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Wolfinger v. Consolidated Edison Company of New York, Inc.

United States District Court, E.D. New York

July 31, 2018




         On or around May 6, 2016, Plaintiff Peter Wolfinger was fired from his job of over sixteen years as a general utility worker and mechanic for Defendant Consolidated Edison Company of New York, Inc. ("Con Ed" or "Defendant"). (Am. Compl. ("Am. Pet.") (Dkt. 8 in No. 17-CV-1710) ¶¶ 18, 23.)[1] Plaintiff, through his union, the Utility Workers Union of America, AFL-CIO, Local 1-2 (the "Union"), filed a grievance in response to his termination. (See id ¶ 17.) On January 26, 2017, Arbitrator Marlene A. Gold ("Arbitrator Gold") upheld Plaintiffs termination, finding that Defendant had reasonable cause to discharge him. (See Id. ¶ 2.)

         Plaintiff now seeks vacatur of Arbitrator Gold's opinion and award (the "Award") pursuant to Article 75 of the New York Civil Practice Law and Rules, N.Y. C.P.L.R. 7511, and Section 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a) [hereinafter LMRA § 301(a)]. (See Am. Pet.; Pl. Mem. in Opp'n to. Mot. to Dismiss ("Pl. Opp'n") (Dkt. 18) at 1.) Plaintiff also alleges disability and sex discrimination in violation of various federal, state, and local laws. (Compl. ("Discrim. Compl") (Dkt. 1 in No. 17-CV-3099) ¶¶ 33-41.) Before the court is Defendant's motion to dismiss all of Plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss (Dkt. 14); see Mem. in Supp. of Mot. to Dismiss ("Def. Mem.") (Dkt. 15); Pl. Opp'n; Def Reply in Supp. of Mot. to Dismiss ("Def. Reply") (Dkt. 19).) For the following reasons, Defendant's motion is GRANTED.

         I. BACKGROUND

         A. Facts

         For the purpose of considering Defendant's motion to dismiss, the court accepts as true the factual allegations in Plaintiffs complaints and the exhibits attached thereto.[2] See, e.g., Gainer v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 443 (2d Cir. 2015): see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) ("[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.").

         Plaintiff, now a 46-year-old man, began working for Con Ed as a general utility worker on or about May 19, 2000. (Am. Pet. ¶ 18.) Plaintiff's job responsibilities included "trying to establish electricity in the area of lower Manhattan after the [September 11, 2001, ] attacks" and "uninstalling underground cables as well as laying new cables on top of the street or around the debris pile at [G]round [Z]ero." (Discrim. Compl. ¶¶ 13-14.) Plaintiff claims that over the course of his sixteen years of employment for Con Ed he proved himself to be an "effective," "hard-working, dependable[, ] and capable employee." (Am. Pet. ¶ 19; Discrim. Compl. ¶ 1.)

         During his work at Ground Zero, Plaintiff alleges that he was "exposed to significant levels of dangerous dust and other airborne debris that have been shown to cause cancer as well as other serious health issues." (Discrim Compl. ¶ 14.) He also claims that "his equipment was substandard and ultimately proved useless in protecting [his] health." (Id. ¶ 15.) Consequently, he developed chronic bronchitis. (Id. ¶¶ 12, 16.) Although Plaintiff was "initially able to maintain a regular work schedule and perform his job duties," he "sporadically... needed to take days off when his illness flared up." (Id. ¶ 17.) He also "suffered a heart attack in 2010 due to work[-]related issues." (Id.) "[W]hen Plaintiffs health issues worsened, the World Trade Center organization asked [him] to visit a radiologist in regards [to] illnesses many people who worked at the site of the attacks were experiencing." (Id. ¶ 18.)

