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February 9, 2005.

EMANUEL HELLEN, individually and as President of the LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; JERRY WATERS, individually and as Vice President of LOCAL 1-2 UTILITY WORKERS UNION OF AMERICA; ROBERT CONETTA, as Secretary-Treasurer of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; ROBERT O'BRIEN, individually and as Chairman of the Executive Board of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; RONALD DAVIS, individually and as General Counsel of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; and LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA, Defendants.

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


This case arises out of conflict between factions of Local 1-2 ("Local 1-2 or the "Union") of the Utility Workers Union of America (the "UWUA"). Plaintiffs Harry Farrell, John Sugrue, Lucia Giacometti, and John Duffy are present or former elected officials of Local 1-2. They generally allege that the defendants abridged their rights to free speech and due process by removing them from office or diminishing their responsibilities and by subjecting them to unfair disciplinary proceedings, all in violation of Title 1 of Page 2 the Labor Management Reporting and Disclosure Act (the "LMRDA," commonly known as the "Landrum-Griffin Act"), 29 U.S.C. § 401 et seq.; § 301 of the Labor-Management Relations Act (the "LMRA," commonly known as the "Taft-Hartley Act"), 29 U.S.C. § 185; and the plaintiffs' contractual rights as established by Local 1-2's bylaws and the UWUA constitution. Plaintiffs Daniel McNamara and Lisa Vella are members of Local 1-2 who allege that the actions taken against the other plaintiffs deprive them of their right to elect union officers of their choice as guaranteed by the Landrum-Griffin Act. Finally, all of the plaintiffs assert that their union voting rights were violated by the manner in which an election was held to replace the ousted dissident officers. The defendants consist of Local 1-2 and the officers who held control during the relevant period: Emanuel Hellen, the President; Jerry Waters, the Vice President; Robert Conetta, the Secretary-Treasurer; and Robert O'Brien, Chairman of the Executive Board.*fn1

All parties agreed to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c). Following completion of discovery, the plaintiffs moved for partial summary judgment, while defendant Waters cross-moved for summary judgment dismissing the claims asserted against him. For the reasons set forth below, each motion is granted in part and denied in part.


  In November 2002, plaintiffs Farrell, Sugrue, Giacometti, and Page 3 Duffy were elected as officers of Local 1-2. (Affidavit of Harry Farrell dated July 21, 2004 ("Farrell Aff."), ¶ 2). Mr. Farrell was elected as a Senior Business agent, while Mr. Sugrue, Ms. Giacometti, and Mr. Duffy were elected as Business Agents. (Farrell Aff., ¶ 2). At some point they became disaffected with the controlling group of the Union leadership and began discussing the need for change.

  In February 2003, Mr. Farrell called Harcourt Cordew, another Business Agent of Local 1-2, and arranged a lunch meeting on February 25. (Affidavit of Emanuel Hellen dated June 9, 2003 ("Hellen Aff."), at 3rd unnumbered page). At that meeting, Mr. Farrell, along with Mr. Sugrue and Ms. Giacometti, complained about the conduct of the Union President, Mr. Hellen, and discussed two proposed amendments to the Union bylaws that they wished to bring to the membership: one which would mandate drug and alcohol testing for Union officers and another which would provide for the election of a new Union President and Vice President in the event that the incumbent President resigned. (Deposition of Emanuel Hellen ("Hellen Dep."), attached as Exh. 5 to Affirmation of Sidney H. Kalban dated July 22, 2004 ("Kalban Aff."), at 20-27; First Amended Complaint ("FAC"), Exh. 1). The next day, Mr. Cordew reported what had transpired to Mr. Hellen. (Hellen Aff. at 3rd unnumbered page).

