Egan v. Local 363, Int'l Bhd. of Elec. Workers' Union
| Decision Date | 22 March 2021 |
| Docket Number | 18-cv-4656 (NSR) |
| Parties | JOHN EGAN, Plaintiff, v. LOCAL 363, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS' UNION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff John Egan ("Plaintiff"), commenced this action on or about May 25, 2018, against Local 363, International Brotherhood of Electrical Workers' Union ("Local 363" or "Defendant"), alleging violations of the Americans with Disabilities Act of 1990, as amended in 2008 ("ADA"); and the New York Human Rights Law (NYHRL). On May 21, 2020, Defendant filed a motion for summary judgment. For the following reasons, the motion for summary judgment is GRANTED.
The following facts are taken from the parties' Rule 56.1 statements of facts and are undisputed, unless otherwise indicated.
Defendant is a labor organization that represents approximately 2,600 members who work as residential and commercial electricians and telecommunications workers installing and maintaining telephone, computer network, internet, and fiber optic systems. (ECF No. 32-1 ¶ 5; ECF No. 41 ¶ 5.)1 Plaintiff was a member of Local 363 from 1987 through February 1, 2017, when he retired. (ECF No. 32-1 ¶ 2; ECF No. 41 ¶ 2.)
Defendant is a party to and bound by a Collective Bargaining Agreement ("CBA"), which governs rates of pay and working conditions. (ECF No. 32-1 ¶ 9; ECF No. 41 ¶ 9.) Pursuant to the CBA, Defendant maintains a job referral system through which members can be referred to employers for work as journeyman electricians ("journeymen"). (ECF No. 32-1 ¶ 13; ECF No. 41 ¶ 13.) Members who are seeking work can sign a list and they will be added to the referral system. (ECF No. 32-1 ¶ 16; ECF No. 41 ¶ 16.)
Pursuant to the CBA, "[o]n any job where there are two (2) journeymen, one shall be designated as Foreman" and "[f]or every ten (10) Journeyman Wireman working on a job, there shall be a Foreman." (ECF No. 41 at ¶ 23-24.) Also pursuant to the CBA, all journeymen must provide themselves with a list of required tools that weighs more than 10 lbs. (ECF No. 41 ¶ 26.) The CBA also describes some duties of journeymen: (ECF No. 41 ¶ 28; ECF No. 32-1 ¶ 28.)
Generally speaking, Defendant refers members for work in order of their place on the referral list. Under the CBA, an exception to this ordering occurs when an employer requests journeymen with special skills and abilities. (ECF No. 32-1 ¶ 17; ECF No. 41 ¶ 17.) Defendant'scomputer system maintains a list of computer codes for special skills and abilities and selects individuals with the requisite skills from the list in order of their place on the list. (ECF No. 32-1 ¶ 17; ECF No. 41 ¶ 17.) Under the CBA, foreperson is not considered a special skill or ability. (ECF No. 32-1 ¶ 19; ECF No. 41 ¶ 19.) Under the CBA, the employer and not Defendant is responsible for planning, directing, and controlling the operation of work, as well as "determining the need and number as well as the person who will act as foreman." (ECF No. 32-1 ¶ 10-12; ECF No. 41 ¶ 10-12.)2
On or about January 22, 2015, Plaintiff sustained a serious rib injury. On January 26, 2015, Plaintiff's physician provided Defendant with a note indicating Plaintiff was unable to work until further notice. (ECF No. 32-1 ¶ 79; ECF No. 41 ¶ 79.) Between January 22, 2015 and February 2, 2015, Plaintiff was "100%" disabled and unable to perform any work whatsoever. (ECF No. 32-1 ¶ 80; ECF No. 41 ¶ 80.) On February 9, 2015, Defendant referred Plaintiff for work as a journeyman and Plaintiff reported to a job site. Plaintiff determined he was unable to perform the work and went home. (ECF No. 32-1 ¶ 81; ECF No. 41 ¶ 81.) Between February 17, 2015 and March 4, 2015, Plaintiff was again "100% disabled" due to the injury and unable to perform any work whatsoever. (ECF No. 32-1 ¶ 85; ECF No. 41 ¶ 85.) Plaintiff's physician sent Defendant a note on April 21, 2015 indicating Plaintiff was "100% temp. disability, out of work, will re-eval in 1 month for return to possible light/full duty." (ECF No. 32-1 ¶ 87; ECF No. 41 ¶ 87.)
