Ciliberti v. International Brotherhood of Electrical Workers local 3 et al

Filing 45

MEMORANDUM & ORDER: For the reasons set forth above, defendants' motion for summary judgment as to plaintiff's claim against the Union is granted. The Court declines to exercise supplemental jurisdiction over plaintiff's state law claim against McCann. Ordered by Magistrate Judge Cheryl L. Pollak on 7/10/2012. (fwd'd for jgm) (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------J( VINCENT eILlBERTI, Plaintiff, - against - MEMORANDUM AND ORDER 08 CV 4262 (CLP) INTERNA TIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 3 and AUSTIN MCCANN, Defendants. --------------------------------------------------------J( On OClober 20, 2008, plaintiff Vincent Ci!iberti commenced this action against defendants International Brotherhood of Electrical Workers Local 3 ("Local 3" or "the Union") and Austin McCann, individuaHy, alleging that: 1) the Union breached its duty of fair representation under the National Labor Relations Act, 29 U.S.c. § 185 ("NLRA"), and Section 8(b) of the Labor Management Relations Act ("LMRA"); and 2) that defendant McCann, a business representative of the Union, failed to provide representation for plaintiff during grievance procedures, resulting in plaintiff's tennination and suspension from the Union'sjob list. Currently pending before this Court' is defendants' motion for summary judgment. For the reasons set forth below, defendants' motion is granted. 'On June 30, 2011, the parties consented to the jurisdiction of this Court for all purposes. FACTUAL BACKGROUND A. PI ai mi IT' s Factual Co nten!ions PlaintiffCiliberti is ajourneyman electrician and a member of Local 3 since April 1979. (PI. 's Aff.' ~ 3; Defs.' Mem.) at I). In his Affidavit , plaintifT asserts that he is a member in good standing with the Union, current on hi s dues, and has never been disciplined or told that his work was unsatisfactory.' (PI .'s Aff. ~ 5). According to plaintiff, the Joint Industry Board oftne Electrical Industry has an Employment Department, which is responsible for placing out-of-work Union members with Union contractors (the "Employment Depariment"). (hl ~ 8). Over the last 30 years, plainliffhas been assigned to approximately 74 job siles through the Union's Employment Department. ([d . ~ 6). In 1996, plaintiff informed the Employment Department that he could only work seven hours per day due 10 his handicapped father's need for supervision and assistance. (ld. ': 12). In December 2003, plaintiff was assigned to work on a project for a Union contractor, Fishback & Moore, al a project located at JFK Airport. (Id. ~ 10). When he asked to remain assigned to the JFK job site to be near to his father, he was told he could accept a transfer to the Bronx or be 'Citations to "PI.'s AfT." rcferto the Affidavit of Vincent Ciliberti, filed January 17, 2012. 'Citations to "Defs.' Mem ." refers to Defendants' Brief;n Support of Motion, dated December 1,2011. 'Defendants dispute this assertion as well as other facts as stated by plaintiff. and contend that three foremen, David Efrom, Timothy Cassar, and Anthony Annunziata, (old plaintiff's employer, Dooley Electric, that plaintiff's work was unsatisfactory. (Defs.' 56.1 Slmnt ~ 1-3). Plaintiff asserts that defendants have not cited any admissible evidence in support of these statements. (PI.'s Rule 56.1 Counter-Statement of Facts, dated January 17, 2012 ("Pl.'s 56.1 Stmnt") ~ 1-3). 2 terminated. C1.lL ~ 10, 11). In December 2004, plaintiff was terminated by the foreman ofPJS Electric, Inc. because he could only work seven hours a day due to his need to be close to his father whose health requires plaintiff to take him to doctors' appointments. (I4. ~ 13). A bad report was issued against plaintiff even though he advised the Union of his hours . ili!.) In January 2008, the Employment Department referred plaintifflo Dooley Electric ("Dooley"), where plaintiff worked for two months. (Id. ~ 14). On or about January 15,2008, Dooley assigned plaintiff to a project at 2 Columbus Circle, where he and an apprentice were assigned to drill holes in the cement for the installation of floor boxes. (M- ~ 16, 17). On February 19, 2008, upon completion of that assignment, plaintiff was advised by the job foreman, David Efrom, that he was being reassigned to New York Hospital under the supervision of Timothy Cassar. (ld. ~ 17, J 8). After three weeks on that job site, plaintiff was advised !hat the work was winding down, he was no longer needed, and he was reassigned on March 3, 2008 to Long Island Jewish Hospital. ililllt! 19, 20). He worked at that job site for two weeks partly under the supervision of Anthony Annunziata, until March 17,2008, when he received II layoff slip. (Id.1I22). He was lold by Annunziata that he was unproductive and could not handle the workload. (.!Q.) Plaintiff claims thaI when he pointed out that he had only worked for Annunziata for a few days, Annunziata allegedly conceded that he could not properly judge plaintiff's work. (hl.) Believing he had been terminated without justification or cause, plaintiff went to the Union offices on March 17,2008, where he spoke to the secretary of Tom Bush, head of the Employment Department for the Union. (Ill.. ~ 24, 25). He filed a grievance with the Union that 3 same day and was handed a lener signed by the Business Manager for the Union, advising him to report to the Union's offices that same afternoon for a meeting to resolve the grievance. (.!Q. ~ 27). He had no time to contact witnesses or prepare for the meeting; he was just told to appear. @,. ~ 28). When he arrived at the meeting, there were approximately twelve people who he later learned were members