DeFrancesco v. Bottalico et al

Filing 32

OPINION re: 17 MOTION for Judgment on the Pleadings (Notice of). filed by MTA Metro-North Railroad Company, 14 MOTION for Judgment on the Pleadings pursuant to F.R.C.P. 12(c). filed by Anthony Bottalico, The Association of Commuter Rail Employees. The court grants both motions for judgment on the pleadings and dismisses all of plaintiffs claims. (Signed by Judge Thomas P. Griesa on 12/16/2011) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------x
:
GINA DEFRANCESCO,
:
:
Plaintiff,
:
:
– against –
:
:
ANTHONY BOTTALICO as General
:
Chairman, et al.,
:
:
Defendants.
:
---------------------------------------------x

10 Civ. 8193 (TPG)
OPINION

This case arises out of plaintiff Gina DeFrancesco’s repeated
refusal to use an electronic Ticket Issuing Machine (“TIM”), in violation of
Metro-North Railroad’s (“Metro-North”) direction to do so, and her
subsequent termination from Metro-North. DeFrancesco claims that
Metro-North breached the collective bargaining agreement (“CBA”)
between it and the Association of Railroad Employees (“ACRE”), and that
ACRE breached its duty of fair representation. On the latter claim,
DeFrancesco sued ACRE and Anthony Bottalico of ACRE. DeFrancesco
also brings state law claims for intentional infliction of emotional distress
and tortuous interference with contract.
Metro-North moves for judgment on the pleadings pursuant to
Rule 12(c). Bottalico and ACRE have filed a separate motion for
judgment on the pleadings. The court grants both motions.

FACTS
The following facts are assumed to be true for purposes of this
memorandum and are taken solely from DeFrancesco’s amended
complaint (“the complaint”) and items incorporated into DeFrancesco’s
complaint by reference.
DeFrancesco was an Assistant Conductor employed by MetroNorth and is a member of ACRE. ACRE is a union that represents
conductors employed by Metro-North. Anthony Bottalico is the General
Chairman of ACRE. ACRE and Metro-North are parties to a collective
bargaining agreement, which governs the discipline and grievance
process for unionmembers employed by Metro-North. DeFrancesco was
disciplined by Metro-North on October 21, 2009 and November 16, 2009,
and discharged on November 16, 2009.
The CBA Discipline and Grievance Process
Pursuant to the CBA, no employee is to be reprimanded,
disciplined, suspended or dismissed until a Metro-North officer conducts
a fair and impartial investigation. The CBA does not refer to an
investigation in the ordinary sense of the word, but rather, a hearing in
which the employee is represented by an ACRE representative, and she
and other witnesses are questioned by a Metro-North Hearing Officer and
the ACRE representative. Thus, when the CBA uses the term
investigation, it is really referring to a trial-like hearing in which facts are

-2-

presented. In fact, the CBA sometimes refers to this investigation as a
“trial.”
Under certain circumstances, an employee may be held out of
service pending such investigation and decision. The CBA provides that
an employee will only be held out of service pending investigation for a
“serious acts or occurrence,” which includes a violation of Rule G,
insubordination, extreme negligence, and stealing. The CBA provides
that an employee will not be held out of service pending investigation and
decision in cases that are not serious acts or occurrences. Yet,
contradictorily, the CBA provides that if an employee is held out of
service pending investigation and decision for other than a serious act or
occurrence, he will be paid what he would have earned had he not been
held out of service, excluding the day of the formal investigation, if he is
disciplined.
An employee directed to attend an investigation will be notified in
writing within seven days of the date of the occurrence. Before the
investigation, the union and Metro-North must attempt to resolve the
matter. If these efforts are unsuccessful, the investigation proceeds. At
this trial-like proceeding before a Metro-North officer, an employee who
may be subject to discipline has the right to present witnesses with
information relevant to the investigation, to present testimony. MetroNorth orders employee witnesses to be in attendance if the employee
under investigation requests their attendance. The employee and his

