Tomney v. International Center for Disabled

• Citation: 357 F.Supp.2d 721
• Decision Date: 25 February 2005
• Docket Number: No. 02 Civ. 2461(DC).,02 Civ. 2461(DC).
• Parties: Cecilia TOMNEY, Plaintiff, v. INTERNATIONAL CENTER FOR THE DISABLED and Local 815, International Brotherhood of Teamsters, Defendants.

357 F.Supp.2d 721

Cecilia TOMNEY, Plaintiff, v. INTERNATIONAL CENTER FOR THE DISABLED and Local 815, International Brotherhood of Teamsters, Defendants.

No. 02 Civ. 2461(DC).

United States District Court, S.D. New York.

February 25, 2005.

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Bartlett Law Group LLC, by Randall D. Bartlett, Esq., New York, NY, for Plaintiff.

Jackson Lewis LLP, by Elizabeth Cowit, Esq., Lori Bauer, Esq., New York, NY, for Defendant ICD.

Wiseman & Hoffmann, by Andrew S. Hoffmann, Esq., New York, NY, for Defendant Local 815 IBT.

OPINION

CHIN, District Judge.

In this employment case, plaintiff Cecilia Tomney sues her former employer for breach of a collective bargaining agreement (the "CBA"), unpaid overtime wages under the Fair Labor Standards Act (the "FLSA"), unlawful discrimination because of her age and disability, and unlawful retaliation. Plaintiff also sues her union for breach of its duty of fair representation ("DFR"). Defendants International Center for the Disabled ("ICD") and Local 815, International Brotherhood of Teamsters ("Local 815" or the "Union"), move for summary judgment dismissing all claims. Plaintiff cross-moves for partial summary judgment on the FLSA claims. For the reasons discussed below, ICD's motion is granted in part and denied in part, and the Union's motion is granted. Plaintiff's cross-motion is denied.

BACKGROUND

A. The Facts

Construed in the light most favorable to plaintiff, the facts are as follows:

Tomney worked at ICD as a vocational rehabilitation counselor from June 1992 until she was fired on December 6, 2000. (ICD's 56.1 Statement ¶¶ 1, 2, 13).¹ ICD is a not-for-profit organization that assists individuals with disabilities in job placement, counseling, and other life-enhancing programs. (Livingston Dep. at 9-13; Harrison Aff. ¶¶ 2-4). ICD employs approximately 200 individuals. (Bartlett Decl. Ex. 7). Individuals, or "consumers," as they are called at ICD, are referred to ICD from agencies that contract with ICD, and through court system work release programs. (ICD's 56.1 Statement ¶ 36; Harrison Aff. ¶ 6).

Tomney was 49 years old when she was fired, and is legally blind from macular degeneration, a condition she has had since childhood. (Bartlett Decl. Exs. 7, 14; Tomney Dep. at 413-17). During Tomney's tenure at ICD, she was a member of Local 815 and became a shop steward on March 7, 2000. (Local 815's 56.1 Statement ¶ 3; Tomney Decl. ¶ 1).

1. Tomney's Duties

ICD requires that vocational rehabilitation counselors possess a masters degree in rehabilitation counseling or in a related field such as social or human services counseling. (2d Harrison Aff. ¶ 2). ICD also requires that vocational rehabilitation counselors have two years experience in vocational rehabilitation counseling or in a related field such as social or work placement service. (Id.).

Tomney has a masters degree in rehabilitation counseling, and is also certified by the Commission of Rehabilitation Counselors in Chicago, Illinois, as a rehabilitation counselor. (Tomney Dep. at 356, 385; ICD's 56.1 Statement ¶¶ 2, 25). As a vocational rehabilitation counselor at ICD, Tomney (1) provided vocational counseling and case management to ICD consumers, (2) conducted consumer intakes, and (3) prepared consumer intake forms, assessments, and progress reports. (Id. ¶ 3). Tomney described her duties as maintaining

close contact with the vocational [instructors] who did the teaching, who spent the whole day with the client. And they would — the instructor would bring to my attention any problems they were having with the client that required me to intervene with counseling.... I would see for counseling anybody that required it or that a teacher asked me to see. And I provided counseling and all the paperwork that goes along with how the client was doing in the program.

(Tomney Dep. at 325-26). Tomney's counseling sessions generally concerned topics such as general workplace obligations and adapting to a workplace environment. (ICD's 56.1 Statement ¶¶ 4, 5). Tomney had the authority to refer consumers for other social work services, therapy, or additional counseling within ICD. (Tomney Dep. at 361). For Tomney to refer a consumer to an outside agency, she was required to receive approval from her supervisor and the sponsoring agency.² (ICD's 56.1 Statement ¶ 8; Pl.'s 56.1 Resp. Statement ¶ 8).

