Petition for Writ of Certiorari — Mauricio Baez Romero, Petitioner v. DHL Express (USA), Inc., et al.

No.

-----------------------In the

Supreme Court of the United States

------------------------Mauricio Baez Romero,

Petitioner

vs.

DHIL Express, Inc., Local Union 295 I.B.T.

Respondents.

-------------------------ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-------------------------APPENDIX OF PETIONER

------------------------Mauricio Baez Romero

315 west 232 street, apt. 5L

Bronx, New York 10463

Tel. 646.353.5379

TABLE OF CONTENTS

Page

Order of the Court of Appeals for the Second Circuit de

denying Petitioner's Motion for Rehearing en bane ................................. Al

Memorandum Opinion confirming arbitration award

dated April 2, 2013.........................................................................A2

Memorandum Opinion and Order

dated March 3, 2015......................................................................A15

Order of the Court of Appeals for the Second Circuit

dismissing Romero's Appeal............................................................A32

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

31 day of July, two thousand seventeen.

Mauricio Baez Romero,

Plaintiff Appellant,

-

ORDER

V.

Docket No: 16-2045

DHL Express (USA), Inc., Local 295 I.B.T.,

Defendants Appellees,

-

Jide Dawodu, John Montecalvo,

Defendants.

Appellant, Mauricio Baez Romero, filed a motion for panel reconsideration, or, in the

alternative, for reconsideration en banc. The panel that determined the appeal has considered the

request for reconsideration, and the active members of the Court have considered the request for

reconsideration en banc.

IT IS HEREBY ORDERED that the motion is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

USDS SDNY

UNITE!) STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------x

MAIJRICi() BAEZ R()MiRO,

DOCUMENT

ELECTRONICALLY FILED

DOC#:

DATE FILED:________

Plaintiff'.

-agat nst-

12 Civ. 1942 (IAK)

i.)IIL LXPRESS. INC.. et at.,

Defendants.

--------------------------x

MEMORANDUM OPINION

Appearances:

M.auric.io Baez Romero

P/a/nil/f Pro Sc

David Wirtz

David Kenneth Broderick

LITTLER MENDELSON. P.C.

Ailornetw for Detnlant 1)/IL Ev1,re.vs Inc.

Walter Michael Katie

Melissa Sy Chan

CAR\'I K,\NI IJP

Aliornevs/or Defciidani Local 295 1.11.7'

N12'

2

LEWIS A. KAPLAN. District .Judge.

Plaintiff Mauricio Bacz Romero was a member of International Brotherhood of

Teamsters Local 295 and an employee of i)lIl Express. Inc. for twenty years until DHL terminated

his employment in August 2011

.Local

295

grieved

his

termination

and

proceeded

to

arbitration

With 1)1 IL under their collective bargaining agreement ("CBA"). The arbitrator upheld Romero's

termination. Romero subsequently filed suit against Local 295 and IN If, seeking damages under

numerous New York and Federal statutes. Now before this Court is DHL's cross- motion to confirm

the arbitration award.

Background

Romero was working for DI 11. Fxprcss at its 39th Street location in New York. New

York when he suffered an injury loading a truck on June 2, 2011 He alleges that his superiors

harassed him for reporting the injury, causing him to file a grievance with his Union! Romero took

time off from work until July 24. 2011 to recover from his injury! Upon his return, his supervisors.

particularly one Jide I)owadu. allegedly continued to harass him and began to threaten him

physicaily because of his injury and Dominican nationality.' Romero complained to I)HL's human

Amended Complaint ("Cpt,") 11)1 64] 41111 14, 18 (hereinafter Cpt.

Id at 111 18_7W

/d.at 4,1 3l.

Id. at 1111 40-70.

K3

3

resources department and filed two more grievances with Local 295. On August 15. 2011. Romero

allegedly told certain of his supervisors that he could not continue to work in what he perceived as

a hostile work environment.' He did not come to work on August 16. 17, or 18. On August. 18.

1)1 It. sent him a letter indicating that, in accordance with the CBA, !)HL had removed him from the

employee seniority list, and that, as a result, he was dismissed.'

The C13A provides for a scheme of employee seniority. The more senior an

employee, the more desirable work the employee is entitled to and the greater protection from

layoffs the employee enjoys. In certain circumstances an employees seniority is "broken."

Section 6F(f) of the CBA provides that the "unauthorized failure to report to work for three (3)

consecutive days when work is available" breaks seniority." 1)1-IL determined that Romero haà

failed to report to work lbr three consecutive days and thus lost his seniority, justifying his

termination. Romero filed a fourth grievance with Local 295 contesting his termination.

i'd. at ¶J 73-75. 77, 84

Id. at 11 82.

7

M at 1185.

Romero All. (Dl j Ex. E.

Romero All [DI I Lx. I) (T13A § 6.

Jo

Id. at § 612.

Id at § 612(1).

'7

1)1 69 at 8.

~J

El

Local 295 grieved Romero's termination and unsuccessfully argued for his

reinstatement at a formal meeting with l)HL.' Local 295 allegedly did not allow Romero to speak

at the meeting. did not bring a witness who Romero thought would provide exculpatory information,

and did not discuss Romero's other grievances against l)111 supervisors.14

Local 295 then proceeded to arbitration in accordance with the CBA. The CBA

provides that an experienced arbitrator named Stanley Aiges is to serve as arbitrator for all such

disputes.` lie served as the arbitrator in Romero's case.

The only two issues before the arbitrator were whether Romero lost his seniority

under Section OF of the CBA and. if so, whether this justified his termination. Local 295 appointed

an experienced labor attorney to represent Romero's interests at the arbitration. The attorney

presented arguments and allowed Romero to testify on his own behalf Contrary to Romero's

wishes, the attorney did not object to the admission into evidence of a video showing an incident

between Romero and one of his superiors and did not present certain documents and emaiis related

to the grievances that Romero filed against his superiors for disc.rimination.1

Is

CIA. 1l 919.

4

Id.

is

Romero ALT. [DI U I Ex. B CBA § 20[).

10

Wirtz AtillDl 181113.

DI 69 at 7. Ronicro arenes in his memorandum that Local 295 did not present any

argument as to why hc should get his.job hack, but then notes that the attorney questioned

DI IL's witnesses and allowed Roniero to testify on his own behalf.

f\5

11

Id.