-3-

union representative have the right to be present during the entire
investigation.
If the employee finds the discipline imposed to be unjust, the
employee may appeal to the Assistant Director of Labor Relations. The
decision of the Assistant Director of Labor Relations is final and binding
unless ACRE appeals that decision to the Highest Appeals Officer.
The decision of the Highest Appeals Officer may be appealed to the
Special Board of Adjustment. The Special Board of Adjustment is a
panel composed of three arbitrators: one selected by Metro-North, one by
ACRE, and a neutral arbitrator selected by both parties.
DeFrancesco’s Infractions, Discipline, and Grievance
On or about August 18, 2008, DeFrancesco was issued a TIM to
use in the course of her work. A TIM is a hand-held electronic device
that records every sales transaction a crew member makes and is used
for on-board ticket sales and revenue transactions in passenger trains.
It collects information such as the type of fare, amount of fare, cash
tendered, cash remitted, and change, and issues receipts. Metro-North
required conductors to use TIMs.
In late 2008, DeFrancesco refused to use the TIM, but was
repeatedly warned by union officials that she should use the TIM.
However, DeFrancesco did not use the TIM because she thought it was
unsafe. She was trying to become pregnant and thought that it might be
dangerous to have a TIM in contact with her body. DeFrancesco had

-4-

been informed by a medical professional in October 2008, and later by
one Dr. Salimbene, that she should not use the TIM. DeFrancesco
alleges that at some point she provided Metro-North with a doctor’s note
in an effort to be excused from being required to use the TIM, but to no
avail.
Around January 24, 2009, DeFrancesco was notified that she
would be discharged if she did not wear the TIM. She claims she started
wearing the TIM to save her job, despite her fear that it might be
dangerous to her pregnancy to use a TIM. DeFrancesco had heard that
another pregnant conductor who wore a TIM had a miscarriage. At some
point in March 2009, she thought she was pregnant but continued to
wear the TIM out of fear of losing her job. Using the TIM caused
DeFrancesco anxiety and emotional distress, of which she informed
Metro-North and ACRE.
Once her pregnancy was confirmed on April 1, 2009, she stopped
using the TIM. However, in May 2009, DeFrancesco was repeatedly
warned by both Metro-North and ACRE that she must wear a TIM or else
she would lose her job. DeFrancesco received one such warning on or
about May 12, 2009. Although DeFrancesco sought ACRE’s assistance
in challenging this Metro-North rule, DeFrancesco alleges that the union
sided with Metro-North and warned her that she would lose her job
unless she used the TIM.

-5-

It is unclear from DeFrancesco’s complaint whether she began
wearing her TIM again on May 12, 2009 after her job was threatened, but
on May 15, 2009, she was hospitalized and she suffered a miscarriage.
DeFrancesco alleges that ACRE and Metro-North’s behavior in harassing
her to wear a TIM, as well as the fear of miscarriage resulting from use of
the TIM, caused her great anxiety and emotional distress that led to her
suffering a miscarriage.
When DeFrancesco returned to work after her hospitalization, she
was informed that she was on a list of people who was not using a TIM.
DeFrancesco alleges that not every conductor was required to use the
TIM and that the defendants appeared to be harassing DeFrancesco
more than they harassed other conductors.
On July 13, 2009, DeFrancesco requested by letter that she be
relieved of the obligation to wear a TIM because she was attempting to
become pregnant again. DeFrancesco alleged she never received a
response to this letter, but she did confront Ronald Yee of Metro-North,
who informed her that another Metro-North employee had ordered him to
tell DeFrancesco that she had to wear the TIM.
Undeterred, DeFrancesco continued to seek an exemption from the
TIM requirement and ultimately was informed that if she did not want to
wear the TIM, she could take a “yard job” that would require her to work
outdoors, until late in the night, and wear a radio on her waist.
DeFrancesco thought this was a dangerous job for a pregnant woman

