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Fenn v. Verizon Communications

March 15, 2010

GERALD FENN, PLAINTIFF,
v.
VERIZON COMMUNICATIONS, INC., CWA LOCAL 1109, CWA INTERNATIONAL, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

Plaintiff Gerald Fenn initiated this action on October 31, 2007, in the Supreme Court of the State of New York, by filing a complaint alleging gender and religious discrimination in the form of hostile work environment harassment and retaliation in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code § 8-107 et seq. Fenn named as defendants his employer, Verizon Communications, Inc., and his local and international union ("Union Defendants"). (Cmplt. ¶ 1) Fenn alleges that Defendants caused him or permitted him to suffer severe harassment and intimidation in the form of offensive religious and gender-based remarks, graffiti, and physical intimidation, all of which began after Fenn performed three hours of overtime work in violation of union members' protocol.

On March 6, 2008, Defendants removed the action to federal court on the ground that Fenn's claims against the Union Defendants are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, which preempts state law claims against labor organizations that are subsumed by the duty of fair representation. (Docket No. 1, Notice of Removal ¶¶ 5-8)

Verizon and the Union Defendants have moved for summary judgment on all of Plaintiff's claims. (Docket Nos. 20 & 25) Because Fenn's union-related claims are preempted and fall outside the statute of limitations for suits alleging breach of the duty of fair representation, and because Fenn has offered no evidence that he was harassed because of his sex or his religion or that he was retaliated against because he engaged in protected activity, Defendants' motions for summary judgment will be GRANTED.

BACKGROUND

Fenn has been a Verizon employee and member of CWA and Local 1109 since May 1979. (Verizon Rule 56.1 Stat. ¶ 1)*fn1 For the past fifteen years, Fenn has worked as a cable maintenance splicer. He took a medical leave in November 2004, related to a back injury suffered in the course of his employment and unrelated to this case. (Id. ¶ 2) Prior to taking leave, Fenn was assigned to Verizon's 26th Avenue Garage in Brooklyn. (Id. ¶ 1)

On March 17, 2004, Fenn called his supervisor at the end of his daily shift and obtained authorization to work incidental overtime to complete a work assignment. (Id. ¶ 5; Pltf. Dep. at 54-55, 56) In seeking and obtaining this overtime assignment, Fenn was perceived by union members as having violated an informal agreement among the garage's union employees that any overtime work would be assigned "to the low man on the garage's overtime list." (Union Rule 56.1 Stat. ¶ 8)

As a result of Fenn's overtime work on March 17, union members expressed hostility and anger to him. On March 18, 2004, union member Frank Bruno confronted Fenn in a threatening manner, shouted at him, and called him a "scumbag [for] working three hours overtime, incidental." (Verizon Rule 56.1 Stat. ¶ 6; Pltf. Dep. at 54-55, 61) After Fenn complained to Tony Anastasio, Local 1109's business agent (id. ¶ 6; Pltf. Dep. at 63, 183), on March 22, 2004, Bruno confronted Fenn again, shouting "Who the fuck are you to call the union on me?" (Verizon Rule 56.1 Stat. ¶ 7)

Fenn later observed graffiti ridiculing him in sexually explicit, demeaning, and offensive ways. On April 7, 2004, Fenn observed graffiti in a men's bathroom at Verizon's central office men's bathroom. The graffiti included a "cartoon" of Fenn performing fellatio, and the words "Jerry Fenn likes hairy men," and "Jerry Fenn still likes his dildo greasy." (Verizon Rule 56.1 Stat. ¶ 8; Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 8; Pltf. Dep. at 71, 77, 166-67) Fenn immediately reported the graffiti to his foreman. (Verizon Rule 56.1 Stat. ¶ 9; Pltf. Dep. at 79-81) The men's bathrooms at Verizon had always contained sexually graphic and offensive graffiti referencing homosexuality and containing a variety of slurs (Verizon Rule 56.1 Stat. ¶ 4; Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 4), but Plaintiff was never bothered or offended by such graffiti until his "name hit the wall" in April 2004. (Verizon Rule 56.1 Stat. ¶ 4; Pltf. Dep. at 215) Indeed -- prior to March 2004 -- Fenn had not experienced any problems with his co-workers during his twenty-five years at Verizon, and he had been "happy" in his job. (Verizon Rule 56.1 Stat. ¶ 3; Pltf. Dep. at 51)

On April 20, 2004, a co-worker shouted that Fenn was a "scumbag" as Fenn and his partner, Paul Barrese, were exiting the 26th Street Garage. (Verizon Rule 56.1 Stat. ¶ 8; Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 8; Pltf. Dep. at 83) Later that day, Fenn observed new graffiti in the men's restroom in the form of drawings of male genitalia and the phrase, "Gerry Fenn is a Jewish dwarf." (Id.) Fenn complained to his foreman and showed him photographs of the offensive graffiti. (Pltf. Dep. at 89-93) On April 21, 2004, Fenn discovered more graffiti on a table in the break room reading, "Gerry Fenn is a Rat Fuck." (Verizon Rule 56.1 Stat. ¶ 8; Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 8; Pltf. Dep. at 93) Fenn again complained to his supervisors and showed them the graffiti. (Pltf. Dep. at 93-94)