of the Union's Grievance Committee. ilil ~ 29). None of them introduced themselves to him and he does not know who was present. (!d, ~ 29, 30). He was not provided with a Union representative at the meeting nOr did anyone from Local 3 advocate on his belief. ([d. ~ 3 I ). A~cording to plaintiff, Dooley'S Superintendent Nuszer offered three affidavits from individuals alleging that plaintiff could not handle the workload. plaintiff was asked to leave the room. 00 M, 33). At that time, Upon reentering the room, plaintiff was questioned abom why it took him so long to complete certain tasks, to which he responded that he was new to the job and not familiar with certain "shortcuts," plus he assisted other workers, delaying the completion of his own work. (Id. 11 34). He cited his 30 years with the Union and further noted that at the three work sites, he had an assistant who was not being criticized. (ld. ~ 35). At the conclusion of the meeting, he asked for an opportunity to question the three supervisors who had submitted affidavits - Efrom, Cassar, and Annunziata. (14.) He was told to report to the Union Office on March 24, 200S, at which time he would be pennil!ed (0 ask questions. (Id. ~ 38). On March 24, 2008, plainti If reported to the Union Office, and although he requested 10 have his counsel present, that request was denied. (14.1142). Although plaintiff claims that "no one from the Union stepped up to represent me . . ." (id. ~ 43), he also states that Austin 4 McCann, (he Local 3 Business Representative, told plaintiff that he was there to represent plaintiffat the meeting. (!g. '\[44). Plaintiff claims (hat he asked Efrom "[wJhat problem do you have with me,'" to which Efrom allegedly stated that '''aU of [plaintiff's] work got done and he 'had no problem with [his) work .• ", (til '\145). Plaintiff claims that after asking this One question, he was told by McCann "to shut up because [plaintiff] was making it worse for himself. . . " (l!l '\[46). Plaintiff claims (hat, as a result of "McCann's threat," he was unable to question Cassar and asked only one question of Annun7.iata. Wi. '\[47). Again, the parties disagree as to what was said by these witnesses, although plaintiff claims in his affidavit that Annunziata admitted that he could not judge plaintiff's work performance , having supervised him for only four days." Qd.J Plaintiff claims that Annunziata's affidavit was based on an assessment oflhe sub-foreman. (kl) Aller the three supervisors left, the Committee adhered to its earlier decision to terminale plaintiff. (PI. ' s AlT. '\I 48). Plaintiff claims that neither McCann or anyone else from the Union took any active role in representing plaintiff. (!g.) Plaintiff appealed the decision to Ray Melville, Assi stant Business Manager, and the appeal was heard on Apri l 7,2008. (Id. ~ 49-50). Plaintiff's request to have counsel present was again denied, and the decision to terminale plaintiff was eventually upheld . ilil n 50-51). According to plaintiff, the Union then declined ~Defendants dispute this assertion and have a different version of events that transpired during this meeting. ~ discussion infra at 6-8). 'The Court notes that plaintiff's own deposition testimony contradicts this portion of his affidavit. When asked whether AnnWlZiata admitted (hat he could not accurately judge plaintiff's work performance at the grievance meeting, plaintiff said "no." {See Plaintiff's Deposition transcript, dated July 18,2011 ("Pl.'s Dep.") at 137). 5 to process his termination through arbitration. Mil 52). Plainti IT claims that his name was taken otT the job list; he was told that he would have to find a job outside the industry and prove that he could maintain that job for six months before the Union would restore his name to the list. (M, 'lM[39, 41). When he asked faT a letter authorizing him to engage in non-Union work , he was told that the Union would not issue such an authorization. (l4. '\1 4 0). Plaintiff claims that hi~ attempts to find employment have failed because he has no recommendation from his prior employer and he cannot work for Union contractors so long as the Union refuses to refer him for work. M'IM[ 56-57). B. Defendants' Factual Contentions Defendants dispute many of plaintiffs allegations, citing his deposition testimony in suppon. Specifically, defendants note that contrary to plaintiff's claim that Foreman Efrom told the Committee that he "had no problem" with plaintiff's work and that it all got done, plaintiff conceded at his deposition that Efrom told the Committee tllat plaintiff"had trouble understanding his assignment and gathering the proper materials." (PI.'s Dep. at 65). With respect to Foreman Cassar, plaintiff conceded at his deposition that he had told the Committee that plaintiff had "a problem understanding directions." (Jd. at 66). He also admitted that Foreman Annunziata told the Committee that plaintiff "had trouble using the coring machine." (Id. at 69- 7). Plaintiff also conceded that on the day Annunziata tcnninated plaintiff, he was told that he "was unproductive and ... couldn't handle the workload .. .. " (Id. at 91-92). Plaintiff also conceded at his deposition that despite his contention that Annunziata's report was based on his subordinate'S observations, plaintiff lacked any basis for thai statement, conceding, "I do not 6 know. fie must have - J don't know," and admitting that he never heard Annunziata say "anything like that." M at 168-69). Plaintiff also admitted at his deposition that the Employment Department had referred him for 74 job referrals and that he had railed to report to some job sites, (rd. at 73-77). Plaintiff answered, "I don't know" when asked ifhe had refused those