The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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
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
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
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
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
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, ¶
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
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
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
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
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
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
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 ...