Klaper v. Cemetery
| Decision Date | 21 March 2012 |
| Docket Number | 10-CV-1811 (NGG) (LB) |
| Parties | JOZEF KLAPER Plaintiff, v. CYPRESS HILLS CEMETERY and UNITED SERVICE WORKERS UNION LOCAL 74 Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Jozef Klaper brings this action against his former employer, Defendant Cypress Hills Cemetery (the "Cemetery"), and his former labor union, Defendant United Service Workers Union Local 74 ("Local 74"). He alleges that Defendants discriminated against him on the basis of his age, Polish national origin, and disability of alcoholism. Klaper brings claims pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et sea, ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq, ("ADEA"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq, ("ADA"); 42 U.S.C. § 1985; the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"); the New York City Human Rights Law § 8-107 et seq, ("NYCHRL"); and state common law causes of action. Klaper moves to amend his Complaint pursuant to Federal Rule of Civil Procedure 15(a); the Cemetery consents to that amendment but Local 74 opposes it. Local 74 also moves to dismiss the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons set forth below, Klaper's motion to amend his Complaint is GRANTED but Local 74's motion to dismiss the claims against it is also GRANTED. Klaper fails to state a claim against Local 74 under Title VII and the ADA because he has not sufficiently alleged thatLocal 74 breached its duty of fair representation; he fails to state an ADEA claim against Local 74 because he seeks only monetary damages; he fails to state a 42 U.S.C. § 1985 claim against Local 74 because his allegations of employment discrimination cannot form the basis of such a claim; and the court lacks subject matter jurisdiction over his NYSHRL and NYCHRL claims against Local 74 because he has already brought the claims before the New York State Division of Human Rights. Accordingly, Klaper's claims against Local 74 are dismissed and this case will proceed solely against the Cemetery.
Plaintiff Jozef Klaper is a man of Polish descent who was sixty-two years old at the time he filed his Complaint. (Compl. (Docket Entry # 1) at 4.) Klaper was employed by the Cemetery as a tractor driver and maintenance worker from May 9, 2005, until his termination on July 2, 2008. (Am. Compl. (Docket Entry # 36-2) ¶¶ 15, 17-18, 93.) Klaper claims that he was paid $18 per hour while other workers were paid $25 per hour for performing the same duties. (Compl. at 4.) After ninety days of employment at the Cemetery, Klaper became a member of Defendant Local 74, a labor organization charged with the representation of the Cemetery's field workers. (Am. Compl. ¶ 7.)
Klaper alleges that, from the time he began working at the Cemetery, he faced daily discriminatory conduct from Cemetery employees. Among other things, Klaper alleges: (1) that his foreman and direct supervisor, John Nicastro, and the Supervisor of Field Operations, Anthony Russo, called him "Eddie Mouser"—the name of an older former Cemetery worker who had passed away—for the purpose of mocking Klaper's age (id. ¶¶ 22-35); (2) that after hecomplained to Russo about the "Eddie Mouser" comments, he "was singled out for more difficult and more laborious chores" (id. ¶ 36); (3) that Nicastro called him "stary chuj," a Polish term that means "old dick" or "old cock" (id. ¶¶ 38-43, 52); (4) that he was not permitted to sit in the front seat of the car when he was driven to different work sites at the Cemetery (id. ¶ 43); and (5) that the Cemetery deliberately teamed Klaper and Nicastro together, knowing of Nicastro's harassing conduct toward Klaper, in order to "create and fabricate a reason for [Klaper's] termination" and for the purpose of harassing and antagonizing him (id. ¶ 49-50).
According to Klaper, "as a result of [the] constant mental abuse by Mr. Nicastro and other Cemetery workers, [Klaper] fell into depression and was drinking at home." (Id. ¶ 54.) On June 27, 2008, he "finally stood up for himself and "told Mr. Nicastro off." (Id. ¶ 56.) That weekend, "depressed over his treatment at work," Klaper "went on a drinking streak," and left a message with Russo's secretary the following Monday "stating that he was very sick and that he would return to work on Wednesday, July 2, 2008." (Id. ¶¶ 57-58.) When Klaper returned to work that Wednesday, he was told that his employment was terminated. (Id. ¶ 60.) He was never given a termination letter or a reason for his termination. (Id.)
