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September 26, 1994

NEW YORK STATE ELECTRIC & GAS, et al., Defendants.

The opinion of the court was delivered by: CAROL E. HECKMAN

 This case has been referred to the undersigned by Hon. Richard J. Arcara to hear and report on dispositive motions, pursuant to 28 U.S.C. § 636(b)(1)(B). Defendants have filed motions to dismiss and/or for summary judgment. For the following reasons, it is recommended that defendants' motions be granted, and the case dismissed.


 As set forth in the district court's decision and order dated February 24, 1994 (Item 7), plaintiff filed two separate pro se actions in October, 1991 while he was incarcerated at Wende Correctional Facility. Both actions related to his June 16, 1988 termination from employment at the Somerset plant of the New York State Electric and Gas Corporation ("NYSEG") in Barker, New York. On December 9, 1991, the district court consolidated the two actions under the above captioned title and civil docket number, granted plaintiff's request to proceed in forma pauperis, and dismissed the consolidated action with leave to replead in accordance with Rule 8(a) of the Federal Rules of Civil Procedure (Item 4; see also 91-CV-689A, Item 3 (consolidation order)).

 In its February 24, 1994 decision and order, the district court denied class certification. It further stated that, while plaintiff had failed to submit proof of filing an administrative complaint as required under Title VII, such failure was not a jurisdictional bar to this action. Finally, the district court refused to dismiss plaintiff's claim against the union.

 The material facts of the case are not in dispute. At the time of his termination from NYSEG in June, 1988, plaintiff was incarcerated in county jail on charges of burglary, attempted rape and sodomy. Upon posting bail, he was reinstated by NYSEG but suspended from employment indefinitely pending disposition of the criminal charges against him. (Bystrak Aff., Item 14, P 7). He filed a grievance with IBEW on July 11, 1988 (Id., Ex. A).

 By letter dated October 17, 1988, IBEW president Stanley Bystrak notified NYSEG that the union wished to proceed to arbitration since no agreement could be reached on plaintiff's grievance (Id., Ex. B). However, by letter dated November 6, 1988, IBEW notified NYSEG that it was withdrawing the grievance because it had received information that, on October 26, 1988, plaintiff had pleaded guilty to the criminal charges against him and had been sentenced to a minimum term of 8 1/2 years in prison (Id., Ex. C). By letter dated November 8, 1988, Somerset station manager Charles Sjoberg notified plaintiff that NYSEG had been informed of plaintiff's guilty plea and incarceration, and was therefore terminating his employment (Id., Ex. D).

 On September 1, 1989, plaintiff filed an unfair labor practice charge against IBEW with the National Labor Relations Board ("NLRB"), pursuant to § 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(A) (Id., Ex. E). By letter dated October 24, 1989, the NLRB notified plaintiff that it would not issue a complaint against IBEW for unfair representation because the union processed his grievance until it was notified of his incarceration, and there was no evidence of discrimination or disparate treatment (Id., Ex. F). On December 4, 1989, plaintiff's appeal was denied by the NLRB Office of Appeals (Id., Ex. G).

 NYSEG and IBEW move for summary judgment dismissing the Title VII claim for failure to file an administrative complaint, and dismissing the claim under 42 U.S.C. § 1981 for failure to state a claim and failure to comply with the three-year statute of limitations. IBEW also moves for summary judgment dismissing the breach of duty of fair representation claim for failure to state a claim and failure to comply with the six-month statute of limitations.


 I. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166 67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, U.S. , 112 S. Ct. 152 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the non-moving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. Ann Taylor, Inc., supra, 933 F.2d at 167.

 II. Title VII.

 42 U.S.C. § 2000e-2(a) provides, in relevant part:

It shall be an unlawful employment practice for ...

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