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Grant v. Communications Workers of America

United States District Court, S.D. New York

March 29, 2018

DOUGLAS J. GRANT, Plaintiff,
v.
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1101, et al., Defendants.

          OPINION AND ORDER

          LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE

         Communications Workers of America, Local 1101 (“Defendant” or the “Local Union”; sometimes referred to herein as “CWA”), the sole remaining Defendant in this action, moves for summary judgment on the two outstanding claims against it -- one claim under the Labor Management Reporting Disclosure Act (“LMRDA”) § 101(a)(5), 29 U.S.C. § 411(a)(5); and one claim under the Labor Management Relations Act (“LMRA”) § 301, 29 U.S.C. § 185. Defendant's motion is granted in part and denied in part.

         I. BACKGROUND

         The facts below are drawn from the parties' Rule 56.1 Statements and other submissions on this motion and are construed in favor of Plaintiff as the nonmoving party. See Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017).

         A. Plaintiff's 2013 Suspension & Trial

         Pro se Plaintiff Douglas J. Grant is an employee of AT&T Mobility (“AT&T”) in Paramus, New Jersey, and a member of the Local Union since about January 2006. In September 2013, Plaintiff was a business agent for AT&T -- a position in which Plaintiff managed the Union's daily business matters and functioned as a liaison between the Union and management.

         On September 26, 2013, the Local Union Executive Board suspended Plaintiff as business agent because of internal charges that Local Union members Sarrah Nasser and Bill Nebeling brought against Plaintiff on September 13, 2013, and September 18, 2013, respectively. Nasser accused Plaintiff of gender discrimination and creating a hostile work environment, and Nebeling accused Plaintiff of harassment based on Nebeling's disability. Plaintiff received a copy of Nasser's and Nebeling's charges. The Nasser charging documents are a letter of accusation from Nasser and a list of the provisions of the CWA Constitution that Plaintiff was accused of violating. Nasser's letter, which was the basis for Plaintiff's 2013 trial, describes at length Nasser's feelings about Grant, but states only the following about his alleged misconduct: “He has gone out of his way to make my working environments uncomfortable . . . . In the past he has made comments about how nice I looked or that he was ‘recklessly eyeballing me.'”

         On September 25, 2013, the Local Union assigned Michael Cefalo to serve as prosecutor to investigate the charges. Cefalo interviewed Plaintiff on October 21, 2013, but he (Cefalo) terminated the interview because Plaintiff insisted on giving a detailed statement and presenting evidence. Cefalo told Plaintiff to “save that for a trial.”

         On November 8, 2013, Plaintiff learned that Cefalo had found sufficient cause to proceed with Nasser's charges and that an internal union trial would be held on November 13, 2013, at 6:00 p.m. The day before the trial, Plaintiff met with Local Union Secretary Treasurer Kevin Condy, who offered to postpone the trial. Plaintiff twice insisted that the trial proceed as scheduled because he was anxious about his suspension and did not know the extent of the charges. Condy told Plaintiff that he would make evidence available to Plaintiff no later than noon the following day.

         On November 13, 2013, at 10:08 a.m., Plaintiff emailed Cefalo a list of eleven requests for information to assist Plaintiff to prepare his defense.[1] At 10:27 a.m. Cefalo responded, “Contact Keith Purce. I left a copy with him of everything you need.” Cefalo and Plaintiff exchanged emails throughout the day, with Plaintiff insisting that Cefalo provide the information Plaintiff had requested and Cefalo referring Plaintiff to Purce. Plaintiff picked up the evidence that Condy had left for him -- fewer than ten pages of material -- after 4:00 p.m. Plaintiff emailed and called Cefalo multiple times before 6:00 p.m. to request an adjournment but did not reach him. Plaintiff did not appear for the trial, which, consistent with the CWA Constitution, was held in his absence. On November 13, 2013, a jury of CWA members found Plaintiff guilty of Nasser's charges, suspended him from “good standing” membership in the CWA for one year effective November 14, 2013 and directed him to take a “sensitivity training” class.

         On November 20, 2013, Plaintiff appealed to the Local Union Executive Board. By letter dated December 20, 2013, Condy informed Plaintiff that his one-year suspension had been reduced to six months. Plaintiff then appealed to the National Union, which, by letter dated March 21, 2014, informed Plaintiff that the decision was reversed and the penalties vacated.

