Wolfinger v. Consolidated Edison Company of New York, Inc.

Filing 22

MEMORANDUM & ORDER, For the foregoing reasons, Defendant's motion to dismiss (Dkt. 14 in No. 17-CV-1710) is GRANTED. Plaintiffs Amended Petition (Dkt. 8 in No. 17-CV-1710) is DISMISSED WITH PREJUDICE. Plaintiffs Discrimination Complaint (D kt. 1 inNo-17-CV-3099) is DISMISSED WITHOUT PREJUDICE, with leave to replead within 30 days of the date of this memorandum and order. The Clerk of Court is respectfully DIRECTED to enter judgment for Defendant in Case No. 17-CV-I710 and close the cas e. The Clerk of Court is further respectfully DIRECTED, in the event that Plaintiff does not file an amended complaint within 30 days of the date of this memorandum and order, to enter judgment for Defendant in Case No. 17-CV-3099 and close the case. So Ordered by Judge Nicholas G. Garaufis on 7/30/2018. (fwd'd for jgm as to 17cv1710) (Lee, Tiffeny)

Vlf

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

PETER WOLFINGER,

Plaintiff,
MEMORANDUM & ORDER

-against17-CV-1710(NGG)
(PK)
17-CV-3099(NGG)
(PK)
CONSOLIDATED EDISON COMPANY OF

NEW YORK,INC.,
Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

On or around May 6,2016,PlaintiffPeter Wolfinger was fired from his job of over

sixteen years as a general utility worker and mechanic for Defendant Consolidated Edison

Company ofNew York,Inc.("Con Ed" or "Defendant"). (Am.Compl.("Am.Pet.")(Dkt. 8 in

No. 17-CV-1710)

18, 23.)^ Plaintiff, through his union,the Utility Workers Union of

America, AFL-CIO,Local 1-2(the "Union"),filed a grievance in response to his termination.

(See Mi H 17-)

January 26,2017, Arbitrator Marlene A. Gold ("Arbitrator Gold")upheld

Plaintiff's termination, finding that Defendant had reasonable cause to discharge him. (See Mi
12.)

Plaintiff now seeks vacatur of Arbitrator Gold's opinion and award (the "Award")

pursuant to Article 75 ofthe New York Civil Practice Law and Rules, N.Y. C.P.L.R. 7511, and
Section 301(a) ofthe Labor Management Relations Act("LMRA"),29 U.S.C. § 185(a)

pdereinafter LMRA § 301(a)]. (See Am.Pet.; PI. Mem.in Opp'n to. Mot. to Dismiss ("PI.
Opp'n")(Dkt. 18)at 1.) Plaintiff also alleges disability and sex discrimination in violation of
various federal, state, and local laws. (Compl.("Discrim. Compl")(Dkt. 1 in No. 17-CV-3099)

'
Unless otherwise noted, all record citations in this memorandum and order refer to documents in No. 17-CV-1710.
1

UK 33-41.) Before the court is Defendant's motion to dismiss all of Plaintiff's claims pursuant to

Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss(Dkt. 14); s^ Mem.in Supp. of

Mot. to Dismiss("Def. Mem.")(Dkt. 15); PI. Opp'n; Def. Reply in Supp. of Mot.to Dismiss
("Def. Reply")(Dkt. 19).) For the following reasons. Defendant's motion is GRANTED.
L

BACKGROUND
A.

Facts

For the purpose of considering Defendant's motion to dismiss, the court accepts as true

the factual allegations in Plaintiffs complaints and the exhibits attached thereto.^ See, e.g..
Gainer v. JP Morgan Chase Bank. N.A.. 802 F.3d 437,443(2d Cir. 2015); see also Chambers v.

Time Warner. Inc.. 282 F.3d 147, 152(2d Cir. 2002)("[T]he complaint is deemed to include any
written instrument attached to it as an exhibit or any statements or documents incorporated in it
by reference.").

Plaintiff, now a 46-year-old man, began working for Con Ed as a general utility worker
on or about May 19,2000. (Am.Pet. 118.) Plaintiffsjob responsibilities included "trying to
establish electricity in the area oflower Manhattan after the [September 11, 2001,] attacks" and
"uninstalling underground cables as well as laying new cables on top ofthe street or around the
debris pile at[G]round [Z]ero." (Discrim. Compl. KK 13-14.) Plaintiff claims that over the
course of his sixteen years of emplojmient for Con Ed he proved himselfto be an "effective,"
"hard-workiag, dependable[,] and capable employee." (Am.Pet. K 19; Discrim. Compl. K T)

^ Plaintiff attached two exhibits to his original complaint(the "Verified Petition")^ "the Arbitrator's Opinion and
Award dated January 26,2017," and "the Administrative Decision fi the State ofNew York- Workers'
"om
Compensation Board awarding Petitioner Workers!'] Compensation Disability Benefits." (Verified Pet.(Dkt. 1 at
ECF p.8) KK 5-6.) Although these exhibits were attached to the Verified Petition but not reattached to the Amended
Petition, the court considers their attachment to the Verified Petition to have survived Plaintiffs amendment because

the Amended Petition explicitly refers to the same exhibits. (See Am.Pet. 7-8.) The Amended Petition also
refers to "the relevant portions ofthe Collective Bargaining Agreement between Defendant and [the Union]"(id
K 9)but Plaintiffseems not to have submitted this exhibit.

During his work at Ground Zero, Plaintiff alleges that he was "exposed to significant
levels of dangerous dust and other airborne debris that have been shown to cause cancer as well
as other serious health issues." (Discrim Compl. K 14.) He also claims that"his equipment was

substandard and ultimately proved useless in protecting [his] health." (Id. HIS.) Consequently,

he developed chronic bronchitis. (Id

12,16.) Although Plaintiff was "initially able to

maintam a regular work schedule and perform his job duties," he "sporadically... needed to
take days off when his illness flared up." (Id. 117.) He also "suffered a heart attack in 2010 due

to work[-]related issues." (Id.) "[W]hen Plaintiff's health issues worsened, the World Trade
Center organization asked [him]to visit a radiologist in regards [to] illnesses many people who
worked at the site ofthe attacks were experiencing." (Id. 118.)