jobs before or after checking out the job sites, but he admined that no one at the Union had told him he had a right to pick and choose the jobs. (1l!) He "did not recall" if he had received other job tennination slips, based on his work being "careless" or "not productive," «(d. at 77). He did concede that five to six or maybe ten contractors had previously filed complaints with the Union based on plaintiffs refusal to work the required job hours,7 or his refusal to report to a job site because a foreman had threatened him. M at 5-7). He conceded that he had earlier reported that he could not work outdoors in bad weather and that he had never withdrawn that restriction because he claimed thaI '''they never asked me. ," iliL at 22-23) , As additional support for their motion, defendants submitted affidavits from the three foremen - Efrom, Cassar, and Annunziata - as well as affidavits from Louis Laudisio, Ciliberti '$ partner, defendant McCann, Ray Melville, and Ronald Nuszer. David Efrom, Foreman Electrician for Dooley, who supervised plaintiff over a five week period during January and February 2008, stated in his Affidavit that because plaintiff was "nonproductive," he was forced to assign his only apprentice, Louis Laudisio, 10 work with plaintiff 'Defendants note that on numerous occasions, plaintiff was laid off when he refused to work an eighth hour. (Defs.' Mem. at 12, '\[7). Although plaintiff claimed that the Local 3 contract gave him the right to refuse to work that hour, he could not cite to any such provision in the contract. (hi.. (citing PI.'s Dep. at 38-39, 45-46-51». 7 full time. (Efrom Aff.! mr 1-3). According to Mr, Efrom, Laudisio "perfonned most of the work," and eventually Efrom asked Nuszer to remove plaintiff from the job site. (Ii!. ~~ 2-3). Efrom denied ever stating that he was satisfied with plaintiff's perfonnance; "I was not satisfied with any aspect of his work." (M, ~ 4). Louis Laudisio confinned that he "did most of the required work and ... took over the direction of the job. Mr. Ci liberti usually stood around and talked, made many telephone calls, and frequently told jokes." (Laudisio Aff.· ~ 3), According to Laudisio, on one occasion, Efrom told Laudisio that plaintiffwas a "'bad worker'" and was being transferred because he was "not productive." (M., ~~ 3 -4 ). Foreman Timothy Cassar stated that plaintiff worked under his supervision at Dooley for three weeks, during February and March 2008, after which Cassar told Nuszer that he "was dissatisfied with [plaintiff's] work." (Cassar Aff.tOmr 1-2). Cassacdisputed plaintiffs claim that although be performed a wiring job incorrectly, it was because Cassar gave him the wrong instructions. (M, ~ 3). Cassar also denied plaintiff's allegation regarding McCann's alleged coercion ofNuszer. (ld. ~ 4). According (0 Mr. Annunziata's Affidavit, he was employed by Dooley as a foreman electrician, and during March 2008, plaintiff worked under his supervision for four days. 'Citations to "Efrom Afr." refer to the Affidavit of David Efrom, dated August 31, 201 I. '''Citations to "Laudisio Aff," refer to the AtTKiavit of Louis Laudisio, dated April 29, 2011. "Citations to "Cassar Aff." refer to the Affidavit of Timothy Cassar, dated August 1. 2011. 8 (Annunziata Aff.' , -,rn 1-2). After observing Mr. Ciliberti' s work over that period of time, Annunziata asked Superintendent Ronald Nuszer to remove plaintiff "[b ]ecause he was nonproductive." (1.i.1I2). He disputed plainlitrs rendition of his testimony before the Grievance Committee regarding the number of boxes plaintiff was able to install in seven hours; in fact, he expected plaintiff to put in 20 boxes to enclose the electric pipe. (Id . or, 4). Annun .. iata disputed plaintiff's allegation that defendant McCann coerced Nuszcr to arrange for a "bad termination," deSCribing the allegation as "false or delusional." QQ, 'i; S) . Ray Melville, Local3's Business Manager, stated in his affidavit that he supervises construction electrician grievances, usually '''bad terminations'" that may result in a decision not to refer terminated electricians until electricians who were laid off in a reduction in force have gotten jobs. (Melville Aff." ~ I). According to Melville, the Employment Department of the Joint Industry Board of the Electrical Industry makes the determinmion as to the list and is a separate entity from the Union. (Id. ~ 1-2). According to Mr. Melville, plaintiff remains unemployed largely because the Employment Department reviewed his record of 74 job referrals and the "bad termination" from Dooley and told him that the Department would not refer him until he had hdd a job on his own fOT six months. (Id. 114). Mel vilt e noted that plaintiff bas failed to apply to any nonunion employer and he disputed plaintiff's claim that Local) employers must hire from the Employment Department. (M.. 116). According to Melville, the biring hall is nonexclusive and Local 3 contmetors can bire anyone they wish. (Id.) "Citations to "Annunziata Aff." refer to the Affidavit of Anthony Annunziata, dated August 3)' 20 II. "Citations to "Melville Aff." refer to the Affidavit of Ray Melvi lie, dated August I, 2011. 