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Hygom v. Difazio Power & Electric, LLC

United States District Court, Eastern District of New York

March 18, 2015


For Plaintiff: Robert John Valli, Jr., Esq. Sumantra T. Sinha, Esq. Valli, Kane & Vagnini, LLP

For Defendants DiFazio Power, Hromadka, Marks, and DiFazio: Mark L. Sussman, Esq., Esq. Daniel Sergio Gomez-Sanchez, Esq. Jackson Lewis, P.C.

For Defendant Local Union #25: Richard S. Brook, Esq. Patricia E. Palmeri, Esq.



Plaintiff James Hygom (“Plaintiff”) commenced this action on March 28, 2014 against his former employer, DiFazio Power & Electric, LLC (“DiFazio Power” or the “Company”); his union, Local Union #25 of International Brotherhood of Electrical Workers (the “IBEW”); and his former supervisors, Frank Hromadka, Robert Marks, and Anthony DiFazio (the “Individual Defendants and, together with DiFazio Power and the IBEW, “Defendants”). Plaintiff alleges that Defendants discriminated against him based on his age in violation of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 621 et. seq., and Section 290 of the New York State Human Rights Law (“NYSHRL”). Pending before the Court is the IBEW’s motion to dismiss Plaintiff’s claims. (Docket Entry 8.) For the following reasons, the IBEW’s motion to dismiss is GRANTED.


I. Factual Background[1]

Plaintiff is a fifty-nine-year-old electrician. (Compl. ¶¶ 3, 13.) He worked for DiFazio Power and its predecessor company, DiFazio Electric, from 1982 until he was terminated in July 2011.[2] (Compl. ¶¶ 12, 52-53.) Plaintiff was responsible for programming, installing and maintaining fire alarm systems, energy management systems, and security card access systems in buildings. (Compl. ¶ 34.) From 1991 to 2007, Plaintiff “worked as a Foreman/Supervisor for DiFazio Electric” and was responsible for managing up to twenty-two electricians. (Compl. ¶¶ 26-27.)

Plaintiff alleges that in January 2011 DiFazio Power hired Nick Bannon, an electrician in his late twenties, to “replace” him. (Compl. ¶ 37.) Bannon reported to Frank Hromadka, a superintendent at DiFazio Power, who was also Plaintiff’s manager. (Compl. ¶¶ 29, 38.) On June 28, 2011, Plaintiff received a call from Hromadka while on his way to work. Hromadka told Plaintiff he would be “working the bucket truck tomorrow.” (Compl. ¶¶ 40-41.) “The bucket truck is a company vehicle that is used when power lines on street lights need to be repaired, ” and Plaintiff had not worked in a bucket truck in years. (Compl. ¶¶ 42-43.) He told Hromadka that he was very busy and asked if “there [was] anyone younger” who could do the work. (Compl. ¶ 44.) Hromadka asked if Plaintiff was “refusing to do the job, ” and Plaintiff accepted the work. (Compl. ¶ 45-46.)

After their phone conversation, however, Plaintiff spoke with Hromadka in person at DiFazio Power’s offices and “explained that was the oldest employee and he hasn’t been in a bucket truck in quite some time.” (Compl. ¶ 47.) Hromadka “insinuated that being in the truck made [Plaintiff] ‘uncomfortable, ’” and said he would find someone else to do the work. (Compl. ¶ 48.)

On June 30, 2011, defendant Robert Marks--a co-owner of DiFazio Power--called Plaintiff and told him that the Company’s other owner, Anthony DiFazio, knew about Hromadka assigning Plaintiff to the bucket truck. (Compl. ¶¶ 29, 49) Marks told Plaintiff that DiFazio stated, in reference to the incident, “[w]ould you ever tell somebody you are too old to do a job?” (Compl. ¶ 49.) Marks also explained to Plaintiff that “this was becoming an issue at the shop.” (Compl. ¶ 50.)

On July 1, 2011, Hromadka gave Plaintiff a layoff slip, which said that he was being terminated because of a “reduction in force.” (Compl. ¶¶ 52-53.) Plaintiff alleges that Hromadka commented that “[y]ou got to go. You knew this was coming.” (Compl. ¶ 55.)

Following his termination, Plaintiff contacted the IBEW, which represents electricians who work for DiFazio Power. (Compl. ¶ 65.) The IBEW’s collective bargaining agreement with DiFazio Power “limits the employer’s right to terminate any employee for ‘proper cause.’” (Compl. ¶ 68.) In July 2011, he met with Kevin Harvey, a business manager at the IBEW, and complained that he was fired by DiFazio Power because of his age. (Compl. ¶ 66.) Harvey told Plaintiff that there was nothing that the IBEW could do for him. (Compl. ¶ 67.) After Plaintiff requested that the IBEW provide him with a statement that “there was nothing the union could do” for him, Harvey scheduled a second meeting with Plaintiff and John Guadagno, the IBEW’s Business Representative. (Compl. ¶¶ 70-72.) During the meeting, Plaintiff described “the circumstances of his termination.” (Compl. ¶ 73.) Plaintiff claims the IBEW took no further action and did not investigate whether he was terminated for proper cause. (Compl. ¶¶ 73-75.) II. Procedural History Plaintiff brings this action for age discrimination against Defendants pursuant to the ADEA and NYSHRL. (Compl. ¶¶ 78-104.) In addition to his claims against the Individual Defendants and DiFazio Power, Plaintiff alleges that the IBEW discriminated against him in violation of the ADEA and NYSHRL when they “refused to investigate his termination because of his age and because he complained about age discrimination.” (Compl. ¶¶ 84, ...

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