United States District Court, Northern District of New York
February 19, 2002
STEPHEN B. SEROW, PLAINTIFF,
REDCO FOODS, INC.; AND BAKERY, CONFECTIONARY AND TOBACCO WORKER'S UNION, LOCAL 50, DEFENDANTS.
The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION and ORDER
Plaintiff Stephen B. Serow ("Serow" or "plaintiff") commenced this
action pursuant to the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12112 et seq. and the Labor Management Relations Act.*fn1
Plaintiff alleges that the defendants, Redco Foods, Inc. ("Redco") and
Bakery, Confectionary and Tobacco Worker's Union ("Union"), violated the
ADA and the collective bargaining agreement ("CBA") by refusing to grant
his request for the accommodation of being switched to a "day shift" at
his job. The plaintiff also alleges that the Union violated its duty of
fair representation to him.
Redco and the Union have moved for summary judgment pursuant to Fed.
R. Civ. P. 56. Oral argument was heard on
August 10, 2001, in Utica, New
York. Decision was reserved.
The following are the facts in the light most favorable to the
Serow is an employee of Redco, and has been since 1977. Over time, he
became a production machine mechanic ("PMM"), operating and repairing the
machines which produce and package tea products. As a condition of
Serow's employment, he joined the Union in 1977. He was a member of the
bargaining unit covered by the CBA between the Union and Redco.
On February 23, 1998, Serow experienced a heart attack. Prior to his
heart attack, he had worked the third (night) shift as a PMM. After his
return and upon advice from his doctor, Serow asked Redco for the
accommodation of being switched to the first (day) shift at the same wage
rate. Plaintiff's doctor stated that the move to the day shift would
limit his stress, improve his sleep, and assist in blood pressure
control. Redco denied Serow's request. Both the Union and Redco
asserted that granting his request by bumping a more senior PMM to
another shift would violate the seniority provision of the CBA in force
between the Union and Redco; however, Redco did agree to let Serow
attempt to find an employee to switch shifts with him. No employee
agreed to switch with
Serow. Plaintiff filed three grievances with the Union claiming that
Redco was not accommodating his disability. The Union accepted all three
grievances filed with it, but did not pursue the claims.
Serow filed a complaint with the Equal Employment Opportunity
Commission ("EEOC") on January 6, 1999. After plaintiff filed with the
EEOC, Redco and the Union agreed to exhaust all other possibilities
before using him for a first (day) shift. In order to leave the third
(night) shift, plaintiff had to bid for lower paying positions within
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions, and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Lang v.
Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving
party carries the initial burden of demonstrating an absence of a genuine
issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d
Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed
in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Project Release v.
Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met its burden, the non-moving party "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that
point, the non-moving party "must set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby
Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To
withstand a summary judgment motion, evidence must exist upon which a
reasonable jury could return a verdict for the nonmovant. Liberty
Lobby, Inc., 477 U.S. at 248-249; Matsushita Elec. Indus. Co., 475 U.S.
at 587. Thus, summary judgment is proper where there is "little or no
evidence . . . in support of the non-moving party's case." Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994)
B. Defendant Redco
Redco contends that plaintiff's ADA claim should be dismissed on three
grounds. First, Redco claims that Serow cannot make the necessary showing
that he is "disabled" within the meaning of the ADA. See
42 U.S.C. § 12102. Second, that even if Serow was "disabled" he can
not perform the "essential functions" of the job with or without a
reasonable accommodation.*fn2 42 U.S.C. § 12111(8). Third, that the
accommodation requested by plaintiff was per se unreasonable as it would
require Redco and the Union to violate the seniority provisions of the
collective bargaining agreement.
The ADA prohibits discrimination "against a qualified individual with a
disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112(a). A
plaintiff asserting an ADA claim bears the burden of proving that he is a
qualified individual with a disability. See Cleveland v. Policy
Management Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597, 1603 (1999). A
qualified individual with a disability is a person "with a disability
who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires." 42 U.S.C. § 12111(8). The term "disability" means "a
physical or mental impairment that substantially limits one or more major
life activities of such individual." 42 U.S.C. § 12102(2)(A). See
generally, Toyota Motor Mfg., Ky., Inc. v. Williams, ___ U.S. ___, 122
S.Ct. 681 (2002) (discussing "substantially limits"). In determining
whether Serow has a disability for purposes of the ADA, the three-step
approach taken by the Second Circuit in Colwell v. Suffolk County Police
Dep't, 158 F.3d 635, 641 (2d Cir. 1998) must be applied.
Under Colwell, the plaintiff must first show the presence of a physical
or mental impairment. See id. (citing Bragdon v. Abbott, 524 U.S. 624,
631 (1998)). The plaintiff must identify second the activity claimed to
be impaired and establish that it constitutes a "major life activity."
See id. Third, the plaintiff must show that his impairment
"substantially limits" that major life activity. See id. See
generally, Toyota, 122 S.Ct. 681 (discussing "substantially limits").
