment are insufficient to plausibly suggest an inference of discrimination with regard to work schedule or denial of travel to Trinidad. See id.; see also Burgis v. N.Y. City Dep't of Sanitation, 798 F.3d 63, 68-69 (2d Cir. 2015); Henry v. NYC Health & Hosp. Corp., 18 F.Supp.3d 396, 408 (S.D.N.Y. 2014).
Similarly, Plaintiff does not allege discrimination under a disparate impact theory. To do so, Plaintiff must allege that his employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This requires: (i) identifying a specific employment practice or policy; (ii) demonstrate that a disparity exists; and (iii) alleging a causal relationship between the two. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012). To demonstrate a disparity sufficient to withstand a motion to dismiss, plaintiffs must allege statistical evidence or allege that a “neutral employment practice denied equal employment opportunities to a small number of members of a protected class compared to similarly-situated colleagues.” Gordon v. City of N.Y., No. 14-CV-6115 (JPO) (JCF), 2016 WL 4618969, at *23 (S.D.N.Y. Sept. 2, 2016).
Plaintiff has not identified any employment practice or policy related to vacation time or his work schedule. See African Am. Legal Defense Fund v. N.Y. State Dep't of Educ., 8 F.Supp.2d 330 (S.D.N.Y. 1998) (dismissing Title VII disparate impact claim where plaintiff failed to allege any statistics to support allegations that facially neutral hold-harmless provisions had a disparate impact on minorities). Accordingly, I recommend Plaintiff's race and national origin discrimination claims be dismissed.
While Plaintiff alleges that he sought to file a grievance about the grievance process, he does not allege any facts about the process and procedure for filing grievances, or how the process was allegedly different for him due to his membership in a protected class. (Am. Compl. 34-35 at ¶ 53, 57).
ii. Plaintiff Fails to Allege a Hostile Work Environment.
To state a claim for a hostile work environment under § 1983, § 1981, Title VII, or the NYSHRL, a plaintiff must allege facts plausibly demonstrating that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Littlejohn, 795 F.3d at 320-21 (internal quotation marks omitted). To plead an abusive working environment, a plaintiff must satisfy “both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Id. at 321 (internal quotation marks omitted). This requires that the incidents be “more than episodic.” Id. A court “must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (internal quotation marks omitted). “Hostile work environment claims are meant to protect individuals from abuse and trauma that is severe. They are not intended to promote or enforce civility, gentility or even decency.” Bermudez v. City of New York, 783 F.Supp.2d 560, 579 (S.D.N.Y. 2011) (citation omitted).
The standards for a union's liability for hostile work environment are different from those governing the liability of an employer. Under Title VII, a union may not “cause or attempt to cause an employer to discriminate against an individual in violation of this section.” 42 U.S.C. § 2000e-2(c)(3). To plead union liability, Plaintiff must plead (1) the existence of a hostile work environment, (2) that a union representative caused or attempted to cause the hostile work environment, and (3) that the representative's conduct may properly be imputed to the union. See Agosto v. Correctional Officers Benevolent Ass'n, 107 F.Supp.2d 294, 307 (S.D.N.Y. 2000); Grandy v. Manhattan & Bronx Surface Transit Operating Auth., No. 16-CV-6278 (VEC), 2018 WL 4625768, at *21-22 (S.D.N.Y. Sept. 26, 2018).
The case law governing a union's liability for hostile work environment under the NYSHRL and NYCHRL is less clear. Most cases, however, hold that NYSHRL and NYCHRL claims against a union “are subsumed by the duty of fair representation when the gist of the claim is the failure to represent the plaintiff in a fair and non-discriminatory manner.” Gallagher v. AEG Mgmt. Brooklyn, LLC, No. 16-CV-4779, 2017 WL 2345658, at *7 (E.D.N.Y. May 30, 2017) (collecting cases).
a. Plaintiff Does Not Adequately Allege that NYU or UCATS Stalked or Harassed Plaintiff, or Hacked Plaintiff's Electronic Devices.
