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HOGAN v. 50 SUTTON PLACE SOUTH OWNERS

March 29, 1996

WILLIAM J. HOGAN, Plaintiff, against 50 SUTTON PLACE SOUTH OWNERS, INC., GUMLEY-HAFT, INC., MANNING RAAB, DEALY & STURM, OFFICE OF THE CONTRACT ARBITRATOR, REALTY ADVISORY BOARD, UNION LOCAL 32B-32J, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff William J. Hogan ("Hogan") alleges in the Amended Complaint that he was wrongfully discharged from his position as a doorman at 50 Sutton Place South, (Amended Complaint PP 29, 40), in violation of §§ 703 and 704(2) of the New York Labor Law and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq. The Amended Complaint also alleges that his union, Local 32B-32J of the Service Employees International Union (the "Union"), breached its duty of fair representation in handling Hogan's arbitration regarding his termination, and seeks vacatur of the arbitrator's award upholding his discharge. The Complaint names as defendants the Union, his former employer, the Union's law firm, and others involved in the arbitration process. While the Amended Complaint asserts all claims against all defendants in general, defendants contend and Hogan does not dispute that each claim should apply only to certain defendants.

 Hogan now moves for summary judgment. All defendants cross-move for summary judgment. For the reasons set forth below, Hogan's motion is denied and the defendants' cross-motions are granted.

 I.

 Based upon all the papers, there is no genuine issue with respect to the following facts. Hogan was suspended from his position as a doorman on June 7, 1991, allegedly as a result of excessive absenteeism. (Galligan Aff. P 10). Subsequently Hogan filed a complaint with the Union. The Union then contacted Gumley-Haft, Inc., the company that managed the property at 50 Sutton Place South, and requested an adjustment of Hogan's discipline. Gumley-Haft refused to adjust the complaint. As a result, in June, 1991, the Union, on Hogan's behalf, requested an arbitration to determine the propriety of Hogan's suspension. (Galligan Aff. P 10).

 On October 21, 1991, Gumley-Haft terminated Hogan allegedly because of his poor attendance record. (Amended Complaint P 29). Shortly thereafter, Hogan filed a second complaint with the Union alleging that he was the victim of discrimination based on his race and religion and that the defendants blacklisted him in a conspiracy to terminate his employment. (Galligan Aff. P 11); (Amended Complaint PP 43-47); (Amended Complaint, Section II, PP 1-13). Although the Union sought to have Hogan reinstated, Gumley-Haft refused. In response, the Union sent Gumley-Haft a demand for an arbitration on October 29, 1991 in accordance with the Collective Bargaining Agreement between the Union and the plaintiff's employer. Step II grievance meetings were held on March 4, 1992 and May 21, 1992 pursuant to the Collective Bargaining Agreement. (Galligan Aff. P 14). The meetings did not result in a settlement between the Union and Gumley-Haft.

 The Union then arranged for Paul Galligan ("Galligan") to represent Hogan at the arbitration. (Galligan Aff. P 16). Galligan is an attorney with Manning, Raab, Dealy & Sturm, a law firm employed by the Union. Galligan met with Hogan before the arbitration and discussed his poor attendance record and Hogan's "blacklist" and conspiracy theories. During this meeting, Galligan informed Hogan that he felt it was best only to assert that he was wrongfully terminated for his attendance record because he had bona fide excuses for his absences. (Galligan Aff. P 17). Galligan suggested that Hogan should not present his conspiracy or blacklist theories because the best chance of prevailing in the arbitration would be to establish that Hogan's poor attendance record had been the result of a series of bona fide physical ailments together with severe family problems. (Galligan Aff. P 17).

 At the arbitration held in March, 1994, Galligan presented evidence that Hogan's absences were approved by his supervisor and were justified by bona fide reasons, including physical illness and severe family problems. (Galligan Aff. P 19). Galligan cross-examined Gumley-Haft's witnesses during the arbitration. (Galligan Aff. P 18). In addition, during Hogan's cross-examination he asserted that he was the victim of a conspiracy. (Galligan Aff. P 19).

 On March 28, 1994, the arbitrator rejected the Union's grievance and upheld Gumley-Haft's suspension and discharge of Hogan. (Galligan Aff. P 20); (Amended Complaint, Opening Statement, P 6(d)).

 II.

 Summary judgment is appropriate if in light of the evidence presented, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If no rational juror could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. Id.

 If the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not rest upon the mere allegations or denials of the moving party's pleadings. Anderson, 477 U.S. at 248-49. Speculative and conclusory allegations are insufficient to meet this burden. Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Moreover, if the material fact at issue is intent, motivation and state of mind, summary judgment should be used sparingly. Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). A plaintiff, however, must set forth facts from which a reasonable juror could find in his favor.

 In addition, because Hogan is proceeding pro se, the court will liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); ...


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