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DIMITROPOULOS v. PAINTERS UNION DIST. COUNCIL 9

July 31, 1995

PETER DIMITROPOULOS, Plaintiff, against PAINTERS UNION DISTRICT COUNCIL 9, Defendant.


The opinion of the court was delivered by: DEBORAH A. BATTS

 DEBORAH A. BATTS, United States District Judge:

 I. Introduction

 The Plaintiff, Peter Dimitropoulos ("Plaintiff"), commenced this action against District Council 9 of the International Brotherhood of Painters and Allied Trades ("DC-9" or "Union") pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-2(c)(1), (2) and (3). By Order dated September 27, 1994, Plaintiff's Title VII cause of action was dismissed pursuant to Fed. R. Civ. P. 41. The parties have completed discovery and Defendant now moves for summary judgement on the ADEA claim. For the following reasons, the motion is granted.

 II. Facts

 On July 23, 1991, three months shy of his fifty-sixth birthday, Plaintiff was appointed by DC-9 as a "job steward". At that time, Plaintiff was employed by Newport Painting & Decorating, Inc. ("Newport") as a painter at the Essex House Hotel ("Essex House") pursuant to a contract between Newport and Essex House. On February 28, 1993, Plaintiff was terminated by Newport.

 Plaintiff filed a grievance with DC-9, arguing that other Union painters were not terminated. He further argued that, according to the Collective Bargaining Agreement, the "job steward," should be the last worker laid off. The Union instructed Plaintiff to verify that other Union painters continued to work at the site for Newport. See Pl.'s 3(g) Statement, PP 31-40. While he was standing outside of the Essex House, Plaintiff claims that he observed several Union painters entering the building. See Dimitropoulos Aff., P 5(a). Relying on these representations, DC-9 brought a grievance on Plaintiff's behalf against Newport. See Pl.'s 3(g) Statement, PP 31-40.

 A hearing on the grievance was subsequently held by the Union's Joint Trade Committee. At the hearing, Newport produced evidence showing that it ceased providing services to Essex House on February 28, 1993. As a result, it was forced to terminate all of the Union painters on the job. Newport also produced evidence showing that the painters observed by Plaintiff were employed pursuant to separate contracts between Newport and individual Essex House apartment owners. See Pl.'s 3(g) Statement, PP 31-40.

 The Joint Trade Committee found that since Plaintiff's appointment as "job steward" only applied to work performed under Newport's contract with Essex House, Newport was not required to employ Plaintiff following the termination of that contract. Plaintiff did not appeal this decision. See Pl's 3(g) Statement, PP 31-40.

 On April 13, 1993, Plaintiff was involved in a fight with Gerry Metaxas, a Union member at the Union's offices. Charges filed by Mr. Metaxas against Plaintiff were heard before the Union's Trial Board, which fined Plaintiff $ 4,000 and expelled him from the Union. See Pl.'s 3(g) Statement, PP 66-68, 71-73, 79. Plaintiff appealed the decision of the Trial Board to the International Union, which subsequently affirmed the Board's decision. Plaintiff did not appeal this decision. See Pl.'s 3(g) Statement, PP 83-85.

 On September 28, 1993, Plaintiff commenced the instant action alleging three distinct incidents of age discrimination: (1) DC-9 improperly handled Plaintiff's grievance with Newport because of his age; (2) DC-9 failed to refer Plaintiff to jobs because of his age, and; (3) Plaintiff was fined and expelled from DC-9 because of his age.

 III. Summary Judgment

 Summary judgment is appropriate where the moving party has met its burden of proving through "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, ... that there is no genuine issue as to any material fact..." Fed. R. Civ. P. 56(c); Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). The opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); U.S. v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 1982). In deciding a motion for summary judgment, a court must "'resolve all ambiguities and inferences ... in the light most favorable to the party opposing the motion.'" Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir. 1986) (citations omitted) citing, United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982) (citations omitted). "When no rational jury could find in favor of the ...


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