Nieves v. Individualized Shirts, Civil No. 95-5411(WHW).

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtWalls
Citation961 F.Supp. 782
Decision Date28 April 1997
Docket NumberCivil No. 95-5411(WHW).
PartiesMaria NIEVES, Plaintiff v. INDIVIDUALIZED SHIRTS, et al., Defendants.
961 F.Supp. 782
Maria NIEVES, Plaintiff
v.
INDIVIDUALIZED SHIRTS, et al., Defendants.
Civil No. 95-5411(WHW).
United States District Court, D. New Jersey.
April 28, 1997.

Page 783

COPYRIGHT MATERIAL OMITTED

Page 784

Stephen C. Arber, Jil Gropper, Cohn Bracaglia & Gropper, Somerville, NJ, for Plaintiff.

Margaret Lambe-Jurow, Podvey, Sachs, Meanor, Catenacci, Hilner & Cocoziello, Newark, NJ, for Defendants.

AMENDED OPINION

WALLS, District Judge.


Defendants, Individualized Shirts and its parent company, Tom James of America, Inc. (collectively, "defendants" or "Individualized Shirts"), move for summary judgment on the complaint of plaintiff Maria Nieves ("Nieves"). Nieves cross moves for summary judgment. On February 24, 1997, the Court heard oral argument from counsel for both parties. For the reasons stated below, the Court grants in part and denies in part the motion of the defendants, and denies the cross motion of the plaintiff.

I. Factual Backgroud

Individualized Shirts operates a custom shirt factory in Perth Amboy, New Jersey. All non-managerial employees are members of the Amalgamated Clothing and Textile Workers' Union ("the union"). Nieves was represented by the union the entire time she worked for the defendants and had no employment contract other than the collective bargaining agreement ("the CBA") between the union and defendants.

Nieves began working at Individualized Shirts in August 1981 as a cuff cutter, a job that required her to stand all day. According to Individualized Shirts, a standing position gives the worker the needed leverage on

Page 785

the short knife used for the cutting function of the job.

The plaintiff averaged approximately $8.50 per hour and worked forty hours per week. She resigned from the employment in April 1987, returned in August 1991, and resigned again in September 1991, telling her supervisor that her varicose veins caused her pain and negatively affected the amount of time she could remain standing.

After she resigned in September 1991, Nieves took a part-time position as a teacher's aide, which allowed her to sit down for part of the work day. She then separated from her husband and needed a full time job in order to support her family. In late December 1992, Nieves called her former supervisor at Individualized Shirts to ask if there were any positions available. According to Nieves, she informed that person that any position would have to be one which permitted her to sit while working.

Individualized Shirts states that it offered Nieves a position in the computer room performing data entry with the understanding that she would also work as a cuff cutter. She returned to work in the computer room from January to July 1993 until she was transferred to a cuff cutter position. Dissatisfied with the transfer, plaintiff asked her supervisor to remain in data entry. According to Nieves, the supervisor advised that if she worked as a cuff cutter for part of the day, she would be able to work at data entry for the rest of the time. Although plaintiff consented to the arrangement, Individualized Shirts never attempted this "half and half" schedule and she was required to stand all day as a cuff cutter. Nieves was informed that no accommodation could be made for her.

So Nieves worked as a cuff cutter from July 1993 to April 1994, when she took maternity leave. She returned to work in June 1994 with a doctor's note stating that due to her varicose veins she could not stand for more than three consecutive hours. Nieves sought and was granted medical leave to have corrective surgery to her varicose veins.

Individualized Shirts held open her cuff cutter job until she was ready to return in October 1994. She returned with a doctor's note stating that she needed light duty work with no prolonged standing. At that time, the full complement of three union employees was working in the computer room. Because the CBA did not provide for factory wide seniority rights, Individualized Shirts could not lay off one of the computer room employees to substitute Nieves. Nor did Individualized Shirts have any light duty positions available to her. Consequently, Nieves' employment was terminated by Individualized Shirts.

