Morris v. Amalgamated Lithographers of America

Decision Date09 January 1998
Docket NumberNo. 96 Civ. 5329(LAK).,96 Civ. 5329(LAK).
PartiesGlenn MORRIS, Plaintiff, v. AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL ONE, Defendant.
CourtU.S. District Court — Southern District of New York

Glenn Morris, Jersey City, NJ, pro se.

Ira Cure, Kennedy Schwartz & Cure, New York City, for defendant.

ORDER

KAPLAN, District Judge.

Plaintiff brought this action against defendant Amalgamated Lithographers of America, Local One, for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended. Defendant has moved for summary judgment dismissing the complaint.

In a report dated December 19, 1997, Magistrate Judge Andrew J. Peck recommended that defendant's motion be granted in part and denied in part. He concluded that the retaliation claim is time barred and that plaintiff's claim that the union violated Executive order 11246 fails to state a claim upon which relief may be granted. On the other hand, he recommended denial of so much of the motion as sought dismissal of the contention that the union had violated Title VII by failing fairly and, adequately to represent plaintiff in his most recent grievance against his employer. It was the Magistrate Judge's view that there was little evidence as to the extent of the union's efforts on plaintiff's behalf and that summary judgment on that claim therefore would be inappropriate. The union has objected to so much of the Magistrate Judge's report as recommends denial of this aspect of its motion.

The first issue presented by the objections is whether the Court should consider the extensive affidavits and evidentiary materials the union has submitted in support of its objections. In this connection, it should be noted that the union's application before Judge Peck for leave to submit affidavits in support of a motion for reconsideration was denied on the ground that "any additional evidence is for trial, not a 2d bite at the apple." (Endorsement, Jan. 5, 1998).

Section 636(b)(1)(C) of the Judicial Code, 28 U.S.C. § 636(b)(1)(C), which provides for district court reviews of reports and recommendations by magistrate judges provides in Part that "[t]he judge may also receive further evidence ..." in the course of such a review. (Emphasis added) But the statute is permissive, not mandatory. While there may be cases in which the receipt of further evidence is appropriate, there are substantial reasons for declining to do so as a general matter. First, permitting such piecemeal presentation of evidence is exceptionally wasteful of the time of both the magistrate and district judges, the former having been compelled to write an arguably useless report based on less than the universe of relevant evidence and the latter being deprived of the benefit of the magistrate judge's considered view of the entire record. Second, opposing parties would be put to the burden of proceedings which, to a considerable degree, would be duplicative. Third, there would be instances in which parties would be encouraged to withhold evidence, particularly evidence which might be embarrassing as well as helpful on the merits, in the expectation of using it before the district judge only if they failed to prevail before the magistrate judge on a more abbreviated showing. Finally, the routine consideration of evidence in support of objections which could have been presented before the magistrate judge would reward careless preparation of the initial papers.

In this case, the defendant was well aware that its burden under Fed.R.Civ.P. 56 was to demonstrate that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. In view of the plaintiff's claim that the union failed to represent him fairly and adequately in the grievance proceeding, the union was on notice that the details of exactly what it did and when — which is the focus of the evidentiary materials it now seeks to submit — necessarily were at the heart of its motion for summary judgment. It has offered no excuse whatever for failing to offer them in its initial papers. The Court therefore declines to consider them. Judge Peck was entirely correct in declining to afford the union a second bite at the apple.

As far as the merits of the union's objections are concerned, the Court has reviewed the entire record on the motion de novo. While there is a substantial basis for the union's position, it is far from clear that no reasonable trier of fact could find that the union was less than diligent in pursuing plaintiff's claim. That would be true, moreover, irrespective of whether the belated materials that the Court has excluded were considered in support of the objections.

Accordingly, the defendant's objections to the report and recommendation of Magistrate Judge Peck, dated December 19, 1997, are overruled. Insofar as the defendant seeks summary judgment dismissing plaintiff's claim that the union violated Title VII by failing adequately to pursue plaintiff's recent grievance, the motion is denied.