Plaintiffs attendance troubles began on February 21,2013, when he received a written

warning following "his second [occurrence of absence] in 2012 totaling 12 days of absence."
(See Arbitration Op.& Award ("Award")(Dkt. 1 at ECF p.15) at 4.) At that time, he was
"reminded that further non-FMLA absences [could] result in additional progressive discipline,

which might include suspensions and/or termination." (Id.) On March 10,2014,Plaintiff was
given a "verbal warning for poor attendance based upon his accumulation ofthree non-FMLA
absences totaling [six] days in 2013." (Id.) Again,Plaintiff was told that future non-FMLA
absences could result in progressive discipline leadmg to termination. (Id.) A third interview
followed on May 13,2014, at which Plaintiff was given a verbal warning and told that he needed
to make "immediate and sustained improvement in his attendance" or else risk "further discipline

up to []and including termination." (Id.) On May 19,2014, Plaintiff had a fourth interview
stemming from "an [eight-]day sick absence beginning March 25,2014[,] after exhaustion of
eligible FMLA time." (Id.) He received another written warning and a three-day suspension.

(Id.) A fifth interview occurred on January 13,2015,following Plaintiffs"non-FMLA qualified

absence ofthree days in October 2014." (Id at 5.) "By that time,[Plaintiff] had accumulated a
total of30 days of non-FMLA qualified absences within a 12-month period." (Id) He was

suspended for five days and given another written warning, which, like all the other warnings,
cautioned him that his failure to make "immediate and sustained improvement in his attendance"
would lead to further discipline, including termination. (Id)

The final meeting prior to Plaintiff's termination took place on November 30,2015. (Id)

In his complaints. Plaintiff does not discuss any ofthe meetings mentioned in the preceding
paragraph; instead, he states that after he took "several sick days in 2015," his "supervisors
became irritated" and they "scheduled a meetiug with him to discuss the absences." (Discrim.

Compl.119.) At the November 30, 2015, meeting, Con Ed suspended Plaintifffor five days
without pay. (Id ^ 29; Award at 5.) Plaintiff construes this meetiug as having constituted a
"final warning"(Am.Pet. H 21), but states that he "was never alerted to the fact that he had been
issued a final warning"(Discrim. Compl.^ 21;
^Am.Pet.f 21).

Following the November 30,2015, meeting. Plaintiff had three separate periods of
absence: a four-day period in February 2016,the first two days of which were FMLA qualified; a
"non-FMLA absence of20 days from mid-March to mid-April, which was approved by

workers['] compensation"; and a five-day "non-FMLA qualified absence from May 2, 2016,
through May 6,2016." (Am.Pet. ^ 22; Award at 6-7;^Admin. Decision, State ofNew York,
Workers' Compensation Board (Dkt. 1 at ECF p.23).) Prior to the third period of absence,

Plaintiff"submitted an Employee's Physical Progress Report" to Con Ed in which he informed
Con Ed "that he would need to miss work [until May 9,2016,] in order to properly []treat his
chronic bronchitis." (Discrim. Compl.^ 22.) A doctor at Con Ed's "Occupational Health

Department" treated Plaintiff"for respiratory issues" and advised Plaintiff that he could "return
to full duty on May 9,2016." (Jd. ^ 23.)

In early May 2016,following Plaintiffs last period of absence,^ Con Ed "scheduled a
meeting with Plaintiffto again discuss his absences." (Am.Pet.^ 23; Discrim. Compl. K 24.)
Con Ed informed Plaintiffthat the November 30,2015, meeting constituted a final warning to

Plaintiff, and that Plaintiff's employment was terminated effective immediately. (Am.Pet. ^ 23;

Discrim. Compl. K 24.) Plaintiff states that he is "unaware of other employees[who] were
terminated under similar circumstances without suffering firom a [djisability." (Discrim. Compl.

K 25.) He additionally claims that there was"a female co-worker[who] had a worse attendance
record than him and had not been suspended or disciplined other than being issued minor

warnings." (Id. K 29.) According to Plaintiff,"the only obvious differences" between his
situation and those of others at Con Ed who had multiple absences but were not suspended or
terminated were Plaintiff's "disability and gender." (I^ K 32.)

Although Plaintiff's complaints are unclear as to what exactly happened next, eventually
the Union filed a grievance on Plaintiff's behalf and a hearing was held on July 28, 2016, before
Arbitrator Gold. fSee Award at 1.) On January 26,2017, Arbitrator Gold denied Plaintiffs

grievance, finding that Con Ed "had reasonable cause to discharge [Plaintiff] for three absence

frequencies following his placement on a Final Warning on November 30,[2015]." Qd. at 7-8.)
Arbitrator Gold rejected Plaintiffs argument that, because the first two days in his first absence

were FMLA qualified. Con Ed should have been required to consider the full absence as FMLA
qualified. (Id. at 6-7.) She also found that the testimony ofPlaintiffs supervisor "castQ doubt"

^ The complaints conflict as to the exact date ofPlaintiff's termination. (Compare Am.Pet. If 23(May 6,2016),
with Discrim. Compl. If 24(May 19,2016).) The Award, meanwhile, states that Plaintiff's discharge occurred on
May 18, 2016. (See Award at 1.)

on Plaintiffs claim that his third period ofabsence was legitimate; and, even if it were
legitimate, that Con Ed's "policy specifically provides that excessive absences, including those
that are legitimate, may constitute cause for discipline." (Id. at 7.) In view ofPlaintiffs

"disciplinary history,[Con Ed's] use ofprogressive discipline,[Plaintiffs] placement on a Final
Warning,and his subsequent absences thereafter," Arbitrator Gold found that Con Ed had
reasonable cause to discharge Plaintiff (Id)
B.