D

The arbitrator found that Romero lost his seniority under the CBA and that this

justified his tcrmination. Dissatisfied with the arbitrator's ruling. Romero sought relief in New

York State cowl. After a complicated procedural history that need not he explained here. the case

is now before this Court on DHL's cross-motion to confirm the arbitration award.

1)1-IL argues that Romero does not have standing to challenge the arbitration award

and that the Federal Arbitration Act mandates confirmation of the award.

Romero claims that he does have standing to challenge the award and that the

arbitrator's award should he vacated because (1) the arbitrator did not act within his authority under

the CBA,2° (2) the arbitrator was partial to D1-IL,2 and (3) the award was incorrect.2 I Ic alleges that

a member of DH1. management who harbored personal animus toward him had a role in the

negotiations between i)HL and Local 295 in which they chose Aiges as the arbitrator for all disputes

under the C 13.23 lie alleges also that the arbitrator improperly disregarded or misinterpreted certain

evidence that Romero presented at the arbitration."'

Cpt. Ex. A at 7.

1)1 64 at 14 15.

Cpt.

116-22.

Dl 69 at 12.

23

('pt. ¶1 116-22.

24

Dl64ail5-17.

6

The Court notes that Romero is currently proceeding pro ce, He has, through

apparently great effort, filed extensive papers and exhibits in SUPPOrt of his position that the

arbitration award should he vacated. The Court has reviewed Romero's submissions carefully in

rendering this decision.

Discussion

Siunthng

An employee whose claims are arbitrated under a collective bargaining agreement

normally does not have standing to challenge the arbitration award. 5 There is an exception to this

rule when the union has breached the duty of fair representation that it OWCS to the employee.26 A

claim f o r breach of the duty of fair representation exists where the union's actions toward the

employee were "arbitrary, discriminatory, or in bad faith."27 A union's actions are arbitrary where

its "behavior is SO Far outside the wide range of reasonahienessil as to be irrational."2 A union's

Kalir v. Columbia Univ.. 15 F.3d 23. 24-25 (2d Cir. 1994).

26

See id.

27

White v. Rose Food. 237 F.3d 174. 179 (2d Cir. 2001).

28

M. (internal quotation marks omitted).

7

actions are in bad Iutitli where they are"Fraudulent. deceitftil, or dishonest." Mere negligence is

not a breach of the duty ot Iuiir representation.'

"If a union pursues a termination through arbitration, a plaintiff must establish that

the Ithe union's misconduct] .

..

seriously undermine[d] the arhitral process." Tactical errors in

arbitration are insufficient to constitute a breach of the duty of fair representation. -12

I Icre. Romero fiiils even to allege facts sufficient to support a claim that Local 295

breached its duty of fair representation. He alleges essentially that Local 295 made tactical errors

at the initial meeting with 1)1 IL and at the arbitration by not presenting certain evidence and making

certain arguments. But he liiils to identify any fraudulent or dishonest actions or any behavior so

unreasonable as to he irrational. In fact. Romero's papers reveal the opposite. Local 295 contested

the propriety ol Romeros termination. It took the dispute to arbitration and presented evidence and

arguments on his behalf. The evidence that Romero argues Local 295 should have presented relates

to the disputes that he had with his supervisors and the grievances he filed against him. Local 295

could have determined that presenting extensive evidence, related to these grievances was not

desirable because the evidence was not directly relevant to the issues at the arbitration

-

whether

Romeros loss of seniority and termination were proper. These tactical considerations were within

ía.

Scihilia v. Vcri:on (,'oemnc. s. inc.. 493 Fed. Appx. 225, 227 (2d Cir. 2012): Barr v. Llnik'd

i'arc'l'ry 868 F.2d 36,43 (2d Cir. I989.

Simmons v. Local Union 1199. 319 Fed. Appx. 33. 33 (2d Cir. 2009) (quoting Burr. 868

F.2d at 43 (internal quotation marks omitted).

Barr, 868 F.2d at 43.

68

Local 295's discretion.,33 and Romero has failed to identify why Local 295's conduct was arbitrary

or in bad faith.34 At most, Local 295 was negligent in its tactical decisions, which is not a breach

the duty of fair i'eprcsentation.35

Lacking a claim that Local 295 breached its duty of fair representation, Romero does

not have standing to challenge the arbitrator's award. Nevertheless, the Court considers below his

argunlents for vacating or resisting confirmation of the award.

Motion to (.:oflhirin the Au'ar1

When presented with a motion to confirm an arbitration award under the Federal

Arbitration Act ("FAA"), the Court normally "must grant" the motion "unless the award is vacated,

modified, or correctcd.Sb The FAA narrowly defines the Court's authority to vacate an arbitration

award.

"

The Court has discretion to do so:

"(1) where the award was procured by corruption, fraud, or undue means;

3 3,

See i.

To the extent that Romero is arguing that Local 295 did not pursue his first three grievances

against DIlL supervisors..thal simply is not relevant to whether Local 295 fairly represented

11 1111 in contesting his term i nat ion

See Scibilia. 493 Fed. App. at 227 (holding no breach of duty where union was, at worst.

negligent in not pursuing employee grievances further).

36

9, U.S.C. § 9.

-17

(i/aba! Reins. Corp. v. Argonaut Ins. ('a., 548 F'. Supp. 2d 104. 109 II) (S.D.N .Y. 2008).see I'orzig v. Dresdner, KICIflWOrI, Benson, N. Am. LL(-" 497 F.3d 133, 139 (2d Cir. 2007).

%W—

where there was evident partiality or corruption in the arbitrators, or either

of them:

where the arbitrators were guilty of misconduct in refusing to postpone the

hearing

(4)

where the arbitrators exceeded their powers, or so imperfectly executed them

that a mutual, final, and definite award upon the subject matter submitted was

not made. "

:

An award may he vacated also where it was issued in manifest disregard of the law or of the parties'

relevant agrecment. 9

Romero argues that the award should be vacated for three reasons that the arbitrator

did not exercise his authority under the CBA properly, that the arbitrator exhibited evident partiality

to 131-I1. and that the award was incorrect under the CBA. None of these arguments is persuasive.

Romero claims that the arbitrator did not exercise his authorily properly because the

CBA does not allow the arbitrator to "disregard" any of its provisions, but that the arbitrator

disregarded some of' Romero's evidence.'1° This argument misapprehends the CBA. The CBA

provides that the arbitrator is not allowed to apply some provisions but ignore others. This

limitation does 1101 apply to weighing evidence presented at arbitration. The CBA does not dictate

how the arbitrator should credit or discredit evidence.