Later on April 21, 2004, while Fenn and Barrese were in the back of the Verizon truck they shared, Tony Anastasio -- Local 1109 business agent -- and Chris Calabrese -- a Local 1109 union steward -- approached them in a threatening manner and demanded that Fenn hand over his camera, memory card, and any photos he had taken of the offensive graffiti. (Verizon Rule 56.1 Stat. ¶ 10; Pltf. Dep. at 95-96, 98-99) Anastasio yelled in an intimidating manner, "You don't know how serious this is. Somebody could get fired. If you don't give us this stuff, you won't -- there won't be one place in this country you could not be known as a rat fuck." (Id.) Thereafter, Tony Anastasio represented that he would speak with "the guys" about stopping the harassing graffiti. (Pltf. Rule 56.1 Counter-Stat. to Union ¶ 20; Pltf. Dep. at 124) Fenn was not physically harmed or explicitly threatened with physical violence during these incidents, but he felt physically threatened and intimidated. (Verizon Rule 56.1 Stat. ¶ 10; Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 10; Pltf. Dep. at 96, 200; Fenn Aff. ¶ 9)

Fenn then began limiting his interaction with co-workers by waiting in the hallway instead of going into the break room to receive his daily work assignments. (Pltf. Rule 56.1 Stat., Add. Mat. Facts ¶ 8) He eventually received his assignments in the parking lot outside the Garage. (Id.) The harassment continued, however, and on May 3, 2004, new graffiti appeared in the bathroom of Verizon's central office reading, "Nice job turning in our top steward. Stay out of the office you RAT." (Union Rule 56.1 Stat. ¶ 22) Fenn reported this incident to Verizon manager John McHugh and requested a change in work hours to avoid the harassment. (Pltf. Rule 56.1 Stat., Add. Mat. Facts ¶¶ 10-11) McHugh told Fenn that the matter would be referred to Verizon Security and suggested that Fenn speak with representatives of the Employee Assistance Program ("EAP"). (Id. ¶ 12) Fenn met with an EAP counselor on May 19, 2004; the counselor recommended that Fenn see a psychiatrist for treatment and counseling due to trauma he was experiencing from the harassment. (Cmplt. ¶ 18; Fenn Aff. ¶13)

New sexually explicit and harassing graffiti continued to appear on the bathroom walls, and Fenn states that Defendants made no effort to remove any of this graffiti. (Pltf. Rule 56.1 Counter-Stat. to Verizon ¶¶ 9, 12-13, 23) On June 22, 2004, Fenn's identification card was taken from him and deposited three miles away in the men's bathroom of Verizon's central office. (Verizon Rule 56.1 Stat. ¶ 11; Pltf. Rule 56.1 Stat., Add. Mat. Facts ¶ 14) Fenn again complained about the ongoing harassment and was referred to Verizon's Human Resources Help Line, an automated system. Fenn called the Help Line and left a voicemail (Pltf. Rule 56.1 Counter-Stat. ¶ 11; Pltf. Dep. at 112-13), but never received a return call. (Id.)

On June 23, 2004, Fenn called Verizon Security Officer Derrell Nelson and described the harassment he was experiencing at work, including the graffiti. Nelson stated that no Verizon supervisor or manager had reported Fenn's complaints to Verizon Security. (Pltf. Rule 56.1 Stat., Add. Mat. Facts ¶¶ 17-19) Fenn met with the Security Department on June 29, 2004, and was told that an investigation had been conducted, but that Security was not able to determine who was responsible for the harassment. (Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 17; Pltf. Dep. at 119; Young Decl., Ex. B) Fenn was instructed to return to work, to report any new incidents to security, and assured that management would "restate Verizon's harassment policy [to] the guys." (Pltf. Rule 56.1 Stat. ¶ 17; Fenn Aff. ¶ 21) Fenn continued to have contact with security officer Nelson about the harassment and asked for a work transfer, but did not hear back from Nelson. (Pltf. Rule 56.1 Stat., Add. Mat. Facts ¶ 22) Fenn continued to observe offensive graffiti naming him until his last day of work on November 1, 2004. (Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 18; Pltf. Dep. at 161, 163)

In December 2006, Fenn's manager, Ronald Abraham, contacted Fenn at home and advised that if Fenn was thinking of pursuing legal action against Verizon, he would have to resign. (Pltf. Rule 56.1 Stat., Add. Mat. Facts. ¶ 31) Fenn perceived Abraham's statement as a threat. (Id. ¶ 32) On November 2, 2006, Fenn wrote to the President of Local 1109 and copied the President of Defendant CWA about these incidents, asking them to file a grievance on his behalf but received no response.*fn2 (Pltf. 56.1 Stat. ¶¶ 29, 30) Fenn had already communicated with Local 1109 in October of 2006 and was informed that it was too late to file a grievance according to the collective bargaining agreement between Local 1109 and Verizon as more than one year had passed since an incident of alleged harassment had occurred. (Pltf. Dep. at 216-219)

