Danao v. Abm Janitorial Servs. & Local 32BJ Seiu
| Decision Date | 18 May 2015 |
| Docket Number | CIVIL ACTION NO. 14-6621 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | VINCENT DANAO Plaintiff, v. ABM JANITORIAL SERVICES AND LOCAL 32BJ SEIU Defendants. |
Currently pending before the Court are: (1) the Motion to Dismiss of Defendant Local 32BJ, Service Employees International Union ("Union"); and (2) the Motion to Dismiss of Defendant ABM Janitorial Services - Mid-Atlantic, Inc. ("ABM"). For the following reasons, the Motions are granted in part and denied in part.
According to the allegations in the Complaint, Plaintiff Vincent Danao "is of the African American or Black race, is of the Hebrew Israelite religion, and is disabled by virtue of his impairments, which include insomnia, back and neck injury and depression, stress/anxiety conditions." (Compl. ¶ 6.) Starting in 1999, Plaintiff was primarily employed by Defendant ABM Janitorial Services ("ABM") as a Class II Janitor and, at all relevant times, Plaintiff was a dues-paying member of his Union, Defendant Local 32 BJ SEIU (the "Union"), in good standing. (Id. ¶¶ 8-9.) During his employment with ABM, Plaintiff received several accolades for good performance, several pay raises, and a promotion to ABM supervisor. (Id. ¶¶ 11-12.) Plaintiffalso served as a shop steward for the Union during part of his employment for ABM. (Id. ¶ 13.)
In 2007, Plaintiff converted to the Hebrew Israelite religion, which made Saturday his Sabbath day. (Id. ¶ 14.) As a result, Plaintiff requested that ABM provide him a religious accommodation to allow him to observe the Sabbath from approximately 9:00 a.m. to 3:30 p.m. on Saturdays. (Id. ¶ 15.) He told ABM that he would be willing to work later in the day on Saturdays. (Id.) ABM did not immediately grant Plaintiff's request for religious accommodation. (Id. ¶ 16.) Shortly thereafter, Plaintiff began to experience harassment from his manager and supervisor, including hostility, a change in demeanor, and extra workload in comparison with similarly-situated employees who were not of the Hebrew Israelite Faith. (Id. ¶ 17.) In addition, Plaintiff's supervisor began to falsely criticize his performance and scrutinize his whereabouts in a manner different from how he treated similarly-situated employees not of Plaintiff's faith, including conducting constant surveillance on Plaintiff via ABM's close circuit television. (Id.)
As a result of ABM's treatment of Plaintiff, he filed charges against his employer with the Equal Employment Opportunity Commission ("EEOC") in 2007 and 2009, alleging discrimination based on his religion and retaliation for complaining of discrimination. (Id. ¶ 18.) Despite these charges, ABM continued to harass him and discriminate against him both based on his religion and in retaliation for filing EEOC charges. (Id. ¶ 19.) As part of Plaintiff's allegations, his supervisor was required to attend an anger management class. (Id. ¶ 20.)
In 2009, ABM fired Plaintiff based on falsely-alleged poor performance. (Id. ¶ 21.) As a result of Plaintiff's complaint to the Pennsylvania Human Resources Commission ("PHRC"), however, he was rehired with seniority and ABM was put on notice that ABM was not todiscriminate against Plaintiff or retaliate against him in the future. (Id.) Plaintiff agreed to return to work without back pay. (Id.) Upon rehire, Plaintiff agreed to drop his charges/claims through the PHRC and ABM offered to pay Plaintiff ten dollars, which it allegedly never did. (Id.)
Between 2007 and 2013, Plaintiff filed four complaints of unfair labor practices against the Union. (Id. ¶ 22.) These complaints alleged that the Union failed to properly represent him regarding ABM's treatment of him. (Id.)
In 2012, Plaintiff alleges that he faced more discriminatory and retaliatory treatment by ABM through his new supervisor (Terrance) and manager (Ms. Velez). (Id. ¶ 23.) This treatment included assigning Plaintiff an excessive workload in comparison with his peers, refusing to provide him with a definitive work description, leaving him in confusion as to what his duties and work areas were for around seven months, screaming and hollering at him, monitoring him while he was in the men's room, repeatedly threatening to suspend him based on false allegations of poor performance, and repeatedly writing him up for falsely alleged poor performance. (Id.) As a result, Plaintiff began to develop stress, anxiety, insomnia, and depression symptoms for which he sought medical treatment. (Id. ¶ 24.) Plaintiff then requested a disability accommodation in the form of a transfer to a new work location, which ABM denied. (Id. ¶ 25.)