Procedural History

Plaintiff originally filed his petition (the "Verified Petition")in Kings County Supreme
Court on March 3,2017. (Verified Pet.(Dkt. 1 at ECF p.8).) The Verified Petition sought a

judgment vacating the Award and reinstating Plaintiff with full back pay on the grounds that the
Award "violates a strong public policy and is irrational." fSee id.

23-24.) Defendant timely

removed the action to this court on the ground that Section 301(a)ofthe LMRA gives federal

courts original jurisdiction over all claims "requiring interpretation of[a] collective bargaining
agreement."^28 U.S.C. §§ 1331,1441: see also LMRA § 301(a). (Notice of Removal

(Dkt. 1 at ECF p.l).) At a pre-motion conference on April 27,2017, Plaintiff stated his intention
to file an amended complaint, which the court directed him to do by no later than May 30,2017.

(Apr. 27,2017, Min. Entry.) Plaintiff also informed the court of his intention to file a separate
discrimination lawsuit against Defendant. fld.I On May 23, 2017, Plaiutiff both amended the
Verified Petition (see Am.Pet.)(the "Amended Petition") and filed his discrimination complaint

(see Discrim. Compl.)(the "Discrimination Complaint"),the latter of which was reassigned to
the undersigned on June 27,2017.
The Amended Petition still seeks vacatur ofthe Award and Plaintiffs reiastatement with

back pay. (Am.Pet. at 8.) That pleading was also amended to allege that the Union breached its

duty offair representation by allegedly mishandling Plaintiffs arbitration. Qd H 33.)
Meanwhile,the Discrimination Complaint alleges disability and sex discrimination in violation
of various federal, state, and local laws(Discrim. Compl. ^^33-41),for which Plaintiff demands
monetary damages(id at 9).

The court ordered ajoint briefing schedule for Defendant's anticipated motion to dismiss

both complaints. (July 11,2017, Order(Dkt. 10).) The motion was fully briefed and fifed with
the court on November 3,2017. Regarding the Amended Petition, Defendant argues that

Plaintifflacks standing to bring this challenge,that he does not allege a sufficient basis to vacate
the Award, and that he has failed to plead the necessary elements for his "hybrid" claim against
Con Ed and the Union under LMRA § 301. (Def. Mem. at 9-22.) Regarding the Discrimination

Complaint, Defendant claims that Plaintiff has failed to establish the elements of a claim of
disability or sex discrimination under federal, state, or local law,imder any ofthe theories raised
m the Discrimination Complaint. (Id at 22-30.)
n.

LEGAL STANDARD

The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to
test the legal sufficiency ofa plaintiffs claims for relief. Patane v. Clark. 508 F.3d 106,112-13

(2d Cir. 2007). A complaint will survive a motion to dismiss if it contains "sufficient factual
matter, accepted as true, to 'state a claim to reliefthat is plausible on its face.'" Ashcroft v.
iQbal. 556 U.S. 662,678(2009)(quoting Bell Atl. Com,v. Twomblv. 550 U.S. 544, 570(2007)).
"Threadbare recitals ofthe elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id.

When considering a motion to dismiss for failure to state a claim,the court must accept

as true all allegations offact in the complaint and draw all reasonable inferences in favor ofthe

plaintiff. ATSI Commc'ns^ Tnc. v. Shaar Fund, Ltd.. 493 F.3d 87,98(2d Cir. 2007). "In

determining the adequacy ofthe complaint, the court may consider any written instrument

attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as
documents upon which the complaint relies and which are integral to the complaint." Subaru
Distribs. Corp. v. Subaru of Am.. Inc.. 425 F.3d 119,122(2d Cir. 2005).
m.

DISCUSSION
A.

Arbitration

Plaintiff seeks vacatur ofthe Award on the groimds that it violates public policy. (Am.

Pet. K 31.) Even if he is not able to directly challenge the Award, he argues that his claim may

proceed as a "hybrid" claim under LMRA § 301 because the Union breached its duty offair
representation and Defendant breached its collective-bargaining agreement with Plaintiff(a

"hybrid § 301/DFR claim"). (See Am.Pet.

15-17,33.) Defendant first responds that Plaintiff

cannot challenge the Award because he was not a party to the arbitration, and that, even if he did
have standing, he has not alleged a sufficient basis to vacate the Award. (Def. Mem. at 9.)
Defendant further states that Plaintiff's hybrid § 301/DFR claim is untimely and that Plaintiff has

failed to plead that the Union breached its duty offair representation or that Defendant breached
the collective bargaining agreement. (Id. at 14.)
The court finds that Plaintiff does not have standing to bring a direct challenge to the
award. The court also finds that Plaintiff has not stated a claim that the Union breached its duty

offair representation, a necessary predicate for his hybrid § 301/DFR claim. Accordingly the
court GRANTS Defendant's motion to dismiss the Amended Petition.

1.

Direct Challenge to the Award

Pursuant to Article 75 ofthe CPLR,an application to vacate an arbitration award may

only be made by a "party" to the arbitration.

C.P.L.R. 7511(b)(1). "An employee whose

claims are arbitrated under a collective bargaining agreement between an employer and a union

generally does not have standing under [Article 75 ofthe CPLR]to vacate the arbitration award,

since that employee was not a party to the initial contract under which the arbitration proceeded."
Nicholls V. Brookdale Univ. Hosp.& Med. Ctr., No. 05-CV-2566(JBW),2005 WL 1661093,

at *5(E.D.N.Y. July 14,2005); accord, e.g.. Wilson v. Bd.of Educ.. 689 N.Y.S.2d 222,223
(App. Div. 1999).

Plaintiff seeks vacatur ofthe Award pursuant to Article 75 ofthe New York Civil
Practice Law and Rules("CPLR"). (Am.Pet. ^ 12.) Defendant is correct that Plaintiff does not

have standing to proceed xmder this theory. (See Def. Mem. at 9.) Plaintiff was represented in

arbitration proceedings by the Union, which initiated the grievance proceeding on his behalf.
Defendant and the Union—^not Plaintiff—^were the parties to the arbitration, and only the Union

has standing to seek vacatur ofthe Award. The court therefore rejects Plaintiffs direct challenge
to the Award.

