United States District Court, S.D. New York
July 23, 2004.
THEODORE KAVOWRAS, Plaintiff,
NEW YORK TIMES COMPANY and NEWSPAPER AND MAIL DELIVERERS' UNION, Defendants.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
In this case, plaintiff Theodore Kavowras ("Kavowras") has
asserted a "hybrid" claim, alleging a breach of the duty of fair
representation and a violation of the Labor-Management Relations
Act ("LMRA") § 301, 29 U.S.C. § 185, and pendent state law
discrimination claims under New York State Human Rights Law, N.Y.
Exec. L. § 296(1)(a), and New York City Human Rights Law, N.Y.C.
Admin. Code § 8-108(1)(a). Defendants, the New York Times Company
("the Times") and the Newspaper and Mail Deliverers' Union ("the
Union"), now move for summary judgment. Kavowras cross-moves for
partial summary judgment on his breach of duty of fair
representation claim and for leave to amend his pleadings. This
matter comes before me on remand from the Court of Appeals.
Originally, there was a motion to dismiss, which was granted,
but, according to the appellate court, one portion of Kavowras'
hybrid claim was timely and deserved reconsideration. For the
reasons set forth below, the defendants' motions are granted and
Kavowras' cross-motion is denied.
A. Factual Background
Kavowras has been employed by the Times from approximately 1968
to the present time and has been a member of the Union since
March 23, 1973. Kavowras was elected Chapel Chairman*fn1 in
1979, a position he held until 1988. Upon his resignation,
Kavowras bid on and, based on his seniority, was awarded a newspaper delivery route,
the "Publisher's Roll" or "Executive Bulldog," pursuant to a
Collective Bargaining Agreement ("CBA") between the Times and the
Union. This route entailed delivery of complimentary copies of
the "early edition" of the Times on weekdays and Saturdays to
high-ranking Times' employees and certain New York City
officials, including the Mayor. Delivery was made the evening
before newspapers were delivered to standard home delivery
customers. The specific terms and conditions of this position
were set out in a March 7, 1991 agreement known as a "Four Man
Board Award" ("FMBA").*fn2 Under Kavowras' FMBA, he worked
Tuesday through Friday beginning at 9:30 pm. He typically began
his delivery route around 10:00 pm or 10:30 pm from the Times'
West 43rd Street facility in Manhattan, using an automobile
instead of a delivery truck. Although Kavowras was generally able
to complete his route in 60 to 90 minutes, he was nevertheless
guaranteed two hours of overtime on each of those days. On
Saturdays, Kavowras received 6.5. hours of overtime for doing no
work at all. Instead, his only task was to appear at work and
sign in, after which he went home. Another employee was
responsible for delivery of the Sunday edition of the newspaper
on Saturday evenings. Kavowras held this delivery route position
until, because of illness, he took an extended disability leave
of absence from January 1997 to October 1997 and underwent
In June 1997, the Times implemented major production changes at
the West 43rd Street facility and opened its new production
facility in College Point, Queens. In September 1997, the Times
also changed the content of the newspapers in that it began to
print some sections in color and added an additional one to four
sections to the newspaper. As a consequence, the Times began two
production runs instead of one. This change in production meant
that completed newspapers were not available until 11:30 pm at
night. According to the Times, this later production end time,
coupled with the fact that the newspapers were produced at the
College Point facility, meant that the newspapers could not be
delivered to the Publisher's Roll recipients until after they had
already gone to sleep. As a consequence of these changes, there
was no discernable difference between this delivery and standard
home delivery service early in the morning and the Times
eliminated Kavowras' delivery route, with the exception of Sunday because, as noted, the papers were available substantially
earlier in the day. See Fullerton Decl. Ex. 6 ("All good things
must come to an end. With this edition, we end our Executive
Bulldog service. As of Monday we will be starting our presses too
late in the evening to allow for early delivery.");
Pepper-Doyle*fn3 Aff. ¶ 7 ("The Times decided to discontinue
the Publisher's Roll as a weekday delivery route effective on or
about August 2, 1997. . . ."). Kavowras, however, contends that
the route was subcontracted to a non-union delivery service,
Tri-State Newspaper Service, Inc., in violation of the CBA.