9 C. Proud ural Hi story On May 2, 2008, plaintiff filed an Unfair Labor Practice charge with !he NLRB, alleging that the Union had failed to fairly represent plaintiff. (Defs.' Mem. 11 at 2). The charge was dismissed on July 7, 2008, and plaintiff's appeal was subsequently denied on September 2, 2008. (Id.) On October 6, 2008, the NLRB'sGeneral Counsel's Office of Appeals granted an extension of time to allow plaintitTto file a Motion for Reconsideration. (bL) That request was wi!hdrawn as confirmed by the NLRB on October 8, 2008. Following the filing of the Complaint in this action, defendants filed a Rule 12(b)(6) Motion to Dismiss. Plaintiffthereafier requested leave to amend his pleadings to add Dooley Electric as a defendant. However, in his Amended Complaint, plaintiff failed to add Dooley and has never sued the Joint Industry Board of the Electrical Industry, whose Employment Department has suspended his referrals to new jobs. Instead, plaintiff added an allegation that Dooley violated the CSA by discharging plaintiff "without proper cause" (Am. CampI." ~ 14). and he withdrew his allegation that the Union violated its duty as a result of ' 'personal and political" hostility to plaintiff. (CampI." ~ 41; Defs.' Mem. at 3). "Citations to "Defs,' Mem." refer to the Brief for Defendants Local 3, International Brotherhood of Electrical Workers, AFL-CIO and Austin McCann, An Individual, dated December I, 20 I I. "Citations to "Am. Camp!." refer to plaintitrs first Amended Complaint, filed August 24,2009. "Citations to "Comp\." refer to plaintifi"s Complaint, filed October 20, 2008. 10 D1SCUSS£QN A. Summary Judgment Standards It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Anderson v. Ljberty Lobby, Inc., 477 U.S. 242,256 (1986); Thompson v. Gijvoie, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, ~ Egelston v. State Univ. Coli. at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. city of New York, 612 F. Supp. 125, 133-34 (E.D.N .Y. 1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the Court should not grant summary judgment unless "it is quite clear what the truth is and that no genuine issue remains for tria!." Auletta v. Tully. 576 F. Supp. 191 , 195 (N.D.N.Y. 1983) (internal quotation marks and brackets omitted), afrd, 732 F.2d 142 (2d Cir. 1984). In addition, "' the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec, Indus. Co. v. Zenith Radio Corp" 475 U,S. 574,587-88 (1986) (quoting United States v. Diebold. Inc., 369 U.S. 654, 655 (1962» . Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with' specific facts showing that there is a genuine issue for trial. ,,, Phillips v Kidder. Peabody & Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed. R. Civ. P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials ofllis pleading." Anderson v. Liberty Lobby. In"., 477 U.S. a1256. Indeed, "the mere existence 11 of some alleged factual dispute between the parties" will nOI by itself defeat a properly supported motion for swnmary judgment. k!, at 247-48. Rather, enough evidence must favor the nonmoving party' s case such that a reasonable j ury could return a verdict in its favor. Id. at 248. In reversing a grant of summary judgment, the Second Circuit noted that the ... [tlrial court's task at the swnmary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. '" Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995)(quoting Qljllo v. Prudential Residential Servs.. Ltd. P'ship. 22 F.3d 1219, 1224 (2d Cir. 1994» . B. Defendants' Motion for Swnmary Judwenl Plaintiffs Amended Complaint contains two claims for relief: I) a claim that the Union violated its duty of representation under the NLRA and LMRA by failing to provide plaintiff with representation and failing to protect plaintiffs employment; and 2) a claim that defendant McCann tortiously interfered with plaintiff's grievance process by fail ing to provide adequate representation "with the sale purpose of harming plaintiff." (Am. CampI. mr 51-60). Defendants move for summary judgment on plaintiff's claim against the Union for breach of the duty of fair representation on the grounds that plaintiff cannot demonstrate that his termination was not justified or was contrary to the terms of the collective bargaining agreement (hCBA"j. Defendants also move to dismiss the claim against defendant McMann, arguing that the Court should decline to exercise supplemental jurisdiction over the claim. 12 1) PlaintiiT's Claim Against the Union a) Standards In order to prevail on a hybrid Section 30 I duty of fair representation claim, a plaintiff must establish: I) that the employer breached the CBA; and 2) that the Union breached its duty offair representation. ~ Sanozly v. InCI Ass' n of Machinists & Aerospace Workers, 415 F.3d 279,281 (2d Cir. 2005) (citing Delcostello v. Int'! Bhd ofTeamslers 462 U.S. 151,164-65 (1983». As the Supreme Court noted in Delcostello, "[t]he suit against the employer rests on § 30 J, since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union's duty offair representation which is implied under the scheme of the [NLRA]." Delcostello v. In!'l Bhd of Teamsters 462 U.S. at 164. Although the employee may choose to sue only one defendant, "the case he must prove is the same whether he sues one, the other or both;" "the two claims are inextricably interdependent." hi. at 164-65. With respect to the first element of plaintiffs Section 301 duty affair representation claim, plaintiff must prove a violation of the collective bargaining agreement; othervvise "a violation of the duty affair representation could not have harmed" him. Conn v. GATX Terminals Com., 18 F.3d 417, 420 (7th Cir. 1994). In the absence ofa violation of the CBA, plaintiff"would not have had a good claim for the union to prosecute on his behalf [... because] the violation of the duty of fair representation would have been hannless," IlL (internal citations omitted). See also White v. General Motors Corp., 1 F.3d 593, 595 (7th Cir. 1993) (noting that "[ w]hen an employee's underlying contractual claim lacks merit as a matter of law, the employee cannot complain that the union breached its duty of fair representation in failing to process his or 13 her grievance"). [n establishing the second prong of the test, plaintiff