2.

Hvbrid6 301/DFRClaim

Recognizing that the above rule"may leave an individual employee without recourse
when a union breaches its duty offair representation in an arbitration proceeding," an employee

can bring a hybrid § 301/DFR claim to challenge an arbitration award when he would not
otherwise have standing to do so. See Nicholls. 2005 WL 1661093, at *5. In order to succeed
on such a claim, the employee must allege "both breach ofthe labor agreement by the employer
and breach ofthe duty offair representation by the union." Tucker v. Am. Bids. Maint.. 451 F.

Supp. 2d 591,595(S.D.N.Y. 2006) Cciting Chauffeurs. Teamsters & Helpers. Local No. 391 v.
Terry. 494 U.S. 558,564(1990)).

Plaintiff attempts to make such a claim, arguing that Defendant"breached the collective
bargaining agreement by wrongfully discharging Piim]," and that the Union breached its duty of
fair representation by "fail[ing] to present any evidence ofthe fact that one ofthe absence

frequencies Defendant was relying [on] in their decision to terminate [Plaintiff] was a period of
time when [he] was out legally receiving workers' compensation disability benefits." (Am.Pet.

1IK 16-17.) Defendant argues that Plaintiff has no standing to bring the claim because he did not
name the Union as a defendant or respondent; that Plaintiff has failed to meet his pleading
burden on both counts; and that, in any event, his claim is imtimely because the 90-day statute of
limitations ran before he filed the Amended Petition. The court finds that Plaintiff does have

standing to bring a hybrid § 301/DFR action but that, because he has not sufficiently pleaded that
the Union breached its duty offair representation, his claim cannot proceed.
a.

Standing

Defendant first claims that Plaintifflacks standing to bring a hybrid § 301/DFR claim
because the Amended Petition does not"name the Union as a defendant or respondent." (Def.

Mem. at 14.) This assertion is incorrect: "The employee may sue the employer,the union, or
both in a hybrid § 301/fair representation claim ...." Carrion v. Enter. Ass'n. Metal Trades
Branch Local Union 638.227 F.3d 29, 33(2d Cir. 2000).(^PI. Opp'n at 9.) While Plaintiff

must still allege that the Union breached its duty offair representation and that Defendant
breached the collective bargaining agreement. Plaintiff does not need to name both ofthem as
defendants in this action.

10

b.

Merits

The statute oflimitations is not a jurisdictional element,so the court can consider the

merits ofa case even ifit has reason to suspect that the limitations period may have run prior to

the filing ofthe operative complaint.

Nosair v. United States. 839 F. Supp. 2d 646,650

(S.D.N.Y. 2012); see also Bechtel v. Competitive Techs.. Inc.. 448 F.3d 469,479 n.l (2d Cir.
2006)(Leval, J., concurring in the judgment)(stating that courts may "dismiss on the merits

cases that come within [their] constitutional jurisdiction, notwithstanding doubts as to whether

[they] have statutory jurisdiction"). Because Plaintiff has failed to allege that the Union
breached its duty offair representation in redressing his grievance against Defendant,the court
dismisses the Amended Petition without reaching Defendant's limitations-period argument.
i.

The Union's Dutv of Fair Representation

"It is well established that a union has 'a statutory duty fairly to represent all ofthe
employees it represents, both in its collective bargaining and in its enforcement ofthe resulting
collective bargaining agreement.'" Figueroa v. Foster. 864 F.3d 222,229(2d Cir. 2017)

(alterations adopted)(quoting Vaca v. Sines. 386 U.S. 171,177(1967)). "This duty derives
'fiom the union's statutory role as exclusive bargaining agent.'" Agosto v. Corr. Officers

Benevolent Ass'n. 107 F. Supp. 2d 294,303(S.D.N.Y. 2000)Cquoting Air Line Pilots Ass'n.
Int'l V. O'Neill. 499 U.S. 65,74(1991)). To establish a breach ofthe duty offair representation,
a plaintiff must(1)"prove that the union's actions or inactions are either arbitrary,
discriminatory, or in bad faith," and(2)"demonstrate a causal connection between the union's
wrongful conduct and [the plaintiffs] injuries." Vaughn v. Air Line Pilots Ass'n. Int'L 604 F.3d
703,709(2d Cir. 2010)(quotation marks omitted).

11

"A union's actions are 'arbitrary only if, in light ofthe factual and legal landscape at the
time ofthe union's actions, the union's behavior is so far outside a wide range ofreasonableness

as to be irrational.'" Id (quoting O'Neill. 499 U.S. at 67);^Passante v. N.Y. State Nurses
Ass'n. No. lO-CV-87,2010 WL 2425953, at *3(N.D.N.Y. June 11, 2010)(defining an arbitrary

omission as one "that may have involved either no decision at aU or a decision made in reckless

disregard of[the plaintifFs] rights"). "[TJactical errors are insufficient to show"that the union
acted arbitrarily;"even negligence on the union's part does not give rise to a breach." Vaughn,

604 F.3d at 709(alteration adopted)(quotation marks omitted). While "there is no heightened

pleading standard for a breach ofthe duty offair representation cause of action," Thomas v.
Little Flower for Rehab. & Nursing. 793 F. Supp. 2d 544, 549(E.D.N.Y. 2011), a plaintiff bears
an "enormous burden" in establishing that his union breached this duty, Nicholls, 2005 WL
1661093, at *7.
ii.

