Black v. Anheuser-Busch in Bev et al

Filing 74

OPINION re: 63 MOTION for Summary Judgment filed by Anheuser-Busch in Bev. Based upon the facts and conclusions set forth above, the Defendant's motion for summary judgment is granted and the Plaintiff's remaining claim for breach of contract is dismissed with prejudice. (Signed by Judge Robert W. Sweet on 11/16/2016) (cla)

USDCSDN!
UN I TED STAT ES DISTR I CT COURT
SOUT HERN DISTRICT OF NEW YORK

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1 4 Civ . 2693
OPINION

- aga i nst ANHEUSER - BUSCH IN BEV , et al .,
Defendan t s .

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A P P E A RA N C E S :

Pro se
RANDALL M. BLACK
3 1 0 W. 1 43 ST ., APT . 3 - C
New York , NY 10030

Attorneys for Defenda n ts
JACKSON LEWIS P . C .
666 Th i rd Ave n ue , 29 th Fl oor
New York , NY 100 1 7
By : John K. Bennett , Esq .
Jennife r B . Courtian , Esq .
Suzanne E . Pete r s , Esq .

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RANDALL M. BLACK ,
Pl a i ntiff ,

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Sweet, D. J.

Defendant Anheuser-Busch Distributors of New York ,
Inc.

("Defendant" or "Anheuser-Busch"), named in the caption as

" Anhe user-Bus ch In Bev", has moved pursuant to Fed . R. Civ . P.
56 for summary judgment to dismiss pro se Plaintiff Randall
Black ("Black" or the "Plaintiff") of the remaining claim of
breach of contract. Based upon the facts and conclusions set
f orth below, the Defendant's motion is granted and the complaint
is dismissed.

I.

Prior Proceedings

On January 6 , 2014, Plaintiff fil ed a comp lain t

in the

Supreme Cou rt of the State of New York (the "Complaint" ) .
Anheuser-Busch removed the action to this Cou rt on April 16,
2014. In the Complaint, Plaintiff asserted c laims o f alleged
sexual harassment, discrimination, retaliation, and hostile work
environment against Anheuser-Busch.

The Comp laint also asserted a claim against Defendant
Angel Martinez ("Martinez"), a representative of his lab or
organization , Teamsters Local Union 812 , for a breach of duty o f
fair representation. By order of June 9, 2014, Martinez's motion
1

to dismiss was granted and the Court affirmed that dismissal in
a January 30 , 2015 Order determining that any such hybrid claim
of violation of a labor contract by the employer under section
301 of the Labor - Management Relations Act , and breach of the
duty of fair representation by the union, was time-barred
pursuant to the applicable six-month limitations period for such
claims.

On July 13, 2016 , the Court granted Defendant ' s April
14, 2016 motion for summary judgment and dismissed the sexual
harassment, discrimination, and retaliation claims contained in
the Complaint .

On or about September 12 , 2016, the Court granted
Anheuser-Busch leave to file a separate motion for summary
judgment on Plaintiff's breach-of - contract claim. The instant
motion was marked fully submitted on November 3, 2016.

II.

The Facts

Pursuant to Local Civil Rule 56.1 , the material facts
relevant to this motion are set forth in Defendant's Statement
of Undisputed Material Facts (hereinafter "SUMF"). Black

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submitted an unsworn statement and memoranda. The facts are not
in dispute except as set forth be l ow .

Plaintiff was emp lo yed by Anheuser-Busch at its Bronx
facility located at 550 Food Center Drive, Bronx, New York . SUMF
i

1 . As a helper/driver,

Plaintiff was a member of the Teamsters

Local 812 Union (the "Union").

Id. i i 2 , 3. The contract

covering members of the Union is the collective bargaining
agreement (the "CBA") between Anheuser-Busch and Soft Drink &
Brewery Works Local Union 812 , an affiliate of the International
Brotherhood of Teamsters.

Id. i

4.

On June 12, 2012 , Plaintiff . took a leave of absence as
a result o f injuries he reportedly sustained while delivering
products to a customer 's premises.