On June 27, 2007, Fenn filed a charge of discrimination with the New York State Division of Human Rights (Pltf. Rule 56.1 Counter-Stat. to Verizon ¶ 21; Young Decl., Ex. I), and on October 31, 2007, he filed this lawsuit in New York state court. Although the Complaint alleged no federal claims, on March 6, 2008, the Union Defendants removed this action to federal court on grounds that Plaintiff's state law claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. (Notice of Removal ¶¶ 5-7, Docket No. 1)

It is undisputed that Plaintiff is not homosexual, is not Jewish, and is not a dwarf, and there is no evidence that Plaintiff's co-workers perceived him as such. (Verizon Rule 56.1 Stat. ¶ 9; Pltf. Dep. at 74, 84; Fenn Aff. ¶ 29)

DISCUSSION

Defendants are entitled to summary judgment on Plaintiff's NYSHRL and NYCHRL claims for hostile work environment harassment based on sex and religion, and retaliation. Because Fenn's union-related claims are preempted by the LMRA and were brought after the applicable statute of limitations had expired, those claims must be dismissed. Fenn's discrimination claims also fail on the merits, because the evidence demonstrates that he was harassed not because of his sex or religion, but because he was perceived as having violated an informal agreement among union members concerning the parceling out of overtime work. Fenn has likewise offered no evidence demonstrating that he was retaliated against for having engaged in protected activity.

I. PLAINTIFF'S STATE LAW CLAIMS AGAINST THE UNION DEFENDANTS ARE PREEMPTED UNDER LMRA § 301 AND ARE TIME-BARRED

The Union Defendants removed this action to federal court on the ground that Plaintiff's state law claims were preempted by Section 301 of the LMRA. If removal was improper, the Court lacks subject matter jurisdiction. (Docket No. 1, Notice of Removal ¶¶ 5-8) Generally, removal is proper if an action originally filed in state court could have been filed in federal court. 28 U.S.C. § 1441(a) (2000). Absent diversity of citizenship,*fn3 this occurs "when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Although the general rule is that removal "is not permitted simply because a defendant intends to defend the case on the basis of federal preemption," Vera v. Saks & Co., 335 F.3d 109, 114 (2d Cir. 2003), there is an exception for state law claims that are completely preempted by federal law, meaning "that any claim based on preempted state law is considered a federal claim arising under federal law." Id. (quoting Foy v. Pratt & Whitney Group, 127 F.3d 229, 232 (2d Cir. 1997)). Section 301 of the LMRA has this "'unusual pre-emptive power.'" Id. (citing Livadas v. Bradshaw, 512 U.S. 107 (1994)). "Thus, even though the parties agree that plaintiff's well-pleaded complaint alleges on its face only state claims, and no one argues that diversity of citizenship exists between the parties, if plaintiff's state 'claims are preempted by section 301, federal jurisdiction exists and the removal of his case was proper.'" Id. (quoting Hernandez v. Conriv Realty Assocs., 116 F.3d 35, 38 (2d Cir. 1997)).

State law claims are preempted under Section 301 if their resolution requires interpretation of a collective bargaining agreement ("CBA").*fn4 Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-406 (1988). Mere reference to such an agreement does not, however, preempt state law claims; interpretation of a CBA must be central to the action. Id. at 408; Livadas v. Bradshaw, 512 U.S. 107 (1994). "The Second Circuit has recognized that the starting point in determining whether a claim is preempted by Section 301 is consideration of the elements of plaintiff's stated claim. The court then considers whether adjudication of any element of that claim requires interpretation of the parties' collective bargaining agreement." Zuckerman v. Volume Servs. Am., Inc., 304 F. Supp. 2d 365, 370 (E.D.N.Y. 2004) (citing Foy v. Pratt & Whitney Group, 127 F.3d 229, 233 (2d Cir. 1997)); see also Bryant v. Verizon Communs., Inc., 550 F. Supp. 2d 51, 527 (S.D.N.Y. 2008).

Here, the Complaint alleges that the Union Defendants: violated the NYCHRL and the NYSHRL by refusing to file a grievance based upon Plaintiff's complaints to the Union of the discrimination and harassment he experienced. Defendants CWA Local 1109 and CWA International['s] acquiescence to the discrimination was a deliberate act of retaliation in response to Plaintiff's complaints and opposition to Defendants' unlawful discrimination. (Cmplt. ¶ 51)

"Courts in our Circuit have held a variety of claims brought against Unions -- including state law discrimination claims -- to be preempted by federal law, where resolution of the claim would require interpreting terms of the collective-bargaining agreement." Cooper v. Wyeth Ayerst Lederle, 34 F. Supp. 2d 197, 202 (S.D.N.Y. 1999) (citing cases). Whether the Union Defendants' failure to file a grievance on Fenn's behalf was an act of discrimination under state law depends, in part, on whether the CBA permitted or required them to do so.

In Cooper, plaintiff argued "that because her state law discrimination claims against the Union do not seek redress for violations of the collective-bargaining agreement, they are not preempted by federal labor law." The court ...


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