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SMITH v. LOCAL UNION 28 SHEET METAL WORKERS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


February 22, 1995

WAYNE SMITH, Plaintiff, against LOCAL UNION 28 SHEET METAL WORKERS, ART MOORE, President, JOSEPH CASEY, Recording Secretary, MURRAY LIEBOWITZ, Administrator, CHRISTINE RATLIFF, Administrator, C.W. SHEET METAL COMPANY, LOCAL UNION 28 JOINT APPRENTICESHIP COMMITTEE, Defendants.

The opinion of the court was delivered by: JOHN E. SPRIZZO

MEMORANDUM OPINION AND ORDER

 SPRIZZO, D.J.,

 Plaintiff Wayne Smith, acting pro se,1 brings the instant action against Sheet Metal Workers' Local Union No. 28 ("Local 28"), the Local Union 28 Joint Apprenticeship Committee (the "JAC"), Joseph Casey, Murray Liebowitz, Arthur Moore, Christine Ratliff and CW Sheet Metal Company, Inc. (collectively "defendants"). *fn2" In this action, Smith asserts numerous claims based upon Title VII, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. §§ 1981, 1985 and § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Defendants move for summary judgment on the merits and various procedural grounds. For the reasons that follow, defendants' motions for summary judgment are granted.

 BACKGROUND

 The Sheet Metal & Air Conditioning Contractors Association of New York City, Inc. ("Contractors Association") negotiates collective bargaining agreements with Local 28 on behalf of individual contractors. Affidavit of Barbara Kranis Sworn to January 12, 1993 ("Kranis Aff.") P 2-3. At all times pertinent to this action, defendant Joseph P. Casey was the Recording Secretary of Local 28 and a trustee of the JAC, *fn3" Arthur Moore was the President and Business Manager of Local 28, Christine Ratliff was the Administrator of the Local 28 Welfare Fund, Supplemental Unemployment Benefit Plan and Annuity Fund and defendant Murray Liebowitz was the Administrator of the JAC. Casey Aff. PP 2, 4; Affidavit of Christina Ratliff Sworn to January 12, 1994 ("Ratliff Aff.") P 2; Affidavit of Murray Liebowitz Sworn to January 12, 1994 ("Liebowitz Aff.") P 2.

 In order to become a journeymen member of Local 28, an apprentice must successfully complete a four-year apprenticeship program, which is divided into eight terms of equal length. *fn4" Casey Aff. P 8. The apprentice program is administered by the JAC, which is governed by a Collective Bargaining Agreement (the "CBA") between Local 28, the Contractors Association and SMACNA of Long Island, Inc. Id. P 5. In accordance with the CBA, the program is "under the supervision and control of a joint apprenticeship committee composed of six (6) members, three (3) of whom [are] selected by the Employer, and three (3) selected by the union." Id. P 14, Exh. A, Art. VI, § 1. *fn5" The CBA also provides that the JAC shall formulate rules and regulations governing eligibility, registration, education, transfer, wages, hours and working conditions. Id. P 16, Exh. A, Art. VI, § 1. During the course of the program, apprentices must attend a sheet metal school administered by the JAC, and the JAC refers apprentices to various employers for on the job training. Id. PP 8, 18, Exh. A, Art. VI, § 2. Upon completion of the program, apprentices become journeymen and solicit their own sheet metal work from employers. Id.

 In February 1988, Smith was indentured as an apprentice in the apprenticeship program. The JAC's Statement of Facts Pursuant to Local Rule 3(g) ("JAC Rule 3(g) St.") P 1; Liebowitz Aff. P 4. On or about February 18, 1988, the JAC referred Smith to the New York Sheet Metal Corp. ("NYSM") for on the job training. JAC Rule 3(g) St. P 3; Liebowitz Aff. P 6. During his employment at NYSM, Smith complained to Liebowitz about certain confrontations with a fellow apprentice. Liebowitz Aff. P 6. Although Liebowitz referred the fellow apprentice to another employer, Smith continued to encounter problems at NYSM. JAC Rule 3(g) St. P 3; Liebowitz Aff. P 6. In September 1988, NYSM discharged Smith. JAC Rule 3(g) St. P 3; Liebowitz Aff. P 6.

 In September 1988, the JAC referred Smith to Phoenix Sheet Metal ("Phoenix"). JAC Rule 3(g) St. P 5; Casey Aff. P 44; Liebowitz Aff. P 7. In October 1988, Smith was arrested and incarcerated for a period of two months because he had failed to maintain child support payments. JAC Rule 3(g) St. P 5; Liebowitz Aff. P 7; Deposition of Wayne Smith dated March 5, 1991 ("Smith Dep.") at 59. Upon his release in December 1988, Phoenix denied Smith reinstatement because it "did not have work for him." JAC Rule 3(g) St. P 6; Casey Aff. P 45; Liebowitz Aff. P 7. An employer is fully entitled to terminate an apprentice based upon a lack of work. Local 28 Rule 3(g) St. at 6; Casey Aff. P 45.

