Presumey v. Education et al

Filing 45

ORDER granting 43 defendant LIUNA's Motion for Summary Judgment. See attached ruling. Signed by Judge Donna F. Martinez on 5/26/16. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELISABETH PRESUMEY,

:
:
Plaintiff,
:
:
v.
:
:
TOWN OF GREENWICH, BOARD OF
:
EDUCATION and LIUNA LOCAL 36, :
:
Defendants.
:

CASE NO.

3:15CV278(DFM)

RULING ON DEFENDANT LIUNA'S MOTION FOR SUMMARY JUDGMENT
The plaintiff brings this discrimination action against her
former employer, the Town of Greenwich Board of Education, and her
union, Laborers' International Union of North America Local 136
("LIUNA" or "union").

She alleges that the union discriminated

against her in its representation of her based on her race/color,
national origin and disability in violation of Title VII, CFEPA and
the ADA.

The defendant union now moves for summary judgment.

(Doc. #43.)

The plaintiff "stipulates that the Motion for Summary

Judgment of the defendant LIUNA Local 26 may be granted absent
objection" and appears to have abandoned her claims against the
union.1

1

(Doc. #44.)

The defendant's motion is granted.

See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014)
("In all cases in which summary judgment is granted, the district
court must provide an explanation sufficient to allow appellate
review. This explanation should, where appropriate, include a
finding of abandonment of undefended claims or defenses.").

I.

Facts2
The plaintiff, an African-American woman of Haitian national

origin, was employed by the defendant Town of Greenwich Board of
Education ("Town") as a Professional Assistant from 2008 until
2012.

She was a member of the defendant LIUNA which had a

collective bargaining agreement with the Town.

Pursuant to the

Town's written job description, an "essential feature" of the
position

of

Professional

Assistant

was

"provid[ing]

for

the

physical needs of students including lifting and toileting; us[ing]
mechanical lift equipment and transfer aids as needed including the
ability to transfer in wheelchairs."

(Def's 56(a)1 Stmt. ¶9.)

In

a 2008 Memorandum to the union, the Town reiterated that all
Professional Assistants are "expected to perform the essential
functions of their job . . . [which] includes the ability to
toilet, feed and lift students who require this accommodation . .
. ."

(Id. at ¶11.)

The Memorandum made clear that "that light

duty does not exist within this job class."

(Id. at ¶12.)

The

plaintiff signed an "Acknowledgment" that she received a copy of
the Town's job description and understood that "the duties of
lifting, toileting and feeding students with special needs are

2

The facts are taken from the defendant's Local Rule 56(a)1
statement and are deemed admitted because the plaintiff does not
oppose the pending motion and did not file a Local Rule 56(a)2
statement. See D. Conn. L. Civ. R. 56(a)1 ("All material facts set
forth in said statement will be deemed admitted unless controverted
by the statement required to be served by the opposing party in
accordance with Rule 56(a)2.").
2

essential functions of the job . . . ."

(Id. at ¶13.)

In November 2011, the plaintiff injured her left shoulder at
work.

(Id. at ¶17.)

As a result of her injury, plaintiff's

physician placed her on light duty and imposed significant lifting
restrictions.

(Id. at ¶18.)

The plaintiff was out of work from

November 2011 until November 2012.

(Id. at ¶20.)

In the beginning of November 2012, the defendant Town notified
the plaintiff that it had medical documentation that she was unable
to perform the core functions of a Professional Assistant because
of her physical restrictions.

(Id. at ¶21.)

The Town scheduled a

meeting with the plaintiff on November 19, 2012 to discuss her
employment status.

(Id. at ¶22.)

The plaintiff sent an email to

the Town's Human Resources Director and her union claiming that
white employees had been permitted light duty assignments. (Id. at
¶26.)
the

She did not identify anyone by name.
plaintiff's

email,

LIUNA

asked

the

(Id.)
Town

In response to
whether

any

Professional Assistants had been placed on light duty status. (Id.
at ¶27.)

The Town responded that no Professional Assistants had

been offered light duty status because light duty did not exist for
that position.
plaintiff

(Id. at ¶28.)

before

her

LIUNA representatives met with the

scheduled

accompanied her to the meeting.

meeting

with

(Id. at ¶¶29-30.)

the

Town

At the meeting

with the Town, the plaintiff requested light duty status.
¶30.)

and

(Id. at

The Town informed her that light duty status was not
3

available for Professional Assistants.

(Id. at ¶31.)

About ten

days later, the Town sent plaintiff a letter terminating her
employment

on

the

grounds

that

she

had

medical

restrictions

rendering her unable to perform the essential functions of her job.
(Id. at ¶32.)

The plaintiff did not ask the union to file a

grievance as to her termination.

(Id. at ¶37.)