The Supreme Court in Toyota stated that the existence of a disability is
specific to the individual and should be determined on a case-by-case
basis. Id. at 692.
In this case, it is not disputed that plaintiff has a cardiovascular
disease which is a physical impairment to him. He claims that this
impairment substantially limits him in the major life activities of sleep
and work. Sleep and work are generally accepted as major life
activities. See Colwell, 158 F.3d at 643 (stating that sleeping is a
major life activity); Muller v. Costello, 187 F.3d 298, 312 (2d Cir.
(stating that working is a major life activity). The question,
therefore, is whether the plaintiff's impairment substantially limits him
in the major life activities of sleep and work. "`Substantially' in the
phrase `substantially limits' suggests `considerable' or `to a large
degree,' and thus clearly precludes impairments that interfere in only a
minor way . . ." Toyota, 122 S.Ct. at 691. In Sutton v. United Air
Lines, Inc., 527 U.S. 471, 492 (1999), the Supreme Court stated that a
determination of whether a person is disabled in the area of work should
only be made after it is determined that the person is not disabled in
any other major life activity.*fn3 The Supreme Court also noted that
even assuming that working is a major life activity, a plaintiff is
required to show that he is unable to work in a "broad range of jobs,"
not just a specific job or shift. Id.
Turning first to plaintiff's claim that his impairment substantially
limits his ability to sleep. Plaintiff fails to allege that his
impairment affects his sleep. His complaint states that his "doctor
advised Redco that, as a direct result of [p]laintiff's heart attack,
[p]laintiff should only work on a day shift to limit [p]laintiff's stress
level, improve his sleep, assist in blood pressure control, and provide
better compliance with [p]laintiff's cardiac diet." (Compl. ¶ 14.)
Working the night shift means that plaintiff must sleep during the day.
This causes plaintiff to have trouble sleeping which may affect his blood
pressure. It should be noted that plaintiff does not claim that as a
result of his cardiovascular disease he loses sleep or is unable to sleep
during the day. Instead, he essentially claims that his job affects his
sleep because working the third shift requires him to sleep during the
day. This is inadequate because plaintiff has to show that he has an
impairment which affects his sleep, not merely a job that affects his
sleep. As such, plaintiff has failed to establish that his
cardiovascular disease is a physical impairment which limits him in the
major life activity of sleep.
As to plaintiff's other claim that his impairment substantially limits
his ability to work, he similarly fails to establish this claim as well.
Even viewing the facts in the light most favorable to the plaintiff, it
is not his complaint that he is unable to work. In fact, it is not even
his complaint that he is unable to work the night shift or sleep during
the day. Plaintiff's complaint is that when working the night shift, he
is required to sleep during the day, which he has difficulty doing.
Nowhere does plaintiff claim that he is unable to work a broad range of
jobs. See Sutton, 527 U.S. at 492. He simply claims that it is
difficult for him to work the third (night) shift. Again, plaintiff's
cardiovascular disease does not substantially limit him in the major
life activity of work, as is evidenced by the fact that he has continued
to work since his heart attack. His impairment only affects, if at all,
his ability to work on a certain schedule. As such, plaintiff has failed
to show that he is disabled within the meaning of the ADA.*fn4
C. The Union
The plaintiff claims that the Union breached its duty of fair
representation when it declined to process his grievance and require
Redco to provide him with what he claims was a "reasonable
accommodation." The Union would not arbitrate his grievance against
Redco to place him on the first or second shift at the same wage rate he
received on the third shift. Plaintiff claims this was in violation of
"[A] union breaches the duty of fair representation when its conduct
toward a member of the bargaining unit is arbitrary, discriminatory, or
in bad faith." Marquez v. Screen Actors Guild, 525 U.S. 33, 44 (1998)
(citing Vaca v. Sipes, 386 U.S. 171, 190 (1967)). An employee covered by
a collective bargaining agreement does not have an "absolute" right to
have the Union act on his grievance. Vaca, 386 U.S. at 191. In this
case, the Union claims that it reviewed plaintiff's grievances and
decided they could not be prosecuted. The plaintiff has not set forth
any facts from which to draw an inference that the Union's conduct was
arbitrary, discriminatory, or in bad faith.
Further, as previously discussed, plaintiff's claim is not viable under
the ADA, and he has not demonstrated that he is entitled to any
accommodation that might be provided by it. The Union is not required to
pursue a grievance on behalf of a member to obtain relief to which he is
Viewing the facts most favorable to the plaintiff, the following
conclusions are clear. The plaintiff is not disabled under the ADA
because he is not substantially limited in a major life activity. The
defendants did not violate the collective bargaining agreement. The Union
met its obligation of fair representation to the plaintiff. The
defendants are entitled to summary judgment.
Accordingly, it is
1. Defendant Redco Foods, Inc's motion for summary judgment is GRANTED;
2. Defendant Bakery Confectionary and Tobacco Workers' Union, Local 50's
motion for summary judgment is GRANTED; and
3. The complaint is dismissed in its entirety.
The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.