2. Tomney's First Five Years at ICD

From the time Tomney was hired in 1992 until July 1997, she worked in the training unit within the vocational services department. (ICD's 56.1 Statement ¶¶ 28, 29, 42). A consumer enrolled at ICD was assigned to either the training unit, the vocational improvement program ("VIP"), or another external program. (Id.). If a consumer was placed in the training program, that consumer would attend classes teaching clerical, mail room, or direct care skills. (Id. ¶ 33). The VIP program was a "special needs" program designed for those consumers who were not ready for the classes in the training unit. (Id. ¶ 34). Prior to July 1997, each counselor specialized in the evaluation, training, or VIP unit. (Tomney Dep. at 327). Tomney specialized in the training unit. (Id.).

In July 1997, the vocational services department was reorganized so that a counselor, such as Tomney, would be assigned a consumer, and would stay with the consumer through the evaluation and eventual placement in the VIP unit, training unit, or external programs as applicable. (Id. at 327-28). During this time, all of the counselors' case loads increased. (Id. at 333-34; ICD's 56.1 Statement ¶¶ 39-41).

3. Tomney's Workload Continues to Increase

In or about September 1999, the vocational services department again restructured to address an increase in case loads. (Tomney Dep. at 331-32). At that time, Tomney requested that she be allowed to return to concentrating in the training unit. (Id. at 332-34). Her supervisor at the time, Linda Moriber, "got angry" with Tomney and denied her request. (Id. at 333-34). Moriber instead required Tomney to assist in both the training and VIP unit. (Id.).

During this time period, many employees at ICD complained to management about their increased case loads. (ICD's 56.1 Statement ¶¶ 43-46). For example, by memorandum dated August 18, 2000, fourteen vocational services department staff employees complained about the "high volume of clients" to the director of vocational services, Maria Jacobson. (Id. ¶ 45).

During this period of time, management at ICD believed that the vocational services department had the capacity to take on more consumers. (Id. ¶ 46; Pl.'s Resp. 56.1 Statement ¶ 46). Tomney and other employees at ICD believed their workloads were too heavy. (Tomney Dep. at 529-30, 627-28; ICD's 56.1 Statement ¶¶ 43-46). Tomney's caseload increased from 40 to 65 consumers between April and December 2000. (Tomney Dep. at 758).

It was during this time period that Tomney alleges she worked overtime. Tomney claims she worked overtime "whenever her case load exceeded 35 consumers." (Id. at 760). Between April and December 2000, Tomney worked overtime every week, although she has no documentation showing what specific hours she worked during that time period. (Id. at 758-59). ICD did not pay Tomney overtime compensation. (Id. at 725-26). ICD maintains records of Tomney's hours that indicate that every day Tomney started at 9:00 a.m. and stopped work at 5:00 p.m. (Cowit Aff. Ex. N). These time sheets are signed by Tomney or a secretary on her behalf. (Id.).

4. ICD's Accommodation of Tomney's Disability

From the date of Tomney's hire until April 1999, ICD accommodated her disability by assigning a secretary to assist her in various aspects of her job. (ICD's 56.1 Statement ¶¶ 57-63; Tomney Dep. at 495). In addition, from 1997 through Tomney's discharge in December 2000, ICD assigned a reader to assist her during the intake process by helping her conduct the interview, complete the forms, and ask the consumer questions. (Id. ¶¶ 55-61). Tomney also received assistance in reading attendance sheets that were posted on the VIP bulletin board. (Tomney Dep. at 448, 529).

ICD also accommodated Tomney by not requiring her to travel downtown to the Veterans Administration Hospital (the "VA") to evaluate and counsel consumers. (ICD's 56.1 Statement ¶ 63). While generally counselors did travel to the VA as part of their job, Tomney asked that she not to be assigned this task because her visual impairment made it more difficult for her to travel. ICD granted the request. (Id.).

5. Tomney's Allegations of Disability Discrimination

In April 1999, ICD hired Linda Moriber as chief operating officer. (Tomney Aff. ¶ 10). Tomney described Moriber's behavior toward ICD employees as "aggressive, loud, and intimidating." (Tomney Dep. at 631-32). Moriber's treatment of ICD employees was discussed during collective bargaining negotiations. (Id.). Moriber was not as accommodating to Tomney's disabilities as her previous supervisors, and as a result Tomney's workload increased. (Tomney Aff. ¶ 11). For example, in September 1999, Moriber required Tomney to cover for other staff members who were sick or on vacation. (Id.). Prior to Moriber's hire, Tomney had not been asked to cover for other staff members. (Id.). When Tomney explained to Moriber that she needed more time than others to complete her duties because of her disability, Moriber responded: "if it takes you three times as long, there is something wrong with the way you are working.... If you want to continue working for this organization, then you will not ask me to revisit this issue." (Id.). Over time, Tomney was repeatedly asked to take on more work and cover for other employees. (Id. ¶ 12).

In another incident in January 2000, Moriber stated to a group of ICD employees, including Tomney and another legally blind employee, that "the auditors would...