In her operative complaint filed June 29, 2015, the plaintiff
alleges that LIUNA discriminated against her on the basis of race,
color, national origin and physical disability. (Doc. #17, Am.
Compl.)
II.

Legal Standard
Summary judgment may be granted only if "the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law."

Fed. R. Civ. P.

56(a); see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per
curiam).

"A genuine dispute of material fact 'exists for summary

judgment purposes where the evidence, viewed in the light most
favorable to the nonmoving party, is such that a reasonable jury
could decide in that party's favor.'"

Zann Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 843 (2d Cir. 2013) (quoting Guilbert v. Gardner,
480 F.3d 140, 145 (2d Cir. 2007)).

The evidence adduced at the

summary judgment stage must be viewed in the light most favorable
to the non-moving party and with all ambiguities and reasonable
inferences drawn against the moving party.
4

See, e.g., Tolan, 134

S. Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417,
427 (2d Cir. 2013).

All in all, "a 'judge's function' at summary

judgment is not 'to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial.'" Tolan, 134 S. Ct. at 1866 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)).
III. Discussion
Defendant LIUNA argues that it is entitled to summary judgment
on plaintiff's Title VII, ADA and CFEPA claims because it did not
breach the duty of fair representation and because there is no
evidence that it engaged in discriminatory conduct.
"A

member of a union bringing a discrimination claim against

h[er] union must show, 'at a minimum, that the union breached its
duty of fair representation and that its actions were motivated by
discriminatory

animus.'"

Jones

v.

Int'l

Union

of

Operating

Engineers, No. 5:14 CV 1014, 2015 WL 9269280, at *7 (N.D.N.Y. Dec.
11, 2015) (quoting McIntyre v. Longwood Cent. School Dist., 380 F.
App'x 44, 49 (2d Cir. 2010)).

The duty of fair representation

obliges a union "'to serve the interests of all members without
hostility or discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid arbitrary
conduct.'"

Smith v. New Venture Gear, Inc., 319 F. App'x 52, 57

(2d Cir. 2009) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967).
"[B]reach [of this duty] occurs only when a union's conduct toward
5

a member . . . is arbitrary, discriminatory, or in bad faith."

Id.

"It is . . . [the] plaintiff's burden to prove the union breached
its duty, not the employer's to show that it did not." Young v.
U.S. Postal Serv., 907 F.2d 305, 308 (2d Cir. 1990).

"[T]he duty

of fair representation is not breached where the union fails to
process a meritless grievance, engages in mere negligent conduct,
or fails to process a grievance due to error in evaluating the
merits of the grievance."

Cruz v. Local Union No. 3 of Intn'l.

Bhd. of Elec. Workers, 34 F.3d 1148, 1153–54 (2d Cir. 1994).
The plaintiff's claim that the defendant LIUNA breached its
duty of fair representation because it did not file a grievance on
her behalf fails because she did not request that it do so.

See

Flanigan v. Int'l Bhd. Of Teamsters, Local No. 671, 942 F.2d 824,
829 (2d Cir. 1991) ("Because appellants did not ask the Union to
process a grievance on this issue, they cannot complain that the
Union failed to represent them properly."); Goodman v. Port Auth.
of New York & New Jersey, No. 10 CIV. 8352, 2011 WL 3423800, at *7
(S.D.N.Y. Aug. 4, 2011) ("before an employee can bring a claim
based on a union's failure to represent him properly, he first must
ask the union to process a grievance. . . . Because Plaintiff
failed to allege that he filed grievances or otherwise asked the
Union

to

take

action

with

respect

to

any

issue

except

his

termination, his duty of fair representation claims fail . . . .");
Badlam v. Reynolds Metals Co., 46 F. Supp. 2d 187, 203 (N.D.N.Y.
6

1999) ("Because [Badlam] did not ask the Union to process a
grievance on this issue, [she] cannot complain that the Union
failed to represent [her] properly.")
Moreover, there is no record evidence from which the court can
infer that the union acted with discriminatory animus.

It is

uncontroverted that the plaintiff's physician placed her on light
duty with significant lifting restrictions; the essential functions
of the Professional Assistant job required that the plaintiff be
able to toilet, feed and lift students; no light duty existed for
this position; LIUNA met with the plaintiff before her meeting with
the Town and attended the meeting; and no other Professional
Assistants were given light duty.

Because the record before the

court discloses no genuine issue of material fact as to whether
LIUNA breached its duty of fair representation, the motion for
summary judgment is granted.
IV.

Conclusion
For these reasons, the defendant's motion (doc. #43) is

granted.

This is not a recommended ruling.

The parties have

consented to trial before a magistrate judge pursuant to 28 U.S.C.
§ 636(c) and Fed. R. Civ. P. 73.
SO

ORDERED

this

26th

(Doc. #36.)

day

of

May,

2016

at

Hartford,

Connecticut.
_____/s/______________________
Donna F. Martinez
United States Magistrate Judge

7