 Thereafter, the JAC referred Smith to Penguin Sheet Metal ("Penguin"). JAC Rule 3(g) St. P 8; Casey Aff. P 46; Liebowitz Aff. P 8. In October 1989, Thomas Howard, a principal of Penguin, informed Liebowitz that Smith refused to perform work as directed by the shop foreman and that Smith had quit. JAC Rule 3(g) St. P 9; Liebowitz Aff. at P 9. Thereafter, Liebowitz spoke with Smith, Mr. Howard and the shop foreman in order to further investigate the matter. JAC Rule 3(g) St. P 9; Liebowitz Aff. P 9. By letter dated October 30, 1989, Howard confirmed that Smith refused to work and that he had quit. Liebowitz Aff. P 9, Exh. A. In the end, Liebowitz determined that Smith should be referred to another shop. JAC Rule 3(g) St. P 9; Liebowitz Aff. P 9.

 In November 1989, the JAC referred Smith to CW Sheet Metal ("CWSM"). JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10. In December 1989, Martin Palazzolo, a principal of CWSM, expressed dissatisfaction to Liebowitz concerning Smith's attitude towards other employees. JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10. In response, Smith told Liebowitz that other employees were stealing his tools and otherwise treating him improperly. JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10; Smith Dep. at 95-98. At the request of Liebowitz, a business agent investigated Smith's allegations but determined that they were unfounded. JAC Rule 3(g) St. P 9. Liebowitz Aff. P 10. By letter dated January 12, 1990, Palazzolo expressed continued dissatisfaction with Smith and indicated CWSM's desire to terminate his employment. JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10, Exh. B. Despite these extensive problems, the JAC merely reassigned Smith from the shop to the field. JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10. On or about March 15, 1990, Smith suffered a work-related hand injury which caused him to miss approximately two months of work. JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10; Smith Dep. 92-94. On or about May 10, 1990, CWSM discharged Smith. JAC Rule 3(g) St. P 10; Liebowitz Aff. P 10; Casey Aff. P 55

 In February 1990, Smith applied for unemployment benefits to the Stabilization Agreement of the Sheet Metal Industry (the "SASMI Fund"), a jointly administered management and labor trust fund located in Alexandria, Virginia. Local 28 Rule 3(g) St. at 8; Casey Aff. It 66. The SASMI Fund, an independent entity, receives contributions from participating employers based upon wage rates and hours worked. Local 28 Rule 3(g) St. at 8-9. In his application, Smith sought compensation for his unemployment following his discharge from Penguin. Smith Dep. at 31. By letter dated March 5, 1991, the SASMI trustees initially denied Smith unemployment benefits because he had not worked the required twelve hundred hours. Id. at 72-74. However, by letter dated April 17, 1991, the SASMI trustees denied Smith unemployment benefits based upon their determination that he had quit his job at Penguin. *fn6" Local 28's Memorandum of Law ("Local 28 Mem.") Exh. C; Casey Aff. P 67; Smith Dep. at 33, 71, 73.

 On May 31, 1990, the JAC held a meeting concerning Smith's inability to interact with others and to sustain employment. JAC Rule 3(g) St. P 11; Liebowitz Aff. P 11, Exh. C. At the meeting, Smith, Palazzolo and the JAC discussed the problems between Smith, his fellow apprentices and his various employers. JAC Rule 3(g) St. P 11; Liebowitz Aff. P 11, Exh. C. Based upon its investigation of the matter, the JAC referred Smith to the Members Assistance Program ("MAP"), an apprentice counseling and assistance program provided by the JAC. Second Amended Complaint ("SAC") P 48, Exh. C; JAC Rule 3(g) St. P 11; Liebowitz Aff. P 11. The JAC refers apprentices to MAP in order to deal with both personal and work-related problems. Local 28 Rule 3(g) St. at 7; Liebowitz Aff. P 12. The program, which is provided free of charge, is non-disciplinary in nature and completely confidential. Local 28 Rule 3(g) St. at 7; Liebowitz Aff. P 12.

 In February 1992, notwithstanding the difficulties with his performance noted above, Smith still managed to graduate the eight-term apprenticeship program as scheduled and became a journeyman sheet metal worker. Casey Aff. P 12; Liebowitz Aff. P 5; Smith Dep. at 13.