It should be noted that this does not fully dispose of the defendant's motion. The time for plaintiff to object to so much of the report as recommended dismissal of his retaliation and Executive Order 11246 claims has not yet expired. In consequence, the Court defers ruling on that aspect of the motion.

SO ORDERED.

ORDER

February 4, 1998

This is a Title VII action in which the plaintiff, an African American, complains of racial discrimination by the union of which he is a member, essentially by failing properly to represent his interests in grievances he brought against his employer.

In a report and recommendation dated December 19, 1997, Magistrate Judge Peck recommended that the union's motion for summary judgment dismissing the complaint be granted insofar as Morris complained of the union having disciplined him in 1994 and sought relief under Executive Order 11246, but otherwise be denied. The union objected to so much of the recommendation as indicated that portions of its motion should be denied, but the Court previously overruled those objections. Remaining before the Court is plaintiff's objection to so much of the report as recommended the dismissal as untimely of the claim that the 1994 union discipline violated Title VII.

At the outset, it must be noted that the 1994 incident that is the subject of plaintiff's objections antedates all of the conduct referred to in the complaint and in plaintiff's EEOC charge. While the incident was mentioned in plaintiff's papers in opposition to defendant's motion for summary judgment (Morris Aff. ¶¶ 14-15; Pl.Br. at 7), its apparent relevance was as an illustration of the alleged animus of the union against him. No claim for relief based on that incident ever has been properly interposed in this action. Judge Peck bent over backward in plaintiff's favor by construing his discursive, poorly organized, and difficult to follow papers in treating such a claim as having been made. At this late date in the action, neither the Magistrate Judge nor the Court is obliged to do so.

Even assuming that the issue were properly before the Court, Judge Peck would have been right in concluding that any claim for relief based on this incident is time barred. Plaintiff concedes that the incident occurred more than 300 days before the filing of plaintiff's EEOC charge and therefore is time barred, While plaintiff now argues that the incident is a proper subject of relief in view of the continuing violations doctrine, no such contention was made before the Magistrate Judge. Even assuming that the incident had been an alleged basis for relief from the outset, it would be inappropriate to permit plaintiff to raise the continuing violation theory for the first time via objections to the Magistrate Judge's report and recommendation.

Even more basically, plaintiff's reliance on the continuing violation theory is misplaced. As this Court explained in Johnson v. Nyack Hospital, 891 F.Supp. 155 (S.D.N.Y.1995), aff'd on other grounds, 86 F.3d 8 (2d Cir.1996), the doctrine renders timely claims based on otherwise stale acts only if (1) the acts "within and without the limitations period are sufficiently similar and frequent to justify a conclusion that both are part of a single discriminatory employment practice chargeable to the employer," and (2) "the circumstances are such that a reasonable person in the plaintiff's position would not have sued earlier." Id. at 165.1 Assuming arguendo that there is sufficient evidence to raise a genuine issue of fact as to whether the first prong of the test is met, the second nevertheless is not.

As plaintiff's affidavit in opposition to the motion for summary judgment indicates, "[t]he Union's [alleged] failure to provide fair representation to me as an Afro-American dates back at least to ... 1981." (Morris Aff. ¶ 8) He complained of the union's alleged failure properly to represent him with respect to an April 1992 grievance. (Id. ¶¶ 12-13) Immediately upon being notified of the union's action in the 1994 incident, plaintiff complained in writing. (Id. ¶ 15) Indeed, he filed an unfair labor practice charge against the union under Section 8 of the National Labor Relations Act, a charge that the NLRB found was unsupported by sufficient evidence. (Id. Ex. R)

In these circumstances, plaintiff quite clearly could and should have made the March 1994 incident a subject of his EEOC complaint. His failure to do so therefore cannot be excused on the basis of the continuing violation doctrine. This ruling of course does not determine, one way or the other, whether the alleged March 1994 incident will be admissible at trial to show, for example, intent or some other relevant, disputed fact, as distinguished from being a subject as to which relief might be granted.

In sum, plaintiff's objections to the report and recommendation are overruled. The defendant's motion for summary judgment is granted insofar as it...

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