-6-

and that this offered accommodation was a punishment for failing to
wear a TIM. DeFrancesco also thought that using a radio might lead to
complications with her pregnancy.
On August 18, 2009, DeFrancesco sent Metro-North a letter and a
doctor’s note, requesting a reasonable accommodation so that she could
be exempted from the TIM requirement. The next day, Metro-North and
ACRE circulated a memorandum to all employees indicating that if they
requested accommodation relating to the TIM, they should contact a
designated Metro-North employee, Linda Kenwood. DeFrancesco alleges
that this memorandum was referred to by employees as the “Gina Memo”
and caused her humiliation, embarrassment, and distress.
After DeFrancesco received this memorandum, DeFrancesco’s
husband called Metro-North, seeking an accommodation, but to no avail.
DeFrancesco subsequently sent yet another request for an
accommodation on September 2, 2009. DeFrancesco does not indicate
whether she ever received a response to this request.
On September 4, 2009, DeFrancesco was taken out of service for
failing to use a TIM and ordered to appear at an October 15, 2009
disciplinary proceeding. DeFrancesco was charged with conduct
unbecoming a Metro North employee because she failed to use a ticket
machine between August 6, 2009 and September 2, 2009. DeFrancesco
claims she was not paid while she was out of service.

-7-

At DeFrancesco’s investigation, a Metro North employee served as
both the judge and Metro-North representative. DeFrancesco was
represented by Lloyd Fishbach of ACRE, who objected to various
questions raised by Metro-North. DeFrancesco was found guilty and
disciplined – she was given 52 days time out of service with an additional
30 days deferred.
After she returned to work on October 28, 2009, DeFrancesco was
again told to use a TIM, but refused, and was taken out of service that
day. The next day she again refused to wear the TIM and was taken out
of service again. DeFrancesco was charged with insubordination for
refusing to wear a TIM.
DeFrancesco appeared at an investigation on November 10, 2009.
At this investigation, Lloyd Fishbach of ACRE again represented
DeFrancesco. DeFrancesco was found guilty of insubordination and
terminated from work. After DeFrancesco was terminated, ACRE stated
that it would appeal the decision. DeFrancesco ordered ACRE not to
appeal the decision. ACRE appealed the decision to the Special Board of
Adjustment anyway. On April 28, 2010, the arbitrator rendered a
decision upholding DeFrancesco’s termination.
The Claims
DeFrancesco’s first claim is that ACRE breached its duty of fair
representation because of an alleged conflict of interest, which she
claims prevented ACRE from fairly representing her in the course of her

-8-

disciplinary proceedings. Approximately two-thirds of the salary of
Anthony Bottalico, the general chairman of ACRE, is paid by
Metro-North. DeFrancesco alleges that in order for Bottalico to continue
receiving this payment, he must support Metro-North’s policies instead of
the best interests of ACRE members. DeFrancesco claims that this
conflict of interest made Bottalico want to appeal so as to obtain an
arbitrator’s award adverse to DeFrancesco. According to DeFrancesco,
this adverse arbitration award would then allow Metro-North to be in a
position to claim that a separate lawsuit filed by DeFrancesco in the New
York Supreme Court should be dismissed based on collateral estoppel.
DeFrancesco’s second claim is that Metro-North breached the CBA.
DeFrancesco alleges that Metro-North violated various provisions of the
CBA, including Rules 24, 26(a), and 26(a)(2). DeFrancesco refers to Rule
26(a)(2) in her complaint and in her opposition to this motion. However,
upon a review of the CBA, there does not appear to be a Rule 26(a)(2).
However, Rule 26(b)(2) appears to be the rule that DeFrancesco is
referring to and its subject matter matches DeFrancesco’s description of
it. Accordingly, construing the complaint liberally in DeFrancesco’s
favor, the court will consider whether DeFrancesco has pleaded a breach
of Rule 26(b)(2).
These provisions govern the selection of arbitrators for the Special
Board of Adjustment, the investigation that must be undertaken before