         B. The 2014 Settlement

         After the conclusion of Plaintiff's appeal, Plaintiff met with Local Union representatives to settle all outstanding issues, including Plaintiff's then-pending case before Judge Furman in this District. The claims in that action included that Plaintiff's 2013 suspension and trial violated the LMRDA and the CWA Constitution. The Local Union agreed to withdraw Nebeling's internal union charge, but said that it could not force Nebeling to withdraw his related EEOC complaint. Because of the settlement, the Local Union never tried the Nebeling charge and defended Plaintiff as its employee before the EEOC until Nebeling withdrew his complaint. Plaintiff never formally dismissed his pending case before Judge Furman, but because of the settlement, he did not oppose the Local Union's motion to dismiss, which Judge Furman granted on July 15, 2014. Grant v. Commc'ns Workers of Am., Local 1101, No. 13 Civ. 7917, 2014 WL 3439670 (S.D.N.Y. July 15, 2014). The claims under the LMRDA were dismissed without prejudice. Id.

         C. Plaintiff's 2016 Trial

         On September 30, 2015, the Local Union held an election for steward at the AT&T call center in Paramus, New Jersey. During the election, Plaintiff approached chief stewards Heather Trainor and Nebeling about grievances that Plaintiff had filed. Nebeling and Plaintiff became involved in a verbal altercation. Between September 30 and October 8, 2015, the Local Union collected statements from witnesses who described Plaintiff as “yelling” and “badgering” Nebeling, making “gun motions” and “gun noises” at him, and yelling at and making “gun gestures” at Trainor.

         On October 18, 2015, Nebeling filed a formal charge against Plaintiff alleging that Plaintiff had “continuously bullie[d]” him and acted in a threatening and demeaning manner, including on September 30, 2015, during the steward election. Nebeling stated that Plaintiff's behavior on September 30, 2015, caused him to become so scared that he “began to shake and physically become ill.” On November 10, 2015, the Local Union Executive Board informed Plaintiff that it would not certify him as a steward based on his alleged conduct on September 30, 2015. On November 12, 2015, Plaintiff received notice of the charges. On December 23, 2015, Plaintiff received the Nebeling charging documents, including Nebeling's detailed account of the September 30, 2015, incident, a letter from Peter Ficorelli, the prosecutor, identifying the provisions of the CWA Constitution that Plaintiff was alleged to have violated and a list of potential witnesses.

         On January 12, 2016, the Local Union informed Plaintiff that Ficorelli had found probable cause to pursue the charges and that an internal union trial was scheduled for January 28, 2016. On January 21, 2016, in response to Plaintiff's request for information similar to what he had requested for the November 13, 2013, trial, the Local Union sent Plaintiff a letter describing the Local Bylaws related to expulsion from membership, the right to trial and rights under the LMRDA. The letter attached Nebeling's complaint and a list of witnesses and, in response to Plaintiff's request for an adjournment, included possible trial dates.

         On February 4, 2016, the Local Union provided Plaintiff a revised witness list and informed him that the trial was rescheduled for February 25, 2016. On the same day, Plaintiff emailed the Local Union to request that the trial be postponed because the Local Union had refused to respond to essentially the same list of requests that Plaintiff had made previously. Throughout the spring and into the summer, Plaintiff and Ficorelli corresponded by email and letter about the trial, and Ficorelli provided Plaintiff a revised witness list. In a letter dated March 3, 2016, Ficorelli addressed most of Plaintiff's requests, including a further revised witness list and a brief description of each witness's anticipated testimony. Ficorelli did not respond to Plaintiff's request to summarize his own (Plaintiff's) defense.

         By letter dated June 28, 2016, Ficorelli informed Plaintiff that the trial was rescheduled for July 14, 2016, and the trial was held on that day. Nebeling, Trainor, Nasser, San-dee Nazario and Tiffany Rosario testified. Plaintiff was provided a copy of each witness's signed statement as he or she testified. Several of the witnesses testified about Nebeling's relationship with Plaintiff generally, or events occurring before the September 30, 2015, incident, in addition to testifying about the September 30, 2015, incident. Plaintiff was permitted to cross-examine all of the witnesses and present evidence, but he was not permitted to ask certain questions or present certain evidence, and he was not permitted to present a video from the September 30, 2015, incident until the end of the trial. Plaintiff objected throughout the trial, including to the informality of the proceedings. Plaintiff was found not guilty of bringing the Union or the Local Union into disrepute; guilty of violating the Union's policy on mutual respect; and guilty of violating § 610 of the LMRDA by threatening the use of force or violence or behaving in a coercive or intimidating manner. Plaintiff was suspended from “good standing” membership for two years and fined $1, 000.

         With respect to the two charges for which Plaintiff was found guilty, Plaintiff appealed the decision to the Local Union's Executive Board, which, on October 14, 2016, dismissed the charge under § 610 of the LMRDA. Plaintiff then appealed the remaining charge to the National Union, which, on March 3, 2017, affirmed the decision but reversed the monetary penalty. On August 6, and August 7, 2017, the CWA National Convention ...


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