U.S.C. § 10.

Schll'ar/:

v.

Merrill Lwic/i & Co., Inc.. 665 F.3d 444, 45 1---52 (2d Or. 2011).

40

DI 64 at I4-15 see also Romero Aff. IDI I] Lx. B CBA § 20E.

10

Romero argues also that the arbitrator exhibited "evident partiality." '[EJvident

partiality, within the meaning o1`9 U.S.C. § 10 will be found where a reasonable person would have

to conclude that an arbitrator was partial to one party to the arbitration."

The possibility that

someone at 1)1 IL who had personal issues with Romero was involved in choosing the arbitrator

during the CBA negotiations, which occurred long before Romero's termination, even if true, would

provide no support for Romero's claim that the arbitrator was partial to DH L. Nor does the fact that

the arbitrator failed to credit or consider certain of Romero's evidence and testimony indicate

partiality .....the arbitrator was simply perlorining his role as adjudicator. Romero has not alleged

anything that would oblige a reasonable person 10 conclude that the arbitrator was partial to Dill...

Romero argues Final lythat the award should be vacated because it was incorrect. The

Court does have some doubts about the soundness of the arbitrator's decision to uphold Romero's

termination. The arbitrator read the provision governing what conduct breaks an employee's

seniority to permit also termination.'-' it is not immediately evident on the Face of the CBA why a

loss of one's seniority justifies termination.43 And ifit was Romero's absences that caused IN It, to

dismiss him, then the arbitrator likely should have looked to Appendix B of the CBA, which

Applied Indus. Materials Corp. v Ova/ar Makijie Ticarel Ve Sanava. AS.. 492 F.3d 132.

137 (2d Cir. 2007) (quoting More/lie Consir. ('orp v. New York Cliv Dist. Council

Carpenters Benefit Pinuts, 748 F.2d 79. 84 (2d Cir. 1984)) (internal quotation marks

omitted).

IN

Cpt. 1.x. A. at 7.

43

Romero All [DI I Ex. B CBA § 6F.

Ai.i

mandates a system of progressive discipline for unauthorized absences,44 Under the rules laid out

in Appendix 13, it does not appear that Ronicro's termination was proper.

Nevertheless.. "lilt is well-settled that courts play a limited role when asked to review

the decision olan arbitrator made pursuant to a grant of authority to interpret a collective bargaining

agreement. Courts are not empowered to reexamine the merits of an arbitration award, even though

the parties to the agreement may argue that the award arises out of a misinterpretation of the contract

or a Ihetual error."45 "[A]s long as the arbitrator is even arguably construing or applying the contract

and acting within the Scope ol' his authority, a court's conviction that the arbitrator has committed

serious error in resolving the disputed issue does not suffice to overturn his decision."" An

arbitrator's award is enforceable "as long as it draws its essence from the collective bargaining

agreement. "i4

The interpretation of the seniority provision implicates the proper construction of the

CBA. The Court is persuaded that the arbitrator's award "draws its essence from the collective

bargaining agreement."48

Id. at App. 13.

45

Intl Broth. olE/cc. Workers. Local 97 v. Niagra Mohawk Power Corp., 143 F.3d 704, 714

(2d Cir. 1998).

46

Re/laS/ar Life ins. Co. of N. Y. v. EMC Nat'! li/ Co., 564 F.3d 81, 86 (2d Cir. 2009)

(internal quotation marks omitted): see Matter of4ndros Gompania Mariti,na. 8,4., 579

F2d 691, 703 (2d Cir. 1978).

47

iViara Mohcnvk Power Corp.. 143 F.3d at 714 (quoting (Jnited SIee/work(Ts i En/c,

Wheel & car Corp.. 363 U.S. 593. 597 (1960)) (internal quotation marks omitted).

48

See United Steelworkers, 363 U.S. at 597.

12

The Court has considered Romero's remaining arguments and finds them to be

without merit.

Cojwlusioii

In the absence of any Statutory grounds to vacate the arbitration award, the Court

grants DFlLs cross-motion to confirm 11)1 161. In confirming the award, the Court does not in any

way mean to be dismissive of Romero's claims of work place discrimination. On this motion.

however, it is not the Court's role to delve into the merits of those claims.

SO ORDER['[).

Dated:

April 2, 2013

United States District Judge

Case, 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 1 of 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------X

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC

#:_____________

DATE FILED: 3/24/2015

MAURICIO BAEZ ROMERO,

Plaintiff,

12-CV- 1942 (VEC) (RLE)

-againstDHL EXPRESS, INC. AND LOCAL 295, l.B.T.,:

MEMORANDUM

OPINION & ORDER

Defendants.

X

VALERIE CAPRONI, United States District Judge:

Pro se Plaintiff Mauricio Baez Romero ("Baez"), a former courier of Defendant DHL

Express Inc. ("DHL" or the "Company"), and former member of the collective bargaining unit

represented by Defendant Local 295, I.B.T. (the "Union"), brings this suit against DHL and the

Union alleging seventeen causes of action following his termination by DHL in August 2011.

Inter alia, Baez alleges that DHL subjected him to a hostile working environment and to

discriminatory and retaliatory treatment as a result of his race, national origin and disability after

he filed for Workers' Compensation Benefits. Baez further alleges that the Union breached its

duty of fair representation by processing his grievances in bad faith and in a manner that was

arbitrary and discriminatory.

Now pending before the Court are the Union's Motion for Summary Judgment as to

Plaintiff Sixteenth cause of action, and DHL's Motion for Partial Summary Judgment as to

Plaintiff Second, Fourth, Eighth, Thirteenth, Fifteenth and Seventeenth causes of action. For

the reasons stated below, the Union's Motion f6f Summary Judgment is GRANTED, and DHL's

Motion for Partial Summary Judgment is GRANTED in part and DENIED in part.

A 19

Case 1:12cV-01942-VEC-RLE Document 166 Filed 03/24/15 Page 2 of 16

BACKGROUND

At the time of his termination, Baez was employed as a "vacation relief' courier driver

for DHL. See Defendants' Joint Rule 56.1 Statement ("Defs.' 56.1 Statement") J 1. The Union

and DHL are parties to a collective bargaining agreement ("CBA") governing couriers employed

at DHL. Id. U2-3.

