has not carried his burden of establishing pretext.
(3) Plaintiff's Retaliation Claim Against Zabar's and Saul Zabar
Plaintiff claims that Zabar's and Saul Zabar terminated him in
retaliation for his request for an accommodation, thereby violating
§ 503 of the ADA.*fn6 (Pl.'s Mem. of Law in Opp'n to Zabar Defs.'
Mot. for Summ. Judg. at 18-19.) To state a prima facie case of
retaliation under the ADA, plaintiff must show that: 1) he was engaged in
protected activity; 2) the employer had notice of that activity; 3) he
suffered an adverse employment action; and 4) there existed a causal
connection between the protected activity and the adverse employment
action taken. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155,
159 (2d Cir. 1999).
Viewing the facts in a light most favorable to plaintiff, there is no
evidence to suggest that there was a causal link between Glozman's
request for accommodation and his termination. Glozman himself has
provided at least one competing theory as to why he was terminated. He
suggests that he may have been terminated for asking for a "balloon"
payment or raise in 1996. (Panken Affirm. Exh. D at 337.) Since Glozman
has not adduced evidence sufficient to establish the necessary element of
causality, his retaliation claim must be dismissed. See Sarno, 183 F.3d
(4) Plaintiff's NYHRL Claims Against Zabar's
Once all ADA claims have been dismissed against Zabar's and Saul
Zabar, no federal claims remain with respect to these defendants and the
court has discretion, pursuant to 28 U.S.C. § 1367(c)(3), to decline
to invoke supplemental jurisdiction over any remaining state claims
against them.*fn7 Accordingly, the court dismisses plaintiff's NYHRL
claims against Zabar's and Saul Zabar without prejudice. See, e.g., Ryan
v. Grae & Rybicki, No. 96 CV. 3731, 1996 WL 680256, at *7 (E.D.N.Y. Nov.
13, 1996), aff'd, 135 F.3d 867 (2d Cir. 1998).
(5) Plaintiff's Claim that Local 338 Breached the Duty of Fair
Representation Under the LMRA
Plaintiff alleges that Local 338 breached its duty of fair
representation under § 301 of the LMRA, as amended,
29 U.S.C. § 185, by arbitrarily, discriminatorily, and
in bad faith declining to process his grievance in connection with his
termination at Zabar's. (Am. Cplt. ¶ 29.) Viewing the facts in a
light most favorable to Glozman, it appears that no jury could reasonably
find for him on this issue.
(a) Plaintiff's LMRA Claim Is Time-Barred
Plaintiff's claim that Local 338 breached its duty of fair
representation under the LMRA is time-barred. A plaintiff has six months
from the time his § 301 claim accrues to bring an action. See
DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169-72
(1983). A claim for breach of the duty of fair representation accrues
when the plaintiff knew or reasonably should have known that such a
breach had taken place. Cohen v. Flushing Hosp. and Med. Ctr., 68 F.3d 64,
67 (2d Cir. 1995).
Glozman filed this action against Local 338 on December 27, 2000.
Accordingly, the action would be time-barred if he knew or reasonably
should have known before June 27, 2000 that such a breach had occurred.
Glozman was terminated on March 31, 2000.*fn8
Glozman asserts that he attempted to contact Sidney Blumgold, his union
representative, between five to ten times in the three months following
his termination, leaving a message on Blumgold's answering machine each
time, and that not one of these phone calls was returned. (Local 338
Def.'s Rule 56.1 Stmt. ¶ 58.) Assuming the truth of these
assertions, in the exercise of reasonable diligence, plaintiff should
have discovered before June 27, 2000 that Local 338 was not going to
pursue a grievance on his behalf.
Glozman has testified that he believed that Local 338 should have
contacted him following his termination. (Id. at ¶ 60.) However, an
employee must be diligent, at least to the extent of determining the
Union's position on his termination. See, e.g., Cohen, 68 F.3d at 69.
Glozman waited until June 28, 2000 to make a request for arbitration.
(Local 338 Def.'s Rule 56.1 Stmt. ¶ 62.) Accordingly, for three
months, he did nothing, with the exception of making the aforementioned
telephone calls to Blumgold. (Grisi Decl. Exh. C at 174-75.) At numerous
other times and with regard to issues of lesser importance, plaintiff had
contacted the Union to complain or solicit its help. (Local 338 Def.'s
Rule 56.1 Stmt. ¶¶ 13-21.) Plaintiff's course of conduct, as a
result, suggests a lack of diligence on his part. Plaintiff's "own lack
of diligence should not toll the limitations period in [his] favor."
White v. White Rose Food, a Div. of DiGiorgio Corp., 128 F.3d 110, 115
(2d Cir. 1997); see also Cohen, 68 F.3d at 68.
