United States District Court, D. Connecticut
RULING ON DEFENDANT LIUNA'S MOTION FOR SUMMARY
F. Martinez United States Magistrate Judge.
plaintiff brings this discrimination action against her
former employer, the Town of Greenwich Board of Education,
and her union, Laborers' International Union of North
America Local 136 ("LIUNA" or "union").
She alleges that the union discriminated against her in its
representation of her based on her race/color, national
origin and disability in violation of Title VII, CFEPA and
the ADA. The defendant union now moves for summary judgment.
(Doc. #43.) The plaintiff "stipulates that the Motion
for Summary Judgment of the defendant LIUNA Local 26 may be
granted absent objection" and appears to have abandoned
her claims against the union. (Doc. #44.) The defendant's
motion is granted.
plaintiff, an African-American woman of Haitian national
origin, was employed by the defendant Town of Greenwich Board
of Education ("Town") as a Professional Assistant
from 2008 until 2012. She was a member of the defendant LIUNA
which had a collective bargaining agreement with the Town.
Pursuant to the Town's written job description, an
"essential feature" of the position of Professional
Assistant was "provid[ing] for the physical needs of
students including lifting and toileting; us[ing] mechanical
lift equipment and transfer aids as needed including the
ability to transfer in wheelchairs." (Def's 56(a)1
Stmt. ¶9.) In a 2008 Memorandum to the union, the Town
reiterated that all Professional Assistants are
"expected to perform the essential functions of their
job . . . [which] includes the ability to toilet, feed and
lift students who require this accommodation . . . ."
(Id. at ¶11.) The Memorandum made clear that
"that light duty does not exist within this job
class." (Id. at ¶12.) The plaintiff signed
an "Acknowledgment" that she received a copy of the
Town's job description and understood that "the
duties of lifting, toileting and feeding students with
special needs are essential functions of the job . . .
." (Id. at ¶13.)
November 2011, the plaintiff injured her left shoulder at
work. (Id. at ¶17.) As a result of her injury,
plaintiff's physician placed her on light duty and
imposed significant lifting restrictions. (Id. at
¶18.) The plaintiff was out of work from November 2011
until November 2012. (Id. at ¶20.)
beginning of November 2012, the defendant Town notified the
plaintiff that it had medical documentation that she was
unable to perform the core functions of a Professional
Assistant because of her physical restrictions. (Id.
at ¶21.) The Town scheduled a meeting with the plaintiff
on November 19, 2012 to discuss her employment status.
(Id. at ¶22.) The plaintiff sent an email to
the Town's Human Resources Director and her union
claiming that white employees had been permitted light duty
assignments. (Id. at ¶26.) She did not identify
anyone by name. (Id.) In response to the
plaintiff's email, LIUNA asked the Town whether any
Professional Assistants had been placed on light duty status.
(Id. at ¶27.) The Town responded that no
Professional Assistants had been offered light duty status
because light duty did not exist for that position.
(Id. at ¶28.) LIUNA representatives met with
the plaintiff before her scheduled meeting with the Town and
accompanied her to the meeting. (Id. at
¶¶29-30.) At the meeting with the Town, the
plaintiff requested light duty status. (Id. at
¶30.) The Town informed her that light duty status was
not available for Professional Assistants. (Id. at
¶31.) About ten days later, the Town sent plaintiff a
letter terminating her employment on the grounds that she had
medical restrictions rendering her unable to perform the
essential functions of her job. (Id. at ¶32.)
The plaintiff did not ask the union to file a grievance as to
her termination. (Id. at ¶37.)
operative complaint filed June 29, 2015, the plaintiff
alleges that LIUNA discriminated against her on the basis of
race, color, national origin and physical disability. (Doc.
#17, Am. Compl.)
judgment may be granted only if "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Tolan v. Cotton, 134
S.Ct. 1861, 1866 (2014) (per curiam). "A genuine dispute
of material fact 'exists for summary judgment purposes
where the evidence, viewed in the light most favorable to the
nonmoving party, is such that a reasonable jury could decide
in that party's favor.'" Zann Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013)
(quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d
Cir. 2007)). The evidence adduced at the summary judgment
stage must be viewed in the light most favorable to the
non-moving party and with all ambiguities and reasonable
inferences drawn against the moving party. See,
e.g., Tolan, 134 S.Ct. at 1866; Caronia v.
Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir.
2013). All in all, "a 'judge's function' at
summary judgment is not 'to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.'"
Tolan, 134 S.Ct. at 1866 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
LIUNA argues that it is entitled to summary judgment on
plaintiff's Title VII, ADA and CFEPA claims because it
did not breach the duty of fair representation and because
there is no evidence that it engaged in discriminatory
member of a union bringing a discrimination claim against
h[er] union must show, 'at a minimum, that the union
breached its duty of fair representation and that its actions
were motivated by discriminatory animus.'" Jones
v. Int'l Union of Operating Engineers, No. 5:14 CV
1014, 2015 WL 9269280, at *7 (N.D.N.Y. Dec. 11, 2015)
(quoting McIntyre v. Longwood Cent. School Dist.,
380 F.App'x 44, 49 (2d Cir. 2010)). The duty of fair
representation obliges a union "'to serve the
interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good
faith and honesty, and to avoid arbitrary conduct.'"
Smith v. New Venture Gear, Inc., 319 F.App'x 52,
57 (2d Cir. 2009) (quoting Vaca v. Sipes, 386 U.S.
171, 177 (1967). "[B]reach [of this duty] occurs only
when a union's conduct toward a member . . . is
arbitrary, discriminatory, or in bad faith."
Id. "It is . . . [the] plaintiff's burden
to prove the union breached its duty, not the employer's
to show that it did not." Young v. U.S. Postal
Serv., 907 F.2d 305, 308 (2d Cir. 1990). "[T]he
duty of fair representation is not breached where the union
fails to process a meritless grievance, engages in mere
negligent conduct, or fails to process a grievance due to
error in evaluating the merits of the grievance."
Cruz v. Local Union No. 3 of Intn'l. Bhd. of Elec.
Workers, 34 F.3d 1148, 1153-54 (2d Cir. 1994).
plaintiff's claim that the defendant LIUNA breached its
duty of fair representation because it did not file a
grievance on her behalf fails because she did not request
that it do so. See Flanigan v. Int'l Bhd. Of
Teamsters, Local No. 671, 942 F.2d 824, 829 (2d Cir.
1991) ("Because appellants did not ask the Union to
process a grievance on this issue, they cannot complain that
the Union failed to represent them properly.");
Goodman v. Port Auth. of New York & New Jersey,
No. 10 CIV. 8352, 2011 WL 3423800, at *7 (S.D.N.Y. Aug. 4,
2011) ("before an employee can bring a claim based on a
union's failure to represent him properly, he first must
ask the union to process a grievance. . . . Because Plaintiff
failed to allege that he filed grievances or otherwise asked
the Union to take action with respect to any issue except his
termination, his duty of fair representation claims fail . .
. ."); Badlam v. Reynolds Metals Co., 46
F.Supp.2d 187, 203 (N.D.N.Y. 1999) ("Because [Badlam]
did not ask the Union to process a grievance on this issue,
[she] cannot complain that the Union failed to represent
there is no record evidence from which the court can infer
that the union acted with discriminatory animus. It is
uncontroverted that the plaintiff's physician placed her
on light duty with significant lifting restrictions; the
essential functions of the Professional Assistant job
required that the plaintiff be able to toilet, feed and lift
students; no light duty existed for this position; LIUNA met
with the plaintiff before her meeting with the Town and
attended the meeting; and no other Professional Assistants
were given light duty. Because the record before the ...