On June 2, 2011, Baez was injured while loading a DHL truck. Defs.' 56.1 Statement JJ

6-7. Baez filed a Workers' Compensation claim, id. ¶ 8, Broderick Deci., Ex. E, and reported his

injury and intention to file for Workers' Compensation benefits to his manager, John

Montecalvo. Am. Compl. ¶ 19. Montecalvo allegedly insulted and harassed Baez for filing a

Workers' Compensation claim. Id. ¶J23-28. Following this conversation, Baez filed a grievance

against Montecalvo. Defs.' 56.1 Statement ¶ 24; Kane Decl., Ex. D; Plaintiffs Response to

Defendants' Joint 56.1 Statement ("Pl.'s 56.1 Resp.") 1 24.

Baez received Workers' Compensation benefits and was out of work from June 3, 2011

through July 24, 2011. Defs.' 56.1 Statement ¶ 8. When Baez returned to work on July 25,

2011, his supervisor, Jide Dawodu, allegedly assigned him to "off-load" operations in violation

of his "light duty" status and also required him to work eight hours consecutively without a meal

break. Am. Compl. ¶J 41, 43. Baez alleges that Dawodu also called him a "stupid Dominican"

in front of two of his co-workers, id. ¶ 45, and "constantly mock[ed] [his] accent." Id. ¶ 44.

Whenever a mistake was made, Dawodu would allegedly blame Plaintiff saying "only a stupid

Dominican like Baez would do something like this." Id. ¶ 48.

On August, 2, 2011, Baez and Dawodu argued regarding Baez's claim that Dawodu was

"short[ing]" his hours. Defs.' 56.1 Statement ¶ 26; Am. Compl. ¶J 52-64. During the argument,

which was recorded on video and witnessed by Plaintiffs shop steward, Ignacio Garcia, and

another DHL supervisor, Dave Gabrielli, Dawodu allegedly insulted Baez and threatened to

2

ivc

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 3 of 16

punch him. Am. Compl. ¶J 58-64; Baez Decl., Ex. F at ECF p. 3-4. Following the argument,

Baez filed a police report, Defs.' 56.1 Statement 1 33; Kane Decl., Ex. M, and a grievance

against .Dawodu. Defs.' 56.1 Statement ¶ 33; Pl.'s 56.1 Resp. ¶ 33; Kane Decl., Ex. E. Dawodu

left for vacation on August 3, 2011. Defs.' 56.1 Statement ¶ 34; Kane Decl., Ex. A (Transcript

of Deposition of Mauricio Baez Romero dated September 17, 2013 ("P1. Dep.") at 190:12-13.

Between Baez's absence on Workers' Compensation leave and the absence of others who

were involved in the grievance process, the Union did not take immediate action to investigate

Plaintiffs grievances. On August 5, 2011, Garcia and Jack Ruggiero, a business agent and

member of the Union's Executive Board, met with Plaintiff regarding his grievances. Defs.'

56.1 Statement ¶J 46, 50-52; P1. Dep. at 172:2-12, 177:13-16. At the meeting, Garcia and

Ruggiero said that it would take several weeks to schedule a "Step 2" meeting. Defs.' 56.1

Statement ¶ 54; P1. Dep. at 173:11-22.

On or around August 15, 2011, Dawodu returned from vacation. Defs.' 56.1 Statement ¶

34; P1. Dep. at 201:25-202:3. Baez decided to leave work because he did not want to be near

Dawodu, even though another supervisor had offered him work on another floor. Defs.' 56.1

Statement ¶J 36-37; P1. Dep. at 202:4-203:14, 448:16-22. Before leaving work, Baez filed

another grievance, Defs.' 56.1 Statement ¶ 42, Kane Decl., Ex. F, and told a supervisor that he

was not coming back due to the unsafe and hostile working environment. .Defs.' 56.1 Statement

¶J 36-37; P1. Dep. at 90:17-20; Am. Compi. IT 85-86. Garcia advised Baez to call in sick every

day that he was not reporting to work. Defs.' 56.1 Statement ¶J 21, 40-41; P1. Dep. at 210:18212:2; Kane Decl., Ex. B (Transcript of Deposition of Ignacio Garcia dated March 18, 2014

("Garcia Dep.") at 118:22-119:11, 168:19-169:8. Baez did not report to work on August 16 and

17, nor did he call in sick or otherwise communicate with his supervisors. Defs.' 56.1 Statement

3

416

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 4 of 16

¶ 43; P1. Dep. at 214:20-24. Baez's only communication with the Company during this time was

with a DHL Human Resources representative. Defs.' 56.1 Statement ¶ 43; P1. Dep. at 214:20-24.

Baez was terminated on August 18, 2015 for unauthorized failure to report to work for

three consecutive days. Defs.' 56.1 Statement ¶ 11; Broderick Dec!., Ex. H. Baez promptly flied

a grievance for "unjust termination," stating that he had left work because he could not work

with Dawodu and that he had asked another supervisor to call him "when [Montecalvo] and

Human Resources were ready to address [his] case." Defs.' 56.1 Statement ¶ 45; Broderick

Deci., Ex. I. On or about September 16, 2011, Baez, Garcia and Ruggiero attended a "Step 2"

grievance meeting with a DHL Labor Relations Officer and Montecalvo, during which DHL

denied Baez's grievances and upheld its termination decision. Defs.' 56.1 Statement ¶ 56;

Broderick Deci., Ex. I. After the Step 2 meeting, Baez filed an NLRB complaint against the

Union for breaching its duty of fair representation; that complaint was subsequently withdrawn

after an NLRB field attorney convinced Baez that the Union's decision to proceed with

arbitration demonstrated that the Union was acting in good faith. Am. Compi. ¶IJ 98-99, Exs. W,

Y; Defs.' 56.1 Statement ¶ 114; Kane Dccl., Ex. 1;

The arbitration occurred on November 18, 2011. Defs.' 56.1 Statement ¶J 13-14. During

the arbitration, counsel for the Union focused on Baez's termination, rather than his earlier

grievances against Montecalvo and Dawodu. P1. Dep. at 96:23-97:10; Garcia Dep. at 258:13262:10. Baez testified at the arbitration, however, and discussed his first grievance. P1. Dep. at

166:7-24. With respect to Plaintiff's unfair termination claim, counsel for the Union argued that

because Baez had been in contact with Human Resources on August 15, 16 and 17th, he was not

a "no call no show" employee. Garcia Dep. at 358:14-24. Counsel also questioned two

supervisors as to whether Baez's August 15, 2011 departure was unauthorized, Garcia Dep. at

292:7-294:25; Am. Compi. ¶J 146-47, but the Union did not call Montecalvo, Dawodu, Garcia

4

All

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 5 of 16

or Gabrielli to testify. Defs.' 56.1 Statement ¶J 66-71; Am. Compi. ¶ 114. DHL showed a

portion of the video of the August 2, 2011 argument between Baez and Dawodu, and counsel for

the Union did not object or request that the entire video be shown. Garcia Dep. at 211:23-213:9.

