Beachum v. Awisco N.Y.

785 F.Supp.2d 84

Kyer L. BEACHUM, Plaintiff,

v.AWISCO NEW YORK and Local 810, International Brotherhood of Teamsters, Defendants.

No. 09 Civ. 7399(RJS).

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

March 16, 2011.

Neal Brickman, Esq., and Richard Norman Jefferson, Esq., The Law Offices of Norman Brickman, New York, NY, for Plaintiff Kyer L. Beachum.

Tonianne Florentino, Esq., Adam Michael Harris, Esq., and John Patrick Keil, Esq., Collazo, Florentino & Keil, L.L.P., New York, NY, for Defendant AWISCO New York.Mark Anthony Torres, Esq., Long Island City, N.Y. and Dana Lynne Henke, Esq., Barnes, Iaccarino, Virginia, Ambinder & Shepherd, P.L.L.C., Elmsford, NY, for Defendant Local 810.

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge:

Plaintiff Kyer L. Beachum brings this action against his former employer, AWISCO New York (“AWISCO”), and the union local that represented some of AWISCO's employees, Local 810, International Brotherhood of Teamsters (“Local 810” or the “Union”). Plaintiff alleges that AWISCO and the Union discriminated against him because of his race and retaliated against him for his complaint of discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; the Civil Rights Act of 1866, 42 U.S.C. § 1981(b) (“Section 1981”); the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8–107 et seq. (“NYCHRL”). He further alleges that the Union breached its duty of fair representation, pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Before the Court are AWISCO's motion for judgment on the pleadings or summary judgment, the Union's motion for judgment on the pleadings or summary judgment, Plaintiff's motion to amend the Complaint, Plaintiff's second motion to amend the Complaint, and the Union's so-called “motion to deny Plaintiff's motion to seek leave to amend the Complaint.” For the reasons that follow, the Court: (1) grants AWISCO's motion for summary judgment on Plaintiff's claims pursuant to Title VII, Section 1981, and the NYSHRL; (2) grants the Union's motion for summary judgment on Plaintiff's claims pursuant to Title VII, Section 1981, the NYSHRL, and Section 301; (3) declines to exercise supplemental jurisdiction over Plaintiff's claims pursuant to the NYCHRL; (4) denies Plaintiff's motions to amend as futile; and (5) denies the Union's curious motion as moot.

I. Background

A. Facts ¹

Plaintiff, an African–American male, was hired by AWISCO in February 2007 as a “dock helper.” (AWISCO 56.1 ¶ 2; Union 56.1 ¶ 12–2.) AWISCO is a supplier of gases, welding equipment, safety supplies, and industrial equipment. (AWISCO 56.1 ¶ 1.) Local 810 is the exclusive bargaining agent of AWISCO employees pursuant to a Collective Bargaining Agreement between the Union and AWISCO dated May 14, 2005 to May 13, 2010 (the “CBA”). (AWISCO 56.1 ¶ 4; Union 56.1 ¶ 3; see also Certification of Mark A. Torres dated May 14, 2010, Doc. No. 50 (“Torres Cert.”), Ex. 1 (the “CBA”).)

Article I of the CBA defines the bargaining unit at AWISCO as “[a]ll drivers, pumpers and warehousemen as described in the job descriptions attached as ‘Schedule C, exclusive of office clericals, non-working supervisors, watchmen and guards, salesmen, repair shop employees, porters, receiving clerks, counter person[s], dock helper[s] and stock clerk[s].’ ” (CBA, art. I (emphases added).) According to the Schedule C job descriptions, warehousemen are to “load and unload trucks, pull orders, inventory stock, [and] handle customer returns” ( id., Schedule C), while pumpers are to “fill and mix high pressure gases, fill cryogenic liquids, evaluate condition of cylinders, check test dates of cylinders, label cylinders, check and confirm with vendor liquid levels of bulk cylinders, keep inventory of cylinders on platform, help vendors load and unload cylinders, help customers, perform minor repairs to cylinders and filling system, and help drivers load and unload trucks.” ( Id.) Schedule C does not provide a job description for dock helpers, presumably because they are not covered by the CBA. Article I states that “[b]argaining unit work shall only be performed by bargaining unit employees.” ( Id., art. I.) Another provision of the CBA, Article XXVII, states that a “regular employee who engages in any work covered by Article I hereof must become a member of the Union.” ( Id., art. XXVII.)

Plaintiff contends that “he was subjected to racially motivated jokes on the loading dock.” (Pl. Opp. at 3.) Specifically, at his deposition, Plaintiff testified that his supervisor, Richard Wolynlec, and the shop steward, Anthony Kruithoff, made jokes along the lines of “[b]lack people this, Al Sharpton that.” ( See Declaration of Richard Jefferson dated June 11, 2010, Doc. No. 59 (“June 11 Richardson Decl.”), Ex. A., at 7:7–22.) Plaintiff stated that he did not recall any specific comments, or when the comments were first made, but that Wolynlec made them “[a]bout twice a week.” ( See id. at 8:5–9:15.) In his deposition testimony, Kruithoff denied that jokes were made about African–Americans. ( See Affirmation of Adam Harris filed May 14, 2010, Doc. No. 36 (“Harris Aff.”), Ex. 13, Deposition of Anthony Kruithoff at 66–67.) Wolynlec said most of the jokes were made about Wolynlec's weight. ( Id., Ex. 11, at 22–23.)

