The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Dino Paladino ("Plaintiff") filed the present action against her former employer, defendant DHL Express (USA), Inc. ("DHL"), and her union, defendant International Brotherhood of Teamsters Air Freight Chauffers, Handlers, Warehousemen & Allied Workers Union No. 295 ("Local 295") (collectively, "Defendants"), pursuant to § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). Plaintiff's "hybrid" action alleges that DHL breached the collective bargaining agreement between DHL and Local 295 (the "CBA") by terminating Plaintiff's employment without good cause and that Local 295's failure to process Plaintiff's grievance through arbitration constitutes a breach of its duty of fair representation. Plaintiff also alleges that DHL unlawfully terminated his employment based upon his disabilities in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("NYSHRL"). Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. Defendant DHL also moves pursuant to Rule 56(e) to strike the declaration of Michael G. O'Neill submitted by Plaintiff in support of his opposition to DHL's summary judgment motion. For reasons stated below, Defendants' motions for summary judgment are granted; DHL's motion to strike is denied as moot.
The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.
Plaintiff's Employment at DHL
Plaintiff was hired by DHL as a courier in 1985 at its JFK facility. In 1993, at Plaintiff's request, Plaintiff was transferred to DHL's Westbury station. Thereafter, Plaintiff voluntarily transferred to DHL's Farmingdale station. In 2002, Plaintiff requested a "hardship transfer" to the Islip Station in order to be closer to home to assist with his dying mother-in-law. This request was granted by Local 295 in 2003 and Plaintiff was transferred to DHL's Islip station located in Ronkonkoma, New York (the "ISP station"). Plaintiff remained at this station until October 2006, the date of his final termination.
As a driver, Plaintiff's job duties included delivering and helping to break down freight, delivering and picking up packages, scanning packages, and loading and unloading trucks. Plaintiff also was a shuttle driver at the ISP facility. As a shuttle driver, Plaintiff was responsible for taking an empty shuttle truck from the ISP station to DHL's JFK facility, to unload freight from an inbound plane onto DHL's truck, and drive the freight back to the ISP station for sorting and delivering.
Plaintiff's regular shift was from 4 a.m. until 1 p.m. Since approximately 2001, Jeffrey Sidorski ("Sidorski") was the District Field Services Manager at the ISP station. As manager, Sidorski was responsible for managing the operations of the entire ISP station. Sidorski was also the decision maker with regard to Plaintiff's final termination.
Local 295 and DHL are parties to the CBA, which governs the terms and conditions of employment of couriers employed by DHL.*fn1 Appendix B, Section III of the CBA concerns employee discipline. Under this section, "serious offenses" are categorized as Category A offenses that provide DHL with "just and sufficient cause for summary discharge." Among the offenses specified as Category A offenses is "theft." (CBA at 91.) No definition of "theft" appears in the CBA. According to Defendants, "theft" has consistently been interpreted by both DHL and Local 295 to include theft of company time. Plaintiff testified that his understanding of theft of company time is "not working when you were directed to work and doing something else." (Pl.'s July 14, 2008 Dep. at 198.)
Section 22 of the CBA sets forth a dispute resolution procedure for grievances. Grievances go through a series of steps where either the employee or Local 295 will meet with representatives of management. Under the CBA, grievances involving a discharge are submitted directly to Step 2. An employee initiates the grievance process for a discharge by submitting a grievance in writing to his or her District or Station Manager after receiving written notification of such discharge. If the matter is not resolved at Step 2, the grievance can be taken to Step 3, which involves a review and decision by the Regional Field Services Manager or designee. If the employee is not satisfied with the Step 3 results, Local 295 can submit the grievance to its Executive Board to determine whether the union will pursue the grievance to arbitration. Plaintiff's Violations of DHL's Attendance Policy
Under the CBA, Plaintiff was subject to progressive discipline for violations of DHL's attendance policy. In 2005, on three different occasions in April, August and November, Plaintiff was disciplined pursuant to the attendance/lateness discipline procedure under the CBA. According to Plaintiff, throughout these disciplinary processes, he informed the managers, supervisors and union officials involved, including Sidorski, that these attendance/lateness issues were a result of his problems at home and their physical and emotional effect on him. (Pl.'s April 17, 2009 Decl. ("Pl.'s Decl.") ¶ 11.)