When Kavowras returned to work in October 1997 he was told that
the Publisher's Rolls delivery route had been eliminated.
According to Joseph Watson, the General Foreman of the Delivery
Department for the Times, there was no available route that would
permit Kavowras to deliver newspapers using an automobile as he
did previously. Instead, all drivers used a van or a truck and
were required to acquire a commercial driver's license, something
that Kavowras lacked. Kavowras therefore reported to the College
Point facility and had his choice of three "floor work"
assignments: (1) operating "palletizer" equipment to stack
newspaper bundles for shipping; (2) working as a "checker"; or
(3) driving a "hi-lo," i.e., a forklift, to move stacks of
newspapers. Kavowras chose to operate the "hi-lo" because of his
seniority and because he felt that was the only job he could
physically perform. In this new position, Kavowras had to work
approximately two to four hours a night, four nights a week,
although he sometimes had to work later. The defendants contend
that Kavowras continued to receive his 6.5 hours of guaranteed
overtime on Saturdays for doing no more than signing in,
something that Kavowras disputes.
Kavowras alleges that the hi-lo operator position was more
onerous and that he was required to perform activities that he,
as a partially disabled 69-year-old man,*fn4 could not do.
Kavowras further contends that he was no longer guaranteed the
overtime hours as provided in his FMBA. Accordingly, he requested
that the Union pursue a grievance on his behalf to restore the
Publisher's Rolls delivery route and the terms of his FMBA.
Sometime after Kavowras made this request and before the
grievance was arbitrated on January 18, 1998, Kavowras and his
wife, an attorney, together with the current Chapel Chairman,
Michael Santor, and Jay Sabin ("Sabin"), the then-Director of
Labor Relations for the Times, met with Bernard Plum ("Plum"), longtime outside labor and employment counsel for the Times, at
Plum's offices in an unsuccessful attempt to resolve Kavowras'
grievance. Kavowras avers that at this meeting, Plum told him,
"[W]hy don't you retire, you are old and sick. Why don't you just
retire." Kavowras Dep. at 149:22-23. The meeting concluded when
Plum "blew up" and told Kavowras several times, "I hate you," and
ordered him to get out of his office.*fn5 Id. at 149:7-12;
Thereafter, Kavowras' grievance was arbitrated on January 16,
1998 ("the 1998 Arbitration") before Martin Scheinman
("Arbitrator Scheinman"), the arbitrator selected by the Times
and the Union to hear all grievances arising under the CBA. At
the conclusion of the arbitration, the terms of a settlement were
put on the record,*fn6 but were never signed by the parties.
Even though all parties were present and there were no
objections, the plaintiff contends this was not a final
settlement of his grievance. Within a few weeks, Kavowras began
writing a series of letters to the Union in which he informed it
that, inter alia, he believed his grievance had not been
resolved and he continued to be dissatisfied with his employment
conditions and compensation.
Kavowras filed an unfair labor practice charge with the
National Labor Relations Board ("NLRB") on July 10, 1998, in
which he alleged that the Union failed to fairly represent him at
the 1998 Arbitration. Some six months later, the NLRB issued a
decision on February 25, 1999, in which it refused to file a
complaint on Kavowras' behalf because there was insufficient
evidence that the Union had violated the National Labor Relations
Both prior to and following the NLRB decision, Kavowras
continued his demands that the Union proceed with his grievance.
Finally, the Union's Executive Board ordered Union officials to
arrange for a new arbitration. The Times rejected the Union's
request for a "special arbitrator" as unnecessary and,
ultimately, a second arbitration was held before Arbitrator
Scheinman on February 16, 2000 ("the 2000 Arbitration"). Kavowras
did not want Arbitrator Scheinman to preside and asked the Union
to request his recusal. The Union attorney, Kenneth O'Connor
("O'Connor"), refused to do so because he had to work with
Arbitrator Scheinman in the future. Kavowras and his wife (who
was also present) asked Arbitrator Scheinman to recuse himself,
but he refused to do so.
