Opinion
99 Civ. 5847 (KMW) (JCF).
March 15, 2001.
REPORT AND RECOMMENDATION
The plaintiff, Benito Vina, brings this action against his former employer, Orsid Realty Corp. ("Orsid"), alleging that he was terminated from his job as a doorman on the basis of his national origin, age, and disability, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). Mr. Vina has also brought similar claims against an individual manager, a supervisor, and an employee of Orsid as well as against Toost Control Corp. ("Toost"), the cooperative apartment corporation for the building where the plaintiff worked. Orsid, its managers and supervisors, and Toost shall be collectively referred to as the "Employer Defendants". In addition, Mr. Vina has brought claims against his union, the Service Employees International Union (the "SEIU") and three of its trustees (collectively the "Union Defendants"), apparently alleging a breach of the duty of fair representation in violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Finally, the plaintiff has named as a defendant the arbitrator who presided over the arbitration of Mr. Vina's termination under a collective bargaining agreement.
Toost is identified in the complaint as "Toost Mgt. Corp."
The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff, who is appearing pro se, did not respond to the motion, but instead requested appointment of counsel. In light of the apparent lack of merit to the plaintiff's claims, I denied the application, and by Order dated Oct. 12, 2000, I gave Mr. Vina detailed instructions as to what to submit in response to the summary judgment motions. I also notified him that if he failed to respond by November 13, 2000, the factual assertions made in the defendants' affidavits would be accepted as true and, if appropriate, summary judgment would be granted dismissing the complaint. Mr. Vina never submitted responsive papers.
Prior to submission of the summary judgment motions, the plaintiff had moved to strike the answer of the Employer Defendants on the ground that they were all represented by the same counsel despite conflicting interests. That motion also must be resolved at this time.
Background
Orsid Realty Corp. is the managing agent for a cooperative apartment building at 301 East 63rd Street in Manhattan. (Affidavit of Kenneth W. Ludwig dated Sept. 7, 2000 ("Ludwig Aff."), ¶¶ 1, 3). Mr. Vina began working as a doorman at the building in 1977, and was employed under a series of collective bargaining agreements between the Realty Advisory Board and SEIU Local 32B-32J (the "Union"). (Ludwig Aff. ¶ 4). At some point in his tenure, the plaintiff was assigned to the 11:00 p.m. to 7:00 a.m. shift. (Ludwig Aff. ¶ 4).
Beginning in 1993, Mr. Vina's work performance began to deteriorate. Residents complained that they found him asleep at his post, and he began to have difficulty completing his cleaning assignments. (Ludwig Aff. ¶¶ 5-6). Although Mr. Vina received oral warnings as a result of these incidents (Ludwig Aff. ¶¶ 5-6), the problems continued. On September 16, 1993, he received a written warning for failing to prevent the theft of a large flower pot from the building lobby. (Ludwig Aff. ¶ 7 Exh. D). On December 17, 1993, he was reprimanded in writing for sleeping on the job and failing to maintain his cleaning equipment in an orderly fashion. (Ludwig Aff. ¶ 8 Exh. E). He received other warning letters in August 1994 and June 1995 for sleeping on his shift. (Ludwig Aff. ¶ 8 Exh. F). On October 15, 1995, Mr. Vina failed to respond to an alarm in the water tank, and the building ran out of water. As a consequence, he was suspended for three days. (Ludwig Aff. ¶ 9 Exh. G). Then, on December 14, 1995, his supervisor found him asleep at the front desk and removed a two-way radio from the desk without any reaction from the plaintiff. Mr. Vina was warned that further incidents could lead to his termination. (Ludwig Aff. ¶ 10 Exh. H). Once again on December 1, 1996, he was found sleeping by a resident who walked through the unlocked entrance and passed without waking him. Again, the plaintiff was warned in writing that he could be fired. (Ludwig Aff. ¶ 12 Exh. I). Thereafter, Mr. Vina was recorded on videotape sleeping at his post on December 6 and 14, 1996. He was given a final written warning. (Ludwig Aff. ¶ 12 Exh. J). Nevertheless, the plaintiff was again found asleep on the job on November 1 and 30, 1997, and he was therefore terminated on January 12, 1998. (Ludwig Aff. ¶¶ 13, 14 Exh. K).
At Mr. Vina's request, the Union filed a grievance on his behalf challenging the discharge. (Affidavit of Ronald A. Goldman dated Sept. 18, 2000 ("Goldman Aff."), ¶ 15). When the grievance was not resolved the Union submitted it to final and binding arbitration before the Office of the Contract Arbitrator pursuant to the terms of the collective bargaining agreement. (Goldman Aff. ¶¶ 15-16).