Application

The court agrees with Defendant that PlaintifFs allegations boil down to an assertion that

the Union "failed to present certain evidence during the arbitration hearing," something which is
"precisely the type oftactical decision and conduct during an arbitration" that cannot support a

duty-of-fair-representation claim. (Def. Mem.at 17.) To see why this is the case, a comparison
with other cases ofthis nature is instructive. For example, in Passante. the court found that the

plaintiff had stated a claim where the union failed to notify the plaintiff ofthe grievance

proceedings,"failed to conduct an appropriate investigation of her claims, and failed to offer anv
evidence at the hearings to show that [the employer] violated its policies, the collective

bargaining agreement, and federal and state law." Id.(emphasis added). Sumlarly,in Thomas,
the court denied the motion to dismiss where the plaintiff alleged that the union "failed or

12

refused to reply" to the plaintiffs inquiries as to whether her grievance had been submitted to
arbitration. Thomas. 793 F. Supp. 2d at 549. Both ofthese cases featured a union which had
undertaken a grossly deficient defense ofits member,and which had been at loggerheads with its

member for much ofthe grievance-arbitration proceeding. By contrast, the court in Guerrero v.

Soft Drink & Brewerv Workers Union. No. 15-CV-911 (GHW),2016 WL 631296(S.D.N.Y.
Feb. 16, 2016),found that "the union's failure to call certain witnesses at the hearing, and the
union's failure to allege or argue fraud against [the employer] for [the employee's] intentional

misrepresentation to the shop steward," were inactionable "tactical missteps." Id at *4(internal
quotation marks omitted). Similar behavior—^failure to call a particular witness, failure to obtain
certain documents—^was also found to be iasufficient to show a breach ofthe union's duty in

Tucker. See 451 F. Supp. 2d at 596. Simply put, a breach ofthe duty offair representation does
not arise when the union and the represented party disagree about steps that the union could, or
even should, have taken during grievance arbitration; sometidng much more "egregious" is
necessary. See id.(quoting Barr v. United Parcel Serv.. Inc.. 868 F.2d 36,43(2d Cir. 1989)).
Plaintiff claims that the Union "failed to adequately represent [at the arbitration] that one

ofthe absence frequencies was while Plaintiff was receiving workers' compensation benefits,"
and that the Union should have submitted Plaintiff's "workers' compensation disability award to
refute [Defendant's] citing to this absence frequency." (Am.Pet.

5,17, 33.) This conduct is

much in line with Guerrero, where the court found that evidentiary choices in the course of

grievance procedures are tactical decisions that cannot support a claim for breach ofthe duty of
fair representation. Plaintiff attempts to distinguish Guerrero on the grounds that it concerned a
failure to present certain witnesses, rather than evidence (PI. Opp'n at 10-11), but the court is not
convinced that this distinction is meaningful. Cf Romero v. DHL Express. Inc.. No. 12-CV-

13

1942(LAK),2013 WL 1311033, at *2(S.D.N.Y. Apr. 2,2013)(rejecting the plaintiffs claim
that the union breached its duty by not presenting certain evidence). Plaintiffs attempts to

distinguish Tucker are similarly unavailing. Even ifthat case did not concem the specific factual

allegations being made by Plaintiff, the court still sees quite a bit of overlap between a claim that
the union breached its duty by not calling a witness that might have vindicated the plaintiff(as in
Tucker), and a claim that the union breached its duty by not producing documents that might

have vindicated the plaintiff(as here). (See PI. Opp'n at 11.) Plaintiffs argument that the
Union's conduct amounted to "a wholesale abrogation of representation"(id. at 10)is clearly

incorrect, and does a disservice to plaintiffs whose representations were so lacking."^
Plaintiff"additionally argues that the Union acted arbitrarily because it "allowed, and

failed to prevent consideration of, a matter that would violate public policy." (Id at 9.) Plaintiff
cites no authority establishing that the bar for arbitrariness or bad faith is lower when a union's
tactical decisions implicate a supposed public policy. (See id at 9-11.) The courtjoins
Defendant in surmising that "Plaintiff cites no caselaw in support ofthis argument because none

exists." pef. Reply at 8.) Leaving Plaintiffs lack ofsupport for this argument aside, it would
make no sense to transform routine tactical decisions automatically into "irrational" actions "far

outside the wide range of reasonableness" simply because they relate to matters ofpublic policy.

As Plaintiff points out, there already exists a procedure for vacating arbitration awards that
violate public policy. (See PL Opp'n at 4-5.) If an arbitrator's award actually violates public

^ Additionally, the court is not convinced that the arguments that Plaintiff claims were arbitrarily omitted would
have made a difference in the outcome of his arbitration proceeding. The alleged evidence would have only been
relevant to one ofthe three absence frequencies that Plaintifftook following his "final warning" in November 2015.

Arbitrator Gold's finding that Con Ed had reasonable cause for Plaintiffs discharge, however, was based on all
three ofthese frequencies, as well as Plaintiffs "history." (See Award at 6.) She considered and rejected the
Union's argument that Con Ed should have been required to consider the first absence frequency as FMLA qualified
simply because the first two days were. (See id, at 6-7.) She also found that, even accepting "Plaintiffs argument
that the third frequency was "due to a legitimate illness," Con Ed would still have had grounds to terminate Plaintiff.
(Idat7.)
14

policy, the imion may seek to vacate it; allowing the represented employee to seek to vacate the
award because one ofthe union's tactical decisions had a tangential relationship to "public

policy" would amount to an end run around the well-established standing requirements for these
actions.^ The court declines PlaintifTs invitation to apply his proposed rule.
*

*

*

Plaintiffs complaint is devoid of allegations demonstrating the Union's egregious
behavior, or improper intent, purpose, or motive. Instead, the actions taken by the Union in the
course ofrepresenting Plaintiff were tactical choices that cannot support a hybrid § 301/DFR
claim. PlaintifPs claim therefore caimot proceed, and the court must dismiss the Amended

Petition with prejudice.^
B.

Discrimmatioii Claims

The allegations in the Discrimination Complaint raise different legal questions from those
in the Amended Petition. In the Discrimination Complaint, Plaintiff alleges that Defendant

treated him unfavorably and eventually terminated him because of his chronic bronchitis and his

sex. (Discrim. Compl.