Id. i i 5-7. On March 11,

2013 , Anheuser-Busch sent Plaintiff a letter confirming that
Plaintiff had attended an independent medical examination
("IME") by Dr. Varriale . Id . i

8. Following that IME, Anheuser-

Busch offered Plaintiff a position in its Restricted Duty
Program - where all tasks performed by Plaintiff would be
tailored to fit his restriction of lifting no more than 30
pounds - and asked Plaintiff to respond to the offer by no later
than March 28 , 2013 . Id. i i 9-10 . Plaintiff never respo nded to
Anheuser-Busch's offer to return to work on restricted duty and
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did not return to work at Anheuser-Busch after June 12, 2012 .
Id.

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11-12.

Pursuant to Articles 5 and 29 of the CBA , there is a
one-year limitation one leaves of absence , causing an employee
to lose his seniority if he remains out of work for more than
one year . Id.

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13. On June 14, 2013 , an Anheuser-Busch

supervisor , Jesse Rivera ("Rivera"), called Plaintiff and told
him that his one - year anniversary of being out of work on a
leave had passed, and his employment was terminated . Id.

14.

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Plaintiff filed a grievance with the Union regarding the
termination of his employment. Id.

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15. In his grievance ,

Plaintiff states that on June 4 , 2013 , Rivera informed him that
his one-year anniversary of being out of work on leave had
passed, which caused his employment to be terminated.

Id .

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16.

When Plaintiff discussed his grievance with the Union,
he sought certain remedies for a workplace harassment complaint
against a Union -represented co-worker. Id.

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17. Plaintiff took

the position in the grievance concerning his termination that he
would have declined the remedy of returning to work at Anheuser Busch "due to Anheuser-Busch failed workplace sexual harassment
policy and wrongful termination;" specifically, the fact that
Anheuser-Busch "didn't update the suggestions that were brought
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up at t he meeting , that cha n ge our two-year policy - workp l ace
harassment po li cy to yearly and place harassment signs posted in
the designated areas ." Id.

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18. The Union did not take

Plaintiff ' s grievance concerning his termination t o arbitration .
Id.

III.

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19.

The Applicable Standard

Summary judgment is appropriate only where "t here is
no genu i ne issue as to any material fact and .

. the moving

party i s entit l ed to a judgment as a matter of law ."
Civ. P . 56(c) .

"[T]he substantive law will identify which facts

are material. " Anderson v . Liberty Lobby , Inc.,
248

Fed. R.

477 U. S . 242 ,

( 1 986)

A dispute is "genuine " if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. "
Id .

The relevant inquiry on application for summary judgment is

" whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one - sided that
one party must prevail as a matter of law."

Id. at 251-52 .

A

court is not charged with weighing the evidence and determining
its truth, but with determining whether there is a genuine issue
for tria l.

Westinghouse Elec. Corp . v . N.Y.
5

City Transit Auth. ,

735 F. Supp. 1205, 1212 (S.D.N.Y. 1990)

(quoting Anderson, 477

U.S. at 249). "[T]he mere existence of some alleged factual
dispute between the parties will not def eat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." Anderson,
477 U.S. at 247-48

(emphasis in original).

While the moving party bears the initial burden of
showing that no genuine issue of material fact exists, Atl. Mut.
Ins.

Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005),

in cases where the non-moving party bears the burden of
persuasion at trial, "the burden on the moving party may be
discharged by 'showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case." Celotex Corp. v. Catrett,

477 U.S. 317,

325 (1986). "It is ordinarily sufficient for the movant to point
. on an essential element of the non-

to a lack of evidence

[T]he nonmoving party must [then] come

movant's claim .

forward with admissible evidence sufficient to raise a genuine
issue of fact for trial

" Jaramillo v. Weyerhaeuser Co.,

536 F.3d 140, 145 (2d Cir. 2008)

(internal citations omitted);

see also Goenaga v. March of Dimes Birth Defects Found.,

14, 18 (2d Cir. 1995)

51 F.3d

("Once the moving party has made a

properly supported showing sufficient to suggest the absence of
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any genuine issue as to a material fact, the nonmoving party .
. must come forward with evidence that would be sufficient to
support a jury verdict in his favor").