  Mr. Hellen immediately placed Mr. Farrell, Mr. Sugrue, and Ms. Giacometti on administrative leave with pay. (Hellen Dep. at 34). The day after that, he issued internal union disciplinary charges against the dissidents, alleging that they "committed and/or engaged Page 4 in malfeasance, misfeasance, nonfeasance, neglect of duty, improper performance of duty, misuse of office, defamation of character of Union Officers and committing [sic] willful harm to the Local Union." (FAC, Exhs. 2, 3, 4 (the "initial charges")). One set of allegations was unique to Mr. Farrell and related to his telephone conversation with Mr. Cordew:
On February 25, 2003 the accused, in a telephone call with Business Agent Harcourt Cordew:
Referred to President Emanuel Hellen and Vice-President Gerald Waters in a disparaging manner and otherwise defamed them and referred to them as "Mother-Fuckers."
He admitted to conspiring with National Vice-President Joseph Flaherty regarding the management of the Local and the drafting of new By-Laws to prevent Vice-President Waters from becoming President.
He challenged the authority of President Hellen and Vice-President Waters to implement policies and programs to make Business Agents more accountable.
He acknowledged working with others to take control of the union by altering the existing By-Laws so that he could run for President.
(FAC, Exh. 2). The remaining charges were common to all three dissidents and stemmed from the lunch meeting:
On February 25, 2003 Cordew met with Agents Farrell, Giacometti and Sugrue and:
Listened to them defame Hellen and Waters and otherwise plot against the Union.
  Giacometti, Sugrue and Farrell challenged the authority of Hellen and Waters to implement polices and procedures to make Business Agents more accountable. They continually referred to President Hellen as a Drunk and Vice-President Waters as being abusive and pushing them too hard. They acknowledged conspiring with Page 5 Flaherty to alter the existing By-Laws so Farrell could run for President, in violation of direct orders of the President during a staff meeting on January 3, 2003.
During the meeting they continually referred to Hellen and Waters as "Mother-Fuckers."
(FAC, Exhs. 2, 3, 4).

  Shortly thereafter, Mr. Hellen initiated an action against Mr. Farrell, Mr. Sugrue, and Ms. Giacometti in New York State Supreme Court, Nassau County. (Hellen Dep. at 124-27; FAC ¶ 12; Answer ¶ 3).*fn2 However, he withdrew the case without prejudice on March 19, 2003. (FAC ¶ 37; Ans. ¶ 3). In the meantime, Mr. Hellen, together with Mr. Waters, sent a bulletin dated March 4 to all union members describing the basis for the charges against the dissidents and arguing that "[i]t would seem that the three Officers placed on Administrative Leave with Pay want things to go back to the way they were before. We must not let that happen." (Farrell Aff., Exh. 2).

  On March 11, 2003, Mr. Hellen filed amended disciplinary charges (the "amended charges") against Mr. Farrell, Mr. Sugrue, and Ms. Giacometti (the "Charged Members"). With respect to Mr. Farrell, additional charges alleged that he had failed to process a number of union grievances in a timely manner and had failed to report to the union office on a daily basis as Mr. Waters had ordered him to. (FAC, Exh. 10, ¶¶ 1, 2). The amended charges also included assertions about a telephone call that Mr. Farrell had with Mr. Cordew on February 19, 2003, in which he complained about the Page 6 Union leadership and its policies and stated that Mr. Hellen was always drunk. (FAC, Exh. 10, ¶ 3). The amended charges against Mr. Sugrue alleged that he, too, had failed to process members' grievances quickly. (FAC, Exh. 11, ¶ 2). Finally, the new charge against Ms. Giacometti was that she misrepresented her whereabouts to Mr. Waters on the day that she and the other dissidents met with Mr. Cordew. (FAC, Exh. 12, ¶ 2). In addition, the original allegations were carried over into each of the amended charges. (FAC, Exh. 10, ¶¶ 4, 5; Exh. 11, ¶ 1; Exh. 12, ¶ 1).

  Pursuant to Local 1-2's bylaws, the charges were to be adjudicated by a Trial Committee, chaired by defendant Robert O'Brien. (FAC, Exh. 9). The Union's General Counsel, Ronald Davis, served as counsel to the Trial Committee. (FAC, Exh. 9). The hearing, which took place on April 1, and 2, 2003, was preceded by procedural skirmishing. For example the Charged Members requested a copy of the affidavit of Harcourt Cordew on which the charges were based. (FAC, Exh. 7). Mr. O'Brien initially denied that request (FAC, Exh. 9), but he later relented and provided the document on March 28. (FAC, Exh. 17; Farrell Aff. ¶ 12). Similarly, the Charged Members demanded access to their files in the Union offices and to the files pertaining to grievances that they had allegedly not processed promptly. (FAC, Exhs. 13, 16). Mr. O'Brien declined to let them enter the Union premises but sent most of the requested grievance files on March 28. (FAC, Exh. 17; Farrell Aff. ¶ 12). And, although the Charged Members requested an adjournment of the hearing because their attorney would not be available to consult Page 7 with them outside the hearing room on the scheduled hearing date, Mr. O'Brien denied that request. (FAC, Exhs. 13, 15, 16, 17).