 DISCUSSION

 In the instant action, because Smith is acting pro se,, the Court must construe his numerous claims liberally and deferentially. See Washington v. New York City Board of Estimate, 709 F.2d 792, 795 n.3 (2d Cir.) (applying deferential standard to discrimination claims), cert. denied, 464 U.S. 1013, 78 L. Ed. 2d 717, 104 S. Ct. 537 (1983). Smith claims that he was not paid the correct amount of wages under the terms of the CBA, that annuity contributions and unemployment benefits were improperly withheld, and that such actions were the result of race discrimination. SAC PP 22, 25. Smith also claims that his termination by CWSM, his continual re-assignments and his referral to MAP were similarly undertaken for discriminatory purposes. Id. PP 40, 52, 53. Moreover, Smith claims that Local 28, Casey and Moore breached their duty of fair representation by failing to adequately address certain grievances. Id. P 18.

 In this case, affording Smith the benefit of the most generous interpretation of the undisputed facts, it is clear that the undisputed evidence does not support any rational inference of racial discrimination and that summary judgment, although often inappropriate in the employment discrimination context, see, e.g., Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1223-24 (2d Cir. 1994), must be granted here.

  I. THE TITLE VII CLAIMS

 In cases of alleged employment discrimination, the central inquiry is whether the employer has treated "some people less favorably than others because of their race, color, religion, sex, or national origin." International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). In order to "sharpen the inquiry into the elusive factual question of intentional discrimination," the Supreme Court has established an order and allocation of proof in Title VII cases alleging discriminatory treatment. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 n.8, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); see also St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2746 (1993). Initially, the plaintiff must establish a prima facie case of racial discrimination, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), which creates a rebuttable presumption of unlawful discrimination. See Burdine, 450 U.S. at 253-55. A plaintiff may establish a prima facie claim by proving that (1) he is a member of a protected class; (2) he satisfactorily performed his duties; (3) defendant provided its employees with certain rights and privileges; and (4) he was denied these privileges. See McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254 n.6; Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 161 (2d Cir.), cert. denied, 502 U.S. 880, 116 L. Ed. 2d 185, 112 S. Ct. 228 (1991).

 If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802-03. Thereafter, the plaintiff must be afforded the opportunity to demonstrate by a preponderance of the evidence that the proffered reasons were a pretext for racial discrimination. Id. at 804. However, the ultimate burden of demonstrating unlawful discrimination remains at all times with the plaintiff. See Burdine, 450 U.S. at 253.

 A. The Apprenticeship Program

 Relying upon his numerous reassignments and referral to MAP, Smith claims that defendants unlawfully prevented him from advancing in the apprenticeship program for discriminatory reasons. SAC PP 40, 51. However, these claims lack any colorable merit. Smith graduated the apprenticeship program as scheduled in February 1992. Liebowitz Aff. P 5 Although Smith advanced only provisionally to the fifth term of his apprenticeship for failing a second-year competency test, any other apprentice would have been treated similarly in similar circumstances. SAC Exh. E., Liebowitz Aff. P 5. Moreover, the JAC has referred many apprentices, both black and white, to MAP for counseling under similar circumstances. Local 28 Rule 3(q) St. at 7; Casey Aff. P 57; Liebowitz Aff. P 12. Therefore, the defendants have established that the JAC afforded Smith the same employment opportunities as any other apprentice during his apprenticeship. Casey Aff. P 11.

 Moreover, Smith has come forward with no evidence permitting any rational inference that he was treated differently, and certainly no evidence that any alleged disparity of treatment flowed from racial discrimination. *fn7"

 B. Payment of Wages The implausibility of Smith's racial discrimination claims is well illustrated by his unsupported claims of wage and benefit discrimination. Smith claims that he was not paid the correct amount of wages under the terms of the CBA, and that such actions were undertaken for discriminatory purposes. SAC P 25. Under the governing CBA, however, an apprentice indentured in February 1988 should have received the following wage scales: Time Period Term Journeyman Rate Percentage Appt. Rate 2/88 - 7/88 1st $ 23.33 x 30% $ 7.00 8/88 - 1/89 2nd $ 23.85 x 35% $ 8.34 2/89 - 7/89 3rd $ 24.32 x 40% $ 9.99 *fn8" 8/89 - 1/90 4th $ 24.87 x 45% $ 11.19 2/90 - 7/90 5th $ 25.32 x 50% $ 12.66 8/90 - 1/91 6th $ 26.16 x 55% $ 14.39 2/91 - 7/91 7th $ 26.71 x 60% $ 16.03 8/91 - 1/92 8th $ 27.16 x 65% $ 19.01

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