IV.

The Complaint Fails to Allege a Breach of Contract by
Defendant

"To establish a prima facie case for breach of
contract, a plaintiff must plead and prove:
a contract;

(1) the existence of

(2) a breach of that contract; and (3) damages

resulting from the breach." Nat'l Mkt. Share, Inc. v. Sterling
Nat'l Bank, 392 F.3d 520, 525 (2d Cir. 2004)

(internal citation

omitted). Although a prose litigant's pleadings are entitled to
some deference, "there are limits to the deference to which a
plaintiff - even one appearing pro se - is entitled." Troni v.
Di Milano, No. 89 Civ. 3299, 1992 U.S. Dist. LEXIS 249, at *5
(S.D.N.Y. Jan. 14, 1992). "[T]his deference does not extend so
far as to exempt him from the most basic pleading rules of the
federal court system." Bishop v. Henry Modell & Co., No. 08 Civ.
7541, 2010 WL 1685958, at *5 (S.D.N.Y. Apr. 15, 2010).

Plaintiff's Complaint asserts claims and allegations
of sexual harassment, discrimination, and retaliation that
Plaintiff alleged he experienced while employed by Anheuser7

Busch, which have already been dismissed by the Court. Compl.
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3 , 4 , 5, 6 . Plaintiff does not refer to the CBA in his

Compla int, or allege any facts to assert a claim under section
301 of the LMRA that Anheuser-Busch violated the CBA in
terminating his employment. Plaintiff breached the CBA and
readily admitted during his deposition that the CBA was clear :
if an employee performs no active work for more than a year, due
to an extended absence, the employee's seniority is terminated,
resulting in the termination of his employment. SUMF

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13.

As to his wrongful termination c laim, Plaintiff
focuses only on the alleged failure of Martinez, Plaintiff's
Union representative, to "inform AB Management about Black's
status." Compl . p. 6 ,

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2. At no point in Plaintiff's deposition

did he assert that Anheuser-Busch breached the terms of the CBA
when terminating his employment, but states that he spoke with
Martinez on May 17 , 2013 about his status of being out of work
and Martinez failed to inf orm Anheuser-Busch of Plaintiff's
status. SUMF

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16.

Plaintiff's reference that " A-B In Bev has breached
there [sic] responsibil [sic]" in Paragraph 7 of the Complaint
similarly does not assert a valid breach-of-contract c l aim
against Anheuser-Busch. By Plaintiff's own admission, those
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"responsibilities" did not relate to any contract , but rather
the alleged responsibilities detailed in Paragraphs 5 and 6 of
the Complaint , which relate solely to Plaintiff's workplace
harassment cla im. In Paragraph 5, Plaintiff alleges that he
discussed with Anheuser-Busch's Director of Operations , Shreya
Balakrishnan,
about placing harassment signs posted in designated
areas [and] later brought up the idea of having our
harassment signs written in Spanish and well as our
policy to ensure all employees understand what the
Company policy is all about. Balakrishnan brought up
the idea of changing our current (2) year harassment
policy to yearly and bring it up in o ur monthly
meetings.
Compl .

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5 . In Paragraph 6, Plaintiff alleges that Anheuser-

Busch "fail ed to update or enforce its policy:
harassment signs in designated areas;

( 2)

(1) did not post

failed to enforce

company policy for example A-B In Bev waits until an incident
breaks out then start [sic] saying what can we do to ensure this
incident doesn't happen again but by then it's too late." Comp l.
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6 . It was so lel y in that specific context of updating and

posting its anti-harassment policy that Plaintiff alleges that
" A-B In Bev has breached there [sic] responsibil [si c ]." Compl.
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7.