must show that "the union ' s actions or inactions arc either arbitrary, discriminatory, or in bad faith." Vaughn v. Air Line Pilots Ass 'n, Int'l, 604 F,3d 703,709 (2d Cir, 2010), See also Vael v, Sipes, 386 U.S, 171,190 (1%7) (same), Conduct is not arbitrary unless "in ligllt of the ractual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational." Air I ,joe Pilots Ass'n, [nI'l v O'Neill, 499 U.S. 65, 67 (1991) (citation omitted), Thus, a union "may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion," Vaca v, Sipes, 386 U.S, at 191. On the other hand, a union member does not have an absolute right to have their grievance taken to arbitration, M. As the Supreme COW1 stated, "[i]fthe individual employee could compel arbitration of his grievance regardless of its merit , the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union'S authority and returning the individual grievant 10 the vagaries of independent and unsystematic negotiation ," [d, Courts have made il clear that "the duty of fair representation is not breached where the union Fails 10 process a meritless grievance, engages in mere negligent conduct, or fai Is to process a grievance due to error in evaluating the merits of the grievance," Cruz v, Local Union No, 3 ofintem. Broth. qf !;lee, Workers, 34 F.3d 1148, 115354 (2d Cir, 1994); see also Barr v , United Parcel Service Inc" ~ 868 F,2d 36,43-44 (2d CiT, 1989) (holding that negligence or tactical errors on the part of the union are insufficient to show a breach of the duty of fair representation). The Fifth Circuit !tas commented: [E]very union decision which may in some way result in overriding 14 the wishes or disappointing the expectation of an individual employee, or even an appreciable number of employees, does not in and of itself constitute a breach of the fiduciary duty of fair representation ....Thus, where the union, after a good faith investigation of the merits of a grievance, concludes that the claim is insubstantial and refuses to encumber further its grievance channels by continuing to process the unmeritorious claim, its duty of fair representation may well be satisfied. Local Union No. 12. !Jnited Rubber. Cork. linoleum & Plastic Workers of America v NLRB , 368 F.2d 12, 17 (5th Cir. 1966), cert. denjed, 389 U.S. 837 (1967). b) Analysis The Union argues that summary judgment should be entered in its favor on the breach of the duty of fair representation claim because the plaintiff cannot establish that the employer violated the terms of the CBA by terminating plaintiff. (Defs.' Mem. at 6). The employer in this case, D<loley, assigned plaintiff to three different job sites. In support of its argument that plaintiff cannot prove that there has been a violation of (he CBA, the Union points to the testimony and affidavits of the three supervisors who found plaintiff's work to be unsatisfactory. Defendant also relies on the testimony of the Union representatives who were present during the proceedings before the Committee. <MJ In addition, plaintitrs own testimony and the notes of the Committee members indicate that the Committee was presented with similar evidence of plaintiff's deficient performance al plainlifrs grievance proceeding. (!4J The Court has been presented with ample evidence that plaintiff was terminated for cause. On March 13,2008, Superintendent of Dooly, Ronald Nuszer sent a fax regarding plaintiff's termination, bearing the subject line "LAY-OFF FOR CAUSE VINCENT 15 CILIBERTI," 10 Tom Bush oflhe Employment Department. (Pis.' Mem, Ex. 10). In that transmittal, Nuszer indicates that Mr. Ciliberti worked at Columbus Circle for four weeks until Efrom "wanted him removed" because plaintiff "had 110uble understanding his assignment and gathering the proper material to do the job." (ld.) Nuszer adds that Louis Laudisio, the apprentice who worked with Mr. Ciliberti, "did most of the work." iliU With respect to Ciliberti' 5 work on York Avenue with Cassar, lite transmittal stales that Cassar "had to explain lite job to Mr. Ciliberti a number oftimes and had to check on him constantly... After 3 weeks, [Cassar] asked me to remove Me. CilibertL" (Id.) With respect to Cjliberti's work at Long Island Jewish Hospital, the transmittal states that Annunziata a~ked Nuszncr to remove Ciliberti because Annunziata indicated that "he does not have the time to give this man constant supervision and get his material for him." (hi.) The Court has also reviewed the deposition testimony and affidavits of the foremen of the three job sites where CiHberti worked, David Efrom, Timothy Cassar, and Anthony Annunziata, which are consistent with the termination transmittal and provide further support for the Union's claim that plaintiti's employment with Dooley was terminated for cause. When asked about Ciliberti's work penormance, Efrom testified at his deposition that Ciliberti's work was "lousy" and that Ciliberti took "a lot more time than he should." (Efrom Dep.'· at 16). When asked about Ciliberti's work etbic, Efrom testified lhat Ciliberti "liked to clean up early. [did say something to him." (hi. at 17). According to Efrom, Ciliberti "was lacking the skill and the work was lacking." &!. at 24). "Citations to "Efrom Dep." refer to the transcript of tbe deposition testimony of David Efrom, dated October 13, 20 II, and submitted as Exhibit 4 to Plaintiti's Memorandum in Opposition to Defendant's Motion for Summary Judgment . 