-9-

discipline, and whether DeFrancesco had a right to compensation while
she was taken out of service.
DeFrancesco’s third cause of action is for intentional infliction of
emotional distress. DeFrancesco claims that Metro-North’s conduct was
outrageous and was done solely to intimidate her and other conductors,
and that such conduct caused her emotional distress.
DeFrancesco’s fourth cause of action alleges that Metro-North
tortuously interfered with an agreement between DeFrancesco and
ACRE, pursuant to which ACRE agrees to be DeFrancesco’s bargaining
representative and protect her from Metro North. Although DeFrancesco
does not indicate what contract she is referring to, presumably she is
referring to the CBA. DeFrancesco alleges that ACRE’s payment of a
portion of Bottalico’s salary, as detailed above, induced Bottalico to
breach the contract between ACRE and DeFrancesco.
Defendants answered and moved for judgment on the pleadings
with respect to all of DeFrancesco’s claims. Defendants have submitted
transcripts of DeFrancesco’s disciplinary hearings, the CBA, the decision
of the Special Adjustment Board, and copies of various notices provided
to DeFrancesco, all of which are referred to in the complaint.
DISCUSSION
“Hybrid” Labor Law Claims
An employee subject to a CBA, who alleges discharge without just
cause is normally bound by the result of the CBA-governed grievance

- 10 -

procedure, even if a meritorious grievance was lost because of poor
judgment on the part of the union officials who handled the grievance.
See Vaca v. Sipes, 386 U.S. 171, 184-86 (1967). The principal exception
to this rule arises where an employee can prove that the grievance was
lost because, in handling the grievance, the union breached its duty of
fair representation. Id. at 186. Such a claim is labeled “hybrid” because
in order to prevail, an employee must show both that the employer
breached the CBA and that employee failed in his grievance against such
breach because the union breached its duty of fair representation. See
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983).
Duty of Fair Representation
A court’s review of a union’s representation is deferential. Air Line
Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991). A breach of the duty of
fair representation will be found only if the union’s actions were
“arbitrary, discriminatory, or in bad faith.” Vaughn v. Air Line Pilots
Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010). In other words, mere
negligence, poor judgment, or ineptitude on the part of union officials in
representing a grievant is not actionable. See Barr v. United Parcel Serv.,
Inc., 868 F.2d 36, 43-44 (2d Cir. 1989).
DeFrancesco has not established that ACRE’s representation of her
was arbitrary. A union decision is arbitrary only if it lacks a rational
basis. Spellacy v. Airline Pilots Association-International, 156 F.3d 120,
127 (2d Cir. 1998). DeFrancesco does not point to any facts plausibly

- 11 -

suggesting that ACRE’s representation was irrational throughout its
representation of her in numerous hearings and in the filing of an
appellate brief. DeFrancesco’s apparent dissatisfaction with the outcome
of her representation does not make that representation irrational.
DeFrancesco argues that she had demanded that ACRE not file an
appeal, but that ACRE filed one anyway, and that she was not informed
of the date and time of the appeal, but union representatives have
substantial discretion to determine whether and how to process
grievances. See Vaca, 386 U.S. at 191-93. Even if DeFrancesco did not
want her union to file an appeal, the decision to proceed to arbitration is
a “discretionary determination to be made by the union.” See Carrion v.
Local 32B-32J Service Employees Int’l Union, AFL-CIO, No. 03 Civ. 1896
(THK), 2005 U.S. Dist. LEXIS 4417, at *21 (S.D.N.Y. Mar. 21, 2005).
DeFrancesco has not alleged facts plausibly showing that the union
reached this discretionary decision without a rational basis or made
irrational arguments in its appellate brief. Nor has DeFrancesco cited
any case in which a union was found to have breached its duty of fair
representation by pursuing an appeal more vigorously than the
unionmember wished, as DeFrancesco alleges here.
Similarly, DeFrancesco has not established that the union’s
actions were discriminatory. A union’s actions are discriminatory if they
are “invidious” or “unlawful.” O’Neill, 499 U.S. at 81. DeFrancesco
claims that certain conductors were not required to use the TIM, but that