Plaintiff's allegations that he was stalked, harassed, and hacked are conclusory. Gench v. HostGator.com LLC, No. 14-CV-3592 (RA) (GWG), 2015 WL 3757120, at *10 (S.D.N.Y. June 17, 2015), R&R adopted, No. 14-CV-3592 RA, 2015 WL 4579147 (S.D.N.Y. July 29, 2015) (finding plaintiff's allegations that certain conduct “allow[ed] ‘criminal host(s) to steal the site content' . . . ‘manipulate users' web activity, ” “lose control of her email account, and [] be subject to email spam” conclusory). Plaintiff's allegations here-that numerous people, including T-Mobile employees; Plaintiff's roommate/landlord, psychiatrist, sister, or mother; and/or strangers on the subway were hired by Defendants to stalk and harass him-are wholly unsupported by facts and do not state a claim for a hostile work environment. The Court understands that Plaintiff describes these instances in support of his belief that there is an ongoing conspiracy against Plaintiff to create a hostile work environment for him. Plaintiff's beliefs-however strongly he may hold them-are not facts. Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (“A court may dismiss a claim as ‘factually frivolous' if the sufficiently well-pleaded facts are ‘clearly baseless'-that is, if they are ‘fanciful,' ‘fantastic' or ‘delusional.'”) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)); Tessema v. Env't Prot. Agency, No. 1:20-CV-9700 (MKV), 2021 WL 2666855, at *4 (S.D.N.Y. June 29, 2021), appeal dismissed sub nom. Tessema v. United States Env't Prot. Agency, No. 21-1729, 2021 WL 6427942 (2d Cir. Dec. 16, 2021) (finding that Plaintiff's claims that the EPA has tortured him and subjected him to human experiments involving exposure to hazardous pollutants were “fanciful” in nature and “clearly warrants dismissal”); Mercier v. Mercier, No. 07-CV-0523, 2007 WL 1582267, at *1-2 (N.D.N.Y. May 25, 2007) (Kahn, J.); Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.”); see also Banks v. Mental Health Clinicians, No. 11-CV-7848, 2012 WL 6201259, at *5 (S.D.N.Y. Dec. 11, 2012) (granting motion to dismiss where the plaintiff alleged that the defendants were deliberately indifferent when they exacerbated the plaintiff's suicide risk by transferring him to a special unit for mentally ill inmates, finding, inter alia, that Plaintiff did not state facts that supported his bald allegation that Plaintiffs acted with “punitive intentions”) (internal quotation marks omitted).
Generally, an employer is not liable as a matter of law for harassment resulting “from nonwork-related, off-duty interactions between co-employees, because those actions are not part of the work environment.” See Devlin v. Teachers' Ins. & Annuity Ass'n of Am., No. 02-CV-3228 (JSR), 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003) (granting the defendant's motion for summary judgment on the plaintiff's sexual harassment claim because, inter alia, the plaintiff's co-worker's acts occurred at a bar outside of work hours) (quotation & citation omitted).
Additionally, Plaintiff has failed to allege sufficient facts from which one could reasonably conclude that the alleged hostile conduct was because of Plaintiff's membership in protected classes. See Wilson v. JPMorgan Chase Bank, N.A., No. 20-CV-4558 (JMF), 2021 WL 918770, at *5 (S.D.N.Y. Mar. 10, 2021).
b. Plaintiff Does Not Adequately Allege Discriminatory Comments That Rise to a Hostile Work Environment.