The parties dispute both the purpose and outcome of the 2000
Arbitration. The Union asserts that its intent was to request
that Arbitrator Scheinman re-open the 1998 Arbitration and render
a decision on the merits because Kavowras had not knowingly and
voluntarily consented to the settlement at the 1998 Arbitration.
Arbitrator Scheinman denied this request because he believed,
based on his personal involvement in 1998 Arbitration, that
Kavowras' consent was indeed given knowingly and voluntarily.
Kavowras contends that the 1998 Arbitration agreement was never
finalized and was therefore a nullity. Kavowras further argues
that prior to the 2000 Arbitration he provided the Union with
evidence that his former job, the Publisher's Rolls delivery
route, had been subcontracted to Tri-State Newspaper Service,
Inc., in violation of the CBA, but that the Union did not pursue
this aspect of his grievance or follow-up on Arbitrator Scheinman
summarily refused to proceed with any arbitration, and told
Kavowras' wife during a break that Kavowras' FMBA was a "tit job"
that he was not entitled to in the first instance. B. Procedural History
Kavowras filed suit against the Times and the Union on July 31,
2000.*fn7 Thereafter, the defendants moved to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that
Kavowras' claims were time barred based on the six-month statute
of limitations of a hybrid claim under the LMRA. This Court held
that Kavowras' hybrid claim was indeed untimely because he did
not file suit within six months of his NLRB charge, which was the
latest on which his hybrid claim could have accrued, and declined
to exercise supplemental jurisdiction over Kavowras' pendent
state law claims. Kavowras v. New York Times Co., No. 00 Civ.
5666, 2000 WL 1672338 (S.D.N.Y. Nov. 6, 2000) ("Kavowras I").
Kavowras' appealed dismissal of his suit and the Second Circuit
affirmed in part and reversed in part and remanded. Kavowras v.
New York Times Co., 328 F.3d 50 (2d Cir. 2003) ("Kavowras
II"). The Second Circuit ruled that Kavowras had, in actuality,
alleged two distinct breaches of the Union's duty of fair
representation, the first of which occurred at the 1998
Arbitration and the second at the 2000 Arbitration. Id. at 54.
Because Kavowras filed suit within six months of the 2000
Arbitration, his claims on this score were timely, and the Second
Circuit vacated the portion of Kavowras I that pertained to the
2000 Arbitration and dismissed Kavowras' pendent state law
claims. Id. at 52, 57. As this brief review makes clear, only a
small portion of Kavowras' hybrid claim remains before the Court,
as his allegations regarding the 1998 Arbitration are time
barred. With this in mind, I turn to the present motions for
A. Standard of Review
Pursuant to Federal Rule of Civil Procedure ("Fed.R. Civ.P.")
56(c), a district court must grant summary judgment if the
evidence demonstrates that "there is no genuine issue as to any
material fact and [that] the moving party is entitled to judgment
as a matter of law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). "Summary judgment is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole, which are designed to `secure the
just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986) (quoting Fed.R.Civ.P. 1).
To determine whether there is a genuine issue of material fact,
the Court must resolve all ambiguities and draw all inferences
against the moving party. United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd.
of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). However, the
mere existence of disputed factual issues is insufficient to
defeat a motion for summary judgment. Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11-12 (2d Cir. 1986). The disputed issues of
fact must be "material to the outcome of the litigation," id.
at 11, and must be backed by evidence that would allow "a
rational trier of fact to find for the non-moving party,"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). The non-movant "must do more than simply show that
there is some metaphysical doubt as to the material facts." Id.
With respect to materiality, "substantive law will identify which
facts are material. Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted." Anderson, 477
U.S. at 248.
B. Leave to Amend
In this his second bite at the apple Kavowras raises a host
of claims not previously addressed in the course of this
litigation, which commenced nearly four years ago. Kavowras'
claims against the Union were originally predicated on its
alleged failure to adequately investigate his grievance, Am.