Plaintiff collected unemployment benefits from October 1994 to April 1995. In September 1995, she started working as a bus driver for 26½ hours a week. Nieves testified that following her discharge, "[she] was depressed, [her] kids were affected, [her] daughter had problems in school because of [her] ... anger, frustration, financial — [her] credit was ruined." Nieves Dep. at 84:25 — 85:4. She expressed her frustration and concern over being the "sole supporter" of her children, stating,

There were times they needed clothing, you know, things ... for school ... I mean, sometimes I couldn't dress them nicely. [T]hey would get teased by other kids, and my daughter was retained to the same grade. I believe it had to do with what I was going through.

She also indicated that her ex-husband was behind on his obligations to pay child support, which added to her difficulties. Id. at 91:14-18.

The CBA in effect during the time Nieves was last employed at Individualized Shirts provided the following:

LEAVE OF ABSENCE

... An employee on leave of absence shall be reinstated to his or her previous job, operation or machine upon return to work.

CIVIL RIGHTS

1. The Employer and the Union shall not discriminate nor perpetuate the effects of past discrimination, if any, against any employee or the applicants for employment on account of race, color, religion, creed, sex,

Page 786

or national origin. This clause shall be interpreted broadly to be co-extensive with all federal, state or local anti-discrimination laws and where available, judicial interpretation thereof.

* * * * * *

If, upon failure to mutually agree [upon such steps as are necessary to achieve compliance], either party invokes the arbitration procedures of this agreement to resolve the dispute, the Impartial Chairman shall fashion his award to grant any and all relief appropriate to effectuate this article.

ARBITRATION

A. Grievances and Arbitration, initiated by the Union, the Employer, or an employee through the Union, shall be the sole means of settling disputes which may arise between the parties.

B. Any complaint, grievance or dispute arising out of or relating directly or indirectly to the provisions of this agreement or the interpretation or performance thereof, shall in the first instance be taken up for adjustment between the representatives of the Union and the Employer and, if they are unable to adjust the same, the matter shall be referred for arbitration and determination to ... the Impartial Chairman under this agreement[.] [emphasis added]

* * * * * *

K. The procedure established in this agreement for the adjustment of disputes shall be the exclusive means for the determination of such disputes, including strikes, stoppages, lockouts and any and all claims, demands, and acts arising therefore, except as expressly provided otherwise in this agreement. No proceeding or action in a court of law or equity shall be initiated other than to compel arbitration or to enforce awards. This Paragraph shall constitute a complete defense and ground for a stay of any action or proceedings instituted contrary thereto.

Nieves neither signed nor was provided with a copy of the CBA. She never filed a grievance with the company.

On May 2, 1996, Nieves related at her deposition:

Q: Do you still suffer from the same disability that you suffered from in October of 1994?

A: Somewhat, I still get swelling, occasional pain if I'm standing for a long time.

Q: Are there any restrictions on your activities now?

A: Not necessarily, only doctor's orders, you know, that I have to elevate my legs a few hours of the day, which I do, and I wear the stockings if I'm going to do a lot of standing, that's it.

Q: You only have to wear the stockings if you're going to be standing for a long time?

A: Sometimes. It depends. Sometimes I have to wear them even if I'm not standing, even at home if I'm standing doing something, you know. I put them on because I do feel like the surgery, from the incision, sometimes I get a little throbbing in there.

Nieves Dep. at 60:145 — 61:4.

In a report dated July 19, 1996, the plaintiffs expert, Dr. Malcolm H. Hermele, noted that Nieves complained of "difficulty squatting and kneeling or standing for more than 30 minutes because of pain and fatigue in her legs." She has difficulty walking in malls and exercising, "feels confined [because] her legs fatigue easily," suffers from sleep disruption, and leg spasms and throbbing knees. Based upon these complaints, Dr. Hermele opined that Nieves "has a physical disability that substantially limits her in major life activities such as walking, standing for prolonged periods of time, significant decrease in ability to shop; it interferes with her sleep pattern and sexual activity, difficulty squatting and kneeling and has limited her ability to find adequate employment." Dr. Hermele states that her disabilities are substantial and likely to be permanent.

Nieves also submits the expert witness report of Robert John Anders, an industrial design consultant. Anders states that the defendants could reconfigure Nieves' work

Page 787

station to accommodate her need to work while seated. According to him, such modifications would cost less than $500.00.

