Forsythe v. Amalgamated Warbasse Houses, Inc.
| Decision Date | 27 April 2012 |
| Docket Number | 10 Civ. 2549 (KBF),10 Civ. 4609 (KBF) |
| Parties | EARL FORSYTHE, Plaintiff, v. AMALGAMATED WARBASSE HOUSES, INC., Defendant. EARL FORSYTHE, Plaintiff, v. LOCAL32BJ, SEIU, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Earl Forsythe, appearing in these actions pro se, was employed as a porter by Amalgamated Warbasse Houses, Inc. ("Amalgamated") for a period of less than three years. During that time, he received nine disciplinary notices relating to his job performance and was suspended on two occasions. He then brought two children to work and left them unattended. Togetherwith his disciplinary history, that event led to Mr. Forsythe's termination.
During the time that plaintiff was employed by Amalgamated, he was a member of Local 32BJ, SEIU ("Local 32BJ"). Following his termination, and having filed one previous lawsuit against Local 32BJ — which suit was later dismissed for failure to state a claim — he filed these actions.1
Plaintiff commenced his action against Amalgamated in March 2010, alleging that his termination was retaliatory and motivated by discrimination on account of his race (African American) and national origin (Trinidadian). He commenced his action against Local 32BJ in June 2010, alleging, inter alia, a violation of the union's duty of fair representation, by virtue of its decision not to present his termination grievance for arbitration.
These cases arise from the same set of events and circumstances and have progressed in a coordinated fashion before the Court. They were transferred to the undersigned in November 2011. At a conference in December 2011, defendants in both actions indicated that they intended to move for summaryjudgment, and this Court set a briefing schedule that had the motions fully briefed at the end of March 2012. During the December conference, the Court explained to Mr. Forsythe that such motions could be dispositive of his cases and that he would need to respond to any factual assertions and evidence put forward by defendants with a counter-statement of facts and supporting materials. (See Docket No. 19, 10 Civ. 254 9; Docket No. 28, 10 Civ. 4609.) On January 23, 2012, defendants served separate notices on plaintiff in which they stated clearly that they were seeking judgment on his claims and that, in order to defeat such a motion, he would need to submit supporting facts.
Defendants submitted a joint statement of uncontested facts pursuant to Local Rule 56.1 and extensive factual materials in support of their motions for summary judgment. Those materials are properly before this Court on this motion and include, inter alia, portions of the multi-day deposition of plaintiff. Despite warnings from the Court and the clear notices sent by defendants, plaintiff failed to submit a counter-statement to defendants' 56.1 submission. In opposition to defendants' motions, plaintiff submitted a brief, a notarized affidavit, two declarations from other individuals regarding their own personal claims that are unrelated to plaintiff's particular circumstances, a copy of the letter terminating his employment on July 23, 2009, photocopies of photographs taken ofplaintiff's work area that he had alleged were improperly included in his file (and showing his work area in disarray), and other miscellaneous materials relating to his union complaints, grievances and the appeal process. Not a single one of plaintiff's attachments creates a material issue of fact.
For the reasons set forth below, defendants' motions for summary judgment are GRANTED in their entirety, and plaintiffs' actions are dismissed with prejudice.
Joseph Loscalzo is the Maintenance Director at Amalgamated. (Joint 56.1 Statement ("56.1") at ¶ 8.) In October 2006, he hired plaintiff Forsythe to work as a porter in the Amalgamated buildings. (Id. ¶ 17.) Amalgamated currently employs 28 porters, of whom 22 are of the same race as Mr. Forsythe. (Id. ¶¶ 9-10.) Two of those porters, both of whom are also African American, were hired after plaintiff's termination. (Id. ¶ 11.)
As a porter, plaintiff's job responsibilities included handling the garbage and recycling in the compactor rooms and back hallways of his assigned building. (Id. ¶ 20.) He was assigned to work Sunday through Thursday, from 7:00 a.m. to 4:00 p.m. (Id. ¶ 22.)
Amalgamated had a collective bargaining agreement ("CBA") with Local 32BJ. (Id. ¶ 24.) That CBA had terms and conditions with which Amalgamated agreed to comply with respect to eachunionized employee, including plaintiff. (Id.) Pursuant to the CBA, employees may not be terminated except for just cause. (Id. ¶ 25.) If an employee believes that Amalgamated has violated the terms of the CBA with respect to him, he must contest that violation using the grievance and arbitration procedures set forth in the CBA. (Id. ¶ 26,) The CBA provides for a 45-day time limit from the date of the incident for filing disciplinary grievances. (Id.)