Counsel for the Union also chose not to present a note from Baez's doctor indicating that his

mental health had suffered as a result of his termination. Am. Compi. ¶ 115; Kane Decl., Ex. N.

The arbitrator upheld Baez's termination. Defs.' 56.1 Statement ¶ 17; Broderick Decl., Ex. J.

On or around January 30, 2012, Baez filed a second NLRB complaint against the Union

for breach of its duty of fair representation. Kane Decl., Exs. I, J. On April 20, 2012, the NLRB

Regional Director dismissed Baez's complaint. Kane Decl., Ex. K. Baez appealed that decision

to the NLRB Office of Appeals; his appeal was dismissed on July 23, 2012. Kane Decl., Ex. L.

Baez also filed a discrimination complaint with the New York State Workers' Compensation

Board, alleging "retaliation for filing work-related injury, hostile environment and wrongful

discharge." Am. Compi. ¶ 12; Broderick Decl., Ex. L. at ECF p. 2.

Plaintiff initiated this litigation on March 15, 2012. DHL promptly moved to affirm the

arbitration award. Dkts. 16-18. Judge Kaplan, to whom this case was previously assigned,

granted DHL's motion, Dkt. 73, and then affirmed that decision over Plaintiff's objection. Dkt.

77.

DISCUSSION

Summary judgment is appropriate when "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A material fact is

one that would 'affect the outcome of the suit under the governing law,' and a dispute about a

genuine issue of material fact occurs if the evidence is such that 'a reasonable [factfinder] could

return a verdict for the nonmoving party." Sista v. CDC Ixis N Am., Inc., 445 F.3d 161, 169 (2d

5

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 6 of 16

Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Thus, "[w]here

the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,

there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 586-87 (1986) (internal

quotation marks omitted)).

The moving party bears the burden of showing that it is entitled to summary judgment,

Huminski v. Corsones, 396 F.3d 53. 69 (2d Cir. 2004) (citing Castro v. United States, 34 F.3d

106, 112 (2d Cir. 1994)), and courts must therefore "construe the evidence in the light most

favorable to the non-moving party and.

. .

draw all reasonable inferences in [the non-movant's]

favor." Huminski, 396 F.3d at 69 (citing World Trade Ctr. Props., L.L. C. v. Hartford Fire Ins.

Co., 345 F.3d 154, 166 (2d Cir. 2003)). Because Plaintiff, the non-movant, is proceedingpro Se,

the Court grants him "special latitude," Salahuddin v. Coughlin, 999 F. Supp. 526, 535

(S.D.N.Y. 1998), and reads his pleadings and briefs "liberally," so as to "raise the strongest

arguments they suggest." Zdorenko v. Meow Inc., No. 12 CIV. 671 (KBF), 2013 WL 3528587,

at *2 (S.D.N.Y. July 11, 2013) (quoting Bertin v. United States. 478 F.3d 489, 491 (2d Cir.

2007)).

To overcome a motion for summary judgment, however, Plaintiff "may not rely on mere

conclusory allegations nor speculation, but instead must offer some hard evidence showing that

[his] version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145,

149 (2d Cir. 1998). See also Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) ("mere

conclusory allegations or denials in legal memoranda or oral argument are not evidence and

cannot by themselves create a genuine issue of material fact where none would otherwise exist.")

(internal quotations and citation omitted). This rule applies with equal force to counseled and

prose litigants alike. Saldana v. Local 32B-32JServ. Emps. Int'l Union, No. 03 CIV.1853

6

61C

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 7 of 16

(DF), 2005 WL 66895, at *2 (S.D.N.Y. Jan. 12, 2005) ("Even apro se plaintiff [] cannot

withstand a motion for summary judgment by relying merely on the allegations of a

complaint."). See also Carey v. Crescenzi, 923 .F.2d 18,21 (2d Cir. 1991) (apro se party's "bald

assertion," without evidentiary support, cannot overcome a properly-supported motion for

summary judgment).

I.

DHL is Entitled to Summary Judgment on Plaintiffs Fourth Cause of Action

In his Fourth cause of action, Plaintiff claims that DHL "violated NYS Workers'

Compensation Law Section 120 by retal[iating] against [him] for reporting an on the job injury

and seeking workers' compensation benefits." Am. Compl. ¶ 191. DHL argues that this claim

must be dismissed because Plaintiff's exclusive remedy under New York law is to file a

complaint with the Workers' Compensation Board, which he has already done. See DITIL Mem.

at 4-6. DHL is correct.

Section 120 of the New York Workers' Compensation Law makes it unlawful "for any

employer.

. .

to discharge or in any other manner discriminate against an employee as to his or

her employment because such employee has claimed or attempted to claim compensation from

such employer ......N.Y. Workers' Comp. Law § 120. Employees wishing to report a

violation of Section 120 must file a complaint with the Workers' Compensation Board. Id. This

administrative procedure is the exclusive remedy available to aggrieved employees. See Burlew

v. American Mutual Ins. Co., 63 N.Y.2d 412, 416 (N.Y. 1984) ("[A]ll employer conduct that is

regulated by the Workers' Compensation Law is subject to the protection of that law's

exclusivity; if the employer violates any provision of the code, an employee's remedies cannot

exceed those granted in the statutes.").

Plaintiff initiated a complaint with the Workers' Compensation Board alleging

"retaliation for filing work-related injury, hostile environment and wrongful discharge." See

7

ft ~ .

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 8 of 16

Broderick Deci., Ex. L. Because that proceeding is the sole forum in which Plaintiff can litigate

his claim under Section 120, Plaintiff's Fourth cause of action is dismissed.

II.

