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DE LA CRUZ v. MCENTEE

United States District Court, Southern District of New York


May 19, 2003

BERNADINO DE LA CRUZ, PLAINTIFF,
v.
GERALD W. MCENTEE, INTERNATIONAL PRESIDENT, A.F.S.C.M.E., LEE SAUNDERS, ADMINISTRATOR OF D.C. 37, HELEN GREENE, PRESIDENT OF LOCAL 768, DEFENDANTS.

The opinion of the court was delivered by: John S. Martin, Jr., United State District Judge

OPINION AND ORDER

Pro se Plaintiff Bernadino De La Cruz originally brought this action asserting violations of the Americans with Disabilities Act, 42 U.S.C. § 12112-12117 ("ADA"). Defendants are officers of the American Federation of State County and Municipal Employees ("A.F.S.C.M.E."). In an earlier opinion on Defendants' motion to dismiss the Complaint, the Court ruled that since Plaintiff had entered into a settlement agreement with the union, after participating in the EEOC's Alternative Dispute Resolution ("ADR") program, in which he gave up his right to sue on the underlying charges of discrimination, his discrimination claims could not stand. However, the Court ruled that Plaintiff could maintain an action for breach of the settlement agreement.

Now that discovery has been concluded, the Defendants move for summary judgment contending that there is no evidence that they breached the settlement agreement. Plaintiff contends that the Defendants breached the two following provisions of the agreement:

8. In exchange for satisfactory fulfillment by the charging party of the promises made in this agreement, Respondent agrees to:
B. Respondent agrees to expedite Charging Party's previously filed grievance concerning out of title work by Senior Health Advisors. C. Respondent and Charging Party agree to meet and further discuss the possibility of Charging Party's reinstatement to the position of Chairperson of the DC-37 Disability Advisory Committee.
Subparagraph B referred to the claims of three union employees who had filed grievances relating to their being assigned out-of-title work. However, by the time the settlement agreement was signed on February 13, 2001, one of those individuals had retired and another had been transferred to another area and was not doing out-of-title work. Thus, as of the time of the settlement these two grievances were moot. The third individual's grievance became moot in April, 2001 when she ceased to perform out-of-title work. Although Plaintiff suggests that her claim was not expedited, the grievances which had been filed in April of 2000 were fully resolved within six weeks of the settlement agreement. Thus, there is no evidence that Defendants breached this provision of the settlement agreement.

Plaintiff claims that the Defendants breached the settlement agreement and retaliated against him by not restoring him to his prior position. However, the settlement agreement did not obligate the Union to restore Plaintiff to his prior position, the Union's only obligation was "to meet and further discuss the possibility of [Plaintiff's] reinstatement." Plaintiff does not contest the fact that there was such a meeting and does not offer any evidence that would support a finding that the Union did not act in good faith in this regard. Indeed, the affidavit of the union's Assistant General Counsel, who participated in the meeting, indicates that Plaintiff would not engage in reasonable discussion about the issues involved in his reinstatement without advance assurance that he would be reinstated and paid for part of the period during which he was out of the position.

In sum, there is no evidence that the Defendants breached the settlement agreement. Therefore, the Defendants' motion for summary judgment is granted and the complaint is dismissed.

SO ORDERED.

20030519

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