Plaintiff also does not plead sufficient facts to support a hostile work environment claim against NYU (and therefore UCATS) arising from allegedly discriminatory comments because the conduct about which Plaintiff complains is not severe or pervasive. See Benzinger v. Lukoil Pan Americas, LLC, 447 F.Supp.3d at 99. Plaintiff alleges he was subject to several derogatory statements and was “ostracized, ” stalked, harassed, and hacked at work. (Am. Compl. 20). See also Am. Compl. 22 (“was labeled a criminal, threatening, violent, aggressive, unprofessional all which are racial sterotypes[sic]/profiles for person(s) of [African descent”); Am. Compl. 20 (“Management and my coworkers would say things like ‘why don't you go back to your country since you keep complaining', or ‘you don't fit the culture here.'”); Am. Compl. 24 at ¶ 7 (“‘You don't fit the culture here, You have to fit the culture, you got another chance, you better not mess it up this time around'”); Am. Compl. 15 (“Why don't you just go back to Trinidad to live since [you're] always complaining about what we do here.”); Am. Compl. 32 at ¶ 45 (Rodriguez used the words ‘black man being aggressive'”); Am. Compl. 11 (“subjected to numerous disparaging comments from 4/2/19 to 12/10/19”).
To the extent any part of Plaintiff's claims under the NYSHRL fall under the less demanding NYCHRL standard, his claims also fail for the reasons discussed herein. The burden to state a claim under the NYCHRL is somewhat less demanding, requiring the plaintiff to allege: (i) that the plaintiff was “treated less well than other employees;” and (ii) that such treatment was because of the plaintiff's protected class. Wilson v. JPMorgan Chase Bank, N.A., No. 20-CV-4558, 2021 U.S. Dist. LEXIS 45132, at *13 (S.D.N.Y. Mar. 10, 2021).
Because Plaintiff's Complaint is at times vague and repetitive, I cannot discern for many of the claims the speaker, context, or frequency of these comments. Accordingly, Plaintiff fails to state a claim for hostile work environment based on the comments identified here.
iii. Plaintiff Does not Adequately Allege Retaliation.
To establish a claim of retaliation under § 1981, Title VII and the NYSHRL, Plaintiff must allege facts that plausibly suggest that: (i) he participated in protected activity, (ii) he suffered an adverse employment action, and (iii) there was a causal connection between his engaging in the protected activity and the adverse employment action. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010); see also Wilson, 2021 U.S. Dist. LEXIS 45132, at *13.
Plaintiff must also establish these elements under the NYCHRL, except that instead of an adverse employment action, he need only prove that “something happened that would be reasonably likely to deter a person from engaging in protected activity.” Wilson, 2021 U.S. Dist. LEXIS 45132, at *20.
Liberally construing the Complaint, Plaintiff claims that he was suspended and fired for seeking to file grievances (or otherwise complaining) about mistreatment in the workplace. See Am. Compl. 12 (“[Plaintiff has] complained about a hostile workplace, Harassment, Retaliation, Discrimination and my complaints were either wrongfully labeled as meritless or I was deceitfully told they were filed when they were not.”). It is well settled that filing “[a] union grievance can constitute protected activity if it concerns discrimination, but union grievances that complain of matters other than discrimination do not constitute protected activity for purposes of Title VII.” Chidume v. Greenburgh-N. Castle Union Free Sch. Dist., No. 18-CV-01790 (PMH), 2020 WL 2131771, at *4 (S.D.N.Y. May 4, 2020) (quoting Mack v. Paris Maint. Co. Inc., No. 14-CV-6955, 2016 WL 8650461, at *9 (S.D.N.Y. Feb. 22, 2016), R&R adopted, No. 14-CV-6955, 2016 WL 1071030 (S.D.N.Y. Mar. 17, 2016)).
Even though Plaintiff has not pleaded a prima facie case for discrimination that would, under McDonnell Douglas, shift the burden to Defendants to provide a legitimate non-discriminatory reason for Plaintiff's suspension and termination, Plaintiff nonetheless acknowledges that NYU's proffered reasons for his suspensions and termination were because of Plaintiff's interpersonal conflicts with coworkers. (Am. Compl. 30 at ¶ 37, 38).