Compl. ¶ 67, to request Arbitrator Scheinman's recusal, Am.
Compl. ¶ 72, and to offer the evidence Kavowras independently
gathered, Am. Comp. ¶¶ 68-69. Kavowras averred that the Union
breached its duty of fair representation and aligned itself with
the Times to his detriment. Am. Compl. ¶¶ 74-75. These were the
allegations addressed in the defendants' motion to dismiss and
Kavowras' appeal therefrom. Kavowras now advances several new
bases for the Union's alleged breach, including the Union's
failure to: (1) enforce the FMBA as an arbitration award in court
in the first instance; (2) seek finalization of the 1998
Arbitration settlement; (3) require the Times to place Kavowras
in a position substantially similar to the Publisher's Rolls
delivery route under the FBMA; and (4) stop the Times from
subcontracting the Publisher Roll's delivery to Tri-State
Newspaper Delivery, Inc. In recognition of this variance, Kavowras moves for leave to
amend.*fn8 A motion for leave to amend is governed by Fed.
R. Civ. P. 15(a), which provides that "leave shall be freely
given when justice so requires." Under this standard, the
decision to grant leave to amend is within the sound discretion
of the Court, but it is inappropriate where it would prejudice
the opposing party. Krumme v. WestPoint Stevens Inc.,
143 F.3d 71, 88 (2d Cir. 1998). Delay, standing alone, is generally
insufficient to support a finding of prejudice, although the
greater the delay, the less is required for a showing of
prejudice. Kanyi v. United States, No. 99 Civ. 5851, 2002 WL
1471648, at *1 (E.D.N.Y. May 03, 2002). As the Second Circuit has
observed, "[a] proposed amendment . . . [is] especially
prejudicial . . . [when] discovery had already been completed and
[non-movant] had already filed a motion for summary judgment."
Krumme, 143 F.3d at 88 (holding that the district court acted
"well within its discretion" in denying leave to add new
counterclaims where discovery had concluded and the case was near
resolution) (alternation in original) (quoting Ansam Assoc. v.
Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985)). Even
without consideration of this inexplicable period of delay and
potential for prejudice, Kavowras' motion for leave to amend must
be denied because "[a] proposed amendment is futile when it fails
to state a claim." James v. United States, No. 99 Civ. 4238,
2003 WL 22149524, at *3 (S.D.N.Y. Sept. 17, 2003) (citing cases);
Prudential Ins. Co. of Am. v. BMC Indus., Inc., 655 F. Supp. 710,
711 (S.D.N.Y. 1987) ("Although leave to amend `shall be
freely given,' it is inappropriate to grant leave when the
amendment would not survive a motion to dismiss.").
Kavowras' new claims are wholly beyond the scope of the Second
Circuit mandate and, in any event, are time-barred. In affirming
the dismissal of the hybrid claim raised in Kavowras' Amended
Complaint, the Second Circuit "vacate[d] the judgment of
dismissal insofar as the complaint relates to the February 2000
arbitration." Kavowras II, 328 F.3d at 52 (emphasis supplied).
In so holding, the Second Circuit explicitly affirmed this
Court's dismissal of Kavowras' claims as to the 1998 Arbitration
as untimely. Id. at 55. The Second Circuit identified Kavowras'
surviving claims to be litigated on remand as Kavowras'
allegations "that the Union failed to represent Kavowras adequately at the second
arbitration hearing conducted in February 2000 by failing to
investigate his claim, failing to offer evidence on his behalf,
and failing to request recusal of a biased arbitrator," id. at
54, and "colluded with the Times and the arbitrator to coerce him
to accept an unfavorable settlement," id. at 53. Kavowras' new
allegations are not within this mandate in that they relate to
the Union's actions and failure to act as far back as 1997 when
Kavowras first grieved the alleged violation of his FMBA.