Plaintiff's Other Violations
Plaintiff also received counseling about other violations of DHL's work policies from Sidorski and/or Mike Mackey ("Mackey"), an ISP station manager, on at least three separate occasions. The first time Plaintiff received counseling at the ISP station, Plaintiff was driving a shuttle truck from the airport to the ISP station and parked the truck on the eastbound side of Sunrise Highway. Sidorski was driving westbound when he saw the truck and, assuming it had broken down, went to see what had happened. When Sidorski got out of the car, he saw Plaintiff having a conversation with a friend and asked him what had happened. Plaintiff stated that there was no problem and that he was just speaking with a friend. At that point, Sidorski instructed Plaintiff to return to the ISP station where Plaintiff received verbal counseling for his poor judgment as the truck was parked while it was full of freight.
The second time, on January 18, 2005, Plaintiff parked his truck on the side of the road and was seen asleep by Mackey who saw the truck as he was driving into work. Plaintiff explained to Mackey that he had to pull over to rest because the sun was in his eyes. Thereafter, Mackey and Sidorski each met with Plaintiff and explained to him that although safety precautions are appropriate and necessary, Plaintiff needed to immediately communicate such issues to management or dispatch.
The third time Plaintiff received counseling at the ISP station for violating DHL's work rules, Sidorski had seen Plaintiff on a Saturday morning pull his DHL truck into a 7-Eleven during his working time and get out of his vehicle. Plaintiff explained that he was going to make a phone call, but as he was only five minutes from the station, Sidorski instructed Plaintiff to return to the station. Sidorski and Paul Blasucci, Shop Steward for the ISP station, met with Plaintiff, where it was explained to Plaintiff that he should have returned to the station to make the phone call.
Plaintiff's Three Terminations and Reinstatements
Plaintiff was terminated and reinstated three times while employed at DHL. First, in November 1994, Plaintiff was terminated for theft of company time while he was working at the Westbury station. Specifically, Plaintiff admitted that he intentionally falsified his time records in an effort to be paid by DHL during periods in which he was at his home in Wantaugh and not working. The station manager, Gary Chardavoyne, terminated Plaintiff for falsifying his cartage records. Sidorski was in no way involved with the decision to terminate Plaintiff's employment at that time and had no role in the grievance process. Plaintiff grieved the termination, which was upheld through each step of the grievance process under the CBA. Thereafter, Local 295 pursued Plaintiff's case to arbitration in front of Stanley Aiges, whom the CBA designates as the contract arbitrator for all grievances. Arbitrator Aiges found that Plaintiff engaged in theft of company time. Although Arbitrator Aiges acknowledged that Plaintiff's offense was one "which arbitrators universally uphold the discharge penalty," Plaintiff was reinstated and his termination was reduced to a time served suspension without pay because other employees at the Westbury station had been treated less harshly for falsifying cartage reports at that time. Plaintiff returned to work on March 6, 1995. The CBA now provides that DHL's imposition of a lesser penalty for an offense in one instance shall not be treated as binding precedent for similar offenses by other employees in the future.
On August 29, 1995, Plaintiff was terminated a second time for leaving an envelope to be delivered in the front seat of his truck. After exhausting the grievance procedures, Plaintiff's termination was reduced to an unpaid suspension, and he returned to work on November 13, 1995.
In January 2006, Plaintiff was terminated a third time for theft of company time for falling asleep in a DHL truck at a Hess gas station while he was on the clock and being paid by DHL. Plaintiff claims he slept during a period of "dead time" for which he had no specific work assignment. After an investigation, Plaintiff was terminated by DHL for theft of company time. Local 295 pursued a grievance in connection with Plaintiff's termination, which was upheld at the Step 2 hearing on January 10, 2006. Subsequently, at the Step 3 hearing on January 19, 2006, Plaintiff's termination was reduced to a time served suspension. As part of DHL's agreement with Local 295 for Plaintiff's reinstatement with an unpaid time served suspension, Plaintiff signed a "last chance" agreement. The last chance agreement explicitly stated that the "Employee is forewarned that any future incident of like kind will result in the employee's immediate termination." (Decl. of Andrew S. Goodstadt, dated Feb. 20, 2009 ("Goodstadt Decl."), Ex. Y.) Plaintiff testified at his deposition that he understood the agreement to mean that if "he did the same thing... [he] would be fired." (Pl.'s July 14, 2008 Dep. at 357.) A last chance agreement is only effective for one year, after which an employee is given a clean disciplinary record.
Plaintiff's Fourth and Final Termination
On October 11, 2006, DHL again terminated Plaintiff for engaging in theft of company time. It is this termination that is the subject of the instant lawsuit. On October 9, 2006, after working his scheduled shift from 4 a.m. to 1 p.m., Plaintiff worked an additional afternoon shift because the ISP station was short a few drivers. On that day, Plaintiff had three separate gaps in his manifest, which are times when work was not performed, without management approval, when according to DHL, work was available and ...