- 12 -

she was. However, DeFrancesco fails to take the next step of plausibly
alleging facts in support of her claim that this difference in treatment
was the result of invidious or unlawful discrimination. See Haerum v.
Air Line Pilots Ass’n, 892 F.2d 216, 221-22 (2d Cir. 1989) (“A showing
that a union’s action has disadvantaged a group of members, without
more, does not establish a breach of the duty of fair representation.”).
Finally, DeFrancesco has not plausibly alleged that ACRE acted in
bad faith. A union official acts in bad faith when he acts with an
“improper intent, purpose, or motive.” Spellacy, 156 F.3d at 126.
DeFrancesco appears to be arguing that Bottalico acted in bad faith
because some of his salary was being paid by MetroNorth and that this
amounted to a conflict of interest, because he was motivated to support
the interests of Metro-North and not DeFrancesco. The court notes that
it does not seem unusual for a unionmember’s salary to be paid by the
employer because the unionmember works for the employer.
DeFrancesco has not set forth any facts supporting a claim that these
payments led ACRE to act in bad faith. In a recent case that was similar
to this case, Judge Swain persuasively rejected the same theory that
DeFrancesco is now advancing. See Giglietti v. Bottalico, No. 10 Civ.
3652 (LTS), 2011 U.S. Dist. LEXIS 56921, at *18 (S.D.N.Y. May 26, 2011)
(“The pleading and the memos relating to payments by Metro-North to
union officials make it clear that this compensation structure has been
in place for at least ten years at Metro North. In and of itself, the

- 13 -

compensation structure is insufficient to support an inference that the
Union does not represent its members in an appropriate fashion, much
less that Bottalico or ACRE acted with an improper intent, purpose or
motive.”).
To the contrary, DeFrancesco’s complaint and the court’s review of
the record demonstrate that despite the payments Bottalico received,
ACRE zealously represented DeFrancesco throughout every stage of her
proceedings, including filing an appellate brief on her behalf. At the
investigations conducted by Metro-North, DeFrancesco’s representative,
Lloyd Fischbeck, often objected that testimony offered against
DeFrancesco was outside the scope of the charges against her. He
attempted to cross-examine Metro-North representatives on the theory
that they had treated DeFrancesco more harshly than other employees
who failed to use the TIM. He also sought to prove that Metro-North had
not undertaken an adequate review of the safety of the TIM for pregnant
women before rejecting DeFrancesco’s requests for a medical
accommodation. Although ACRE was unsuccessful in its efforts on
DeFrancesco’s behalf, there are no facts plausibly suggesting that it
acted in bad faith.
Accordingly, DeFrancesco’s claim for breach of the duty of fair
representation must be dismissed.

- 14 -

Breach of the CBA
DeFrancesco’s hybrid labor law claim requires a showing both that
the union breached its duty of fair representation and that the employer
breached the CBA. See White v. White Rose Food, 237 F.3d 174, 178-79
(2d Cir. 2001). Because DeFrancesco has failed to state a claim for
breach of the duty of fair representation, her claim for breach of the CBA
must fail as well. See id. The court would be in order in dismissing this
claim without substantively considering it because DeFrancesco has not
sufficiently pleaded the threshold requirement of a breach of the duty of
fair representation. See Giglietti, 2011 U.S. Dist. LEXIS 56921, at *20.
However, the court will consider the merits of her claim of violation
of the CBA.
DeFrancesco alleges that Metro-North breached CBA Rules 24 and
26 by selecting all three arbitrators. Rule 24 permits both Metro-North
and ACRE to appoint an arbitrator and then agree on a neutral
arbitrator. DeFrancesco’s theory is that Metro-North’s payment of
Bottalico’s salary means that Metro-North effectively had an influence on
how all of the arbitrators were picked and, consequently, on the fairness
of the appeals and hearings, in violation of Rules 24 and 26. However,
as discussed above, it is not abnormal for a member of a union to have
his salary paid by the employer, and DeFrancesco does not provide facts
in support of her allegation of improper influence. The compensation