Moreover, these claims are untimely for precisely the same
reasons I dismissed his previous claims regarding the 1998
Arbitration. A hybrid claim has a six-month statute of
limitations, which is "counted from the time when the union
member `knew or reasonably should have known that [a breach of
the duty of fair representation] had occurred.'" Kavowras II,
328 F.3d 50, 55 (alteration in original) (quoting Santos v.
Dist. Council of New York City & Vicinity of United Bros. of
Carpenters & Joiners of Am., AFL-CIO, 619 F.2d 963, 969 (2d Cir.
March 27, 1980)). Kavowras had actual notice of his new
allegations when he filed his unfair labor practice charge with
the NLRB on July 10, 1998, in which he complained that his
Publisher's Rolls delivery route had been eliminated, he was
forced to work a "hi-low job," and that the Union failed to seek
enforcement of his FMBA or finalize the 1998 Arbitration
settlement. Fullerton Decl. Ex. 13. In his NLRB charge, Kavowras
confirmed that he repeatedly stated that he wanted the terms of
his FMBA enforced during the 1998 Arbitration. Kavowras'
correspondence to the Union prior and subsequent to the filing of
his NLRB charge further underscores his dissatisfaction with the
Union's handling of his grievance and manifests his awareness of
the Union's alleged breach.
While Kavowras' correspondence and NLRB charge do not expressly
raise Kavowras' subcontracting allegation, he testified at his
deposition that he went before the Union's Executive Board on
October 6, 1998 and informed it that, inter alia, the Times
had subcontracted his former route to the Tri-State Newspaper
Service, Inc. Put another way, Kavowras has acknowledged that he
had actual knowledge of these claims in 1998 and these claims are
therefore deficient as beyond the statute of limitations.
Kavowras' argument that these allegations are timely in that they
represent a continuing violation because the 1998 Arbitration
settlement was not finalized do not compel a different result.
Kavowras I, 2000 WL 1672338, at *4 (refusing to postpone the
accrual date of Kavowras' hybrid claim because the 1998
Arbitration settlement regardless of whether or not it was finalized gave Kavowras notice of the
Union's alleged breach); Kavowras II, 328 F.3d at 56 (deciding
that the statute of limitations could not be tolled for the
purported lack of finalization of the 1998 Arbitration because
"it would mean a permanent tolling of the statute of
limitations"). Thus, Kavowras' request for leave to amend must be
C. Kavowras' Hybrid Claim
A hybrid action in reality consists of two separate claims: one
against the plaintiff's employer for an alleged breach of a
collective bargaining agreement in violation of the LMRA § 301
and another against the plaintiff's union for breach of the
union's duty of fair representation. DelCostello v. Int'l Bhd.
of Teamsters, 462 U.S. 151, 164 (1983). These two claims "are
inextricably interdependent. To prevail against either the
company or the Union, . . . [employee-plaintiffs] must not only
show that their discharge was contrary to the contract but must
also carry the burden of demonstrating a breach of duty by the
Union." Id. (alteration in original) (internal quotation marks
and citation omitted). That is to say, "an employee normally
cannot bring a § 301 action against an employer unless he can
show that the union breached its duty of fair representation in
its handling of his grievance." Chauffeurs, Teamsters & Helpers,
Local No. 391 v. Terry, 494 U.S. 558, 564 (1990); see also
King v. N.Y. Tel. Co., Inc., 785 F.2d 31, 36 n. 2 (2d Cir.
1986) ("[I]t is not until a union breaches its duty of fair
representation that an employee has all the necessary elements of
a claim against the employer for breach of contract."). Where,
"it is shown that the union fairly represented the employee, the
suit against the employer cannot stand" Flynn v. Prudential
Ins. Co. of Am., No. 95 Civ. 113, 1996 WL 294302, at *5
(S.D.N.Y. June 3, 1996). Here, Kavowras' hybrid claim against the
Times and the Union fails because he has not established that the
Union breached its duty of fair representation.
To succeed on this claim, Kavowras must demonstrate that the
Union's conduct: (1) was "arbitrary, discriminatory, or in bad
faith," Vaca v. Sipes, 386 U.S. 171, 190 (1967); and (2)
"seriously undermine[d] the integrity of the arbitral process,
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976).