Plaintiff alleges that on or about May 19, 2015, June 10, 2015, and September 28, 2015, he attempted to provide Defendant with new notes from his physician indicating that Plaintiff was now "75% disabled" and could work on "light ambulatory duty," but was restricted fromlifting more than ten pounds, but Defendant's representative refused to accept the notes because Plaintiff needed to be "100% healthy" in order to resume work. (ECF No. 32-1 ¶ 57.) Plaintiff also alleges that he attempted to sign Defendant's referral book at least once during this time period, but was prevented from doing so. (Id.)
Plaintiff alleges that Defendant improperly prevented him from being on Defendant's job referral list and thus prevented him from securing employment as a Foreman. Plaintiff also alleges that in January 2017, he submitted his retirement papers because Defendant prevented him from securing employment. After submitting his papers, Plaintiff alleges that he spoke with Defendant's employee and indicated that he was physically capable of working in a vacant "lock-up pup" position, but Defendant's employee responded "it is what it is." (ECF No. 31-17 at 32.)
On June 2, 2016, Plaintiff filed a Chapter 7 Bankruptcy Petition in the Southern District of New York. (ECF No. 32-1 ¶ 45; ECF No. 41 ¶ 45.) In support of Plaintiff's Bankruptcy Petition, Plaintiff filed Form 106A/B, listing his assets. (ECF No. 32-1 ¶ 46; ECF No. 41 ¶ 46.) Plaintiff represented that he had no "claims against third parties," including claims he had not yet filed, nor made demands for payment (inclusive of employment disputes and rights to sue.) (Id.) Plaintiff received a discharge pursuant to his 2016 Bankruptcy Petition on September 15, 2016. (ECF No. 32-1 ¶ 47; ECF No. 41 ¶ 47.) Plaintiff believes his 2016 Bankruptcy was directly caused by Local 363's alleged discriminatory actions against him. (ECF No. 32-1 ¶ 48; ECF No. 41 ¶ 48.)
Although Plaintiff alleges that he was able to work as foreman for most of the time period following his injury, Plaintiff nonetheless represented to Workers' Compensation and the Social Security Administration that he was fully disabled and unable to work. From 2015 to 2017, as aresult of his application for disability benefits from the IBEW Local 363 Welfare Fund, Plaintiff received stipend payments totaling $50,104.00, as well as full credit for 1200 hours worked each year from 2015 to 2017 toward his pension, and health insurance. (ECF No. 41 ¶ 77-78; ECF No. 32-1 ¶ 77-78.) Since 2015, Plaintiff has applied for and received Social Security/Disability benefits in the amount of $1,213.00 each month, as well as Worker's Compensation payments in the amount of $2,700.00 each month, based upon his representation that he is unable to work. (Id.)
On April 22, 2020, Defendant moved for summary judgment. (ECF No. 31.)
A "court shall grant summary judgment 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." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of pointing to evidence in the record, "including depositions, documents [and] affidavits or declarations," id. at 56(c)(1)(A), "which it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may also support an assertion that there is no genuine dispute by "showing ... that [the] adverse party cannot produce admissible evidence [in] support" of such a contention. Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the non-moving party to identify "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks omitted).
A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; accord Benn v. Kissane, 510 F. App'x 34, 36 (2d Cir. 2013) (summary order). Courts must "constru[e] the evidence in the light mostfavorable to the non-moving party and draw[ ] all reasonable inferences in its favor." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks omitted). The party asserting that a fact is genuinely disputed must support their assertion by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence ... of a genuine dispute." Fed. R. Civ. P. 56(c)(1). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
The nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation." FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Similarly, "a party cannot create an issue of fact by submitting an affidavit in opposition to summary judgment that contradicts prior deposition testimony." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (). But...
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