DHL's Motion for Summary Judgment as to Plaintiff's Second, Eighth and

Thirteenth Causes of Action is Denied

In his Second, Eighth and Thirteenth causes of action, Plaintiff claims that DHL created a

hostile work environment in violation of federal law (Second cause of action), state law (Eighth

cause of action) and municipal law (Thirteenth cause of action). Am. Compl. ¶J 187, 198, 208.

See also 42 U.S.C. 2000e ci seq. (2); New York State Human Rights Law § 290 ci seq. ("NY

State HRL"); New York City Human Rights Law § 8-101 etseq. ("NY City HRL")

DHL argues, that these claims must be dismissed because Plaintiff has failed "to link the

hostility about which he complains to a particular protected class." DHL Mem. at 6-7.' Title VII

of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual's

"race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. Both the NY State HRL

and NY City HRL expand upon the classes protected under federal law to include, as relevant

here, one's disability status. See N.Y. Exec. Law § 296; N.Y. City Admin. Code § 8-107. DHL

argues that Plaintiff has claimed discrimination solely based on his filing for Workers'

Compensation Benefits, rather than on his membership in a protected class. DHL Reply at 2-3

("Workers' Compensation eligibility is not among the protected classes.")

The Court disagrees. However sparse and inartfully pled, Plaintiff has in fact alleged that

he was subject to a hostile work environment at DHL as a result of his race, national- origin

and—as applicable under the NY State FIRL and NY City HRL—disability. See Am. Compl. ¶J

The Court notes that although DHL's preliminary statement argues that Plaintiffs Second, Eighth and

Thirteenth causes of action should be dismissed, the argument in the body of its brief is limited to Plaintiff's Eighth

and Thirteenth causes of action. See DHL Mem. at 1, 6. Because all three causes of action raise hostile work

environment claims, the Court considers DHL's argument to relate to all three causes of action.

A'd-i

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 9 of 16

44-48, 124, 125. In addition, Plaintiff's Sur-reply Memorandum reiterates Plaintiffs claims

based on his national origin (Dominican) and his disability (allegedly arising from his back

injury). Pl.'s Sur-reply Mem. at 1. While Plaintiffs opposition argument is far from clear,

considering his pro se status, the Court denies DHL's Motion for Partial Summary Judgment on

the limited grounds presented.

A serious question nonetheless remains as to whether a genuine issue of material fact

exists in relation to Plaintiffs hostile work environment claims. The standard for establishing a

hostile work environment under Title VII and the New York State HRL is essentially the same.

See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006) (citation omitted). A

plaintiff must show that the conduct at issue is "severe or pervasive enough to create an

objectively hostile or abusive work environment," and "the victim must also subjectively

perceive that environment to be abusive." Feingold v. New York, 366 F.3d 138, 150 (2d Cir.

2004) (citation omitted). Factors to be considered in determining whether the alleged conduct is

sufficiently severe include "the frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with [the] employee's work performance." Id. (citing Harris v. Forklft

Sys., Inc., 510 U.S. 17, 23 (1993)). In general, "[for racist comments, slurs, and jokes to

constitute a hostile work environment, there must be 'more than a few isolated incidents of racial

enmity." Schwapp v. Town ofAvon, 118 F.3d 106, 110 (2d Cir. 1997) (citation omitted). See

also Kotcher v. Rosa and Sullivan Appliance Cli'., 957 F.2d 59, 62 (2d Cir. 1992) ("The incidents

must be repeated and continuous; isolated acts or occasional episodes will not merit relief.")

(citation omitted).

While a rational fact-finder could conclude that Plaintiff subjectively experienced a

hostile work environment, it is less clear that Plaintiffs claims rise to the level of objective

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 10 of 16

severity necessary to maintain a claim. Plaintiff's allegations suggest that Dawodu's racial slurs

and jokes were more episodic than continuous and were confined to the week-long period

between July 25, 2011, when Plaintiff returned from leave, and August 3. 2011, when Dawodu

left for vacation. Am. Compl. ¶J 44, 45, 48. Plaintiff also alleges that Dawodu physically

threatened him on August 2, 2011, but the evidence suggests that this was an isolated occurrence

that was not necessarily related to Plaintiff's membership in a protected class, and which did not

cause Plaintiff to be fearful. P1. Dep. at 265:2-9. Nonetheless, because DHL did not raise this

argument and give Plaintiff an opportunity to respond, the Court declines to dismiss Plaintiff's

hostile work environment claims sua sponte at this time.

.111.

DHL is Entitled to Summary Judgment on Plaintiff's Fifteenth Cause of Action

Plaintiff's Fifteenth cause of action alleges that, by creating a hostile work environment,

and by subjecting him to discrimination, retaliation, and wrongful termination, DHL breached its

contract with him. Am. Compl. ¶ 212. The only contract mentioned in Plaintiff's Complaint is

the CBA, which Plaintiff alleges is "a contract governing [his] employment relationship with

Defendant DHL." Am. Compl. ¶ 17. Because Plaintiff is not a party to the CBA, DHL argues

that he lacks standing to maintain a breach of contract claim. DHL Mem. at 7-8.

Plaintiff's breach of contract claim based on the CBA is preempted by Section 301 of the

Labor Management Relations Act ("LMRA"). 29 U.S.C. § 185(a). See Avedisian v. Quinnipiac

Univ., 387 Fed. Appx. 59, 62-63 (2d Cir. 2010). "[W]hen resolution of a state-law claim is

substantially dependent upon analysis of the terms of an agreement made between the parties in a

labor contract, that claim must either be treated as a § 301 claim

. . .

or dismissed as pre-empted

by federal labor-contract law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)

(internal citation omitted). See also Vera v. Saks & Co., 335 F.3d 109, 114 (2d Cir. 2003).

LMRA § 301's preemption applies "even when the plaintiff's complaint makes no reference to

10

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 11 of 16

federal law and appears to plead an adequate state claim." Doyle v. UnitedAirlines, Inc., 914 F.

Supp. 2d 325, 336 (E.D.N.Y. 2012) (citing Livadas v. Bradshaw, 512 U.S. 107, 122 n.16

(1994)).