On October 16, 2012, Plaintiff injured his neck and back at work while performing his duties. (Id. ¶ 26.) He filed a Workmen's Compensation claim and was advised to take off of work for approximately thirty days to recuperate. (Id.) Plaintiff also needed time off as a result of stress, anxiety, and depression. (Id.) ABM denied that it was responsible for Plaintiff's injuries, but agreed to settle the matter with Plaintiff by paying him $2,500 in the form of wages,and allowing him thirty days of time off. (Id. ¶ 27.) Plaintiff was out of work from October 16, 2012 to November 16, 2012, during which time he received treatment for both his neck and back injury, and for his stress, anxiety, and depression. (Id. ¶ 28.)
After November 16, 2012, Plaintiff required continued treatment for his conditions. (Id. ¶ 29.) Nonetheless, Plaintiff's second level manager, Ms. Velez, repeatedly assigned him more work than similarly-situated employees outside of one or more of Plaintiff's protected classes of religion, race, disability, and those who had not complained of discrimination. As a result of Plaintiff's back injury, he was given a medically-prescribed lifting restriction. (Id. ¶ 32.)
Plaintiff filed several grievances against ABM through the Union. (Id. ¶ 33.) When Plaintiff complained about the level and quality of the Union's representation of him, however, Union representatives told him the Union did not care if he was dissatisfied or if he complained to the National Labor Relations Board ("NLRB"). (Id. ¶ 33.) Plaintiff alleges that the Union has a pattern and practice of representing Caucasian Union members better than African-American Union members. (Id. ¶ 34.)
After Plaintiff returned to work in November 2012, ABM purportedly resumed its harassment of him. (Id. ¶ 35.) For example, although Plaintiff routinely started preparation for work four to ten minutes early each day, ABM did not give Plaintiff overtime pay for that accumulation of work. (Id. ¶ 36.) Plaintiff also routinely worked past the end of his shift to complete work, which his superiors requested, and had to file an eventual grievance through the Union, the result of which was a payment of four hours overtime in June 2012. (Id. ¶ 37.) Sometime in November 2012, Ms. Velez suspended Plaintiff for three days on the allegation of poor performance on October 16, 2012. (Id. ¶ 38.) Specifically, Velez claimed Plaintiff had leftwork undone on that date. (Id.) Plaintiff asserts that this report was a fabrication in retaliation for his Workmen's Compensation claim, especially because there had been no criticism of the work on October 16, 2012. (Id.) Thereafter, on February 20, 2013, during his work break and purportedly as a result of his insomnia, Plaintiff accidentally fell asleep and was awakened by his immediate supervisor who took a photograph of him. (Id. ¶ 42.)
Following the February 20, 2013 incident, ABM suspended Plaintiff for three days, and then fired him on February 27, 2013. (Id. ¶ 43.) Plaintiff asserts that this had been his first instance of falling asleep at work and, according to ABM's written policy, a first time offense is only to be disciplined by a warning and a three-day suspension. (Id. ¶ 44.) The Union refused to push the issue with ABM despite the fact that both ABM and the Union knew that Plaintiff fell asleep because of his disability. (Id. ¶¶ 45-46.) In addition, ABM challenged Plaintiff's receipt of unemployment compensation—as it had previously done in 2010—and the Unemployment Compensation Referee ruled that he was eligible for compensation. (Id. ¶ 46.)
Plaintiff filed two cases against the Defendants. His first—filed in state court but subsequently removed to federal court—set forth the same operative facts, but asserted two causes of action: (1) a breach of duty of fair representation claim against the Union due to the Union's failure to make a particular argument when presenting the contractual grievance challenging his discharge; and (2) a breach of contract claim against both the Union and ABM, claiming that ABM violated the terms of the Collective Bargaining Agreement by terminating Plaintiff for a first incident of sleeping on the job, and that the Union violated the agreement by breaching its duty of fair representation. .)1 This Court dismissed the entire action against both Defendants, and Plaintiff appealed only the dismissal as it pertained to the Union. Denao v. Service Employees Int'l Union, Local 32BJ, No. 14-3233.
Plaintiff filed the current suit in federal court on November 13, 2014 ("Danao II"). This suit sets forth eight causes of action as follows: (1) religious discrimination in violation of Title VII against Defendant ABM; (2) disability discrimination in violation of the Americans With Disabilities Act ("ADA") and Americans With Disabilities Act As Amended ("ADAA") as to Defendant ABM; (3) retaliation as to Defendant ABM in violation of Title VII, the ADAA, and the ADA; (4) racial discrimination in violation of 42 U.S.C. § 1981 as to Defendant ABM; (5) violation of the Pennsylvania Human Relations Act ("PHRA") as to Defendant ABM; (6) violation of the public policy of Pennsylvania for termination of employment...
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