Velasquez v. Metro Fuel Oil Corp.
| Decision Date | 31 March 2014 |
| Docket Number | No. 12–CV–1548 NGGLB.,12–CV–1548 NGGLB. |
| Citation | 12 F.Supp.3d 387 |
| Parties | Antonio VELASQUEZ, Jr., Plaintiff, v. METRO FUEL OIL CORP., Apollo Petroleum Transport LLC, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL–CIO ) Local 553, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Antonio Velasquez, Jr., pro se.
Cristina E. Gallo, William K. Wolf, Friedman & Wolf, Michael E. Norton, New York, NY, for Defendants.
Before the court are Plaintiff Antonio Velasquez's objections to Magistrate Judge Lois Bloom's Report and Recommendation (“R & R”) that recommended granting summary judgment for Defendant International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL–CIO) Local 553 (“Local 553” or “the union”) on Plaintiff's federal claims, dismissing Plaintiff's state law claims without prejudice, and denying Plaintiff's cross-motion for summary judgment. For the reasons set forth below, the R & R is ADOPTED IN FULL.
Unless otherwise noted, the following facts come from Local 553's Rule 56.1 Statement of Undisputed Material Facts and were acknowledged by Plaintiff in his Response to Defendant's Proposed Finding of Facts . Defendants Metro Fuel Oil Corporation and Apollo Petroleum Transport LLC (collectively “the employer”) hired Plaintiff as a fuel oil truck driver on December 15, 2008.1 (Def.'s 56.1 Stmt. ¶ 9.) On December 29, 2008, Plaintiff spilled approximately five gallons of oil during a delivery to a customer. (Id. ¶ 48.) Plaintiff completed a spill report, explaining that although he followed written company procedure for unloading the oil, the particular truck assigned to him required a different unloading method. (Id. ¶ 52.) Plaintiff had not been fully trained in how to unload this particular truck. (Compl. (Dkt. 1) at 150.)2 In discussing the incident with the union steward, Ken Orrichio (“Orrichio”), and the safety supervisor, Roger Romance (“Romance”), Plaintiff pointed out the discrepancy between the written instructions and the actual unloading procedure required for the delivery truck assigned to him. (Def.'s 56.1 Stmt. ¶¶ 54–55.) Romance said to him, “you are the only one who ever pointed out anything in our written policy, and that can hurt the company you know.” (Id. ¶ 55; Pl.'s 56.1 Resp. ¶ 54.) The employer subsequently placed labels on the trucks requiring different unloading procedures and edited the company manual. Plaintiff believed that the employer was going to receive a $43 million grant from the government and speculates that by pointing out the error in the company manual, he may have jeopardized those funds. (Wolf Decl. in Supp. of Def.'s Mot. for Summ. J. at Ex. B (Velasquez Dep.) (Dkt. 51–2) 171:24–173:2.) Plaintiff alleges that after the spill incident, he suffered pay shortages, sabotage of his delivery truck, and other mistreatment in retaliation.
During his employment, Plaintiff reported to Orrichio that the employer was shorting his pay for overtime hours and holidays worked. (Def.'s 56.1 Stmt. ¶ 101.) Each time Plaintiff complained, Orrichio spoke to the employer on Plaintiff's behalf, and the pay shortage was remedied. (Id. ¶¶ 102–104.) Plaintiff maintains, however, that Orrichio grew resentful of having to address Plaintiff's repeated complaints. (Pl.'s 56.1 Resp. ¶ 103.)
In 2009, union members ratified a new collective bargaining agreement (“CBA”), under which Plaintiff believes he was entitled to a higher wage. (Def.'s 56.1 Stmt. ¶ 107.) Plaintiff points to a notice dated March 25, 2009, announcing the vote on the CBA that was distributed by the union and states that the agreement entitles members to certain wage increases. (Pl.'s 56.1 Resp. ¶ 107 (citing Compl. at 102–03).) Plaintiff did not obtain a copy of the CBA until late 2009. (Id. ) Defendants contend that because Plaintiff was hired after March 1, 2007, he is subject to an exception to the regular hourly wages under the CBA. (Def.'s 56.1 Stmt. ¶ 108.) Article XXV(B) of the CBA states:
Drivers hired on or after March 1, 2007 shall be paid Two ($2.00) dollars per hour less than the above rates during the first year of employment; Additionally, Drivers hired on or after March 1, 2007 shall receive Fifty (.50) cents per hour less during their second year of employment at the end of which time they will receive the regular rate of pay then in effect.
(Compl. at 142.) The “above rates” referenced in the CBA are the same as the wages increases detailed in the March 25, 2009, notice. (Compare id. at 142, with id. at 102.) Plaintiff does not dispute the language of the agreement. (Pl.'s 56.1 Resp. ¶ 108.)