Under this standard, "[a]ny substantive examination of a union's
performance . . . must be highly deferential." Air Line Pilots
Ass'n Int'l, 499 U.S. at 78. As for the first prong, "[a]
union's actions are arbitrary `. . . only if . . . the union's
behavior is so far outside a `wide range of reasonableness' . . .
as to be irrational." Flynn v. Prudential Ins. Co. of Am., No.
95 Civ. 113, 1996 WL 294302, at *4 (S.D.N.Y. June 3, 1996)
(quoting Air Line Pilots Ass'n, Int'l v. O'Neil, 499 U.S. 65, 67 (1991)). "Bad faith
requires a showing of fraudulent, deceitful, or dishonest
action." Sim v. N.Y. Mailers' Union Number 6, 166 F.3d 465, 472
(2d Cir. 1999). Therefore, a union's purported breach cannot be
based on mere negligence or tactical errors, Barr v. United
Parcel Serv., 868 F.2d 36, 43 (2d Cir. 1989), and "[a]s long as
the union acts in good faith, the courts cannot intercede on
behalf of employees who may be prejudiced by rationally founded
decisions which operate to their particular disadvantage." Cook
v. Pan Am. World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985)
(internal quotation marks and citation omitted). The second prong
is essentially a causation requirement whereby a plaintiff must
"prove that there was a causal connection between the union's
wrongful conduct and [his] injuries." White v. White Rose Food,
a Div. of DiGiorgio Corp., 237 F.3d 174, 179 (2d Cir. 2001)
(internal quotation marks and citation omitted).
Kavowras first contends that the Union violated its duty when
it failed to enforce his FMBA as an arbitration award in court,
something that he asserts is required under the CBA § 16-C, which
provides, inter alia, that a FMBA "shall be enforceable as an
arbitration award in any court of competent jurisdiction." As
discussed above, any breach predicated on this alleged failure is
time-barred. Kavowras, however, argues that because the 1998
Arbitration award was never finalized and his "FMB[A] remains an
arbitral award [that] should have been, and should be, enforced
up to and including the present day. . . ." Pl. Mem. at 15 n. 1.
As the Union notes, this argument was expressly rejected in
Kavowras II, where the Second Circuit ruled that neither his
accrual nor his equitable estoppel arguments permitted an
indefinite tolling of the statute of limitations. 328 F.3d at
56-57. Moreover, it is far from clear that the CBA language
requires that the FMBA be enforced in court or that the 1998
Arbitration settlement was not final, given that § 16-C provides
that the FMBA "shall be enforceable," not that it shall be
enforced or that it shall only be enforceable, "in any court
of competent jurisdiction." See Webster's Third New Int'l
Dictionary 751 (1971) (defining "enforceable" as "capable of
being enforced"). This language, together with the fact that
there was an existing grievance procedure, whereby the Union
would go to arbitration, indicates that the Union had the option
to enforce Kavowras' FMBA award in court, but was not required to
do so. Thus, the Union's decision to pursue arbitration in lieu
of litigation is best categorized as strategic in nature and
cannot support Kavowras' breach of the duty of fair
representation claim. See Shait v. The Millennium Broadway Hotel, No. 00 Civ. 5584, 2001 WL 536996, at *9
(S.D.N.Y. May 18, 2001) (holding that the Union's failure to
request an evidentiary hearing before the arbitrator and decision
not to seek vacatur of the arbitration award in court were
"logical strategic choices that were well within the bounds of
Kavowras further argues that the Union breached its duty by
failing to adequately investigate his claim prior to the 2000
Arbitration and present evidence on his behalf. According to
Kavowras, prior to the 2000 Arbitration, he provided the Union
with newspaper delivery manifests that reflected that the
Publisher's Rolls delivery had been subcontracted to Tri-State
Newspaper Delivery, Inc. in violation of the CBA and his FMBA.