Mike India is employed by Local 32BJ as a grievance representative and has, since 2007, been the grievance representative for the unionized building service employees at Amalgamated. (Id. ¶ 28; India Decl. ¶ 4.) When a unionized employee files a grievance, the union's grievance representative conducts an investigation to determine whether the grievance has sufficient merit to proceed to arbitration. (56.1 ¶ 30; India Decl. ¶¶ 1-2.) The representative then determines whether to recommend that the union arbitrate the grievance. (See 56.1 ¶ 32.) If the Union declines to arbitrate a grievance, an employee may file an appeal of that decision to the Grievance Appeal Board ("GAB"). (Id.) Plaintiff conceded at his deposition that he knew, from the time he commenced employment at Amalgamated, that he could file a grievance with Local 32BJ. (Id. ¶ 33 (citing Forsythe Dep. 580:6-10).) In fact, plaintiff filed four grievances relating to various disciplinary notices,his suspension and his termination. (56.1 ¶ 34.) None of those grievances were arbitrated, including the one related to plaintiff's termination. Mr. India recommended that Mr. Forsythe's termination grievance not be arbitrated. (Id. ¶ 120.)
Within a few months of commencing his employment with Amalgamated, plaintiff received his first warning letter relating to his job performance. (Id. ¶¶ 41-47.) That letter stated that plaintiff had failed to perform certain assigned tasks and had failed to follow his supervisor's instructions. (Id. ¶ 41; see also Auletti Aff. Ex. B.) Plaintiff did not file a grievance regarding that warning letter. (56.1 ¶ 47.) At his deposition, plaintiff did not deny that he had, in fact, done or failed to do what was asserted in the warning letter. (Id. ¶¶ 42-45.) A second warning letter followed a few months later. That letter recited that plaintiff had repeatedly failed to arrive to work on time and warned him not to ride his bike during work hours. (Id. ¶¶ 48-52; see also Auletti Aff. Ex. C.) At his deposition, plaintiff conceded that he had ridden his bike during work hours as alleged in this warning letter. (56.1 ¶ 49.) Plaintiff did not file a grievance regarding that warning letter. (Id. ¶ 52.)
One month later, plaintiff received a third warning letter — also for unsatisfactory work performance. (Id. ¶ 53.)According to that letter, plaintiff had again failed to perform certain assigned tasks and had failed to complete assigned tasks by the end of his shift. (Id. see also Auletti Aff. Ex. D.) As a result, Amalgamated suspended plaintiff for two days. (56.1 ¶ 54.) The letter also specifically stated that "if this situation does not improve disciplinary action will be taken." (Auletti Aff. Ex. D.) At his deposition, plaintiff could not recall whether he had completed his assigned tasks by the end of his shift but testified that "[c]ommon sense will tell you that how the hell am I going to finish by four when I'm leaving to go to another building . . . [b]ut it's not my fault." (Forsythe Tr. 333:6-334:6; 56.1 ¶ 55.) Plaintiff did file a grievance with the Union contesting the suspension. (56.1 ¶ 57.) The Union worked with Amalgamated to resolve the issue. (See id. ¶ 57; India Decl. ¶ 8.)
Within two months, plaintiff received a fourth warning letter for showing up over an hour late to work. (56.1 ¶ 58; Auletti Aff. Ex. E.) The letter noted that plaintiff had been warned before about tardiness and advised that *[i]f this situation continues, then disciplinary action will be taken." (56.1 ¶ 58; Auletti Aff. Ex. E.) At his deposition, plaintiff conceded that he was late for work that day (Forsythe Dep. 298:9-299:22) and came in late "on occasions" (id. 303:3-8).
A number of months after this fourth warning letter, in September 2008, plaintiff received two written warnings for unsatisfactory work performance, including for failing to follow a supervisor's directions and to perform certain assigned tasks, (56.1 ¶ 62; Auletti Aff. Ex. F.) At his deposition, plaintiff conceded certain conduct and job responsibilities set forth in the warning letters. (56.1 ¶¶ 63-64.) Plaintiff did file a grievance regarding the two warning letters but said that he just wanted Local 32BJ to send Amalgamated a letter objecting to the two warnings, not to call his employer. (Id. ¶ 66-67.) In October 2008, the Union sent such a letter. (Id. ¶¶ 66.)
Within three days of the two September warning letters, plaintiff received another warning letter for his repeated tardiness. (Id. ¶ 68; Auletti Aff. Ex. G.) At his deposition, plaintiff conceded that he was late for work at times. (56.1 ¶ 69; see also Forsythe Dep. 366:19-367:13.) Plaintiff did not file a grievance regarding that warning letter. (56.1 ¶ 71.)
On October 1, 2008, plaintiff received a final warning letter for unsatisfactory work performance. (Id. ¶ 72.) That letter stated that he had failed to perform certain assigned tasks and to follow a...
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