About one week later, another employee of the Cemetery gave Klaper the phone number of a Polish-speaking employee of Local 74, Anna Kubas. (Id. ¶ 63.) Klaper called Kubas to ask for help from Local 74, after which he visited Local 74's office at least three times to meet with Kubas and Local 74's Contract Administrator, Mike Herron. (Id. ¶ 64.) Local 74 then arranged a meeting between Klaper, Local 74, and the Cemetery, to take place on August 2, 2008. (Id. 166.)
The meeting was attended by Klaper, Mario Gil—the Cemetery's Vice President— Russo, Herron, and Kubas. (Id. ¶¶ 67.) Klaper was presented with a "final chance stipulation" ("Stipulation"). The full text of the Stipulation is as follows:
(Stipulation (Mele Decl., Ex. A (Docket Entry # 42-2)).)
Klaper was told that he was required to sign the Stipulation in order to keep his job at the Cemetery. (Am. Compl. ¶¶ 68-69.) According to Klaper, Kubas told him that he had "to check himself into an alcohol rehabilitation program and that after a three (3) months suspension he would return to work," but never translated the Stipulation to Klaper, never informed him "that by signing the document he was agreeing to give up his seniority," and never informed him that it was a "final chance stipulation." (Id. ¶¶ 69-70.) Klaper signed the Stipulation but claims that he did not fully understand it. (Id. ¶ 71; Compl. at 4.)
On August 4, 2008, Klaper checked himself into an alcohol dependence/abuse program at St. Mark's Place Institute for Mental Health, Inc. ("St. Mark's"); he remained there until September 4, during which time he retained sobriety. (Am. Compl. ¶¶ 73-74.) But he relapsed on September 26, was hospitalized, and underwent a five-day detoxification. (Id. ¶¶ 77-78.) Klaper was discharged from the hospital on October 1, and returned to St. Mark's on October 2, 2008. (Id. ¶¶ 79-80.) Although the Stipulation provided that Klaper would return to work on October 1, Klaper did not do so, and does not allege that he informed the Cemetery or Local 74 that he would not be returning on that date.
On October 2, 2008, Klaper was informed by his psychotherapist, George Wawrzonek, that "he was not ready to return to work and that he needed further psychiatric support and counseling." (Id. ¶ 81.) On October 3, Wawrzonek called Russo at the Cemetery and left a message about Klaper's "continuing inpatient treatment and proposed reasonable accommodations for his return to work." (Id. ¶ 82.) Russo did not respond to that message or to a second message Wawrzonek left the following week. (Id. ¶¶ 83-84.) On October 6, Dr. Roman Pabis, the Director of St. Mark's, sent a fax to both the Cemetery and Local 74— addressed to the attention of Russo—discussing the seriousness of Klaper's illness, proposing that Klaper take medication to prevent him from drinking, and noting that Klaper had been paying the costs of his alcohol rehabilitation program out of pocket.3 (Id., ¶¶ 85-87, Ex. C.) Neither the Cemetery nor Local 74 responded. (Id. ¶ 88.)
On October 9, 2008, Klaper returned to work, but Russo told him he was fired. (Id. 1 93.) Klaper claims, on information and belief, that he was replaced with a "younger, non-Polish and non-disabled worker." (Id. ¶ 94.) Local 74 was informed of his termination butdid not object to the termination decision. (Id. ¶¶ 95-96.) Following Klaper's termination, Dr. Pabis called Herron at Local 74 and left at least two messages requesting that Local 74 help Klaper get his job back, but received no response. (Id. ¶¶ 100-01.) Klaper then went to Local 74's office "on at least three occasions" and "pleaded for his job back" with Herron and Kubas, but Local 74's representatives told Klaper "that nothing could be done and refused to file a grievance on his behalf." (Id. ¶¶ 102-05.) Klaper told Herron about "the discriminatory conduct and harassment he had been subjected to while he was working at the Cemetery," including being called "Eddie Mouser" and "stary chuj," and Herron responded that "everyone has some kind of nickname." (Id. ¶ 106-07.) Klaper alleges that "Herron's statement regarding [Klaper's] 'nickname' reflects his own prejudice against older Polish Plaintiff." (Id. ¶¶ 108-09.)
On November 3, 2008, Klaper filed a discrimination charge against the Cemetery and Local 744 with the New York State Division of Human Rights (...
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