Vann v. Persico

Background

Roosevelt Vann, Jr. sued Richard Persico, Riggs Distler & Company, Inc. (Riggs), Laborers Local 60 and related union entities and individuals, and other defendants. Vann alleged that he was denied union membership because he is Black, that defendants retaliated against him after he filed discrimination complaints, and that he was not paid the union or prevailing wages and benefits allegedly required for his work as a flagger.

Vann asserted claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York State Human Rights Law, the Fair Labor Standards Act, and New York Labor Law. He alleged that he worked for PCT Contracting LLC and later Riggs from approximately March 2010 through January 2018. He also alleged that Riggs acquired PCT’s assets and business in November 2016 and became PCT’s successor-in-interest.

The court considered two motions. Riggs moved to dismiss four counts under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Local 60 and Jacinto Jay Fragoso moved under Rule 12(b)(6) and alternatively under Rule 12(c), which allows judgment on the pleadings after the pleadings are closed.

Union Defendants’ Motion

The court denied the union defendants’ motion. It explained that the union defendants had already filed an answer, so their motion could not properly be treated as a Rule 12(b)(6) motion. The court also could not treat it as a Rule 12(c) motion because the pleadings remained open as to other defendants and another motion to dismiss was pending.

The court further found that the union defendants had submitted outside evidence, including a witness declaration and later email communications, that was not part of the complaint, incorporated into it, integral to it, or subject to judicial notice. That evidence could not be considered on a Rule 12(b)(6) or Rule 12(c) motion. The court treated the filing as a premature motion for summary judgment and denied it without prejudice to refiling a procedurally proper summary-judgment motion after discovery.

Riggs’s Motion

The court granted in part and denied in part Riggs’s motion.

Title VII exhaustion. Riggs argued that Vann’s Title VII claims should be dismissed because Vann had not received a right-to-sue letter from the Equal Employment Opportunity Commission. The court declined to dismiss the claims at this stage. Vann alleged that he requested review of the New York State Division of Human Rights’ determination from the Equal Employment Opportunity Commission but had not heard back. The court found that this allegation indicated that Vann may have made at least some effort to obtain a right-to-sue letter. It therefore denied this part of Riggs’s motion without prejudice to a later summary-judgment motion after limited discovery on exhaustion.

Title VII retaliation. Riggs argued that Vann’s Title VII retaliation claim was untimely because Vann had not filed a separate retaliation charge with the state agency or the Equal Employment Opportunity Commission. The court denied this part of the motion. It held that Riggs had conceded Vann’s argument by failing to respond to it in its reply. The court also stated that, even without that concession, the claim could proceed because Vann alleged that the retaliation occurred after he filed his discrimination charge while the agency process was still pending. The court found that the alleged retaliation was reasonably related to the original discrimination charge.

Fair Labor Standards Act claim. Riggs argued that Vann’s overtime claim under the Fair Labor Standards Act was untimely because Vann had not adequately alleged a willful violation, which could affect the applicable limitations period. The court denied this part of the motion. Riggs had not responded to Vann’s arguments in its reply, and the court treated the issue as conceded. The court also held that Vann’s allegations plausibly suggested willfulness: he alleged that the companies operated as union shops, were required to use union labor and pay union rates on relevant projects, prevented him from joining a union, and failed to pay the prevailing or union wage over a lengthy period. The court concluded that these allegations could show reckless disregard for the legal requirement to pay the proper overtime rate.

New York wage-notice claim. Riggs argued that Vann’s claim under New York Labor Law § 195.1, part of the Wage Theft Prevention Act, could not apply because Vann began working before the law took effect on April 9, 2011. The court agreed. Vann argued that he began working for Riggs only after Riggs acquired PCT’s business in 2016, but Vann also alleged that Riggs was PCT’s successor-in-interest. The court held that a successor-in-interest stands in the predecessor’s shoes and that applying the Wage Theft Prevention Act to Riggs on these allegations would be retroactive. The court dismissed the claim against Riggs without prejudice because this was the first adjudication of that claim against Riggs on the merits.

Disposition

The court denied the union defendants’ motion. It granted in part and denied in part Riggs’s motion. The court directed the clerk to terminate the pending motions and scheduled a status conference to discuss a possible third amended complaint, discovery concerning Title VII exhaustion, and the status of Carlos Afonso, who had been served but had not appeared.

The opinion states that Vann had withdrawn his Fair Labor Standards Act overtime and New York wage-notice claims against PCT and Persico through a stipulation. The court’s ruling described above concerned the motions filed by Riggs and the union defendants, with certain arguments also adopted by PCT, Persico, and Michael Basilone under the stipulation.