         Plaintiff's attendance troubles began on February 21, 2013, when he received a written warning following "his second [occurrence of absence] ¶ 2012 totaling 12 days of absence." (See Arbitration Op. & Award ("Award") (Dkt. 1 at ECF p. 15) at 4.) At that time, he was "reminded that further non-FMLA absences [could] result in additional progressive discipline, which might include suspensions and/or termination." (Id.) On March 10, 2014, Plaintiff was given a "verbal warning for poor attendance based upon his accumulation of three non-FMLA absences totaling [six] days in 2013." (Id.) Again, Plaintiff was told that future non-FMLA absences could result in progressive discipline leading to termination. (Id.) A third interview followed on May 13, 2014, at which Plaintiff was given a verbal warning and told that he needed to make "immediate and sustained improvement in his attendance" or else risk "further discipline up to []and including termination." (Id.) On May 19, 2014, Plaintiff had a fourth interview stemming from "an [eight-]day sick absence beginning March 25, 2014[, ] after exhaustion of eligible FMLA time." (Id.) He received another written warning and a three-day suspension. (Id.) A fifth interview occurred on January 13, 2015, following Plaintiffs "non-FMLA qualified absence of three days in October 2014." (Id. at 5.) "By that time, [Plaintiff] had accumulated a total of 30 days of non-FMLA qualified absences within a 12-month period." (Id.) He was suspended for five days and given another written warning, which, like all the other warnings, cautioned him that his failure to make "immediate and sustained improvement in his attendance" would lead to further discipline, including termination. (Id.)

         The final meeting prior to Plaintiffs termination took place on November 30, 2015. (Id.) In his complaints, Plaintiff does not discuss any of the meetings mentioned in the preceding paragraph; instead, he states that after he took "several sick days in 2015," his "supervisors became irritated" and they "scheduled a meeting with him to discuss the absences." (Discrim. Compl. ¶ 19.) At the November 30, 2015, meeting, Con Ed suspended Plaintiff for five days without pay. (Id. ¶ 29; Award at 5.) Plaintiff construes this meeting as having constituted a "final warning" (Am. Pet. ¶ 21), but states that he "was never alerted to the fact that he had been issued a final warning" (Discrim. Compl. ¶ 21; see Am. Pet. ¶ 21).

         Following the November 30, 2015, meeting, Plaintiff had three separate periods of absence; a four-day period in February 2016, the first two days of which were FMLA qualified; a "non-FMLA absence of 20 days from mid-March to mid-April, which was approved by workers['] compensation"; and a five-day "non-FMLA qualified absence from May 2, 2016, through May 6, 2016." (Am. Pet. ¶ 22; Award at 6-7; see Admin. Decision, State of New York, Workers' Compensation Board (Dkt. 1 at ECF p.23).) Prior to the third period of absence, Plaintiff "submitted an Employee's Physical Progress Report" to Con Ed in which he informed Con Ed "that he would need to miss work [until May 9, 2016, ] in order to properly [] treat his chronic bronchitis." (Discrim. Compl. ¶ 22.) A doctor at Con Ed's "Occupational Health Department" treated Plaintiff "for respiratory issues" and advised Plaintiff that he could "return to full duty on May 9, 2016." (Id. ¶ 23.)

         In early May 2016, following Plaintiffs last period of absence, [3] Con Ed "scheduled a meeting with Plaintiff to again discuss his absences." (Am. Pet. ¶ 23; Discrim. Compl. ¶ 24.) Con Ed informed Plaintiff that the November 30, 2015, meeting constituted a final warning to Plaintiff, and that Plaintiffs employment was terminated effective immediately. (Am. Pet. ¶ 23; Discrim. Compl. ¶ 24.) Plaintiff states that he is "unaware of other employees [who] were terminated under similar circumstances without suffering from a [disability." (Discrim. Compl. ¶ 25.) He additionally claims that there was "a female co-worker [who] had a worse attendance record than him and had not been suspended or disciplined other than being issued minor warnings." (Id. ¶ 29.) According to Plaintiff, "the only obvious differences" between his situation and those of others at Con Ed who had multiple absences but were not suspended or terminated were Plaintiffs "disability and gender." (Id. ¶ 32.)

         Although Plaintiffs complaints are unclear as to what exactly happened next, eventually the Union filed a grievance on Plaintiffs behalf and a hearing was held on July 28, 2016, before Arbitrator Gold. (See Award at 1.) On January 26, 2017, Arbitrator Gold denied Plaintiffs grievance, finding that Con Ed "had reasonable cause to discharge [Plaintiff] for three absence frequencies following his placement on a Final Warning on November 30, [2015]." (Id. at 7-8.) Arbitrator Gold rejected Plaintiffs argument that, because the first two days in his first absence were FMLA qualified, Con Ed should have been required to consider the full absence as FMLA qualified. (Id. at 6-7.) She also found that the testimony of Plaintiff s supervisor "cast[] doubt" on Plaintiffs claim that his third period of absence was legitimate; and, even if it were legitimate, that Con Ed's "policy specifically provides that excessive absences, including those that are legitimate, may constitute cause for discipline." (Id. at 7.) In view of Plaintiffs "disciplinary history, [Con Ed's] use of progressive discipline, [Plaintiffs] placement on a Final Warning, and his subsequent absences thereafter," Arbitrator Gold found that Con Ed had reasonable cause to discharge Plaintiff. (Id.)