16 Timothy Cassar testified at his deposition that Ciliberti was "laid back [andJ allow[edJ his partner to receive the bulk of the responsibilities and didn '\ pay attention to what the layout was." (Cassar Oep.17 at 14). Cassar testified thai he called Ciliberti over and told him that he needed to pay more attention to instructions, but Ciliberti remained "laid back" and "showed very little interest in what was going on." ilil at 15). According to Cassar, Ciliberti's work was "below average" and "it took a very long period of time [for Cilibelii] to do the work. There were a lot of errors. . . . I wou ld have to lay the work out to him two or three times and it was still done incorrectly." (!4. 15). Cassar explained that Cilibeni was working with a panner and that while the work Ciliberti completed with the partner was satisfactory, when instructions were given to Ci!ibe'rti only, "the work had to be done over." (Id. at 24). Finally, Anthony Annunziata testified at his deposition that he supervised Ciliberti' 5 work for two of the four days that Ciliberti was working at Long Island Jewish Hospital. (Annunziata Dep." at 14). According to Annunziata, Ciliberti took too long to complete his work. (Id. at 16). Annunziata supervised Ci li!len; ' s work mounting boxes and testified that Ciliberti mounted fewer boxes than average. ilil) It appears that the deposition testimony of Efrom, Cassar, and Annunziata is consistent with their affidavits, their statements during the grievance proceedings, and also with the findings of the Grievance Committee. In connection with defendants' motion, plaintiff has submitted "Citations to "Cassar Oep." refer to the transcript of the deposition testimony of Timolhy J. Cassar, dated October 13, 20 II , and submined as Exhibit 5 to Plaintiff's Memorandum in Opposilion 10 Defendant's Motion for Summary Judgment. '"Citations to "Annunziata Dep." refer 10 the transcript of the depO Sition testimony of Anthony Annunziata, dated October 13, 20 J I, and submitted as Exhibit 6 to Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment. 17 copies of statements made by the three foremen at the March 24, 2008 meeting. (See PI. '5 Mem.,'· F.xs. 12. 13. 14"). Based on those statements, it appears that each of the three foremen reported Cilibeni having performance problems. (Sce PI. 's Mem. Ex. 12 (describing Efrom 's report to the Committee that Gliberti " was not getting enough work done;" "had trouble understanding his assignment"); Ex. 13 (describing Annunziata's statement to the Committee that Ciliberti "had trouble using the coring machine;" " had !rouble doing the work; " "took off early" and "look off the whole day"); Ex. 14 (describing Cassar' s statement that Ciliberti "had a problem understanding directions;" and "Did not show any interest in the job"» . Although plaintiff contends that there were discrepancies between the foremen's statements to the Committee and their affidavits, a review of the two documents demonstrates that whatever little inconsistencies might be found, the position of all three foremen remain consistent throughoutnamely, that plainti IT was terminated for cause. The record of the Grievance Committee' s findings also belies plaintitrs suggestion that the foremen's statements regarding the reasons for his termination have been inconsistent in any material way. The Grievance Committee' s recommendation. dated March 17,2008, found Ciliberti's termination justi fied, describing the reason as: ~Notable 10 do job assigned & needs help or constant supervision." (PI.·s Mem., Ex. 15). The Grievance Committee' s report also contains a section detailing Ciliberti'g response to the complaints about his performance. (See "Citations to "PI.' s Mem." refer to Plaintitrs Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, filed January 17,2012. 'O Citations to "PI. 's Mem., Ex. 12" refer to a copy of the March 24. 2008 statement by Efrom to the Grievance Committee. Citations to "PI. 's Mem., Ex. 13" refer to a copy of the March 24, 2008 statement by Annunziata to the Grievance Committee. Citations to "P!.'s Mem., Ex. !4" refer to a copy o(the March 24,2008 statement by Cassar to the Grieo'IJIJce Committee. 18 id.) Among other things, Ciliberti told the Committee, in response \0 Efrom's criticism relating to his obtaining supplies, that he had to "walk a long distance" from where he got the materials to the work site, and that he was "never warned" about being "too slow." <M.) In response to defendant's motion, plaintiff has not presented any other witness statements or evidence, apart from his own affidavit, that contradict the defendant's contention that the employer was justified in tenninating plaintiff. However, many ofplaintifl's statements in his affidavit differ from, ifno! contradict, his deposition testimony. Although Ciliberti's affidavit denies that there were problems with his job perfonnance as cited by the foremen's statements, in his deposition, plaintiff acknowledged that the three supervisors had problems with his job perfonnance. Thus, in his deposition, Ciliberti denied that he had trouble gathering the proper materials to do the job (Pl.'s Dep.21 at 57-58); denied that the apprentice, Laudisio, did most of the work Ci4. at 58); and denied that Cassar had to check on him constantly. (M, at 60). However, in contrast \0 his affidavit , Ciliberti, in his deposition, would not go so far as to say that his supervisors were lying when they made certain negative statements regarding his perfonnance. For example, he testified that he did not know if Cassar andlor Annunziata had asked NlL~zer to remove him (ill... at 61), and he did not know if Efrom was lying when he told the Committee that Ciliberti had trouble understanding his assignment and gathering the proper materials. (Id. at 65-66) .22 "Citations to "PI. 