2-3.) This conduct, he alleges, violated a variety offederal, state, and

local employment-discrimination laws,including Title VII ofthe Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et seq.: the New York State Human Rights Law("NYSHRL"),
N.Y. Exec. Law § 296 et seq.: the New York City Human Rights Law("NYCHRL"),N.Y.C.

^ The court's concern about the far-reaching effects ofPlaintiff's proposed rule is particularly acute given that many

aspects of collective bargaining implicate matters ofpublic policy. ^Janus v. Am. Fed'n of State. Ctv. & Mun.
Emps.. Council 31.138 S. Ct. 2448,2476-77(2018).

® "Because a union's breach ofthe duty offair representation 'is a prerequisite to consideration ofthe merits of
plaintiffs claim against' an employer for breach of a collective bargaining agreement, courts presented with hybrid
claims need not reach the question of whether the employer violated the agreement unless the union has acted
arbitrarily, in bad faith, or discriminatorily." Acosta v. Potter. 410 F. Supp. 2d 298,309(S.D.N.Y. 2006)(quoting
Young V. U.S. Postal Serv.. 907 F.2d 305,307(2d Cir. 1990)). Because Plaintiff is unable to show that Ae Union
breached its duty ofgood faith, the court declines to analyze the question of whether Con Ed breached its collective
bargaining agreement with Plaintiff.
15

Admin. Code § 8-101 et seq.: and the Americans with Disabilities Act("ADA"),42 U.S.C.

§ 12101 et seq. (Discrim. Compl.^ 4.) For the following reasons, the court GRANTS
Defendant's motion to dismiss the Discrimination Complaint.
1.

Title VII

a.

Legal Standard

Claims of discrimination imder Title VII are governed by the familiar burden-shifting test
first established in McDoimell Douglas Corp. v. Green. 411 U.S. 792, 802-04(1973). S^ Vega

V. Hempstead Union Free Sch. Dist.. 801 F.3d 72, 82-83(2d Cir. 2015). In order for a plaintiffs
claim under this framework to succeed, he bears the burden of establishing a prima facie case of
discrirnination at the outset of his case by showing that "(1) he belonged to a protected class;(2)

he was qualified for the position he held;(3) he suffered an adverse employment action; and(4)

that the adverse employment action occurred under circumstances giving rise to an inference of
discriminatory intent." Tolbert v. Smith,790 F.3d 427,435(2d Cir. 2015)(quotation marks
omitted).

To survive a motion to dismiss, however,"a plaintiff is not required to plead a prima
facie case under McDormell Douglas, at least as the test was originally formulated." Vega, 801

F.3d at 84: see Swierkiewicz v. SoremaN. A.. 534 U.S. 506,510(2002). Instead,"to defeat a
motion to dismiss...in a Title VII discrimination case, a plaintiff must plausibly allege that(1)

the employer took adverse action against him, and(2)his race, color, religion, sex, or national
origin was a motivating factor in the employment decision." Vega, 801 F.3d at 86; see Zarda v.
Altitude Express, Inc., 883 F.3d 100,118(2d Cir. 2018)(en banc)("A plaintiff alleging
disparate treatment based on sex in violation of Title VII must show two things:(1)that he was
discriminated against with respect to his compensation,terms, conditions, or privileges of

16

employment, and(2)that the employer discriminated because of sex."(alterations adopted)
(internal quotation marks omitted)(citing 42 U.S.C. § 2000-e(a)(l))). Facts necessary to support

an allegation of discrimination under Title VII "need only give plausible support to a minimal

inference of discriminatory motivation." Littleiohn v. Citv ofNew York. 795 F.3d 297,311 (2d

Cir. 2015). Although seemingly confused about the distinction between the McDonnell Douglas

requirements on a motion to dismiss and on summaryjudgment. Defendant claims that Plaintiff
has not sufficiently pleaded at least minimal support for his claims ofdiscriminatory animus.
rSee Def. Mem. at 23, 29-30.)

b.

Application

Plaintiff attempts to raise an inference of discrimination based upon disparate treatment:

He alleges that Defendant fired him "for alleged violations of[Defendant's] attendance policy,
while allowing female employees with the same or similar alleged violations to remain

working." (Discrim. Compl. H 40.) In support ofthis claim, he points to "a female co-worker

[(referred to by Defendant as 'A.P.')] who [had] a worse attendance record" and less experience
or seniority than Plaintiff, yet who was "rarely criticized or disciplined for her attendance

issues." Qd

29-30.) He also makes vague allegations of"female employees [being] treated

more favorably than male employees when being disciplined and reprimanded for attendance

policy violations." (Id1I3;^id1[31.) Defendant states that Plaintiffs claim is "fabricate[d],"
and that Defendant "treated Plaintiff and A.P. similarly and in accordance with the very same

progressive discipline policy." (Def. Mem. at 30.) The court agrees that Plaintiffs claim ofsex
discrimination is "vague, speculative, and conclusory"(Def. Reply at 12)and accordingly must
be dismissed.

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"An inference of discrimination can arise from circumstances including... the more

favorable treatment of employees not in the protected group." Littleiohn, 795 F.3d at 312

(intemal quotation marks omitted). However,"[a] plaintiff relying on disparate treatment
evidence must show Pie] was similarly situated in all material respects to the individuals with

whom she seeks to compare [himjself." Mandell v. County of Suffolk. 316 F.3d 368,379(2d
Cir. 2003)(quotation marks omitted). While "the law does not require detailed pleadings
regarding the similarly situated comparators," Yang v. Dep't ofEduc.. No. 14-CV-7037(SLT),
2016 WL 4028131, at *9(E.D.N.Y. July 26,2016),"the plaintiff must at least plead allegations

from which it is plausible to conclude that the comparators are similarly situated," Offor v.
Mercv Med. Ctr.. 167 F. Supp. 3d 414,431 (E.D.N.Y. 2016), afPd in part, vacated in part on
other grounds, 676 F. App'x 51 (2d Cir. 2017).