- 15 -

structure alone does not support a claim of improper influence by
Metro-North.
Second, DeFrancesco alleges that Metro-North did not undertake
an impartial investigation, in violation of Rule 26(a), because
DeFrancesco could not call witnesses at her investigation and because of
the involvement of Metro-North officers in her investigation. As
described above, when the CBA refers to an impartial “investigation,” it is
referring to a trial-like proceeding before a Hearing Officer as opposed to
an investigation in the ordinary sense. DeFrancesco’s claim under Rule
26(a) must be rejected because the CBA requires that the fair and
impartial investigation be conducted by a Metro-North officer. Therefore,
Metro-North’s involvement in the investigation cannot in and of itself be a
breach of Rule 26(a).
With respect to Metro-North not allowing DeFrancesco to call
witnesses, Rule 26(a), which DeFrancesco cites, does not refer to
witnesses, but Rule 26(d)(2), which DeFrancesco does not refer to,
provides that an “employee who may be subject to discipline will have the
right to present witnesses who have relevant information relating to the
act or occurrence.” In her complaint and opposition papers,
DeFrancesco has simply stated that she was not allowed to present
witnesses at her hearing. However, she has not indicated what witness
she attempted to call at the hearing or the substance of their proposed

- 16 -

testimony. Thus, she has provided no factual amplification to this
allegation, which merely tracks the language of Rule 26(d)(2) of the CBA.
Despite DeFrancesco’s failure to indicate who she attempted to call
as a witness at her disciplinary hearings, the court has reviewed the
record and determined that DeFrancesco did attempt to call Linda
Kenwood as a witness at the November 10, 2009 investigation. Linda
Kenwood is the Metro-North employee who denied DeFrancesco’s request
for an exemption from the TIM requirement. The Metro-North Hearing
Officer denied DeFrancesco’s request on the grounds that Linda Kenwood
could not possibly have any relevant information to add to the
investigation. This appears to be the only witness that DeFrancesco was
unable to call in her defense. The denial of this request has some
plausibility, because it is difficult to see how the person who decided
against the plaintiff would have been able to provide testimony helpful to
her case. But it is also possible that the person who signed the letter
denying DeFrancesco’s reasonable accommodation request could have
offered relevant information about the basis for Metro-North’s rejection of
DeFrancesco’s reasonable accommodation request. However, because
DeFrancesco has not referred to Kenwood, the court will not find that
DeFrancesco would state a plausible claim for breach of the CBA on this
basis.

- 17 -

Third, DeFrancesco alleges that she was not compensated when
she was taken out of service, in violation of the CBA. In their motions for
judgments on the pleadings, defendants have not substantively
addressed this allegation. The CBA requires that an employee be
compensated between the time the employee is taken out of service and a
disciplinary hearing, except when the employee is being disciplined for a
serious occurrence, which is defined as “‘Rule G,’ Insubordination,
Extreme Negligence, [or] Stealing.” See CBA, Rules 26(b)(1)-(2). Here,
DeFrancesco was taken out of service twice, once for conduct
unbecoming a Metro-North employee and once for insubordination.
Under the terms of the CBA, it appears that DeFrancesco was entitled to
compensation while she was out of service for conduct unbecoming a
Metro-North employee because conduct unbecoming a Metro-North
employee is not defined as a serious act or occurrence, but not while she
was out of service for insubordination, which is defined as a serious
occurrence. See id. Accordingly, DeFrancesco may state a claim for
breach of Rule 26(b)(2) because she was not paid when she was out of
service for conduct unbecoming a Metro-North employee.
After analyzing the merits of DeFrancesco’s claim for breach of the
CBA, the court concludes that she has not pleaded any valid claim to
this effect, with the possible exception of showing entitlement to payment

- 18 -

for one period while she was out of service. But as indicated before,
there can be no recovery for violation of the CBA in this type of action
absent showing of a breach of the duty of fair representation. See White,
237 F.3d at 178-79; Giglietti, 2011 U.S. Dist. LEXIS 56921, at *20.
Therefore, DeFrancesco's claim for breach of the CBA must be dismissed.
State Law Claims
With the dismissal of the federal claims, the court declines to
retain jurisdiction over plaintiffs state law claims. See 18 U.S.C. Sect.
1367(c).
CONCLUSION

The court grants both motions for judgment on the pleadings and
dismisses all of plaintiffs claims.
SO ORDERED.
Dated: New York, New York
December 16,2011

~

/) at.

( ~~~ ~ : ~~

Thomas P. Griesa
U.S. District Judge

- 19 ­

h_