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Jordan v. Viacom Outdoor Group

February 21, 2007


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge


Plaintiff Samuel Jordan brings this action against his former employer Viacom Outdoor Inc. (now known as CBS Outdoor Inc.) ("Outdoor") and Local 153 of the Office and Professional Employees International Union, AFL-CIO ("the Union") pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Jordan alleges that (1) Outdoor discharged him without cause in violation of the applicable collective bargaining agreement ("CBA") that the Union had entered into with Outdoor and (2) the Union breached its duty of fair representation by declining to arbitrate his grievance. Plaintiff seeks damages and reinstatement. Outdoor and the Union have moved separately for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Because plaintiff has failed to produce sufficient evidence for a jury to find that the Union breached its duty of fair representation -- the threshold issue in this litigation -- defendants' motions for summary judgment are granted.


The following facts are undisputed. Outdoor is a media company in the business of placing advertisements throughout New York City's subway system. (Outdoor's Local Civil Rule 56.1 Statement of Material Facts ("Outdoor's 56.1") ¶ 1, Plaintiff's Response to Defendant's Local Civil Rule 56.1 Statement of Material Facts ("Pl.'s Response") ¶ 1.) From August 2001 until December 2004, Outdoor employed Jordan as an advertisement installer who installed and removed commercial advertisements in subway cars and platforms. (Outdoor's 56.1 ¶¶ 2-5, Pl.'s Response ¶¶ 2-5.) As an Outdoor employee, Jordan was a member of the Union, which had signed a CBA with Outdoor containing a provision that authorized Outdoor to terminate an employee for "just cause" and granted employees certain procedures for "grievance and arbitration." (Union's Local Civil Rule 56.1 Statement of Material Facts*fn1 ("Union's 56.1") ¶¶ 1, 3; Compl. ¶¶ 5-7; Decl. of Megumi Sakae dated Apr. 21, 2006 ("Sakae Decl."), Ex. H at 9, 11-12.)

From August 2004 until his discharge in December 2004, Jordan put up advertisements on indoor and outdoor subway platforms along five different routes. (Outdoor's 56.1 ¶¶ 5-6, 13; Pl.'s Response ¶¶ 5-6, 13.) Each day, he would receive a bundle of posters and a work sheet indicating where the advertisements should be placed and which old posters should be removed. (Outdoor's 56.1 ¶¶ 14, 17; Pl.'s Response ¶¶ 14, 17.) Jordan tracked his progress on the work sheet, indicating which posters had been installed and which had been removed. (Outdoor's 56.1 ¶¶ 19-20, Pl.'s Response ¶¶ 19-20.) At the end of each day, Jordan signed the work sheet underneath a "certification" that read: "I certify that all work was assigned to me on this form was completed by me on this day the hours designated! I have also completed any repairs given to me as well." (Outdoor's 56.1 ¶ 21, Pl.'s Response ¶ 21, Decl. of Donald Dorion dated Apr. 20, 2006 ("Dorion Decl."), Ex. 1.) After completing the work sheet and signing it, Jordan returned the document to Outdoor management. (Outdoor's 56.1 ¶ 24, Pl.'s Response ¶ 24.)

On December 9, 2004, Donald Dorion -- Jordan's immediate supervisor at Outdoor -- received complaints about the appearance of advertisements posted in a subway station from the station manager on one of Jordan's routes, and Dorion inspected five stations along this route on the following day. (Outdoor's 56.1 ¶¶ 33-35, Dorion Decl. ¶¶ 10-11.) Dorion compared the posters that were hanging at each of the five stations with Jordan's signed work sheets for those stations. (Outdoor's 56.1 ¶¶ 36-37, Dorion Decl. ¶¶ 12-13.) At four of these stations, Dorion observed discrepancies between the posters hanging on the subway walls and the poster installations Jordan certified that he had completed. (Outdoor's 56.1 ¶¶ 41-44, Dorion Decl. ¶¶ 21-24.) Based on his inspection, Dorion concluded that thirteen posters certified by Jordan as having been posted were, in fact, not installed. (Outdoor's 56.1 ¶ 45, Dorion Decl. ¶ 25.)

The following week, Jordan accompanied Dorion and another supervisor on an inspection of these four stations. (Outdoor's 56.1 ¶¶ 48-49, Pl.'s Response ¶¶ 48-49.) At each station they inspected, posters were missing. (Outdoor's 56.1 ¶ 50, Pl.'s Response ¶ 50.) Two days later, Jordan met with senior managers of Outdoor to discuss the discrepancies between his work sheets and the posters installed at the four subway stations. (Outdoor's 56.1 ¶ 53, Pl.'s Response ¶ 53.) The next day, Outdoor terminated Jordan's employment for "falsifying information." (Compl. ¶ 13, Dep. of Samuel Jordan dated Jan. 19, 2006 ("Jordan Dep.") at 133:12-23, Union's 56.1 ¶ 6.)

Approximately one week later, on December 23, 2004, Jordan met with two Union representatives -- Michael Thompson (the Union's business agent) and Vincent Bracero (the Union's shop steward) -- and three Outdoor officials in order to attempt to explain the discrepancies between his work sheets and the advertisements posted along his subway route, but the Union representatives were unable to obtain Jordan's reinstatement. (Outdoor's 56.1 ¶¶ 60-61, Pl.'s Response ¶¶ 60-61.) After the meeting, Thompson scheduled a date for Jordan to appear before the Union's Grievance Committee. (Outdoor's 56.1 ¶ 66, Pl.'s Response ¶ 66.)

The Grievance Committee is a Union body comprised of several of the Union's senior business agents, often including an attorney, who review the grievances filed by union members in order to determine which ones should proceed to arbitration. (Sakae Decl., Ex. F (Hoffman Dep.) at 6:7-10.) According to the chairperson of the Grievance Committee, the committee's job is to "make sure that the cases that go forward [to arbitration] are cases that [the Committee] believes are true." (Id. at 6:11-13.) On January 13, 2005, Jordan appeared before the committee and responded to the members' questions. (Outdoor's 56.1 ¶ 67, Pl.'s Response ¶ 67, Union's 56.1 ¶ 9, Sakae Decl., Ex. F (Hoffman Dep.) at 6:18-8:21.) The Grievance Committee concluded that Jordan's statements were "not credible" and decided against taking Jordan's grievance to arbitration. (Union's 56.1 ¶ 10, Compl. ¶ 29, Sakae Decl., Ex. F (Hoffman Dep.) at 8:10-21.) Five months later, Jordan commenced this litigation.


A. Summary Judgment Standard

Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); LaFond v. Gen. Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir. 1995). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). On a motion for summary judgment, the court must scrutinize the record and grant or deny summary judgment as the record warrants. Fed. R. Civ. P. 56(c). However, when determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); see also LaFond, 50 F.3d at 171.

Nevertheless, the party opposing summary judgment "must offer some hard evidence" in support of its factual assertions, D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), such that "'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Golden Pac. Bancorp v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004) (quoting Anderson, 477 U.S. at 249). Evidence that is "merely colorable" or "not significantly probative" is insufficient to prevent a court from granting summary judgment. Anderson, 477 U.S. at 249-50. Thus, mere "conclusory statements, ...

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