Vann v. Persico

• Decision Date: 20 September 2022
• Docket Number: 20-CV-628 (KMK)
• Parties: ROOSEVELT VANN, JR., Plaintiff, v. RICHARD PERSICO; RIGGS DISTLER & COMPANY, INC.; LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LABORERS LOCAL 60; JACINTO JAY FRAGOSO; PCT CONTRACTING LLC; MICHAEL BASILONE; and CARLOS AFONSO, Defendants.
• Court: U.S. District Court — Southern District of New York

ROOSEVELT VANN, JR., Plaintiff,
v.
RICHARD PERSICO; RIGGS DISTLER & COMPANY, INC.; LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LABORERS LOCAL 60; JACINTO JAY FRAGOSO; PCT CONTRACTING LLC; MICHAEL BASILONE; and CARLOS AFONSO, Defendants.

No. 20-CV-628 (KMK)

United States District Court, S.D. New York

September 20, 2022

Robert Wisniewski, Esq., Robert Wisniewski P.C., Counsel for Plaintiff

Clifford H. Green, Esq., Clifford H. Greene & Associates, Counsel for Defendants Richard Persico and PCT Contracting LLC

Michael Lauricella, Esq., Archer & Greiner, P.C., Counsel for Defendant Riggs Distler & Company, Inc.

Douglas Diaz, Esq., Archer & Greiner, P.C., Counsel for Defendant Riggs Distler & Company, Inc.

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Steven H. Kern, Esq., Barnes, Iaccarino, & Shepherd, LLP, Counsel for Defendants Laborers International Union of North America, Laborers Local 60 and Jacinto Jay Fragoso

Stephen D. Hans, Esq., Stephen D. Hans & Associates, P.C., Counsel for Defendant Michael Basilone

OPINION & ORDER

KENNETH M. KARAS, United States District Judge

Roosevelt Vann, Jr. (“Plaintiff”) brings this Action against Richard Persico (“Persico”), Riggs Distler & Company, Inc. (“Riggs”), Laborers International Union of North America, Laborers Local 60 (“Local 60”), Jacinto “Jay” Fragoso (“Fragoso”), PCT Contracting LLC (“PCT”), Michael Basilone (“Basilone”), and Carlos Afonso (“Afonso”; collectively, “Defendants”), alleging that Defendants (1) unlawfully discriminated against him on the basis of race via Defendants' refusal to allow Plaintiff to join a union, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; 42 U.S.C. § 1981; and the New York State Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW § 296; (2) retaliated against Plaintiff for terminating Plaintiff's employment shortly after Plaintiff filed complaints with relevant regulatory agencies, in violation of the same statutes; and (3) violated numerous provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and New York Labor Law (“NYLL”) in, inter alia, failing to pay Plaintiff union wages and provide Plaintiff with wage notices. (See generally Second Am. Compl. (Dkt. No. 58).) Before the Court are Riggs's Motion To Dismiss Counts One, Three, Seven, and Nine of the Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Riggs's Motion”), and Local 60 and Fragoso's (together, the “Union Defendants”) Motion To Dismiss Count One of the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) and/or Motion For Judgment on

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the Pleadings on Count One of the SAC pursuant to Federal Rule of Civil Procedure 12(c) (“Union Defendants' Motion”; together with Riggs's Motion, the “Motions”). (See Riggs's Not. of Mot. (Dkt. No. 93); Union Defs.' Not. of Mot. (Dkt. No. 96).)^[1] For the following reasons, Union Defendants' Motion is denied and Riggs's Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from the SAC and assumed to be true for purposes of resolving the instant Motions. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam) (Rule 12(b)(6) motion); Cho v. Blackberry Ltd., 991 F.3d 155, 162 (2d Cir. 2021) (Rule 12(c) motion).

1. Background to the Parties

Plaintiff is a Black man and was employed by PCT, and later Riggs, as a flagger on gas utility projects in Westchester County between approximately March 2010 and January 2018. (See SAC ¶¶ 1, 88, 89.)

PCT is a New York limited liability corporation with its principal place of business in New York. (See id. ¶ 11.) Riggs is a Maryland corporation with its principal place of business in New Jersey. (See id. ¶ 12.) Both PCT and Riggs are gas utility contractors and provide utility and heavy construction services in New York state, including most notably as a “preferred contractor” for Consolidated Edison of New York (“Con Ed”). (See id. ¶¶ 14, 47, 48, 51.) Plaintiff alleges that in November 2016, Riggs acquired PCT's assets and business pursuant to an

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asset purchase agreement, which in actuality was a de facto merger and resulted in Riggs becoming PCT's successor-in-interest. (See id. ¶¶ 15, 47-62.) Persico is a White man, and at all relevant times was PCT's owner and president, with operational control of PCT's business. (See id. ¶¶ 17-18.) Afonso and Basilone are also White men, and at all relevant times were PCT and then Riggs's project managers, and allegedly had the authority to set the terms and conditions of Plaintiff's employment. (See id. ¶¶ 19-22.)

