Danao v. ABM Janitorial Servs.

• Decision Date: 07 October 2015
• Docket Number: CIVIL ACTION NO. 14-6621
• Citation: 142 F.Supp.3d 363
• Parties: Vincent Danao Plaintiff, v. ABM Janitorial Services and Local 32 BJ SEIU Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

142 F.Supp.3d 363

Vincent Danao Plaintiff,

v.ABM Janitorial Services and Local 32 BJ SEIU Defendants.

CIVIL ACTION NO. 14-6621

United States District Court, E.D. Pennsylvania.

Signed October 7, 2015

Reginald C. Allen, Philadelphia, PA, for Plaintiff.

Jonathan Landesman, Cohen Seglias Pallas Greenhall & Furman, PC, Philadelphia, PA, for Defendant, ABM Janitorial Services.

Lyle Rowen, Office of the General Counsel, New York, NY, Carson Gabriel Campbell, Spear Wilderman PC, Philadelphia, PA, for Defendant, Local 32BJ SEIU.

MEMORANDUM

BUCKWALTER, S.J.

Currently pending before the Court is Defendant Local 32BJ, Service Employees International Union's ("Union"'s) Motion to Dismiss Plaintiff's Amended Complaint. For the following reasons, the Motions is denied.

I. FACTUAL BACKGROUND

According to the allegations in the Amended Complaint Complaint, Plaintiff Vincent Danao "is of the African American or Black race and is disabled by virtue of his impairment, insomnia." (Am. 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, 13.) Plaintiff also served as a shop steward for the Union during part of his employment for ABM. (Id. ¶ 12.)

In 2007 and 2009, Plaintiff filed charges against his employer with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on his religion and retaliation for complaining of discrimination. (Id. ¶ 14.) He asserted that his supervisors began scrutinizing him in a manner in which it did not scrutinize others outside his religion, including surveilling Plaintiff via close circuit television. (Id. ¶ 14.)

In 2009, ABM fired Plaintiff based on falsely-alleged poor performance. (Id. ¶ 15.) As a result of Plaintiff's complaint to the Pennsylvania Human Resources Commission ("PHRC"), however, the case was settled and Plaintiff was rehired with a promise by ABM to not retaliate against him. (Id. ) In addition, Plaintiff's former supervisor was require to attend an anger management class. (Id. ¶ 16.)

Between 2007 and 2013, Plaintiff filed four complaints of unfair labor practices against the Union for its alleged failure to properly represent him during the grievance process in his conflicts with ABM. (Id. ¶ 17.) Among his complaints against the Union were that "it treated him differently and inferior to similarly situated Caucasian union members, in terms of the attention it would give to his grievances, as well as its willingness to arbitrate his grievances, for alleged performance and disciplinary issues, which were falsely charged by ABM." (Id. ¶ 18.)

In 2012, Plaintiff alleges that he faced more discriminatory and retaliatory treatment by ABM through his new supervisor, Ms. Velez. (Id. ¶ 19.) This treatment included assigning Plaintiff an excessive workload in comparison with his peers who were not members of his protected classes; 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 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 fear that Ms. Velez was attempting to orchestrate his firing. (Id. ¶ 20.) He received professional treatment from a psychologist for his insomnia, and he required medication to combat his insomnia, stress, anxiety, and depression. (Id. ¶ 20–22.) Plaintiff then requested a disability accommodation in the form of a transfer to a new work location, which ABM denied. (Id. ¶ 23.) ABM allegedly failed to engage Plaintiff in an interactive process to attempt to accommodate his disability, with the knowledge that the stress imposed in his work environment would exacerbate his insomnia. (Id. ¶ 24.)

On October 16, 2012, Plaintiff injured his neck and back at work while performing his duties, and was required to take off for approximately thirty days. (Id. ¶ 25.) Plaintiff asserts that his injury was based, in part, on ABM's intentional refusal to properly train him for his duties. (Id. ¶ 28.) Plaintiff also needed time off as a result of stress, anxiety, and depression. (Id. ¶ 25.) ABM initially fought his claim for worker's compensation benefits. (Id. )

After November 12, 2012, Plaintiff required continued treatment for his conditions. (Id. ¶ 27.) Nonetheless, Ms. Velez, repeatedly assigned him more work than similarly-situated employees who were not members of his protected classes. (Id. ¶ 29.) In addition, ABM intentionally refused to give him credit for overtime for work that he routinely did before the start of his shift. (Id. ¶ 30.)