Plaintiff does not adequately allege that he engaged in protected activity. Although Plaintiff alleges that coworkers made racially charged comments to him, Plaintiff does not provide facts about when he sought to file a grievance for this conduct, or for any other discriminatory conduct that he endured based on his race or national origin. Although Plaintiff sought to file many grievances with UCATS, in the majority of the alleged instances, Plaintiff only states that UCATS did not or could not file a grievance-not that he sought to file a grievance because of discrimination on the basis of race or national origin. (Am. Compl. 24 at ¶ 4); (Am. Compl. 25 at ¶ 14); (Am. Compl. 9); (Am. Compl. 26 at ¶ 17); (Am. Compl. 27 at ¶ 20); (Am. Compl. at 30 ¶ 32). Only on three occasions does Plaintiff plead slightly more.
Specifically, Plaintiff alleges that: (1) Defendants “maliciously misled [him] into thinking the grievances were filed when they weren't” so that both parties could avoid a breach of a duty of fair representation claim (Am. Compl. 9); (2) Wambaugh “did not file a grievance for racial discrimination, which she should have known to [do because] she had the audio evidence” of the fight between Plaintiff, Olivia, and Jameson (Am. Compl. 29 at ¶ 32) (emphasis added); and (3) UCATS violated their duty of fair representation in May 2020 because some grievances UCATS allegedly filed were “not actual grievances and lack sig[]natures by all parties.” (ECF 68). Plaintiff does not allege any facts that suggest UCATS's decision not to file a grievance for Plaintiff was motivated by discriminatory animus. Accordingly, I recommend that Plaintiff's Retaliation claim be dismissed.
In fact, only Plaintiff's January 16, 2020 Grievance Form states that Plaintiff “was discriminated against based on having a disability.” (ECF 49-2, Exhibit 3 (January 16, 2020 Step 1 Grievance). The Grievance does not reference Plaintiff's race or national origin, at all.
iv. Plaintiff's Disability Discrimination Claim Fails.
Plaintiff does not adequately plead disability discrimination under the ADA, the NYCHRL or the NYSHRL. Plaintiff does not allege that the Defendants are subject to the ADA, that he was in fact disabled under the ADA, or that he suffered an adverse employment action under circumstances giving rise to an inference of disability discrimination.
Among other things, Plaintiff neither pleads when he made his employer aware of his ADHD nor how his ADHD is related to any alleged adverse employment action.
A person has a “disability” within the meaning of the ADA if he has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment;” or if he is (C) “regarded as having such an impairment.” 42 U.S.C. § 12102(1). “Major life activities” are defined in the regulations as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, ” 29 C.F.R. § 1630.2(i). Plaintiff has not alleged that his ADHD has impacted him in any way.
Even if Plaintiff has a disability under the broader NYSHRL definition in light of his ADHD diagnosis (ECF 65-7 at 1), it is unnecessary for me to evaluate this since Plaintiff fails to allege any adverse employment action giving rise to an inference of disability discrimination. See Nugent v. St. Luke's/Roosevelt Hosp. Ctr., No. 05-CV-5109 (JCF), 2007 WL 1149979, at *19 (S.D.N.Y. Apr. 18, 2007), aff'd sub nom. Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 Fed.Appx. 943 (2d Cir. 2008).
Moreover, Plaintiff does not plead any facts that support his allegation that Defendants denied him any reasonable accommodation. To state a claim for failure to accommodate, “a plaintiff must establish that (1) he is a person with a disability; (2) defendant had notice of his disability; (3) plaintiff could perform the essential functions of the job at issue with reasonable accommodation; and (4) defendant refused to make such accommodations.” Howard v. United Parcel Serv., Inc., 101 F.Supp.3d 343, 352 (S.D.N.Y. 2015), aff'd sub nom. Howard v. United Parcel Serv., 648 Fed.Appx. 38 (2d Cir. 2016). Here, Plaintiff merely restates the legal standard that employer generally have a duty to accommodate employees with disabilities and checks a box that the Defendants denied him accommodations. (Am. Compl. 5, 14). This is conclusory and insufficient.
