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SEROW v. REDCO FOODS

February 19, 2002

STEPHEN B. SEROW, PLAINTIFF,
V.
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

I. INTRODUCTION

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.
II. FACTS

The following are the facts in the light most favorable to the non-moving plaintiff.

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 Redco.
III. DISCUSSION
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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