Nonetheless, Plaintiff could still pursue his claim as a "hybrid" LMRA § 301 claim if he

could show (1) that DHL violated the collective bargaining agreement and (2) that the union

breached its duty of fair representation. Sanozky v. Int'l Assn of Machinists & Aerospace

Workers, 415 F.3d 279, 282 (2d Cir. 2005) (citing DelCostello v. Int'l Bhd. of Teamsters, 462

U.S. 151, 164-65 (1983)). See also McKee v. Transco Products, Inc., 874 F.2d 83, 85-86 (2d

Cir. 1989) (citing Vaca v. Sipes, 386 U.S. 171, 185-86 (1967)). Unionized employees are

typically required to exhaust any grievance or arbitration remedies provided under their

collective bargaining agreement and will generally be bound by the result of those remedies

according to the finality provisions of the agreement. DelCostello, 462 U.S. at 164 (citations

omitted). If, however, the employee can show that the union breached its duty of fair

representation in redressing the grievance, then the employee will not be bound to the contractual

remedies provided under the collective bargaining agreement but instead may bring an action

directly against the employer. DeFrancesco v. Bottalico, No. 10-cv-8193. 2011 WL 6382610, at

*5 (S.D.N.Y. Dec. 16, 2011) (citing Vaca, 386 U.S. at 184-86)).

Although this Court previously confirmed the arbitrator's finding that DHL had just

cause to terminate Plaintiff, the Court did not address at that time Plaintiff's allegations

regarding other ways in which DHL may have violated the CBA. The Court therefore rejects the

Union's argument that "[b]ecause the Court confirmed the arbitration award, [Plaintiff] cannot

demonstrate that the agreement was breached and so his claim must fail." Nevertheless, as

discussed further infra, the Union did not breach its duty of fair representation to Plaintiff, and,

11

Ae~4

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 12 of 16

therefore, to the extent Plaintiff's claim can be construed as a hybrid LMRA § 301 claim, it also

fails. See White v. White Rose Food, 237 F.3d 174, 178-79 (2d Cir. 2001).

DHL Is Entitled to Summary Judgment on Plaintiff's Seventeenth Cause of

Action

Plaintiff's Seventeenth cause of action alleges that DHL violated Section 162 of the New

York Labor Law by "directing [him] to work eight straight hours without meal break after

[Plaintiff's] return to work on July 25, 2011." Am. Compl. 1 216. DHL argues that this claim

fails as a matter of law because there is no private cause of action under Section 162 of the New

York Labor Law. N.Y. Lab. Law § 162. Employer violations of New York Labor Laws are

enforced by the New York Commissioner of Labor pursuant to the administrative procedure

codified at Section 218, N.Y. Lab. Law § 218, and Courts have therefore found that "there is no

private right of action for a violati on of § 162." Cyr v. Berry Plastics Corp., No. 5:11-CV-8 17,

2011 WL 6337713, at *6 (N.D.N.Y. Dec. 19, 2011). See also Browne v. IHOP, No. 05-CV-2602

(DGT), 2005 WL 1889799, at *1 (E.D.N.Y. Aug. 9, 2005) (citing cases). Because Section 162

violations can only be enforced by the Commissioner of Labor, Plaintiff's Seventeenth cause of

action is dismissed.

The Union is Entitled to Summary Judgment on Plaintiffs Sixteenth Cause of

Action for the Union's Breach of Its Duty of Fair Representation

The duty of fair representation serves as a "bulwark to prevent arbitrary union conduct

against individuals stripped of traditional forms of redress by the provisions of federal labor

law." Vaca, 386 U.S. at 182. While the duty arises from the need to balance the broad powers

granted to unions under national labor policy, it is inherently limited in scope. See Breininger v.

Sheet Metal Workers Int'l Assn Local Union No. 6, 493 U.S. 67, 87 (1989) (citing NLRB v.

Allis-Chalmers Mfg. Co., 388 U.S. 175, 181 (1967)). Accordingly, courts show considerable

deference in reviewing a union's representation. Air Line Pilots Ass 'n v. O'Neill, 499 U.S. 65,

12

pc

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 13 of 16

78 (1991). See also Vaca. 386 U.S. at 191-93 (union representatives have substantial discretion

to determine whether and how to process grievances). A breach of the duty of fair representation

will only be found wherethe union has acted in a manner that is "arbitrary, discriminatory, or in

bad faith." Vaughn v. Air Line Pilots Ass 'n, Intl., 604 F.3d 703, 709 (2d Cir. 2010).

"Negligence, poor judgment, or ineptitude on the part of union officials in representing a

grievant is not actionable." DeFrancesco, 2011 WL 6382610, at *5 (citing Barr v. United

Parcel Serv., Inc., 868 F.2d 36, 43-44 (2d Cir. 1989)).

A. The Union's Conduct Was Not Arbitrary

A union's actions are arbitrary only if "in light of the factual and legal landscape at the

time of the union's actions, the union's behavior is so far outside a 'wide range of

reasonableness,'

...

as to be irrational." Spellacy i'. Airline Pilots Association—InternationaL 156

F.3d 120, 129 (2d Cir. 1998) (citing O'Neill, 499 U.S. at 67). A union's decision whether to

arbitrate a particular grievance is "discretionary," Vaughn v. Am. Tel. & Tel. Co., 92 F.App'x 21,

23 (2d Cir. 2004), and the union's "good faith, non-arbitrary failure to take an action that [was]

unlikely to be advantageous does not subject it to liability for breach of its duty of fair

representation." Barr, 868 F.2d at 44 (2d Cir. 1989).

Although many of Plaintiff's arguments are unclear or internally inconsistent, the Court

reads his Amended Complaint and briefs to suggest that the Union acted arbitrarily by (1) failing

timely to investigate or arbitrate his non-termination grievances and (2) processing and

arbitrating his wrongful termination grievance in a "perfunctory" and irrational manner. See

Pl.'s Opp. Mem. at 2-3,6, 8, 13-16, 19-20, 30-31. With respect to his non-termination

grievances, the Court finds that the evidentiary record undermines Plaintiff's account of the

events. See e.g., Baez Decl., Ex. F at ECF. p. 3-4 (report from Human Resources representative

concluding that eyewitness accounts and other evidence of the incidents substantially refuted

13

Case 1:12-cv-01942-VEC-RLE Document 166 Piled 03/24/15 Page 14 of 16

Plaintiff's claims). Therefore, it was not irrational for the Union to focus on Plaintiff's wrongful

termination claim (which was his most significant claim), rather than his other grievances. Also,

although the Union could have taken steps to begin investigating Plaintiff's June 2, 2011

grievance while he was on Workers' Compensation leave, the Union's failure to do so does not

mean it breached its duty of fair representation, particularly where, as here, there has been no

allegation that DHL denied any of Plaintiff's grievances on untimeliness grounds.