In regard to this motion, the defendants have presented the expert witness report of Sylvano Anthony Tagnani, who holds a degree in industrial engineering and is a consultant to shirt making firms such as Individualized Shirts. His report asserted that the use of a short knife to cut fabric while one is sitting is both less safe and less efficient than its use when one is standing. The report incorporates the comments of textile workers who engage in short knife cutting. The defendants...

To continue reading

Request your trial
17 practice notes
  • Blakely v. Usairways, Inc., No. Civ.A. 97-1402.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • September 23, 1998
    ...Page 575 The view expressed in "Austin has not been universally accepted, and for good reason." Nieves v. Individualized Shirts, 961 F.Supp. 782, 790 (D.N.J.1997). As the dissenting judge in Austin as well as most other courts which have considered the issue have observed: "the Supreme Cour......
  • Torrez v. Consolidated Freightways Corp., No. H015966
    • United States
    • California Court of Appeals
    • October 31, 1997
    ...962 F.Supp. 1447; LaChance v. Northeast Publishing, Inc. (D.Mass.1997) 965 F.Supp. 177; Nieves v. Individualized Shirts (D.N.J.1997) 961 F.Supp. 782; Harrison v. Eddy Potash, Inc. (10th Cir.N.M.1997) 112 F.3d 1437; Araiza v. National Steel and Shipbuilding Co. and Carl Hinrichson (S.D.Cal.1......
  • Ferraro v. City of Long Branch
    • United States
    • Superior Court of New Jersey
    • July 23, 1998
    ...While the inability to perform work because of a disability may still be a basis for employer action, Nieves v. Individualized Shirts, 961 F.Supp. 782, 794-97 (D.N.J.1997), defendants did not terminate plaintiff nor prevent him from working. And there Page 290 is no claim that plaintiff--wh......
  • Driesse v. Florida Bd. of Regents, No. 97-1146-CIV-ORL-18A.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 7, 1998
    ...app. pt. 1630, § 1630.2(I); see also Gabriel v. City of Chicago, 9 F.Supp.2d 974, 982 (N.D.Ill.1998); Nieves v. Individualized Shirts, 961 F.Supp. 782, 794 (D.N.J.1997). Plaintiff also offers the affidavit of his doctor which states that his condition, lymphatic edema, causes painful swelli......
  • Request a trial to view additional results
17 cases
  • Blakely v. Usairways, Inc., No. Civ.A. 97-1402.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • September 23, 1998
    ...Page 575 The view expressed in "Austin has not been universally accepted, and for good reason." Nieves v. Individualized Shirts, 961 F.Supp. 782, 790 (D.N.J.1997). As the dissenting judge in Austin as well as most other courts which have considered the issue have observed: "the Supreme Cour......
  • Torrez v. Consolidated Freightways Corp., No. H015966
    • United States
    • California Court of Appeals
    • October 31, 1997
    ...962 F.Supp. 1447; LaChance v. Northeast Publishing, Inc. (D.Mass.1997) 965 F.Supp. 177; Nieves v. Individualized Shirts (D.N.J.1997) 961 F.Supp. 782; Harrison v. Eddy Potash, Inc. (10th Cir.N.M.1997) 112 F.3d 1437; Araiza v. National Steel and Shipbuilding Co. and Carl Hinrichson (S.D.Cal.1......
  • Ferraro v. City of Long Branch
    • United States
    • Superior Court of New Jersey
    • July 23, 1998
    ...While the inability to perform work because of a disability may still be a basis for employer action, Nieves v. Individualized Shirts, 961 F.Supp. 782, 794-97 (D.N.J.1997), defendants did not terminate plaintiff nor prevent him from working. And there Page 290 is no claim that plaintiff--wh......
  • Driesse v. Florida Bd. of Regents, No. 97-1146-CIV-ORL-18A.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 7, 1998
    ...app. pt. 1630, § 1630.2(I); see also Gabriel v. City of Chicago, 9 F.Supp.2d 974, 982 (N.D.Ill.1998); Nieves v. Individualized Shirts, 961 F.Supp. 782, 794 (D.N.J.1997). Plaintiff also offers the affidavit of his doctor which states that his condition, lymphatic edema, causes painful swelli......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT