Sussman et al v. NYP Holdings, Inc et al

Filing 84

MEMORANDUM AND ORDER denying 69 Motion for Summary Judgment: Having considered the balance of the arguments on defendant NMDU's motion for summary judgment, the Court holds that this motion is DENIED. (Doc. 69). (Signed by Judge P. Kevin Castel on 2/10/2020) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARK SUSSMAN, STEFANI LOMBARDI, and
TERANCE BRIGHT,
Plaintiffs,
-against-

16-cv-7659 (PKC)
MEMORANDUM
AND ORDER

NYP HOLDINGS, INC. and NEWSPAPER AND
MAIL DELIVERERS’ UNION OF NEW YORK
AND VICINITY,
Defendants.
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CASTEL, U.S.D.J.
Defendant Newspaper and Mail Deliverers’ Union of New York and Vicinity
(“NMDU”) moves for summary judgment on plaintiffs Mark Sussman, Stefani Lombardi, and
Terance Bright’s remaining claims for breach of NMDU’s duty of fair representation. All fact
discovery has been completed.

Familiarity with the parties’ submissions and the Court’s

Memorandum and Order of February 22, 2018 deciding the motion to dismiss, (Doc. 45), are
necessary to an understanding of the Court’s rulings. After hearing the parties at oral argument on
the motion and for reasons that will be explained, NMDU’s motion for summary judgment will be
denied.
LEGAL STANDARD
Summary judgment “shall” be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Rule 56(a), Fed. R. Civ. P. A fact is material if it “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A dispute regarding
a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting
Anderson, 477 U.S. at 248). On a motion for summary judgment, the court must “construe the
facts in the light most favorable to the non-moving party” and “resolve all ambiguities and draw
all reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167
(2d Cir. 2014).
It is the initial burden of the movant to come forward with evidence sufficient to
entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004). “When the burden of proof at trial would fall on the
nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to
the trier of fact on an essential element of the nonmovant’s claim.” Jaramillo v. Weyerhaeuser
Co., 536 F.3d 140, 145 (2d Cir. 2008). If the moving party meets its burden, “the nonmoving party
must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in
order to avoid summary judgment.” Id. In raising a triable issue of fact, the non-movant carries
only “a limited burden of production,” but nevertheless “must ‘demonstrate more than some
metaphysical doubt as to the material facts,’ and come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.
2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). A court “may
grant summary judgment only when ‘no reasonable trier of fact could find in favor of the
nonmoving party.’” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation omitted). Further,
a district court “must ask not whether the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”

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Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015). It is not appropriate for the Court
to make credibility assessments or resolve conflicting versions of event presented; these are
essential questions for a jury. Id.
DISCUSSION
I. Triable Issues of Fact Abound Precluding Summary Judgement in Favor of NMDU.
Based on the evidence produced, there are several genuine disputes of material fact
remaining in this action. Therefore, NMDU’s motion for summary judgment will be denied.
A. Statute of Limitations.
The seniority system underlying the allegedly discriminatory conduct against
plaintiffs, non-union members who pay NMDU an agency fee for negotiating with their employer,
was in place by 2003 when the first plaintiff was hired. By December 18, 2009, plaintiffs had filed
unfair labor practice (“ULP”) charges with the National Labor Relations Board (“NLRB”) related
to the execution of this seniority system. NMDU asserts that all of plaintiffs’ claims arise from
the practices complained of in the ULPs and so are time barred as breach of the duty of fair
representation claims have a six-month statute of limitations. DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 154–55 (1983) (applying the statute of limitations for section 10(b) of
the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b), to claims of breach of the duty
of fair representation). As this action was commenced on September 29, 2016, NMDU argues
plaintiffs’ claims would be untimely if they accrued prior to March 30, 2016. (Doc. 71 at 18).
For a breach of the duty of fair representation action, the statute of limitations does
not accrue on the date that the challenged seniority system was created, but begins to run from the
time plaintiffs were affected by it. NLRB v Newspaper & Mail Deliverers’ Union (“NLRB v.
NMDU”), 644 Fed. App’x 16 (2d Cir 2016) (summary order) (enforcing order of the NLRB). In

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response to NMDU’s motion, plaintiffs have produced evidence that could permit a reasonable
fact finder to conclude that the seniority system, as implemented, discriminated against plaintiffs
as non-union members through the negotiation and execution of an April 21, 2016 Memorandum
of Understanding and Extension Agreement (the “Extension Agreement”) that perpetuated the
discriminatory effects of the seniority system into the limitations period. (Stark Decl., Ex. 17
(Doc. 76-19)).
NMDU further argues that plaintiff’s pre-March 2016 evidence is inadmissible to
“establish a substantive violation where otherwise there would be none.” (Doc. 79 at 12). However,
at the summary judgment stage, the Court need not decide the parameters of admissible evidence
from outside the limitations period that may be reflective of, for example, motive, intent, or
absence of mistake. Rule 404(b), Fed. R. Evid.
B. Exhaustion of Remedies.
Plaintiffs are persons covered by a collective bargaining agreement (“CBA”)
between their employer and NMDU. “As a general rule in cases to which federal law applies,
federal labor policy requires that individual employees wishing to assert contract grievances must
attempt use of the contract grievance procedure agreed upon by employer and union as the mode
of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). The evidence submitted
in opposition to summary judgment demonstrates that, on July 11, 2016, plaintiff Stefani Lombardi
filed a “Contract Grievance” with the NMDU and her employer, which expressly referenced her
co-plaintiffs Mark Sussman and Terance Bright. Ms. Lombardi asserted, among other things, that
“[b]y continuing to refer to the [Regular Situation Holders (“RSH”)] list in its current order
[defendant was] discriminating against senior employees by not allowing them the same
opportunity to elect to receive the buyout offered.” (Stark Decl., Ex. 18 (Doc. 76-20)). This is a