With respect to the manner in which the Union argued Plaintiff's wrongful termination

claim at arbitration, the Union's tactical decisions in presenting certain witnesses, evidence and

arguments over others were not irrational. Indeed, reasonable minds could find that the Union

acted wisely in not presenting Montecalvo, Dawodu, Garcia or Gabelli as witnesses, because

none of them appears to have supported Plaintiff's view that his termination was unjustified. See

Pl.'s Opp. Mem. at 19; Union Mem. at 15-16. Likewise, the Union's decision not to present at

arbitration: (1) Plaintiff's police report, which was contradicted by his own prior statements; (2)

the complete video footage of his August 2, 2011 exchange with Dawodu, which may have cast

him in a negative light, and (3) a medical note discussing his mental health issues cannot be aid

to be irrational. Finally, the Court finds that the Union acted reasonably in deciding not to argue

that Plaintiff's August 15, 2011 departure should have been treated as a standard work "absence"

rather than an "unauthorized failure to report to work." Pl.'s Opp. Mem. at 27-32. Apart from

Plaintiff's bald assertion that "[a]ctive employees do not need authorization to fail to report to

work, nor do they need to check if work is available for them that day," id. at 30, there is no

evidence to support his interpretation of the CBA.

Moreover, even if the Union's strategic choices about how to proceed in arbitration were

flawed, they are not actionable. See Barr, 868 F.2d at 43 ("Tactical errors are insufficient to

show a breach of the duty of fair representation; even negligence on the union's part does not

14

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 15 of 16

give rise to a breach."). This is particularly true where, as here, Plaintiff had the opportunity to

testify on his own behalf during the arbitration. See Santiago v. Nat'l Cleaning Contractors, No.

88 CIV. 1172 (CSH), 1992 WL 168258, at *6 (S.D.N.Y. June 29, 1992) ("Where an employee

has had a chance to present his case, despite union lapses in representation, courts have granted

summary judgment dismissing fair representation claims.") (citing Phillips v. Lenox Hill Hosp.,

673 F. Supp. 1207, 1215 (S.D.N.Y. 1987)).

B. There is No Evidence Showing that the Union Acted in a Discriminatory Manner

or in Bad Faith

"A union's acts are discriminatory when 'substantial evidence' indicates that it engaged

in discrimination that was 'intentional, severe, and unrelated to legitimate union objectives."

Vaughn, 604 F.3d at 709 (quoting Amalgamated Ass 'n of St., Elec. Ry. & Motor Coach Emps. of

Am. v. Lockridge, 403 U.S. 274, 301 (1971)). A union official acts in bad faith when he acts

with an "improper intent, purpose, or motive." Spellacy, 156 F.3d at 126. Plaintiff alleges that

the Union acted in bad faith or with a discriminatory intent towards him because: (1) the Union

had a history of corruption, Pl.'s Opp. Mem. at 7; (2) Ruggiero was hostile towards Plaintiff

during the Step 2 meeting, id. at 2; (3) Garcia wanted to maintain an "advantageous relationship"

with Montecalvo and Dawodu, id. at 2; (4) Garcia's feelings had soured toward Plaintiff as the

result of a debt, id. at 20-22; and (5) during the arbitration, the Union colluded with DHL and the

arbitrator in a "crafty legal scheme" in order to evade legal review. Id. at 10. Apart from these

wholly unsupported allegations, there is simply no potentially admissible evidence that the Union

acted in bad faith or in a discriminatory manner towards Baez in processing and arbitrating his

claim.

The evidence presented demonstrates that, far from being hostile or acting from ill-will,

Garcia actively tried to help Baez keep his job by encouraging him to call in sick rather than

15

18

Case 1:12-cv-01942-VEC-RLE Document 166 Filed 03/24/15 Page 16 of 16

simply not reporting to work after August 15, 2011. P1. Dep. at 87:11-88:4, 210:18- 212:2;

Garcia Dep. at 118:22-119:11, 168:19-169:8. Plaintiff also admitted that Garcia had never

discriminated against him and was "well-intentioned" in trying to help Plaintiff keep his job. P1.

Dep. at 255:7-9; 257:22-258:4. The evidence further shows that the Union investigated all of

Baez's grievances and represented him throughout the grievance process. It brought his

wrongful termination claim to arbitration, even though it was not required to do so and had valid

concerns regarding the merits of his case. Kane Deci. Exs. D-F; Broderick Deci. Ex. I. At the

arbitration, the Union presented arguments in Plaintiff's favor, and Plaintiff testified on his own

behalf. Although ultimately unsuccessful, there is no evidence (apart from Plaintiff's bald

assertions) that the Union acted in bad faith or in a manner that was arbitrary or discriminatory.

Accordingly, Plaintiff's Sixteenth cause of action for breach of the duty of fair representation

must be dismissed.

CONCLUSION

For the foregoing reasons, the Union's Motion for Summary Judgment is GRANTED,

and DHL's Motions for Partial Summary Judgment is GRANTED in part and DENIED in part.

Plaintiff's Fourth, Fifteenth, Sixteenth and Seventeenth causes of action are dismissed. Because

Plaintiff has no remaining claims against the Union, the Union is dismissed as a Defendant in

this action. The Clerk of Court is respectfully requested to terminate the open motions at docket

numbers 135 and 140.

SO ORDERED.

Date: March 24, 2015

New York, NY

VALERIE CAPRON

United States District Judge

16

~ -d ~

S.D.N.Y.—N.Y.C.

12-cv-1942

Caproni, J.

Ellis, M.J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 5th day of June, two thousand seventeen.

Present:

Jose' A. Cabranes,

Gerard E. Lynch,

Circuit Judges,

Paul G. Gardephe,

District Judge.

Mauricio Baez Romero,

Plaintiff-Appellant,

16-2045

V.

DIlL Express (USA), Inc., Local 295 I.B.T.,

Defendants-Appellees,

Jide Dawodu, John Montecalvo,

Defendants.

Appellant, pro Se, moves for leave to proceed in forma pauperis. Upon due consideration, it is

hereby ORDERED that the motion is DENTED and the appeal is DISMISSED because it "lacks an

arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also 28

U.S.C. § 1915(e).

FOR TilE COURT:

Catherine O'Hagan Wolfe, Clerk

!S~

E~

TND~,

fc

* Judge Paul G. Gardephe, of the United States District Court for the Southern District of New

York, sitting by designation.