Plaintiff has failed to meet his pleading burden. The Discrimination Complaint provides
no information as to whether he and A.P."had similar job descriptions or responsibilities,"
Johnson v. Andv Frain Servs.. Inc.,638 F. App'x 68,70(2d Cir. 2016), or whether A.P.'s

alleged pattem of absences was"of comparable seriousness" to Plaintiff's, Opoku v. Brega,
No. 15-CV-2213(KMK),2016 WL 5720807, at *2(S.D.N.Y. Sept. 30, 2016). Without any

information about Plaintiffs allegedly similarly situated comparator,the court is unable to find
that Defendant engaged in a pattem of disparate treatment rising to the level of unlawful
discrimination. Plaintiffs only response to this argument is to claim that he "is not required to

prove anything to survive a motion to dismiss." (PI. Opp'n at 16.) Plaintiffs assertion is
correct, but misses the point: He need not proffer evidence proving anything about his alleged

comparator; instead, his burden is to plead facts from which the court might plausibly conclude

18

that he was treated worse than a similarly situated co-worker on account of his sex. Without
such facts, the court must dismiss his Title VII sex-discrimination claim.
2.

The ADA

a.

Legal Standard

The ADA prohibits "discrimination agaiust'a qualified iudividual on the basis of

disability,"' Dawson v. N.Y.C. Transit Auth.. 624 F. App'x 763, 765-66(2d Cir. 2015)(quoting
42 U.S.C. § 12112(a)), includiug by "1)taking an adverse employment action;[or] 2)refusing to
make a reasonable accommodation that would enable the employee to perform the essential

functions of her job," Forman v. City ofNew York. No. 14-CV-6282(LTS),2017 WL 1167334,
at *4(S.D.N.Y. Mar.27,2017)(citing 42 U.S.C. § 12112(b)(l)-(7)).
In order to state a claim for disability discrimination imder the ADA,a plaintiff must

plead—^in relevant part—^that, despite his disability, he "was otherwise qualified to perform the
essential functions ofthe job with or without a reasonable accommodation," and that he

"suffered an adverse employment action ... because of[his] disabihty." Doolev v. JetBlue
Airways Corp.. 636 F. App'x 16, 21 (2d Cir. 2015)(emphasis added)(quoting Davis v. N.Y.C.
Dep't ofEduc., 804 F.3d 231,235(2d Cir. 2015)(per curiam)). Regarding the latter

requirement, as with Title VII,the essential question is whether the claim gives "plausible
support to a minimal inference of discriminatory motivation." Id.(quoting Vega, 801 F.3d
at 84).

A plaintiff bringing an ADA failure-to-accommodate claim, meanwhile, must plead that
he "could perform the essential functions of[his]job with reasonable accommodations,and [his]
employer refused to make those accommodations." Rav v. Weit 708 F. App'x 719, 721 (2d Cir.

19

2017)(emphasis added)(citing McBride v. BIC Consumer Prods. Mfg. Co.. 583 F.3d 92,97
(2d Cir. 2009)).

b.

Application
i.

Qualification

Defendant claims that Plaintiff's chronic absenteeism rendered him unqualified to

perform the essential functions of hisjob, and thus that all of his claims under the ADA should
be dismissed. (Def. Mem. at 23-24.) See Hooks v. N.Y.C. Transit Auth., No. 98-CV-6308

(HB), 1999 WL 33204508, at *2(E.D.N.Y. Dec. 12,1999). In support ofthis claim, Defendant
submits a declaration regarding Plaintiff's attendance record (the "Allen Declaration"). (See

Decl. of Kelly P. Allen(Dkt. 16).) Plaintiff does not dispute the statements in the Allen
Declaration, but instead states that Defendant's argument is "predicated upon material

extraneous to the pleadings" that"may not support a motion to dismiss." (PI. Opp'n at 14.)
Plaintiff is correct that the Allen Declaration does not meet the requirements for
consideration on a motion to dismiss. The Allen Declaration is a new document submitted by

Defendant and contains facts that are not mentioned in the complaint. It would thus be

impossible to argue that Plaintiff had notice ofthe document or that he relied on it in drafting his
pleadings. Cf DiFolco v. MSNBC Cable L.L.C.. 622 F.3d 104,111 (2d Cir. 2010). In order to
consider the information in the Allen Declaration at this juncture, the court would have to
convert Defendant's motion to dismiss into a motion for summary judgment. While that is

exactly what Defendant urges the court to do (see Def. Reply at 13 n.4), the court will not do so
because Plaintiff has not been "given a reasonable opportunity to present all the material that is

pertinent to the motion." Sahu v. Union Carbide Corp.. 548 F.3d 59,67(2d Cir. 2008)(quoting
Fed, R. Civ. P. 12(d')h see DeLuca v. AccessIT Grp.. Inc.. 695 F. Supp. 2d 54,61 (S.D.N.Y.

20

2010)(declining to convert a motion to dismiss into one for summaryjudgment "since discovery
has not yet commenced").

Without considering the information contained in the Allen Declaration, the court cannot
conclude that Plaintiff has not sufficiently pleaded that he was qualified for his position.

Plaintiff alleges that he only took "several sick days in 2015," that his "work-related health
issues were the cause of his attendance issues," and that the reason he missed work immediately

prior to his termination related to his health issues. (Discrim. Compl.

19-24.) These

allegations, iftrue, would be sufficient to establish that he was qualified to perform the essential
functions of his position, with or without reasonable accommodation. The facts contained in the
Award might be enough to support Defendant's argument on this ground, but the court cannot
consider that document for the purpose of Defendant's motion to dismiss the Discrimination

Complaint because the Award was only attached to the Amended Petition, and the
Discriniination Complaint does not refer to it at all. See Roth v. Jenniugs, 489 F.3d 499,509
(2d Cir. 2007).
ii.