's Dep." refer to the transcript of the deposition testimony of Vincent Ciliberti, dated July II, 20 II, and submitted as Exhibit 1 J to PJaintitrs Memorandum in Opposition to Defendant's Motion for Summary Judgment. "In his affidavit, dated January 16, 2012, plaintiff asserts that he has never "been told that [his] work was unsatisfactory." (Pl.'s AfT. ": 5). Instead, he asserts in his affidavit that his "work [for Dook),] was satisfactory" (id.1f 14), and that Annunziata was lying when he told plaintiff 19 Moreover, contrary to plaintiff's assertion in his affidavilthat Dooley had no justification to terminate him, plaintiff acknowledged during his deposition that the three foremen made many of the same statements at the Committee hearing regarding his perfonnance that defendants claim provided the basis for plaintiff s termination /Tom Dooley. For example, although plaintiff claimed in his Complaint that Mr. EiTom "had no problem" with plaintiff's ""ork, in his deposition, plaintiff conceded that Efrom had told the Committee that plaintiff had "trouble understanding the assignment and gathering the proper materials." (lQ, at 65-66). Plaintiff also conceded that Mr. Cassar also told the Committee that plaintifrhad "a problem understanding directions" ilil at 66), and that Mr. Annum:iata had made similar statements, indicating that plaintiff was "unproductive," "had trouble using the coring machine," and "couldn't handle the workload." (ld. at 91-92). These statements, conceded by plaintiff at his deposition, are consistent with the affidavits filed by the foremen in this case and with the foremen's deposition testimony. Each of the foremen confirmed that they had asked Nuszer to remove plaintiff from their job sites because of work performance issues. (See Efrom Aff. Annunziata AfT. ~ mJ 1-3; Cassar AfT. ~ 1-3; 2). Indeed, even plaintiff's partner, Lois Laudisio, submitted an affidavit, stating that plaintiff spent a lot of time on the telephone and talking, leaving Laudisio to do "most of the req uired work." (ML ~ 3). Although plaintiff denies in his affidavit several of the deficiencies in his work performance cited by his supervisors, these portions of plaintiffs own testimony fail to present that he was being laid off b1xause he was unproductive and could not handle the workload. ilil ~ 22). Plaintiff further contends in his affidavit that "Dooley had no reason or justification for its interference with [his] employment and terminated [him] without just cause." (M, ~ 22). These statements are not entirely consistent with his deposition testimony. 20 any material issues of fact that would require a trial in light of the overwhelming evidence of numerous other deficiencies in plaintiffs job performance olTered by the Union beyond those plainti ff specifically denied during his deposition. Rather, it appears that plaintiff has attempted to overcome the limited value of his deposition testimony on the issue oftbe reason for his termination by submitting an affidavit "crafted for the specific purpose of defeating [defendants 'J motion for summary judgment." Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d CiT. 1996). "[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment mOlion lhal, by omission or addition , contradicts the affiant's previous deposition testimony." Hayes v. New York City Depl. ofCorreclions, 84 F.3d at 619. "If a party who has been examined at length could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact" Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). "In Perma, (the Second Circuit] concluded that statements in an affidavit filed in response to a summary judgment molion could not create material factual disputes where none existed without such an affidavit." Hayes v. New York City Dept. of Corrections, 84 F .3d at 619. Here, plaintiff appears to have submitted an affidavit for the purpose of creating issues of material fact, even with respect to issues that had been foreclosed by plaintiff s deposition testimony. For example, plaintiffs statement in his affidavit that he had never been told that his work was unsatisfactory directly contradicts plaintifl's deposition testimony in which he admits Ihal the three foremen criticized his work during the Grievance Committee meeting. (See supra at 19-20). 21 Not only has plaintiff failed to present any evidence to contradict the overwhelming evidence presented by the Union, but plaintifThas also failed to detail how the employer allegedly violated the CBA apart from the claim that plaintiffs employment was tenninated without proper cause. (PI.'s Mem. at 23). Nowhere in his affidavit or his deposition testimony has plaintiff even suggested a reason, other than job performance issues, that would allegedly con~tilute an improper reason for terminating him. ?laintiff also barely addresses the Union's argument that in the absence of a breach of the CBA by the employer, there can be no Section 301 claim. instead, plaintiff raises claims regarding the procedures followed by the Committee, alleging that he was denied the opportunity to have counsel present and that he was ordered to leave the room when N uszcr presented the affidavits of the three supervisors. (PI. 