Shipkowitz v. United Auto Workers Union, Local 1097
ORDER granting defendant's 26 Motion for Summary Judgment and dismissing the complaint in its entirety, with prejudice. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 5/9/11. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
UNITED AUTO WORKERS UNION, LOCAL 1097,
Plaintiff Brian Shipkowitz (“plaintiff”), was employed by Coach & Equipment
Manufacturing Co. (“Coach”) from April 18, 2006 to May 8, 2007. In his capacity as a Coach
employee, he was represented by United Auto Workers Union, Local 1097 (the “Union”). Plaintiff
brings this action, pro se, against the Union, alleging that the Union discriminated against him in
violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101, and breached its duty
of fair representation, when it failed to pursue certain grievances he had against Coach, which
stemmed from various disciplinary actions undertaken by Coach against plaintiff. The Union now
moves for summary judgment dismissing the complaint, on the grounds that plaintiff cannot
establish that any discrimination took place, and that plaintiff failed to assert his claim for breach of
the duty of fair representation within the applicable statute of limitations. (Dkt. #26). Although
plaintiff moved for, and was granted, an extension of time to respond to the Union’s motion until
September 20, 2010, the plaintiff has failed to file a response and the Union’s motion is unopposed.
The Court has nonetheless examined the record in detail, mindful of the standards relevant to
deciding a motion for summary judgment, and granting plaintiff every favorable inference as a pro
se litigant, and as a non-movant. See e.g., Corcoran v. New York Power Auth., 202 F.3d 530, 536
(2d Cir.1999) (where the party opposing summary judgment is proceeding pro se, the Court must
“read the pleadings ... liberally and interpret them to raise the strongest arguments that they
suggest”). For the following reasons, the motion for summary judgment is granted, and the
complaint is dismissed.
The Union contends, and I concur, that plaintiff has produced no evidence whatsoever in
support of his ADA discrimination claim. In fact, plaintiff has indicated that he does not seriously
intend to pursue the claim, admitting that the Union was never informed of his alleged disability, and
neither alleging nor attempting to prove any facts whatsoever that could logically form a basis for
imputing liability to the Union for employment discrimination. (Dkt. #26-3 at ¶¶49-51). Plaintiff
makes no allegations and produces no proof of any illegal motive on the part of the Union, or any
circumstances giving rise to an inference of discrimination. His claim of discrimination must be
dismissed. See generally Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir.
2002) (a prima facie claim of disability discrimination requires, inter alia, proof of membership in
a protected class, and an adverse employment action, occurring under circumstances giving rise to
an inference of discrimination).
It is clear that plaintiff’s primary claim, that the Union breached its duty of fair
representation, is time-barred. Such a claim must be pursued within six months of the act or acts
alleged to constitute the breach. Here, the Union’s final relevant act – its May 31, 2007 statement
to plaintiff that it would not represent him further because his employment with Coach had been
terminated – occurred nearly eighteen months before plaintiff commenced this action on October 2,
2008 (Dkt. #1). Therefore, plaintiff’s claim relating to the duty of fair representation is untimely and
must be dismissed. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 172
The Union’s motion to for summary judgment dismissing the complaint (Dkt. #26) is
granted, and the complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
May 9, 2011.
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