         B. Procedural History

         Plaintiff originally filed his petition (the "Verified Petition") in Kings County Supreme Court on March 3, 2017. (Verified Pet. (Dkt. 1 at ECF p.8).) The Verified Petition sought a judgment vacating the Award and reinstating Plaintiff with full back pay on the grounds that the Award "violates a strong public policy and is irrational." (See Id. ¶¶ 23-24.) Defendant timely removed the action to this court on the ground that Section 301(a) of the LMRA gives federal courts original jurisdiction over all claims "requiring interpretation of [a] collective bargaining agreement." See 28 U.S.C. §§ 1331, 1441; see also LMRA § 301(a). (Notice of Removal (Dkt. 1 at ECF p.1).) At a pre-motion conference on April 27, 2017, Plaintiff stated his intention to file an amended complaint, which the court directed him to do by no later than May 30, 2017. (Apr. 27, 2017, Min. Entry.) Plaintiff also informed the court of his intention to file a separate discrimination lawsuit against Defendant. (Id.) On May 23, 2017, Plaintiff both amended the Verified Petition (see Am. Pet.) (the "Amended Petition") and filed his discrimination complaint (see Discrim. Compl.) (the "Discrimination Complaint"), the latter of which was reassigned to the undersigned on June 27, 2017.

         The Amended Petition still seeks vacatur of the Award and Plaintiffs reinstatement with back pay. (Am. Pet. at 8.) That pleading was also amended to allege that the Union breached its duty of fair representation by allegedly mishandling Plaintiffs arbitration. (Id. ¶ 33.) Meanwhile, the Discrimination Complaint alleges disability and sex discrimination in violation of various federal, state, and local laws (Discrim. Compl. ¶¶ 33-41), for which Plaintiff demands monetary damages (id. at 9).

         The court ordered a joint briefing schedule for Defendant's anticipated motion to dismiss both complaints. (July 11, 2017, Order (Dkt. 10).) The motion was fully briefed and filed with the court on November 3, 2017. Regarding the Amended Petition, Defendant argues that Plaintiff lacks standing to bring this challenge, that he does not allege a sufficient basis to vacate the Award, and that he has failed to plead the necessary elements for his "hybrid" claim against Con Ed and the Union under LMRA § 301. (Def. Mem. at 9-22.) Regarding the Discrimination Complaint, Defendant claims that Plaintiff has failed to establish the elements of a claim of disability or sex discrimination under federal, state, or local law, under any of the theories raised in the Discrimination Complaint. (Id. at 22-30.)


         The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of a plaintiff's claims for relief. Patane v. Clark, 508 F.3d 106, 112-13 (2d Cir. 2007). A complaint will survive a motion to dismiss if it contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

         When considering a motion to dismiss for failure to state a claim, the court must accept as true all allegations of fact in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc'ns. Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). "In determining the adequacy of the complaint, the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint." Subaru Distribs. Corp. v. Subaru of Am.. Inc.. 425 F.3d 119, 122 (2d Cir. 2005).


         A. Arbitration

         Plaintiff seeks vacatur of the Award on the grounds that it violates public policy. (Am. Pet. ¶ 31.) Even if he is not able to directly challenge the Award, he argues that his claim may proceed as a "hybrid" claim under LMRA § 301 because the Union breached its duty of fair representation and Defendant breached its collective-bargaining agreement with Plaintiff (a "hybrid § 301/DFR claim"). (See Am. Pet. ¶¶ 15-17, 33.) Defendant first responds that Plaintiff cannot challenge the Award because he was not a party to the arbitration, and that, even if he did have standing, he has not alleged a sufficient basis to vacate the Award. (Def. Mem. at 9.) Defendant further states that Plaintiff's hybrid § 301/DFR claim is untimely and that Plaintiff has failed to plead that the Union breached its duty of fair representation or that Defendant breached the collective bargaining agreement. (Id. at 14.)

         The court finds that Plaintiff does not have standing to bring a direct challenge to the award. The court also finds that Plaintiff has not stated a claim that the Union breached its duty of fair representation, a necessary predicate for his hybrid § 301/DFR claim. Accordingly the court GRANTS Defendant's motion to dismiss the Amended Petition.

         1. Direct ...

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