Although Plaintiff's November 21, 2019 Step 2 Grievance states that he “was discriminated against based on having a disability, ” his supporting reasons include that he was “stalked, bullied, harassed[], character defamed, privacy breached, ” among other things. (ECF 49-3 at 3). As addressed above, these allegations are fanciful and should be dismissed. Gallop, 642 F.3d at 368 (2d Cir. 2011). Accordingly, I recommend that the Court dismiss Plaintiff's disability discrimination claims.
4. FMLA Interference
Plaintiff believes that UCATS and NYU violated the FMLA because they denied his initial claim, but then approved an FMLA application for Plaintiff that Plaintiff claims he never made. These allegations do not support a claim for FMLA violations against either defendant. To state an FMLA interference claim, Plaintiff must establish: (i) that he is an eligible employee under the FMLA; (ii) that the defendant is an employer as defined by the FMLA; (iii) that he was entitled to take leave under the FMLA; (iv) that he gave adequate notice to the defendant of his intention to take leave; and (v) that he was denied benefits to which he was entitled under the FMLA. See Graziadio v. Culinary Institute of America, 817 F.3d 415, 424 (2d Cir. 2016).
Plaintiff's claim against UCATS fails because Plaintiff has not (and cannot) allege that UCATS is an “employer” within the meaning of the FMLA. Eckert v. United Auto. Workers Loc. Union 897, No. 04-CV-538S, 2005 WL 2126295, at *9 (W.D.N.Y. Sept. 1, 2005) (concluding that a union that represented plaintiff's interests and acted on his behalf “relative to [Plaintiff's] employment” is “precisely the opposite” of an employer under the FMLA); see also Latella v. Nat'l Passenger R.R. Corp. (Amtrak), 94 F.Supp.2d 186, 190 (D. Conn. 1999) (rejecting an argument for breach of duty of fair representation against a union for “not advising him of his rights under the FMLA” because “no private right of action exists for a violation of the FMLA's notice requirements against an employer or a union.”). Accordingly, Plaintiff's FMLA claim is not applicable against UCATS, and I recommend that it be dismissed.
Plaintiff's claim against NYU also fails. Plaintiff does not allege any facts that identify how NYU interfered with his FMLA rights or resulted in a denial of Plaintiff's benefits. Plaintiff alleges that he applied for FMLA leave in early October 2019, after a September 30, 2019 conversation between Plaintiff and Rodriguez. (Am. Compl. 28 at ¶¶ 23, 25). Plaintiff also alleges that on December 12, 2019 he visited a doctor in “pursu[it] [of] FMLA leave.” (Am. Compl. 32-33 at ¶ 48). Plaintiff does not allege whether the FMLA leave he was pursuing in December 2019 was a part of the same request or not. Plaintiff's operative complaint is devoid of any allegations regarding his FMLA process for the two months immediately preceding Plaintiff's termination. NYU terminated Plaintiff's employment on December 13, 2019. (Am. Compl. 33 at ¶ 49). At most, Plaintiff alleges that Rodriguez “deliberately” gave him “the wrong Fmla [sic] request instructions . . . which interfered with [his] FMLA rights entitlement.” (Am. Compl. 17).
NYU is correct, however, that failure to provide notice of the terms of the FMLA, “where the lack of notice had no effect on the employee's exercise of or attempt to exercise any substantive right conferred by the Act, ” is insufficient to state a cause of action. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 162 (2d Cir. 1999). Plaintiff makes the conclusory statement that Rodriguez's and Wambaugh's errors “interfered with [his] FMLA rights entitlement, ” but does not allege how being provided non-union employee instructions affected Plaintiff's pursuit of FMLA leave when he knew that he was a union employee. (Am. Compl. 17). Because of conflicting and incoherent allegations, I cannot discern from Plaintiff's pleadings: (1) what Rodriguez's FMLA instructions were; (2) when he requested FMLA leave; or (3) any October 2019 request was approved or denied. Accordingly, I recommend that Plaintiff's FMLA interference claim be dismissed.