  When the hearing took place, the Charged Members continued to clash with Mr. O'Brien. He would not let them ask questions about the amendment of the charges (Trial Transcript ("Trial Tr."), attached as Exh. 1 to Farrell Aff., at 205-07), introduce the proposed bylaws as exhibits (Trial Tr. at 360), or ask questions about disparate treatment. (Trial Tr. at 268-72). Mr. O'Brien instructed the members of the Trial Committee that they could vote only on whether to expel the Charged Members and that no other form of discipline could be considered. (Deposition of Robert O'Brien ("O'Brien Dep"), attached as Exh. 2 to Kalban Aff., at 157). Following the submission of the evidence, a majority of the Trial Committee voted to sustain all charges against each of the Charged Members, except for the charge of defamation which had been withdrawn by Mr. Hellen during the hearing. (Kalban Aff., Exh. 14; FAC, Exh. 18). Mr. O'Brien then issued a "Report of the Trial Committee" which summarized the evidence and the committee's recommendations and was circulated to all Union members. (FAC, Exh. 18).

  On April 13, 2003, there was a general membership meeting of Local 1-2 at which the Trial Committee's recommendation was put to a vote. That portion of the meeting was chaired by defendant Waters, who limited each Charged Member's time to speak to ten minutes. (Hellen Dep. at 233, 235). He also dictated the order of the speakers and told Mr. Farrell that if he did not go first, he Page 8 would not be permitted to speak at all. (Deposition of Jerry Waters ("Waters Dep."), attached as Exh. 1 to Kalban Aff., at 181-83). After the Charged Members spoke, Mr. Hellen addressed the membership, and then the Trial Committees Report was put to a vote. (Waters Dep. at 197-98).

  The ballot used to record each member's vote asked only whether the member approved or disapproved the Trial Committees Report as to each Charged Members; it did not solicit separate votes on each charge. (FAC, Exh. 19). In close votes, the membership approved the Trial Committee's recommendations with respect to Mr. Farrell and Mr. Sugrue but rejected them with respect to Ms. Giacometti. (Kalban Aff., Exh. 14). Accordingly, Ms. Giacometti was restored to her position while Mr. Farrell and Mr. Sugrue were removed from office. The deposed officers then filed an appeal with the UWUA.

  On September 25, 2003, a membership meeting was held at which the Union members were asked to ratify the appointment of officers whom Mr. Hellen had chosen to replace Mr. Farrell and Mr. Sugrue. That meeting was chaired by Mr. Hellen and can best be described as chaotic. (Affidavit of Paul Albano dated July 21, 004 ("Albano Aff.", Exh. 1; Kalban Aff., Exh. 19). Plaintiff John Duffy, who had testified on behalf of the Charged Members at the Trial Committee hearing, repeatedly tried to raise a point of order but was not recognized by Mr. Hellen. (Albano Aff., Exh. 1). No discussion was held on the proposal to ratify the appointments, a voice vote was taken, and the motion was declared to have passed. (Albano Aff., Exh. 1). When Mr. Duffy asked for a division of the Page 9 house on that issue, he was ignored. (Albano Aff., Exh. 1). At one point a fight broke out, and a member who was videotaping the proceedings was directed to stop doing so. (Albano Aff., Exh. 1).

  On March 2, 2004, the UWUA issued a decision vacating the determinations of the Trial Committee. (Farrell Aff., Exh. 4). It found that the hearing was plagued by numerous procedural flaws that violated the due process requirements of the UWUA constitution and Local 1-2's bylaws. (Farrell Aff., Exh. 4 at 9-11). Local 1-2 has indicated its intent to conduct a new trial with respect to the charges against Mr. Farrell and Mr. Sugrue, and it has not returned them to office.

  The plaintiffs filed the original complaint in this action in June 2003 and amended it with leave of court in April 2004. The First Amended Complaint contains nine claims, and the plaintiffs seek summary judgment on liability on the First, Fourth, Fifth, and Eighth Causes of Action, while defendant Waters seeks dismissal of all of the plaintiffs' claims insofar as they pertain to him. I will therefore address each cause of action in turn.


  A. Summary Judgment Standard

  Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c); accord Marvel Page 10 Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); accord Matsushita Page 11 Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits ...

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