Sales v. TWU Local 100 Vice President Brain Clark et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION adopting 29 Report and Recommendations re: 15 Motion to Dismiss filed by Ed Pichardo, Ken Piage, Local 100 Division Chariman Richard Davis, TWU Local 100 Vice President Brain Clark, Dwayne Ru ffin. The matter was referred to Magistrate Judge Michael H. Dolinger (Dkt. 5), and defendants moved to dismiss. (Dkt. 15.) On September 9, 2015, Magistrate Judge Dolinger issued a report and recommendation (R&R) recommending that the Court di smiss Sales's complaint, with leave to amend. (Dkt. 29.) The R&R noted the process and timeline for objecting to the R&R. (Id. at 22.) Here, Sales has filed no objections to Magistrate Judge Dolinger's R&R. Reviewing for plain e rror, the Court finds no error in Magistrate Judge Dolinger's R&R and accordingly adopts its findings as its own. Sales's Complaint (Dkt. 1) is DISMISSED with leave to amend. The Court construes Sales's Reply to 10-5-2015 Order & Complaint (Dkt. 34) as his amended complaint. The reference to Magistrate Judge Netburn is continued. (As further set forth in this Order Adopting Report and Recommendation.) (Signed by Judge Paul A. Crotty on 11/30/2015) Copies Mailed by Chambers.(mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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:~ DATE FILED:

II- 3o-1,5"

LaVIEN SALES,
Plaintiff,

14 Civ. 8091 (PAC) (SN)

- against TWU LOCAL l 00 VICE PRESIDENT BRIAN CLARK,
LOCAL 100 DIVISION CHAIRMAN RICHARD DAVIS,
KEN PAIGE, ED PICHARDO, and DWAYNE RUFFIN,

ORDER ADOPTING
REPORT AND
RECOMMENDATION

Defendants.

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HONORABLE PAUL A. CROTTY, United States District Judge:

Prose plaintiff LaVien Sales sued officials of Local 100 of the Transport Workers Union for
alleged violations of state and federal employment-discrimination laws. In substance, however, his
claims are that the Local did not properly represent him in a dispute with his employer, the
Metropolitan Transportation Authority (MTA), which had pressed disciplinary charges against him
that led to his suspension, an arbitration, and his eventual termination.
The matter was referred to Magistrate Judge Michael H. Dolinger (Dkt. 5), and defendants
moved to dismiss. (Dkt. 15.) On September 9, 2015, Magistrate Judge Dolinger issued a report and
recommendation (R&R) recommending that the Court dismiss Sales's complaint, with leave to
amend. (Dkt. 29.) The R&R noted the process and timeline for objecting to the R&R. (Id. at 22.) On
September 30, 2015, the case was reassigned to Magistrate Judge Sarah Netbum, and on October 5,
2015, Magistrate Judge Netbum ordered the parties "to file a joint status letter no later than [October
12, 2015] providing the Court a brief statement of the claims and defenses, the current pre-trial
schedule, the status of discovery and whether the parties have had settlement talks or wish to
schedule a settlement conference at this time." (Dkt. 30.) On October 14 and November 12, 2015, the
Court granted Sales an extension to file his objections to the R&R. (Dkt. 31 , 33.) The deadline was

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set at November 16, 2015. (Dkt. 33 .) On November 17, 2015, Sales filed a document captioned
"Reply to 10-5-2015 Order & Complaint." (Dkt. 34.) Although apparently an untimely response to
Magistrate Judge Neburn's order to file a "joint status letter" with a "brief statement of the claims,"
the document is neither joint nor brief. It consists of 38 pages containing 170 enumerated paragraphs
and exhibits. In substance the document greatly expands upon the claims raised in his complaint and
includes many items of documentary evidence. The document is neither styled as objections to the
R&R, nor does it raise any. Rather, it is best construed as an premature and unauthorized attempt to
file an amended complaint. See Fed. R. Civ. P. 15.
A district court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(c). When a timely objection
is made to the magistrate judge's R&R, the Court must review the contested portions de novo, but it
"may adopt those portions of the [R&R] to which no objections have been made and which are not
facially erroneous." La Torres v. Walker, 2 16 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). If no objection
is made to the R&R, the Court "need only satisfy itself that there is no clear error on the face of the
record." Wilds v. United Parcel Serv. , 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
Here, Sales has filed no objections to Magistrate Judge Dolinger's R&R. Reviewing for plain
error, the Comt finds no en-or in Magistrate Judge Dolinger's R&R and accordingly adopts its
findings as its own. Sales's Title VII discrimination claim fails because he failed to exhaust that
claim by presenting them to the appropriate administrative agency. See 42 U.S.C. § 2000e-5(e). His
ADEA claim fails because his complaint includes no factual basis whatsoever for his claim that the
local disc1iminated on the basis of age. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). And even ifthe Court were to deem his Title Vil
and ADEA claims to be a fair-representation claim, that claim too would fail because Sales failed to
make it within the 6-month limitations period. See Kalyanaram v. Am. Ass 'n of Univ. Profs. at N. Y

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Inst. of Tech, Inc. , 742 F.3 d 42, 46 (2d Cir. 2014). Finally, Sales's state-law claims are barred by the
election-of-remedies provisions ofN.Y. Exec. Law§ 297(9) and N.Y.C. Admin. Code§ 8-502(a).
Sales's Complaint (Dkt. 1) is DISMISSED with leave to amend. The Cow1 construes Sales's
Reply to 10-5-2015 Order & Complaint (Dkt. 34) as his amended complaint. The reference to
Magistrate Judge Netburn is continued.

Dated: New York, New York
November 30, 2015
SO ORDERED

Copy mailed by chambers to:
LaVien Sales
PO Box 1179
New York, NY 10027

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