Kavowras avers that the Union failed to follow up on this or
offer this evidence on his behalf. This assertion, however, is at
odds with his deposition testimony. See Kavowras Dep. at
436:16-445:12. At his deposition, Kavowras stated that he told a
variety of Union officials of his belief that the Times was
subcontracting the Publisher's Rolls route. However, in his
deposition testimony, Kavowras provided no explanation or proof
for his belief to O'Connor, the Union attorney representing him
at the 2000 Arbitration, nor did he provide O'Connor with any
evidence of subcontracting or identify any witnesses who could
testify that the work was being subcontracted.*fn9 This
dearth of evidence and particularly witnesses is inexplicable
in light of Kavowras' claim that the purported subcontracting was
"common knowledge because the whole shop knows about it." Id.
Notwithstanding this testimony, in connection with the instant
motion papers, Kavowras declared that his memory had been refreshed and he was able to
identify the newspaper delivery manifests as the evidence to
which he previously referred.*fn10 Putting aside the
inconsistencies in Kavowras' testimony and declarations, these
manifests do not support Kavowras' position. The manifests are
dated Wednesday, May 12, 1993, Sunday, November 2, 1997, Sunday,
July 9, 2000, and Sunday, July 16, 2000. The 1993 manifests are
of no use since they pre-date the termination of Kavowras' route
by more than four years. The remaining manifests do nothing but
confirm the Times' assertion that delivery of the Sunday edition
of the newspaper to the Publisher's Rolls recipients continued
even after Kavowras' route was abolished. Finally, even if this
evidence carried the weight that Kavowras' attributes to it, the
Union's conduct here simply does not rise to the level required
to allow a finding of a breach of the duty of fair
representation. Barr, 868 F.2d at 43 (ruling that plaintiff's
allegations that the union failed to adequately prepare for a
hearing or present evidence on his behalf could constitute
tactical errors, but were insufficient to state a prima facie
case of a breach of the duty of fair representation).
Finally, Kavowras contends that Arbitrator Scheinman was biased
against him and the Union failed to request his recusal from the
2000 Arbitration. Kavowras admits, however, that the Union did,
in fact, request that the Times appoint a special arbitrator for
the 2000 Arbitration, a request that the Times refused. The Union
asserts that it did not thereafter request Arbitrator Scheinman's
recusal because it was concerned about maintaining an amicable
relationship with him given that he was contracted to arbitrate
all grievances between the Union and the Times. Although this
rationale fails to carry the day, the fact is that Kavowras and
his wife both requested Arbitrator Scheinman's recusal at the
2000 Arbitration, so Kavowras' disatisfaction was made known.
Even if the Union had requested recusal on Kavowras' behalf, it
is unlikely to have been successful given that the Times refused
the Union's prior request for a special arbitrator and Arbitrator
Scheinman ultimately refused to recuse himself. Moreover,
Kavowras cannot show that this failure undermined the arbitral
process in that it caused his injuries, as the standard for a
breach of a duty of fair representation claim requires. In short, Kavowras has not made a sufficient showing that the
Union breached its duty of fair representation. Accordingly, his
claims against the Times' for collusion with the Union in its
asserted breach and independent violation of the CBA also fall.
Sim, 166 F.3d at 473; King, 785 F.2d at 36 n. 2.
D. Pendent State Law Claims
Having dismissed Kavowras' federal claim, I decline to exercise
supplemental jurisdiction over his pendant state law
discrimination claims. It is doubtful that he would succeed in
any event. The alleged remarks by the Times outside counsel and
Director of Labor Relations, if true, are certainly not the model
of professionalism. Nevertheless assuming Kavowras could
establish a prima facie case and adequately allege
circumstances giving rise to an inference of discrimination
(something I doubt he could do) these comments at most amount
to stray remarks by non-decision-makers years after the asserted
adverse employment action occurred. Moreover, the Times has
asserted a legitimate, non-discriminatory rationale for
termination of Kavowras' delivery route unrelated to his age.
For the foregoing reasons, defendants' motion for partial
summary judgment is granted and Kavowras' cross-motion for
summary judgment is denied. The Clerk of the Court is instructed
to close this case and remove it from my docket.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.