5. Conspiracy under Section 1985(3). Plaintiff fails to assert a § 1985 claim against both defendants for the same reason: he fails to allege any facts that suggest either defendant acted in agreement with anyone, or acted with an intent to deprive Plaintiff of any of his rights under the law. As stated in Section VII, Plaintiff also does not allege that any party acted with discriminatory animus.
To state a claim under § 1985(3), a plaintiff must allege: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons to the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privileges of a citizen of the United States.” Trautz v. Weisman, 819 F.Supp. 282, 290 (S.D.N.Y. 1993). The conspiracy must further be “motivated by ‘some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'” Cuoco v. U.S. Bureau of Prisons, No. 98-CV-9009 (WHP), 2001 WL 167694, at *3 (S.D.N.Y. Feb. 16, 2001) (quoting Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). The claim must be pleaded with “at least some degree of particularity . . . [to] establish the existence of an agreement among the defendants to deprive [the plaintiff] of his constitutional rights.” Gropper v. Fine Arts Housing, Inc., 12 F.Supp.3d 664, 671 (S.D.N.Y. 2014). This requires “establish[ing] the existence of an agreement among the defendants to deprive [the plaintiff] of his constitutional rights.” Id. (quoting Roach, at 147 (2d Cir. 1999). An explicit agreement is not necessary but may be shown through a “general conspiratorial objective” among the participants in the conspiracy. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 427 (2d Cir. 1999) (quoting Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990)). A plaintiff must further allege that the defendant's “overt acts . . . were reasonably related to the promotion of the claimed conspiracy.” Id. (quoting Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999)). In making this claim, a plaintiff must adequately allege “the most fundamental aspect of a conspiracy: an agreement.” Gropper, 12 F.Supp.3d at 671. The Court will not simply infer an agreement from violations of the laws because that would essentially “permit every civil rights case to become a civil rights conspiracy case, which the Second Circuit has rejected in analogous contexts.” Id. at 671.
Plaintiff alleges that he complained to UCATS about the hostile work environment he experienced, but UCATS told him his concerns were meritless, or told Plaintiff they filed grievances when they had not. (Am. Compl. 9, 12). Defendants' “dishonesty, ” Plaintiff alleges, is a “clear sign of a conspiracy to deprive [him] of [his] rights.” (Am. Compl. 12). While Plaintiff was upset by UCATS's responses that they either would not or could not file a grievance for some of the events about which Plaintiff complained, Plaintiff does not allege sufficient facts to withstand a motion to dismiss. Plaintiff fails to state any facts with particularity that suggest UCATS and NYU employees worked in concert (either totally within UCATS, totally within NYU, or some combination of UCATS and NYU) to deprive Plaintiff of his constitutional rights.
Plaintiff's allegations are limited to conclusory statements. Complaints that state “conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” Maack v. Wyckoff Heights Med. Ctr., No. 15-CV-3951 (ER), 2017 WL 4011395, at *8, (S.D.N.Y. Sept. 11, 2017); see also Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (“A court may dismiss a claim as ‘factually frivolous' if the sufficiently well-pleaded facts are ‘clearly baseless'-that is, if they are ‘fanciful,' ‘fantastic.' or ‘delusional.'”) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Evidence to support a conspiracy may be “when, where or with whom an unlawful agreement was made” or “any specific acts performed in furtherance of the alleged unlawful agreement. Almonte v. Florio, No. 02-CV-6722 (SAS), 2004 WL 60306, at *5 (S.D.N.Y. Jan. 13, 2004). None of that is present. Plaintiff does not adequately allege that UCATS or NYU acted in furtherance of a conspiracy to deprive him of his constitutional rights because his allegations are conclusory. As discussed, the Complaint does not adequately allege that NYU or UCATS's actions were motivated by a racial animus. Blue v. City of New York, No. 14-CV-7836 (VSB), 2018 WL 1136613, at *16 (S.D.N.Y. Mar. 1, 2018). Accordingly, I recommend that Plaintiff's § 1985 claim against UCATS be dismissed.
