Vann v. Persico

Background

Roosevelt Vann, Jr., proceeding without a lawyer, sued Persico, Riggs Distler & Company, Inc., Laborers International Union of North America, Laborers Local 60, and individual defendants. He alleged employment discrimination under Title VII of the Civil Rights Act of 1964, the federal employment-discrimination law, and the New York State Human Rights Law.

Vann alleged that he worked as a flagger for Persico from approximately April or May 2010 through at least March 2017. He claimed that supervisors refused to place him in Local 60, even after he asked to join, and that this deprived him of union benefits. He alleged that the refusal was based on race, although he also alleged that flaggers were allowed to join Local 60 and that he was an excellent worker. He further alleged that he was fired less than 90 days after receiving union membership and filing a complaint with the New York State Division of Human Rights.

Vann filed two complaints with that state agency in 2017. One named Persico, Riggs, and two individual defendants; the other named Local 60 and Jacinto “Jay” Fragoso. The first complaint was dismissed by the state agency. The opinion states that the record did not show the final disposition of the second complaint in Vann’s filings, although the union defendants submitted a related determination.

Motions and analysis

The union defendants and Riggs moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. They argued, among other things, that Vann had not exhausted the required administrative process before bringing his Title VII claims. The court held that exhaustion was an affirmative defense and that the alleged failure was not clear from the complaint. Because the filings did not establish whether Vann received federal notices allowing him to sue or when he received them, the court denied the exhaustion arguments at that stage, without prejudice to a later motion for summary judgment after limited discovery.

As to Riggs, the court held that Vann’s allegation that he was denied union membership because of race, without supporting facts connecting the decision to racial bias, did not plausibly state a Title VII race-discrimination claim. The court therefore granted the Riggs Motion insofar as it sought dismissal of that claim. The court separately held that Vann plausibly alleged a Title VII retaliation claim by alleging that he was fired after filing a discrimination complaint. It denied the Riggs Motion insofar as it sought dismissal of that retaliation claim.

As to the union defendants, the court held that any claim for breach of the union’s duty of fair representation was filed after the applicable six-month limitations period. The court therefore granted the Union Motion insofar as it sought dismissal of that claim. The court denied the Union Motion insofar as it sought dismissal of Vann’s Title VII race-discrimination claim, explaining that the court was not deciding at that stage whether Vann had adequately supported that claim. The court also denied the union defendants’ request for a more definite statement of the complaint.

Disposition

Judge Kenneth M. Karas ordered that the Motions were granted in part and denied in part. The dismissed portions of the complaint were dismissed without prejudice because this was the first adjudication of Vann’s claims. The court gave Vann 30 days to file an amended complaint addressing the identified deficiencies and adding facts concerning exhaustion if he chose to do so.

The court ordered limited discovery concerning the state-agency proceedings, any federal right-to-sue notices, whether Vann filed an administrative complaint concerning the alleged retaliation, and any facts that might excuse exhaustion. The court also stated that Vann had to serve or seek more time to serve Persico and Basilone or face dismissal of his claims against them.