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United States District Court, S.D. New York

July 23, 2004.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


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 surgery.

  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; 146:6-16.

  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 Act.

  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 summary judgment.


  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 denied.

  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 fair representation").

  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. at 440:9-10.

  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.


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