's Mem. at 7-8). While these alleged procedural deficiencies are potentially relevant in determining whether the Union provided adequate representation to the plaintiff, they do not, however, diminish the strength of the evidence presented in support of the employer's decision to terminate plaintiff. Moreover, although plaintiff claims that the Union representative, Mr. McCann, tried to discourage him from questioning the witnesses, plaintiff concedes that be was given the opportunity to question his supervisor~. (PI.'s AIr. ml37, 38). It also appears from the evidence that the information be did elicit from the supervisors was consistent with their affidavits. (PI.'s Mem. at 16). In addition, electrical contractor Monet Milad, who reviewed plaintiffs appeal of the Grievance Committee's findings along with Ray Melville (Defs.' Mem. at 6), considered the documents presented to the Grievance Committee and "listened and participated with [Ci liberti] to get more facts on the 22 matter." (PI.' s Mem., Ex. 17 (Milad Letter dated March 9,2008); see also Melville Dep.21 at 3031). In denying the appeal , Milad Slaled: "Mr. CiJiberti did not provide any new evidence or information that would materially change the facts that led to his dismissal ," (PI. ' s Mem., Ex. 17) Thus , Milad concluded that "the Grievance Committee' s decision should be upheld." Q4J In response to the Union's motion for summary judgment, plaintiff has failed to present any evidence to suggest that the employer did anything except terminate plaintiff fOT cause based on performance issues. In light of the "factual and legllilandscape" presented hy the three supervisors' statements to the Committee, it cannot be said that the Union' s conduct in refusing to pursue what appeared to be a mcritless grievance was "so far outside [the] wide range of reasonableness as to be iTTlltionlll." Air Line Pilots Ass' n, In!' I v. O'Neill, 499 U.S. at 67. Accordingly, having reviewed the evidence presented in connection with the defendant' s motion for summary judgment, the Court finds that plaintiff has failed to establish the existence of a genuine issue of material fact relating to the employer's decision to terminate plaintiff, In the absence of any evidence suggesting that plaintiff was terminated for any reason other than cause, or that the CBA was violated in any respecl, the Court concludes that plaintiff has failed to make out the first prong of a hybrid Section 30 I duty of fair representation claim, and therefore cannot succeed on his claim of a breach of the duty affair representation. Under these circumstances, where plaintiff has failed to sustain his claim under the first prong of the tcst, there is no need to evaluate the evidence with respect to the Union ' s representation, and therefore, the Court grants defendants' motion dismissing the clai m against the Union defendant. 23Citations to "Mellville Dep." refer to the transcript of the deposition of Raymond Melville, dated July 15,2011 and submitted as Exhibit 8 to plaintiff's Memorandwn of Law in Opposition to Defendant's Motion for Summary Judgment. 23 2) Plaintifrs Claim Against Mr. McCann Defendants also move to dismiss the claim against defendant McCann on the grounds that the Court lacks jurisdiction over this claim. (Defs.' Mem. at 18 (citing Moms v. Local 819. Int'! Bhd. of Teamsters, 169 F.3d 782, 784 (2d Cir. 1999»). Essentially, delendant McCann argues that an individual sued in his capacity as a Union representative is immune from liability in a duty of fair representation claim. Indeed, the law is clear in this regard; in Morris, the Second Circuit joined "the other circuits that have considered the issue and [held] that 29 U.S.C. § I 85(b) and the case law provide a shield of immunity for individual union members in suits for breach of the dutyoffair representation," Morris v. Local 819 Int'! Bhd. QfTeamstcrs, 169 F.3d 784. See also Montplaisir v, Leighton , 875 F.2d 1,4 (1st CiT. 1989) (holding that a union's agents were shielded from fair representation suits); Evangelista v. Inlandboatmen's Union, 777 F,2d 1390, 1400 (9th Cir. 1985)(sarne). [n his responsive papers, plaintiff does not appear to dispute the fact that his claim against defendant McCann is based on state law, under a theo!), that McCann "tortuously [sic] interfered with his employmenl." (PI.'s Mem. at 23). In order to prevail on a claim oftorrious interference, the plaintiff must establish that: (I) the existence of a valid contract; (2) defendant's knowledge of the contract; (3) defendant's intentional interference with the contract and a resulting breach; and (4) damages. Burba v. Rochester Gas and Elee. Com., 139 A.D.2d 939, 939, 528 N.Y.S.2d 241, 242 (4th Dep't 1988). Defendant McCann argues that in the event that the Court grants defendants' motion for summary judgment with respect to plaintiff's federal claim, the Court should decline to exercise supplemental jurisdiction over this state law claim because district courts routinely decline to 24 exercise supplemental jurisdiction when the claims over which the court has original jurisdiction are dismissed. (Dcfs.' Mot. at 19 (citing 28 U.S.C . § 1367(c)(3))}. In the alternative, defendants argue that the Court should decline to exercise supplemenlal jurisdiction over plaintiff's slate law claim because his "tortious interference claim substantially predominates over the [duty of fair representation] claim inasmuch as the p lainti IT see ks a plethora of 'general and specific' damages for 'distress, embarrassment and anguish' - not available in [duty offair representation1 lawsuits." (ll!. at 19 (citing 28 U.S.C. § 1367(cX2»). As the Court is granting defendants' motion for summary judgment with respect to plaintifl's only federal claim, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claim. CONCLUSION For the reasons set forth above, defendants' motion for swnmary judgment as to plaintiff's claim againsllhe Union is granted. The Court declines to exercise supplemental jurisdiction over plaintiff's state law claim against McCann. The Clerk is directed to send copies of this Memorandum and Order to the parties either electronically through the Electronic Case Filing (EeF) system or by mail. SO ORDIi:RED. Dated: Brooklyn, New York July~, 2012 /s/ CHERYL POLLAK , .- Cheryl L. P#ak United States Magistrate Judge 25 -

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