6. Civil Rights Violation Under Civil Rights Law Section 79-n.
Civil Rights Law § 79-n creates a cause of action against anyone who “summons a police officer . . . without reason to suspect a violation of the penal law, any other criminal conduct, or an imminent threat to a person or property, ” “because of a belief or perception regarding, ” inter alia, race or disability. Civil Rights Law § 79-n. To state a claim under CRL § 79-n, a plaintiff must allege that a defendant (1) intentionally committed, (2) damage to a person or property, (3) ‘because of a belief or perception regarding [that person's] . . . [protected characteristic].'” Le v. Triza Elec. Corp., No. 19-CV-5134 (ARR) (PK), 2020 WL 1274977, at *3 (E.D.N.Y. Mar. 16, 2020). Section 79-n does not provide a remedy “where existing discrimination laws already provide protection, such as in employment . . . decisions. Unless a plaintiff could show bias-related violence or intimidation in the hiring . . . decision . . . [they] could not bring an action under this new section.” Governor's Approval Memorandum, No. 7, ch. 227, filed with Assembly Bill Number 529.
Plaintiff's Section 79-n claim fails because of the availability of other statutory remedies in the employment context. Even if it did not, Plaintiff would still fail to state a claim. Plaintiff alleges that Rodriguez “falsely summoned” an NYPD officer “to arrest [him] and or escort [him] out for criminal trespassing” as he was writing an email about the hostile work environment he was experiencing. (Am. Compl. 12 at ¶ 6). Rodriguez is not a defendant in this action. Even if this behavior extended to NYU, Plaintiff does not assert that NYU intentionally threatened Plaintiff because of his protected characteristics. As best as I can discern, Plaintiff alleges that he was suspended on or before December 11, 2019 because NYU knew, “through its control of [Plaintiff's] devices, ” that Plaintiff knew NYU hacked his devices. (Am. Compl. 32 at ¶ 47). By Plaintiff's own account, his employment was suspended, and his supervisor suggested he leave. When he did not leave, he overheard Rodriguez say, “black man being aggressive” and NYPD officers appeared to “arrest [him] for criminally trespassing.”
Plaintiff does not allege any facts involving UCATS and the Court cannot discern any Civil Rights § 79-n claim against them.
As Defendants point out, at least one court has dismissed a Section 79-n claim because it was brought against an organization and not an individual. Morrison v. Shalach, 67 Misc.3d 451, 457, 124 N.Y.S.3d 512 (N.Y. Sup. Ct. Westchester Cty. 2020).
Plaintiff compares his experience to that of his coworkers Speizale and Wambold, who he alleges could come into the building “on their days off, ” use the workstations, and were “never asked to leave” or have NYPD “called to arrest them for criminally trespassing. (Am. Compl. 32 at ¶ 46). But Plaintiff's comparison falls short in this instance because Plaintiff was not given a day off when he was told to leave-he had already been suspended from working at NYU.
7. Negligent Infliction of Emotional Distress.
Plaintiff brings claims against both NYU and UCATS for negligent infliction of emotional distress (“NIED”). Plaintiff alleges that he experienced emotional distress because of the “employment discrimination” he experienced at NYU. (Am. Compl. 13).
