United States District Court, E.D. Pennsylvania
MICHAEL M. BAYLSON, J.
Joseph DiGenova initiated this civil action against Unite
Here Local 274 and Michael Mullins, identified as the
Treasurer of the union. It is his most recent lawsuit in a
long-running dispute between DiGenova and the union related
to DiGenova's employment. DiGenova moved to proceed
in forma pauperis and for appointment of counsel.
For the following reasons, the Court will grant DiGenova
leave to proceed in forma pauperis, dismiss his
Complaint without prejudice, and deny his request for counsel
at this time.
works as a banquet server and is or was a member of Unite
Here Local 274, a union of food service workers. He has
repeatedly sued the union and union officials in this Court
several of his prior civil actions, DiGenova's Complaint
in the instant case is not pled in a manner that makes the
basis for his claims clear to the Court. DiGenova only
completed three pages of the five-page form complaint that he
used to file his Complaint in this matter. Additionally, his
claims rely heavily on exhibits, requiring the Court to imply
or speculate at the basis for his claims in this action.
reviewed DiGenova's submission, the Court understands his
claims to be based primarily on two emails in which clients
requested that he not be included among the wait-staff at
upcoming events. (Compl. ECF No. 2, at 4.) The emails are
attached as exhibits to the Complaint. (Id. at 12
& 16.) In the first email, dated December 28, 2015, an
Assistant General Manager at the Hilton in Philadelphia
stated that "We would prefer not to use Jospeh Degenova
[sic] as a server at the property." (Id. at
12.) In the second email, dated February 3, 2016, the client
asked the union "not to send us Joe DiGenova"
Our last couple of events with Joe staff has resulted in many
complaints from both our in house staff, as well as
additional staff from the union. We believe it would be best
for our operation as well as the work environment if Joe D
was not assigned to this event.
(Id. at 16.)
emails were passed along to the union, in DiGenova's
opinion, for "personal reasons, not professional"
and were allegedly "concealed by [the] union."
(Id.) DiGenova alleges that the Assistant General
Manager who sent the first email was influenced by Gina Civ.
A. No. 13-3856 (same); Banquet Servers Hyatt Regancy
Penns Landing v. Unite Here Local 274, E.D. Pa. Civ. A.
No. 13-3855 (same); DiGenova v. DiGenova v. Fox,
E.D. Pa. Civ. A. No. 10-3110 (dismissed because DiGenova
could not articulate a basis for subject matter jurisdiction
over claims of "false swearing" and
"collusion"); DiGenova v. Fox, E.D. Pa.
Civ. A. No. 09-267 (granting summary judgment for
defendants); DiGenova v. Aramark, E.D. Pa. Civ. A.
No. 02-4813 (case dismissed as frivolous and duplicative of
Civ. A. No. 02-98); DiGenova v. Baker, E.D. Pa. Civ.
A. No. 02-98 (complaint was dismissed and judgment affirmed
an employee who "participated in a theft of
[DiGenova's] possessions from [his] home, while [he] was
on a work assignment in Alabama for 6 months."
(Id. at 4.) DiGenova adds that Infante is friends
with Defendant Mullins, who was allegedly responsible for
concealing the email from him until September 26, 2017.
DiGenova implies that this concealment affected a matter
before the National Labor Relations Board (NLRB).
attached several additional documents to his Complaint. He
attached documents from administrative proceedings before the
Equal Employment Opportunity Commission (EEOC), which
indicate that he filed a charge of discrimination with the
EEOC claiming that he was discriminated against based on his
sex and retaliated against because he "was passed over
for assignment to a job despite being most senior on the
referral list due to the manipulations of a Female coworker,
Gina Infante, who then took the shift [he] should have been
assigned." (Id. at 8.) DiGenova alleged that he
believes that he was discriminated against because "work
that should be assigned to [him] first was given to Females
instead, " and retaliated against for "raising
complaints of discrimination." (Id.) The EEOC
sent DiGenova a notice of right to sue letter on February 6,
2018. (Id. at 6.)
also attached to his Complaint documents reflecting that he
brought a charge against the union before the NLRB.
(Id. at 10.) In that charge, DiGenova alleged that
the union "restrained and coerced employees in the
exercise of rights protected by Section 7 of the [Labor
Management Relations Act]" by failing to notify him that
the clients did not want him to work their events.
(Id.) The NLRB determined that DiGenova's charge
was untimely. DiGenova also attached to his Complaint copies
of complaints he filed with the police concerning the
union's alleged concealment of documents and his ongoing
labor dispute, a document entitled "Hiring Hall Rules
and Procedures for Banquet Servers, " documents and
affidavits that appear to have been prepared for or submitted
in administrative proceedings, and a portion of the
union's bylaws. The Complaint does not describe the
relief that DiGenova seeks from this Court.
STANDARD OF REVIEW
Court grants DiGenova leave to proceed in forma
pauperis because it appears as though he is incapable of
paying the fees to commence this civil action. Accordingly,
28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to
dismiss the Complaint if it fails to state a claim. Whether a
complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough,184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains "sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). The Court may also
consider matters of public record. Buck ...