In May 2009, the employer terminated Plaintiff because he did not have a Transportation Worker Identification Credential (“TWIC”) card, a credential issued by the Transportation Security Administration (“TSA”) that was required for fuel tanker drivers to deliver to certain oil terminals. (Def.'s 56.1 Stmt. ¶¶ 85, 87.) At the time, Plaintiff's application for a TWIC card was pending with the TSA. (Id. ¶ 86.) Although the union claims the employer only became aware of Plaintiff's lack of a TWIC card in May 2009 (id. ¶ 84), Plaintiff contends that he advised the employer about the pending status of his TWIC card during pre-employment orientation (Pl.'s 56.1 Resp. ¶ 84). The employer offered to reinstate Plaintiff once he obtained a TWIC card. (Def.'s 56.1 Stmt. ¶ 88.) Plaintiff contacted the union, and a representative told him that “there was nothing the union could do for [him]” and “to give the [TSA] hell” regarding his pending application. (Id. ¶ 90.)
After his termination, Plaintiff applied for unemployment benefits, but the benefits were suspended because the employer contested Plaintiff's application by falsely asserting that Plaintiff had voluntarily quit. (Id. ¶ 94; Pl.'s 56.1 Resp. ¶ 95.) Plaintiff's benefits were reinstated after the employer failed to appear for a hearing and Plaintiff was granted default judgment by the New York Department of Labor. (Def.'s 56.1 Stmt. ¶ 95; Pl.'s 56.1 Resp. ¶ 95.) Plaintiff claims he contacted Orrichio about the employer's misrepresentations to the Department of Labor and other issues stemming from his termination. (Pl.'s 56.1 Resp. ¶ 96.) The union, however, contends that Plaintiff did not inform it of the any problems with his unemployment benefits until January 2010. (Def.'s 56.1 Stmt. ¶ 96.)
Plaintiff obtained a TWIC card in September 2009 and returned to work for the employer.3 (Id. ¶¶ 97–98.) Plaintiff retained his original date of hire and was paid the same wage as before his termination, but he was placed at the bottom of the seniority list. (Id. ¶ at 99; Compl. at 152.)
Plaintiff also made complaints to the union that his truck had been tampered with in ways that compromised his safety. Plaintiff cites incidents in which oil leaked from the back of his vehicle; the gear shift broke while Plaintiff was driving and appeared to have been hacksawed; and he discovered his truck's hose to be unexpectedly over pressurized to a dangerous degree. In addition, on at least four occasions, Plaintiff was dispatched to delivery locations on streets that did not have adequate space to safely park his truck. (Compl. at 47–49.) He relayed these incidents to Orrichio, Scott Anslwyck (a manager) (“Anslwyck”), and the company dispatcher. (Id. at 48.)
Plaintiff also complained to the union that he was subjected to harassment and verbal and physical intimidation by the employer. (Def.'s 56.1 Stmt. ¶ 117.) For example, Anslwyck accused Plaintiff of being unproductive and getting paid to do nothing. (Id.; Compl. at 29.) When Plaintiff complained about his safety concerns, Anslwyck would respond dismissively, telling Plaintiff to “shut up” or that “there are a lot of people out of work.” (Compl. at 29, 37.) Plaintiff complained repeatedly to Orrichio about the mistreatment. (Def.'s 56.1 Stmt. ¶ 118.) On at least one occasion, Orrichio angrily responded “No one here is out to get you!” (Id. ¶ 119.) In addition, a rubber rat was placed in the employee locker room shortly after the spill incident. (Def.'s 56.1 Stmt. ¶ 131; Pl.'s 56.1 Resp. ¶ 131.) Plaintiff speculated that the rat was directed at him, but “did not think much about the plastic rat.” (Def.'s 56.1 Stmt. ¶¶ 132–33; Pl.'s 56.1 Resp. ¶¶ 132–33.) Plaintiff also complained that his workload was very heavy. (Id. ¶ 100.)
Plaintiff claims that he faced discrimination on the job. For example, in December 2009, Plaintiff reported to Anslwyck that his identification card was missing, and Anslwyck responded “Did you look for it in the crack of your ass, you stupid spic!” (Id. ¶¶ 125–26; Pl.'s 56.1 Resp. ¶ 125.) Plaintiff reported the statement to another employee but did not tell a representative of the union. (Def.'s 56.1 Stmt. ¶¶ 127–28.) The union claims that this was the only incident “where Plaintiff believed that he was discriminated against on the basis of his identity as a ‘Hispanic American’ and his ‘international heritage.’ ” (Id. ¶ 129.) Plaintiff maintains that while this comment was the only “verbally articulated [discriminatory] statement made against him,” there were other “physical demeanors,” “facial expressions,” and “adverse employment acts,” such as the incidents discussed above, that he claims are evidence of discrimination. (Pl.'s 56.1 Resp. ¶ 129.) Plaintiff could not provide any other specific examples of discrimination during his deposition. (Def.'s 56.1 Stmt. ¶¶ 122–124.)
Plaintiff has put forward different reasons for his alleged mistreatment by the employer and the union. During his deposition, he testified that he claimed discrimination on...
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