During his deposition , Plaintiff confirmed that the
"responsibilities " referred to his workplace harassment claims

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and not a breach of the CBA. When Plaintiff discussed his
grievance with the Union, he asked whether Anheuser-Busch would
give him certain requested relief relating to his prior
complaint of workplace harassment by a Union represented co~

worker. SUMF

17. Plaintiff determined that if there had been a

grievance on his termination, he would have declined to return
to work at Anheuser-Busch "due to Anheuser Busch failed [to
address] workplace sexual harassment policy and wrongful
termination;" specifically, the fact that Anheuser-Busch "didn ' t
update the suggestions that were brought up at the meeting, that
change our two - year policy -- workplace harassment policy to
yearly and place harassment signs posted in the designated
areas." Id.

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1 8 . Accordingly, the "responsibilities" to which

Plaintiff referred were not th e responsibilities of AnheuserBus ch set forth in the CBA but rather Anheuser-Busch's decision
not to adopt Plaintiff's suggestions.

Because Plaintiff fails to assert a valid breach-ofcontract claim against Anheuser Busch and the record is devoid
of any evidence that would support any such c laim, any remaining
breach-of-contract claim is dismissed.

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V.

Dismissal of Previous Breach of Contract Claim Requires
Dismissal of the Instant Breach of Contract Claim

The Court ' s dismissal of Plaintiff's hybrid LMRA
section 301 breach - of-contract/breach of duty of fair
representation claim in its June 9 , 2014 and January 30 , 2015
Orders constitutes law of the case and requires dismissal of any
remaining breach-of-contract claim against Anheuser -Bu sch.

"It is well - settled that an employee may maintain a
breach of contract action based upon a CBA directly against the
employer only if 'the employee can prove that the union as
bargaining agent breached its duty of fair representation in its
handling of the employee 's grievance .'" Tomney v.

the Disabled , 357 F. Supp. 2d 721 , 738
Vaca v. Sipes,

Int'l Ctr . for

(S.D .N. Y. 2005)

(quoting

386 U.S. 171, 186 (1967). " Although formally

comprised of two separate causes of action, a suit in which an
employee alleges that an employer has breached a CBA and that a
union has breached its duty of fair representation by failing to
enforce the CBA is known as a
claim. '" Acosta v . Potter,
2006)

' hybrid §301/fair representation

410 F. Supp . 2d 298, 308

(S .D. N . Y.

(internal c itati ons omitte d) ; see also DelCostello v .

Int'l Bhd . of Teamsters,

462 U. S. 1 5 1, 165 (1983) .

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In a hybrid c laim under § 301 , "an emp l oyee may sue
th e union, the employer , or both, but 'mu st prove both ( 1 ) that
the employer breached a collective barga ini ng agreement and (2)
that the union breached its duty of fair representation v i s -avis the union members.'" Dennis v . Local 804 , L . B . T. Union, No .
07 . Civ . 9754 , 2009 U.S. Dist. LEXIS 44817 , a t *13 (S .D. N. Y. May
27 , 2009)

(quoting White v . White Rose Food, 237 F.3d 1 74 , 178

(2d Cir. 200 1 )) . Th e Supreme Cour t of the United States has made
clear that in order to " preva il against either the company or
the Un i on ," employee -plaintiffs "must no t only show that their
discharge was contrary to th e contract but must a l so carry the
burden of demonstrating breach of t h e duty by the Union." In
DelCostello, 462 U.S. at 1 65 . An employee 's c laim against his

employer for breach of a co lle ctive bargain ing agreement can
therefore proceed on l y if the employee ' s union v i o l ated its duty
of fair representation.

This Court dismissed Pl aint i ff 's hybrid LMRA Section
301 breach - of-contract/breach of duty of fair representation
claim in its June 9 , 20 1 4 Order and aff irmed that d ismis sal in
its January 30 , 2015 Order , specifically ruling that any such
claim by Plaintiff is time-barred. The Court ' s decisions in
those Orders are "the law o f th e case. " The "law of the case "
doctrine "posi t s that if a court decides a rule of law, that
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decision should continue to govern in subsequent stages of the
same case. " Aramony v. United Way , 254 F . 3d 403 , 410
2001)

(2d Cir.

(quotation and citation omitted). Therefore , without good

reason not to , a court will " generally adhere to [its] own
earlier decision on a given issue in the same litigation." In re
Rezulin Liability Litigation , 224 F.R.D. 346 , 350 (S . D. N.Y.