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key part of the harm complained of in this action. Ernie Rota, who appears to be an employee of
plaintiffs’ employer, replied to Ms. Lombardi’s letter on July 14, 2016, noting that, in his view,
only parties to the CBA, the employer or NMDU, could file a grievance. (Second Mangan
Affirmation, Ex.). Fairly read, Rota then rejected Ms. Lombardi’s claims out of hand. Ms.
Lombardi promptly replied “To All Agents & Officers of the NMDU” on July 18, 2016, continuing
to press her grievance. (Stark Decl., Ex. 19 (Doc. 76-21)). There is no evidence of a NMDU
response to Ms. Lombardi’s grievance.
NMDU argues that plaintiffs failed to grieve their complaint pursuant to the CBA’s
procedure, but this true only because NMDU, the party with the power to grieve under the CBA,
arbitrarily decided not to do so. NMDU also elected not to respond directly to Ms. Lombardi, a
person who apparently paid agency fees to NMDU over an extended period of time. Plaintiffs
have established without contradiction that they “attempt[ed] use of the contract grievance
procedure agreed upon by [their] employer and union.” Id. As the NMDU refused, without
justification, to press plaintiff’s grievance, the exhaustion requirement is excused. Id.
C. Breach of the Duty of Fair Representation.
The Extension Agreement provided for buyouts of twenty-three individuals based
upon the existing seniority system at $95,000 per person.

By operation of the Extension

Agreement and the seniority system, plaintiffs were ineligible to receive such a buyout. Prior to
entering into the Extension Agreement, NMDU was squarely on notice that the seniority system
upon which the Extension Agreement apportioned the buyouts was unlawful. Specifically, by this
time, the NLRB had upheld the findings of an Administrative Law Judge and concluded that “[b]y
maintaining and applying these preferences for union members while disfavoring nonmembers,
the [NMDU] caused the [employers] to discriminate against employees because of their lack of

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representation by a union.” Newspaper & Mail Deliverers’ Union of New York & Vicinity (NYP
Holdings, Inc., d/b/a New York Post) & Stefani Cotler, 361 NLRB 245, 249 (Aug. 21, 2014).
Further, again prior to the execution of the Extension Agreement, the NLRB successfully
petitioned the United States Court of Appeals for the Second Circuit to enforce its August 21, 2014
ruling. NLRB v. NMDU, 644 Fed. App’x 16. The ruling of the NLRB and the Second Circuit’s
enforcement of this ruling placed the NMDU on notice that the seniority system perpetuated by
the Extension Agreement was unlawful.
Plaintiffs have demonstrated that there is a genuine issue of fact as to whether a
nondiscriminatory seniority system would have permitted them to enjoy the benefits of the buyout
offers if they had so elected. (See, e.g., Stark Decl., Exs. 4–5, 8–13; Lombardi Decl.). Based on
this evidence, a reasonable fact finder could conclude that NMDU acted arbitrarily and in bad faith
during the negotiation and execution of the Extension Agreement because NMDU knew this
agreement would perpetuate a discriminatory seniority system. A reasonable fact finder could also
conclude that NMDU’s actions were intentional or were so far outside the range of reasonableness
or so far short of the minimum standards of fairness to the plaintiff-employees as to be arbitrary.
See Sanozsky v. Int’l Ass’n of Machinists & Aerospace Workers, 415 F3d 279, 282 (2d Cir. 2005);
NLRB v. Local 282, Int’l Bhd. of Teamsters, 740 F2d 141, 147 (2d Cir. 1984).
D. Primary Jurisdiction.
NMDU again argues that the Court lacks jurisdiction over plaintiff’s claims, which
are the exclusive preserve of the NLRB. (Doc. 71 at 19–20). The Court carefully considered
NMDU’s jurisdictional arguments on the motion dismiss, finding that it possessed jurisdiction to
hear plaintiff’s remaining claims. (Doc. 45 at 14–18). The Court notes, as discussed above, that
plaintiffs have produced evidence upon which a reasonable fact finder could conclude that

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NMDU’s actions were arbitrary, discriminatory, or in bad faith. Beyond that, neither has there
been a change in controlling law nor has new evidence been introduced bearing on this finding
and, as such, the Court will not revisit it.
E. Remedy.
NMDU urges the Court to stay this action pending the outcome of the NLRB’s
compliance proceeding. However, NMDU has not demonstrated, at this juncture, that any relief

awarded in this action would conflict with any NLRB remedial action. When, as, and if this action
reaches the remedy and relief stage, the Court may revisit this issue.
CONCLUSION
Having considered the balance of the arguments on defendant NMDU’s motion for
summary judgment, the Court holds that this motion is DENIED. (Doc. 69).

SO ORDERED.

Dated: New York, New York
February 10, 2020

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