Failure to Accommodate

The substance of Plaintiff's ADA claim turns on his allegation that he "requested a

reasonable accommodation by way of verbal requests for light duty" and that his supervisor

"flatly refused Plaintiffs request for an accommodation, and failed to engage in a dialog with
Plaintiff to explore any reasonable accommodations." (Opp'n at 14;^Discrim. Compl.^ 34.)
Con Ed's motion to dismiss, somewhat confusingly, claims that "Plaintiff does not allege that he

ever sought a reasonable accommodation for his bronchitis, nor does he claim that[Con Ed]
denied any request for a reasonable accommodation." (Def. Mem. at 29.) While Plaintiff has

21

alleged these facts, the court dismisses PlaintifPs failure-to-accommodate claim because he has
not alleged them with sufficient particularity.

A plaintiff bringing a failure-to-accommodate claim must plead that his employer
affirmatively failed to provide him with a reasonable accommodation for his disability. See
McBride. 583 F.3d at 97. In practice, this means that any accommodation that the plaintiff
claims is reasonable must have been actually sought and unlawfully denied.

Clarke v. White

Plains Hnsp.. 650 F. App'x 73,75(2d Cir. 2016). "Reassignment of a disabled employee to a

vacant light-duty position is well established as a reasonable accommodation under the ADA."
King V. Town of WallkilL 302 F. Supp. 2d 279,291 (S.D.N.Y. 2004). "An employer is not,

however, obligated to create a new light-duty position for a disabled employee or make

permanent previously temporary light-duty positions." Id. The plaintiff"bears the burden of
showing that a reasonable accommodation exist[ed]." Kendricks v. Westhab. Inc.. 163 F. Supp.
2d 263,269(S.D.N.Y. 2001);
^Clarke. 650 F. App'x at 75.

While Plaintiffs pleading alleges that he requested and was unfairly denied a reasonable
accommodation for his disability (Discrim. Compl.^ 34), it fails to allege when he made his

request, that there were light-duty positions available at that time, or that the requested light-duty
positions would have constituted a reasonable accommodation. These elements are required in
order to survive a motion to dismiss. Because the Discrimination Complaint does not make any

specific allegations regarding Defendant's failure to accommodate Plaintiff's chronic bronchitis,
the court dismisses Plaintiffs claim.
iii.

Disability Discrimination

Although Plaintiff's disability-discrimination claim is largely based on Defendant's

alleged failure to accommodate his disability (see Discrim. Compl.^ 34), the court also construes

22

the Discrimination Complaint as raising a substantive ADA discrimination claim. As set forth
above,in order to survive a motion to dismiss, a plaintiff alleging disability discrimination must

"give plausible support to a minimal inference of discriminatory motivation." Doolev,636
F. App'x at 20(quoting Vega, 801 F.Sd at 84). Plaintiff attempts to raise such an inference by

claiming that Defendant "targeted" him for years on account of his respiratory issues, and
ultimately terminated him for reasons that Plaintiff says would not have sufficed to terminate a

non-disabled employee. (Discrim. Compl.

25-26, 35;
^id Ifll 16-24.)

The allegations in the Discrimination Complaint do not plausibly support to Plaintiffs
claim of discrimination. For one, while it seems like Plaintiff tries to assert a disparate-treatment

theory of habihty, claiming that"other employees with similar attendance records were treated
more fairly"(PI. Opp'n at 14-15;^Discrim. Compl. 1|1| 25, 35), the Discrimination Complaint
does not point to any employees who were not disabled but treated less harshly than Plaintiff
despite being similarly situated.

MandeU,316 F.3d at 379; ct Salas v. N.Y.C. Dep't of

Investigation. 298 F. Supp. 3d 676,687-88(S.D.N.Y. 2018). In addition. Plaintiff does not state
any facts that could give rise to an inference of discrimination by Defendant.

Giambattista v.

Am.Airlines, Inc., 584 F. App'x 23,25(2d Cir. 2014)(requiring an ADA complaint to "set forth
...factual circumstances firom which a [disabihty]-based motivation for [an adverse] action
might be inferred"(second alteration in original)). He does not claim that Defendant's
employees made any statements about his disability, nor does he give any indication that his
disabihty played a role in Defendant's decision to terminate him.^Salas,298 F. Supp. 3d at
687. Plaintiff states that his allegations are not "merely ... conclusory"(PI. Opp'n at 14), but

that is exactly what they are; in order to survive a motion to dismiss, his complaint must do more
than state that he has a disability, that Defendant knew about it, and that an adverse action

23

occurred. Because Plaintiffs complaint does not do more than that, his claim of disability
discrimination is dismissed.

C.

Supplemental Jurisdiction

Where a court dismisses all claims over which it has original jurisdiction, it may,in its
discretion, decline to exercise supplementaljurisdiction over remaining claims. 42 U.S.C.

§ 1367(c)(3). "[Wjhere, as here, the federal claims are eliminated in the early stages of
litigation, courts should generally decline to exercise pendentjurisdiction over remaining state
law claims." Klein & Co. Futures. Inc. v. Bd. of Trade. 464 F.3d 255,262(2d Cir. 2006).

Because the court has dismissed all federal-law claims asserted by Plaintiff, it declines to

exercise supplementaljurisdiction over any potential state-law claims,including those brought
under the NYSHRL and NYCHRL.

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IV.

CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss(Dkt. 14 in No. 17-CV-1710)is
GRANTED. Plaintiffs Amended Petition(Dkt. 8 in No. 17-CV-1710)is DISMISSED WITH

PREJUDICE. Plaintiffs Discrimination Complaint(Dkt. 1 inNo-17-CV-3099)is DISMISSED

WITHOUT PREJUDICE, with leave to replead within 30 days ofthe date ofthis memorandum
and order.

The Clerk of Court is respectfully DIRECTED to enterjudgment for Defendant in Case
No. 17-CV-I710 and close the case. The Clerk of Court is further respectfully DIRECTED,in
the event that Plaintiff does not file an amended complaint within 30 days ofthe date ofthis
memorandum and order, to enterjudgment for Defendant in Case No. 17-CV-3099 and close the
case.

SO ORDERED.

s/Nicholas G. Garaufis

[CHOLAS G. GARAUFq

Dated: Brooklyn, New York

July 30.2018

United States District Judge

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