2004)

(quoting Tri-Star Pictures , Inc. v . Leisure Time Prods.,

B . V ., No . 88 Civ.

9127 , 1992 W 296314 , at *7
L

(S.D .N. Y. Oct. 6,

1992)) .

The Court's dismissal of Plaintiff ' s hybrid LMRA
section 301 breach-of-contract/breach of duty of fair
representation claim in its pr i or Orders necessarily dismissed
any breach-of-contract claim against Anheuser - Busch. See, e . g .,
Tomney,

357 F. Supp . 2d at 738

("The Union did not violate its

DFR , and so Tomney ' s claims against ICD for violating the CBA
are dismissed.") . Indeed , in this Court ' s January 30 , 2015
Order, it cited Carrion v . Enter. Ass ' n, Metal Trades Branch
Local Union 638, 227 F.3d 29

(2d Cir . 2000) , which specifically

confirms this. In Carrion , the Second Circuit found that "[ The
employee ' s ] claims against [the employer ] and the Union cannot
be separated. Ev en if [the emp l oyee] had sued only [the
employer] for violating the CBA .

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. he wou l d still have been

required to show that the union breached its duty of fair
representation." Carrion , 227 F. 3d at 34 .

Plaintiff's claim against Mart in ez for breach o f the
Union 's duty of fair representation and any breach-of-contract
claim against Anheuser-Busch are subject to the same six-month
limitations period under DelCoste ll o and its progeny. Theref ore ,
the Court 's prior dismissal of the cla im against Martinez on the
grounds of it being time-barred necessarily lea ds to the
conc lusi on that no breach-of-contract claim can be brought
against Anheuser -Bus ch . See Carrion , 227 F.3d at 32

( "We h o ld

that [the employee's] claim against [t he employer] and the Union
for breach of the CBA

allege a hybrid

§

301/fair

representation claim subject to the six-month statute of
limitations established by the Supreme Court in DelCostell o .")
(citation omitted) .

The Court ' s previous Orders finding that Plaintiff's
hybrid LMRA section 301/fair representation claim was timebarred by the six-months limitations period constitutes "the law
of the case" and precludes the same claim from proceeding
against Anheuser-Busch as a matter of law.

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VI .

The Breach-of-Contract Claim is Time-Barred

Even if Pl aintiff had asserted a valid breach - of contract claim against Anheuser Busch regard i ng t h e CBA - which
he did not - and such c l aim was not p r eviou sly dismissed by t h e
Court , any remaining c l aim aga i nst Anh e u ser - Busch for breach of
the CBA is time - barred .

I t is well estab l is h ed t h at when t h e n atu r e of a
pla i nt i ff ' s c l aim is that t h e emp l oye r breached the CBA and the
union breached its du t y to enforce the CBA , the p l a i nt i ff has
alleged what i s more commonly known as a hybrid

§

301/ f air

represen t ation claim . See DelCostello v . I nt ' l Bhd . of
Teamsters , 462 U. S . 15 1, 1 65 ( 1 983) . Any cla i m by an employee

against the union or t he employer must be brought within six
months of the time the employee knew of the breach of the
col l ect i ve bargain i ng agreement or breach of duty o f fa i r
representation . See id . a t 1 58 , 165 ; Carrion , 227 F.3d at 32.

Here , the on l y co n ce i vab l e breac h of the CBA is the
a ll eged wrong f ul termina t ion of Plaintiff ' s employment on June
14 , 2013 . Plaintiff did not f il e h i s Compla i nt unt il January 6 ,
20 1 4 , more t han six months l ater . According l y , as a mat t er of
law , any LMRA section 301 breach - o f- contract claim aga i nst
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Anheuser - Busch is barred by the statute of limitations and must
be dismissed.

VII .

Conclusion

Based upon the facts and conclusions set forth above ,
the Defendant's motion for summary judgment is granted and the
Plaintiff ' s remaining claim for breach of contract is dismissed
with prejudice.

It is so ordered.

New York, NY
November /.(;", 2016

ROBERT W. SWEET
U.S . D . J.

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