As an initial matter, Plaintiff's NIED claim against NYU is barred by the exclusivity provisions of the New York Workers' Compensation Law (“WCL”). See N.Y. Work. Comp. Law § 11. The WCL provides the exclusive remedy for an employee who is injured “by the negligence or wrong of another in the same employ.” Rivera v. Baccarat, Inc., No. 95-CIV-9478 (MBM), 1996 WL 251850, at *4, (S.D.N.Y. May 10, 1996). WCL precludes Plaintiff from recovering from claims of NIED that arise out of workplace conduct. D'Annunzio v. Ayken, Inc., 25 F.Supp.3d 281, 294 (E.D.N.Y. 2014); Stevens v. New York, 691 F.Supp.2d 392, 397 (S.D.N.Y. 2009); see Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (finding negligence claim for hostile work environment barred by exclusivity of workers compensation). While the Court is sympathetic to Plaintiff's distress, Plaintiff's allegations arise out of alleged workplace conduct. Accordingly, the claim is barred by the WCL and must be dismissed.
Plaintiff's NIED claim against UCATS also fails. First, while Plaintiff makes this claim against “NYU and UCATS” (Am. Compl. 25 at 13), he does not provide facts that support any allegation that UCATS as an entity or a UCATS employee did anything that would support a claim for negligent infliction of emotional distress. (Am. Compl. 25 at 13-14). While Plaintiff alleges that he was being stalked and is experienced a hostile work environment (allegations that appear to be targeted at NYU, not UCATS), these allegations are conclusory. See Goodrich v. Long Island R.R. Co., No. 10 Civ. 2195 (SAS), 2010 WL 2473593, at *1, (S.D.N.Y. June 17, 2010) (following Plaintiff's coworker posting on a public bulletin board his positive HIV status, Plaintiff withdrew his NIED claim, conceding he “'was never placed in fear of imminent bodily harm, nor did he ever suffer any physical impact'”). To the extent Plaintiff is alleging UCATS acted negligently by failing to file grievances for Plaintiff, as discussed, UCATS has wide discretion in those decisions, and Plaintiff does not adequately allege that they abused their discretion. See supra Section 1.
V. Conclusion and Recommendation
For the reasons stated above, I recommend that the Motion be GRANTED. Although pro se complaints should generally be given leave to amend when there is “any indication that a valid claim might be stated, ” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002), amendment may be denied upon a finding of futility. See Chill v. Gen. Elec. Co., 101 F.3d 263, 271-72 (2d Cir. 1996). I do not recommend that Plaintiff be given leave to amend his conspiracy claim because his allegations, even liberally construed, are still fanciful and factually frivolous. See Kraemer v. City of New York, No. 19-CV-6671 (VEC), 2020 WL 1974204, at *4 (S.D.N.Y. Apr. 24, 2020) (“While the Court has no basis to doubt the sincerity of Plaintiff's beliefs, the allegations exhibit a level of delusional paranoia that makes the continuation of this vexatious litigation an unjustified expenditure of public and private resources.”) (finding Plaintiff's allegations of coordinated efforts by police, AMC movie theaters, T-Mobile, Starbucks, NYU and others to “surveil, mock, and harass Plaintiff” frivolous). Similarly, because Plaintiff's fair representation claims are time-barred, leave to amend would also be futile.
Because Plaintiff is proceeding pro se, however, I recommend that he be given one final opportunity to replead only his Discrimination Claims for Hostile Work Environment and
Retaliation, and his FMLA Claims, and that he be directed to file a proposed second amended complaint within 30 days of Your Honor's final disposition of this motion. To the greatest extent possible, Plaintiff's amended complaint must allege facts to support that his claims, including:
(1) Identifying the NYU or UCATS employees, if any, who engaged in the specific discriminatory conduct; and
(2) Identifying and describing the specific acts by the NYU or UCATS employees that constitute discriminatory acts.
VI. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable J. Paul Oetken, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Oetken.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, she should request copies from the Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
Defendants are directed to serve a copy of this Report and Recommendation on Plaintiff by mail and file proof of service on the docket within seven days. Alternatively, if circumstances related to the ongoing COVID-19 pandemic prevents their service, they must file a letter on the docket instead.