Alternatively, plaintiff and/or the Union did not initiate the
grievance procedure outlined in the collective bargaining agreement. The
applicable section of the collective bargaining agreement states:
A grievance by an employee against an Employer
concerning disciplinary action, must be filed by the
fifteen (15) days after written notice
by the Employer to the employee and to the Union of
such discipline, otherwise the grievance shall be
deemed to be waived. Any grievance other than for
disciplinary action, must be filed in writing by the
employee or the Union to the Employer within nine (9)
months of the first grievable action, otherwise the
grievance shall be deemed to be waived. Employee
underpayment claims and Employer overpayment claims
may not exceed nine (9) months.
(Grisi Decl. Exh. E, Art. 25(e).) Local 338 contends that "disciplinary
action," as used in Article 25(e) of the collective bargaining
agreement, encompasses any employee termination; accordingly, Glozman
and/or the Union had 15 days to grieve his termination, not 9 months as
Glozman alleges. (Local 338 Def.'s Mem. of Law in Supp. of Mot. for
Summ. Judg. at 12-13.) When Glozman and/or the Union failed to do so,
Local 338 argues that Glozman should have known that the Union had no
intention of filing a grievance on his behalf. (Id.) It is well-settled
that a unions s failure to invoke the formal grievance procedure
established in a collective bargaining agreement should put the employee
on notice that the union does not intend to pursue his case further. See
e.g., Cohen, 68 F.3d at 69.
There is sufficient evidence to conclude that Glozman' s termination
was disciplinary in nature. Glozman's termination letter states that he
was terminated for: 1) failing to produce a fit-to-work letter despite
assuring Zabar's that he would, causing him to lose his seniority; and 2)
because he "may very well have abandoned [his] job at Zabar's by working
elsewhere while on medical leave from Zabar's." (Grisi Decl. Exh. H.)
This suggests that Glozman discharge was disciplinary in nature,
punishment for violating the terms of his leave by working elsewhere while
on disability and for failing to comply with assurances he made to
Zabar's. Glozman was not discharged due to downsizing or some
restructuring effort. He clearly bore some responsibility for his
termination as it was triggered by shortcomings on his part.
For these reasons, the court views his termination as disciplinary in
nature, and his failure to file a grievance within the allotted 15-day
period, as a waiver of his grievance. As such, the six-month statute of
limitations began to run from April 15, 2000, and expired on October 15,
2000, time-barring plaintiff's LMRA claims against the Union.
(6) Plaintiff's Claim That Local 338 Violated the ADA
Local 338 argues that the court does not have jurisdiction to hear
plaintiff's ADA claims against the Union because Glozman has failed to
exhaust proceedings before an agency such as the EEOC.*fn9 (Local 338
Def.'s Mem. of Law in Supp. of Mot. for Summ. Judg. at 25.) "It is well
established that a plaintiff must file a charge of discrimination with
the EEOC and obtain a right to sue letter from the EEOC before proceeding
district court [with a Title VII or ADA claim]." Garcia v.
Coca-Cola Bottling Co. of New York, No. 96 Civ. 6072, 1998 WL 151032, at
*2 (S.D.N.Y. Mar. 31, 1998) (Schwartz, J.); see also
42 U.S.C. § 12117(a) (incorporating into the ADA, by reference, Title
VII's enforcement scheme, codified at 42 U.S.C. § 2000e-5(e)(1),
requiring exhaustion of all administrative remedies). A further requisite
to filing suit under the ADA "is that the plaintiff name the defendant in
a charge filed with the EEOC." Mann v. Sunshine Biscuit, No. 97 Civ.
8562, 1998 WL 352534, at *1 (S.D.N.Y. Apr. 23, 1998) (Knapp, J.); see
also 42 U.S.C. § 2000e-5(f)(1); Vital v. Interfaith Med. Ctr.,
168 F.3d 615, 617, 619-20 (2d Cir. 1999), remanded to No. 96CV363FBSMG,
2001 WL 901140 (E.D.N.Y. Jul. 31, 2001) (Block, J.).
In view of these principles, it is clear that plaintiff is barred from
making a claim against Local 338 under the ADA. Glozman never filed a
charge against Local 338 with either the EEOC or any state or local
agency vested with equal authority. (Local 338 Def.'s Rule 56.1 Stmt.
¶¶ 66, 67.) Accordingly, because plaintiff did not exhaust his
administrative remedies with respect to the Union, his claims against the
Union under the ADA must be dismissed.
(7) Plaintiff's NYHRL Claims Against Local 338
As the court has dismissed plaintiff's claims against the Union under
the LMRA and the ADA, no federal claims remain against the Union. The
court, therefore, exercises its discretion to decline to invoke pendent
jurisdiction over Glozman NYHRL claims against the Union.
For the foregoing reasons, Zabar's and Saul Zabar are granted summary
judgment, dismissing plaintiff's ADA claims against them with prejudice
and his NYHRL claims without prejudice. Local 338 is granted summary
judgment, dismissing plaintiff's LMRA and ADA claims against it with
prejudice and his NYHRL claims without prejudice.