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BATORSKY v. SHEEDY

June 4, 1998

VICTOR BATORSKY, Plaintiff,
v.
JAMES J. SHEEDY, Individually and as President of the Public Employees Federation; PATRICIA J. FORD, Individually and as Secretary-Treasurer of the Public Employees Federation; DENNIS A. BEAGLE, Individually and as Chair of the Committee on Ethics and Responsibility of the Public Employees Federation; DOUGLAS MONINGTON, Individually and as Chair of the Committee on Ethics and Responsibility of the Public Employees Federation; BESSIE FLOURNOY, MICHAEL HARRIGAN, THOMAS McCABE, DANIEL McHUGH, ALICE PETERS, MARY SAGATIS and VIRGINIA WARNER, as Members of the Committee on Ethics and Responsibility of the Public Employees Federation; WAYNE E. FUHRMAN, Individually and as Chair of the Ethics Hearing Panel of the Public Employees Federation; CHERYL J. STANFORD-SMITH; and the PUBLIC EMPLOYEES FEDERATION, Defendants.



The opinion of the court was delivered by: SCULLIN

MEMORANDUM-DECISION AND ORDER

 Introduction

 Plaintiff, Victor Batorsky, brings this action alleging that the Defendants *fn1" interfered with his right to sue and disciplined him without providing him due process in violation of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411(a)(4) and (a)(5). Defendants James Sheedy and Patricia Ford assert a counterclaim for breach of fiduciary duty, seeking to recover union funds from the Plaintiff pursuant to LMRDA, 29 U.S.C. § 501(a).

 Presently before the Court are the following motions: (1) the Defendants' motion for summary judgment on the entire Complaint and on their counterclaim; and (2) the Plaintiff's cross-motion for partial summary judgment on the Complaint and the counterclaim. *fn2"

 Background

 On February 16, 1993, while serving as an elected Shop Steward and Division Council Leader for Division 234 of the Public Employees Federation, AFL-CIO ("PEF"), *fn3" the Plaintiff decided to participate in a lawsuit brought against the state seeking to have long-term provisional appointments to state jobs terminated because such appointments were contrary to state law ("Schulz lawsuit"). *fn4" While the PEF was not a party to the lawsuit, many of the appointments were held by PEF members, some of whom were Division 234 members.

 On February 18, 1993, at a regular Division 234 Council meeting which the Plaintiff chaired as Division Council Leader, a majority of the stewards agreed to support the Plaintiff's participation in the Schulz lawsuit and further agreed to authorize the use of $ 300.00 of Division funds toward expenses. *fn5" Given this authorization, the Plaintiff, as Division Leader, then co-signed a check in the amount of $ 245.00 for such costs. *fn6"

 On March 16, 1993, Defendant Cheryl Stanford-Smith, a PEF and Division 234 member, filed a grievance against the Plaintiff alleging ethical violations. In particular, she alleged that the Plaintiff violated the Ethics Code by discussing the Schulz lawsuit at the Division Council meeting, participating in the lawsuit, and co-signing a check to use union funds to finance the lawsuit. (See Stanford-Smith Aff. Ex. B.) On August 18, 1993, the Plaintiff and Defendant Stanford-Smith appeared before the Ethics Committee, and on November 9, 1993, the Ethics Committee decided to sustain all charges. In accordance with the PEF's Revised Ethics Code, the grievance was then referred to a Hearing Panel. *fn7" In February 1995, the Hearing Panel discussed the grievance and determined that: (1) the Plaintiff did not violate any ethics provision by merely discussing the Schulz lawsuit; (2) the Plaintiff did violate the Ethics Code by participating in a lawsuit which requested the dismissal of PEF members; and (3) the Plaintiff did violate the Ethics Code by voting for the use of union funds and co-signing a check to use such money to finance the lawsuit. (See Fuhrman Aff. Exs. A & C.) For these violations, the Plaintiff received a Letter of Reprimand. (See Fuhrman Aff. Ex. C.) The PEF Executive Board affirmed the Hearing Panel's decision.

 Plaintiff commenced this action alleging two violations of the LMRDA. First, the Plaintiff asserts that the Defendants interfered with his right to sue in violation of 29 U.S.C. § 411(a)(4). Second, the Plaintiff claims that he was denied the due process guaranteed to union members under 29 U.S.C. § 411(a)(5). Defendants Sheedy and Ford, as PEF President and Secretary-Treasurer respectively, assert a counterclaim against the Plaintiff in order to recover the $ 245.00.

 Discussion

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence submitted in a light most favorable to the non-moving party, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). A genuine issue of fact is one that could be decided in favor of either party. See Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where, as here, the Court is faced with cross-motions for summary judgment, the court is not obligated to grant either motion. Instead, each motion must be evaluated on its own merit. See Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).

 In their motion for summary judgment, the Defendants seek the dismissal of the Plaintiff's LMRDA claims on the following grounds: (1) that the Plaintiff was disciplined for improper use of union funds, not for participating in the lawsuit; and (2) that the Plaintiff received a full and fair hearing before being disciplined. The Court will address each of these arguments in turn.

 I. § 411(a)(4): The Right to Sue

 Plaintiff argues that the Defendants disciplined him for participating in the Schulz lawsuit because they believed that the relief sought in the lawsuit was ...


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