PCT and Riggs were “union shop[s]” and had numerous collective bargaining agreements (“CBAs”) with various unions, including Local 60 and Local 731 (a non-party). (Id. ¶¶ 50, 128.) Local 60 is an unincorporated association headquartered in Westchester County, and is a chapter of the Laborers International Union of North America. (See id. ¶ 25.) Fragoso is a White man and at all relevant times was Local 60's Recording Secretary and Union Delegate to PCT, and later Riggs, and allegedly had the authority to set the terms and conditions of Plaintiff's employment. (See id. ¶¶ 26-27.)

2. Plaintiff's Employment with PCT & Riggs

In or around March 2010, Plaintiff was hired by Basilone as a flagger for PCT. (See Id. ¶ 88.) Plaintiff alleges that Basilone had a “stated animosity to [B]lack people,” but that Basilone agreed to hire Plaintiff after being “coaxed and cajoled” to do so by White PCT workers who had worked with Plaintiff on a project when Plaintiff was employed by another company and observed his skills. (See id. ¶ 106.) When Plaintiff was hired by PCT, he was one of three Black people working for PCT out of a total workforce of approximately 150 workers; the majority of PCT workers were White and/or Hispanic. (See id. ¶¶ 105, 107.)

Shortly after Plaintiff began working for PCT, Plaintiff alleges that he was approached by a foreman and several coworkers who asked Plaintiff about his union membership status and told Plaintiff that all PCT flaggers were members of either Local 60 or Local 731 (Local 60's “sister

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organization” in New York City). (See id. ¶¶ 108-09.) Plaintiff alleges that he asked Basilone in October 2010 if he could join a union, and Basilone told him that if Plaintiff joined a union, Basilone would fire Plaintiff. (See id. ¶ 110.) Plaintiff approached Basilone again in late 2011, and Basilone again denied his request; Plaintiff alleges that he “understood that he was denied membership in Local 60 because he was [B]lack.” (Id. ¶¶ 112-13.) Plaintiff also alleges that he observed Basilone and Afonso treat Plaintiff's “light-skinned colleagues” better than they treated Plaintiff and other Black people, which included Basilone frequently sharing “inappropriate and filthy jokes about [B]lack people with Plaintiff” and Afonso turning away Black job applicants without an interview, even when positions were available. (Id. ¶¶ 115-18.) This behavior led Plaintiff to believe that asking to be sponsored for union membership or applying directly to Local 60 would be futile. (See id. ¶ 119.)

Plaintiff alleges that this belief was furthered by his observations of the behavior of Local 60's field representatives, who frequently visited PCT jobsites, avoided talking to Plaintiff, and never asked if Plaintiff was a union member. (See id. ¶ 120.) Plaintiff alleges that in or about mid-2014, Fragoso became the Local 60 field representative and was required to ensure that only union members worked on PCT, and later Riggs, projects. (See id. ¶ 121.) Accordingly, Fragoso would visit PCT's, and later Riggs's, jobsites bimonthly to hand out union paraphernalia and check in, and would “ostentatiously avoid Plaintiff, even though he knew who Plaintiff was, especially since Plaintiff was the only PCT [B]lack worker at the jobsite.” (Id. ¶ 122.) Fragoso's conduct further instilled in Plaintiff a belief that applying for membership in Local 60 would be futile. (See id. ¶ 124.) Moreover, Plaintiff alleges that “less than ten (10) of Local 60's several thousand members are [B]lack.” (Id. ¶ 138.)

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After Riggs acquired PCT, Riggs announced to PCT's employees that Riggs had a 100% unionized workforce, which made Plaintiff hopeful that he would finally be permitted to join a union. (See id. ¶ 128.) However, Plaintiff alleges when he returned to work in March 2017 after a winter furlough, he was not approached by Basilone, Afonso, or Fragoso about joining a union. (See id. ¶ 129-30.) In April 2017, Plaintiff requested a meeting with Fragoso to discuss his union membership status, and when the two met, Fragoso allegedly told Plaintiff that he could not join Local 60 because Basilone and Afonso had instructed Fragoso not to allow Plaintiff into the union. (See id. ¶¶ 131-32.)

3. Plaintiff's Discrimination Charges & Termination

Plaintiff alleges that by June 22, 2017, he “had had enough” and filed a complaint against Riggs, PCT, Basilone, and Afonso with the New York State Division of Human Rights (“DHR”). (Id. ¶ 141; see also id. ¶ 38.) On July 21, 2017, Plaintiff filed a second charge with DHR naming Local 60 and Fragoso. (See id. ¶¶ 39, 142.) Plaintiff alleges that “[a]s soon as Defendants found out about Plaintiff's complaints,” Afonso and Basilone visited Plaintiff at his jobsite and berated Plaintiff about the complaints. (Id. ¶ 143.) Specifically, Plaintiff alleges that Basilone screamed at Plaintiff: “Why did you file a complaint against us after all we have done for you. We gave you a job!” (Id.) Plaintiff further alleges that in early October 2017, he was approached for a “sit down” with Local 60's union boss, who told him that he did not know “what happened between Plaintiff and Fragoso, but Plaintiff would not be allowed to join Local 60.” (Id. ¶ 144.)^[2]

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