In November 2012, Ms. Velez suspended Plaintiff for three days based on the false allegation that he had not completed work on October 16, 2012. (Id. ¶ 31.) Specifically, she claimed that he had left work undone on that date, even though ABM's practice and procedure was to do daily inspections at the end of each shift to ensure that the work was properly done. (Id. ¶ 31.) Although ABM purportedly knew that Ms. Velez's imposed suspension was invalid, it endorsed it and used it as a basis for Plaintiff's eventual termination. (Id. ¶ 32.) Aside from the suspension, Ms. Velez repeatedly hollered at Plaintiff and attempted to verbally demean and belittle him; assigned Plaintiff more work that similarly situated employees; and refused to properly train Plaintiff for his duties. (Id. ¶¶ 33–35.)

On February 20, 2013, Plaintiff fell asleep during his work break, as a result of his insomnia which was known to Defendants. (Id. ¶ 36.) At the time of the incident, Plaintiff's immediate supervisor took a photograph of him. (Id. ¶ 39.) As a result, ABM immediately suspended Plaintiff for three days and then terminated his employment on February 27, 2013. (Id. ¶ 37.) ABM justified its termination of Plaintiff based on other alleged disciplinary infractions, which, according to ABM's policy, should not have been combined to justify his termination. (Id. ¶ 40.) ABM was in possession of Plaintiff's medical documentation of his insomnia prior to the incident on February 20, 2013, but refused to engage in an interactive process to attempt to accommodate Plaintiff. (Id. ¶ 42.) ABM then challenged Plaintiff's receipt of unemployment compensation benefits under the theory that the incident on February 20, 2013 was willful misconduct. (Id. ¶ 43.)

Plaintiff filed several grievances against ABM through the Union. (Id. ¶ 55.) Plaintiff complained about the level and quality of the Union's representation of him, including that it assigned some of his grievances to lower level shop stewards rather than its several experienced and better qualified attorneys. (Id. ) On one occasion in late 2012, when ABM was ramping up its alleged discriminatory and retaliatory treatment, District Leader Mr. MacManiman, a Caucasian man, angrily told Plaintiff that he did not care that Plaintiff was dissatisfied with his level and quality of representation, and that if he wanted, he could sue the Union. (Id. ¶ 56.) Plaintiff complained about the Union's failure to properly represent him in/around late 2012 or early 2013, including the fact that Mr. MacManiman's Caucasian assistant, Tom Smith, was refusing to assist him in controverting allegations of improper performance and in putting forth Plaintiff's allegations of unequal workload and intentionally-undefined duties. (Id. ¶ 57.) Mr. Smith angrily told Plaintiff that he should stop complaining, but reluctantly went to Plaintiff's work location after ABM's General Counsel authored a letter to Plaintiff dated January 15, 2013. (Id. )

Plaintiff alleges—upon the observations of both former Union members Yvette Spencer and "Gimeling"—that Mr. MacManiman and Mr. Smith used ongoing racial slurs, racial jokes, and/or racial remarks during the relevant time period for this Amended Complaint, in which they referred to African Americans as "monkeys" or "flying monkeys." (Id. ¶ 58.) Although Ms. Spencer was one of the Union's best staffers, Mr. MacManiman intentionally fired her on the false basis that she had not gone to a particular building. (Id. ¶¶ 59–60.) Ms. Spencer believed that the firing was racially motivated since Mr. MacManiman had fired a series of good and competent Union employees and replaced them with Caucasian employees. (Id. ¶ 60.) The African American staffers who were fired—who Plaintiff refers to as "Jackie," "Leo," and "Karen"—were replaced with Caucasian staffers. (Id. ¶ 61.) On one occasion during the relevant time period, Ms. Spencer had a verbal disagreement with Mr. MacManiman about a Union matter, and he angrily approached her and acted as if he was going to strike her. (Id. ¶ 62.) After Ms. Spencer was fired, she complained to MacManiman and to the Department of Labor that her termination was based on racial discrimination. (Id. ¶ 63.) Ms. Spencer allegedly observed that MacManiman and Smith had a plan to replace African American staffers with Caucasian staffers and noticed that MacManiman had a penchant for backing management against Union members, including Plaintiff. (Id. ¶ 64–66.)

For purposes of his Step Three Grievance Hearing to preserve his employment, in/around April 2013, Plaintiff was supposed to have been represented by the Union's best trial attorney, James Runkel, who is Caucasian. (Id. ¶ 68.) At the last minute, however, Plaintiff was informed that he would be represented by a newly-hired lawyer, who refused to advance ABM's policy that it could not fire...