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SEROW v. REDCO FOODS
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.
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 ...
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