While he was employed as a dock helper, Plaintiff contends he performed the duties of a pumper, though he admits he did not possess the license required to do such work. ( See Pl. Response to AWISCO 56.1 ¶ 6.) Plaintiff contends that at some point in 2007, Kruithoff told Plaintiff that he was “doing union work” and that Plaintiff should “[g]o to the union.” (June 11 Richardson Decl., Ex. A. (“Pl. Dep.”), at 22–23.) Plaintiff told his fellow employee Carl Wray that Kruithoff was going to get him into the Union. (June 11 Richardson Decl., Ex. B., at 24.) Wray testified at his deposition that he told Plaintiff that Plaintiff was not going to be allowed to join the Union and to leave it alone. ( See id. at 25–26.)

On February 28, 2008, Plaintiff applied for membership in the Union. ( See Union 56.1 ¶ 8; Complaint ¶ 39.) In a letter dated March 6, 2008, Plaintiff's attorney demanded that the Union “grieve [the] matter” of his Union membership. ( See Complaint, Ex. C, at 1.) The letter stated that there was “evidence of discrimination within the company as well as the Union.” ( Id.) On March 12, 2008, the Union filed a grievance, contending that Plaintiff should be allowed to join the Union as a pumper since he was performing Union duties. ( Id. ¶ 13; Union 56.1 ¶ 10.) AWISCO denied the grievance, arguing that Plaintiff was a dock helper, which was not a union position. (AWISCO 56.1 ¶ 15; Union 56.1 ¶ 12.) In response, the Union submitted the dispute to arbitration on an expedited basis. (AWISCO 56.1 ¶ 15; Union 56.1 ¶ 13.) A hearing was held on May 20, 2008 before an arbitrator, at which time the parties presented testimony and evidence. (AWISCO 56.1 ¶ 16.)

On May 23, 2008, the arbitrator issued his Arbitration Award. (Union 56.1 ¶ 11(2); see Torres Cert., Ex. 6 (the “Award”).) The arbitrator found that “the grievant Kyer Beachum was hired on 2/12/07 as a dock helper and this job title is expressly excluded from the bargaining unit by virtue of Article I of the parties' CBA.” (Award at 2.) The arbitrator further found that the testimony did not “credibly establish that the grievant in the absence of having a pumper's license performs all of the essential duties of a pumper on a regular basis.” ( Id.) However, the arbitrator ruled that “the grievant for limited parts of his daily work assignment performed some of the less skilled job duties as a pumper” and ordered AWISCO “to cease and desist from assigning or permitting the grievant to perform either bargaining unit work and[/]or duties.” ( Id. at 3.)

In the wake of the arbitrator's decision, two other AWISCO employees, Frank Guzman and DeJesus Saez, were allowed to join the Union. ( See Pl. Counter to Union 56.1 ¶ 27.) Both men are Hispanic. ( Id. ¶ 10.) Guzman had worked as a warehouseman for nine years before being admitted into the Union, while Saez had worked as pumper for six years. ( Id. ¶ 24.)

Previously, on February 11, 2008, Plaintiff suffered an injury at work while lifting a propane tank. (AWISCO 56.1 ¶ 11.) Plaintiff went on a leave of absence and began receiving workers' compensation payments. ( Id. ¶ 12.) For the next eight-and-a-half months, Plaintiff remained out of work. ( Id. ¶ 27.) In April 2008, a consultant who had examined Plaintiff informed AWISCO's worker's compensation insurance carrier that Plaintiff could return to work on light duty. ( See Pl. Response to AWISCO 56.1 ¶ 32; Amended Declaration of Richard Jefferson dated May 17, 2010, Doc. No. 46, Ex. M.) Nevertheless, at no time prior to October 2008 did Plaintiff provide AWISCO with medical clearance to return to work. (AWISCO 56.1 ¶¶ 27–28.) In September 2008, AWISCO hired James Ingrassellino, a Caucasian male, to fill Plaintiff's dock helper position. ( Id. ¶ 32; Pl. Response to AWISCO 56.1 ¶ 32.) Ingrassellino, who remains employed as a dock helper at AWISCO, is not a member of the Union. (AWISCO 56.1 ¶¶ 33–34.) In October 2008, Plaintiff asked Wolynlec if he could return to work because his insurance had run out. ( Id. ¶ 29.) Wolynlec told Plaintiff to contact Lloyd Robinson, the CEO at AWISCO, and Wolynlec sent an e-mail to Robinson informing him of Plaintiff's call. ( Id. ¶ 31; Pl. Response to AWISCO 56.1 ¶ 34.) Robinson and Plaintiff did not speak to each other; Plaintiff contends he called twice but his calls were not returned. (Pl. Response to AWISCO 56.l ¶ 34.)

On October 27, 2008, AWISCO fired Plaintiff. (AWISCO 56.1 ¶ 34.) The dismissal letter stated that Plaintiff's “Family and Medical Leave expired on May 6, 2008. It is our...