Throughout the arbitration process, the Union was represented by an attorney, Joseph Labuda, (Goldman Aff., ¶ 18). Mr. Vina was also assisted by Lorenzo Padilla. (Goldman Aff. ¶ 19). Mr. Labuda met with Mr. Vina and Mr. Padilla prior to the arbitration and obtained an adjournment when he learned of the videotape that showed the plaintiff sleeping on the job. (Goldman Aff. ¶ 19). Mr. Vina sought to challenge his discharge on the ground that the boredom of the night shift brought on "involuntary resting periods, akin to and similar to narcolepsy," during which he would appear to be napping. (Goldman Aff. ¶¶ 21-22; Amended Complaint ("Am. Compl.") ¶ 26; Vina Dep. at 34, 38). However, at the outset of the arbitration, the arbitrator, William Schecter, ruled that Mr. Padilla could not be present. Mr. Padilla then advised Mr. Vina not to stay, and both left the arbitration. (Goldman Aff. ¶ 25; Vina Dep. at 45-46). Ultimately, the arbitrator ruled that Orsid had met its burden of showing that Mr. Vina had been sleeping while on duty on November 1 and 30, 1997. Despite the plaintiff's long tenure, the arbitrator upheld his discharge based on the gravity of the offense and a history of disciplinary infractions. (Goldman Aff. Exh. C).
Both in the arbitration and during pretrial conferences in this Court, Mr. Vina identified Mr. Padilla as a "friend." Mr. Padilla is apparently a disbarred attorney who represented Mr. Vina in litigation prior to his disbarment. See In re Lorenzo F. Padilla, 109 A.D.2d 247, 491 N.Y.S.2d 630 (1st Dep't 1985) (order of disbarment), appeal dismissed, 67 N.Y.2d 870, 501 N.Y.S.2d 664 (1986); Vina v. City of New York, 104 Misc.2d 958, 429 N.Y.2d 346 (Sup.Ct. N.Y. Co. 1980) (plaintiff represented by Padilla). Although Mr. Padilla did not formally appear on Mr. Vina's behalf in this action, he did sign and file a motion. I denied that motion on the ground that Mr. Vina was appearing pro se and no non-party could submit a motion for him. (Order dated May 18, 2000). In his deposition, Mr. Vina also acknowledged that Mr. Padilla prepared his complaint. (Deposition of Benito Vina dated June 28, 2000 ("Vina Dep."), at 53, attached as Exh. A to Goldman Aff.).
Mr. Vina then filed a complaint of discrimination with the Equal Employment Opportunity Commission (the "EEOC"). Thereafter, he commenced the instant action.
Neither the EEOC complaint nor any right to sue letter has been made part of the record in this action. Apparently, the administrative complaint asserted charges against Orsid and perhaps its supervisors, but not against the Union. (Goldman Aff. ¶ 27). It can be inferred that Mr. Vina received a right to sue letter. (Am. Compl. ¶ 53) (referring to "EEOC dismissal letter").
Discussion A. Summary Judgment Standard
A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995), abrogated on other grounds, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). The role of the court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried[.]" Knight v. United States Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The burden of showing the absence of a factual dispute rests on the party seeking summary judgment. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986); Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996). In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). Furthermore, special caution should be exercised in granting summary judgment in employment discrimination cases:
[W]hen deciding whether this drastic provisional remedy should be granted in a discrimination case, additional considerations should be taken into account. A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue. . . . Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.
Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994) (internal citations omitted).
Thus, where the nonmovant bears the ultimate burden of proving that the defendant discriminated, he "may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial." Montana v. First Federal Savings Loan Association of Rochester, 869 F.2d 100, 103 (2d Cir. 1989) (citation omitted). Nevertheless, the plaintiff "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (citations omitted). Rather, summary judgment must be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Where, as here, a pro se litigant has been given adequate notice of his obligations in responding to a summary judgment motion but nevertheless fails to answer, the facts as set forth in the defendants' affidavits are uncontested and may be taken as true. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically. Such a motion may properly be granted only if the facts as to which there is no genuine dispute "show that the moving party is entitled to a judgment as a matter of law."
Id. (quoting Fed.R.Civ.P. 56(c)). Therefore, it is necessary to analyze each of the plaintiff's claims in light of the uncontested facts.
B. Claims Against the Employer Defendants 1. Toost Control Corp.
In order to qualify as an "employer" subject to federal antidiscrimination laws, an entity must have at least fifteen employees. See 42 U.S.C. § 2000e(b) (Title VII; 15 employees); 29 U.S.C. § 630(b) (ADEA; 20 employees); 42 U.S.C. § 12111(5)(A) (ADA; 15 employees). Toost employed only seven employees (Ludwig Aff. ¶ 17; Memorandum of Law in Support of Motion For Summary Judgment ("Employer Def. Memo.") at third unnumbered page), and therefore it is beyond the reach of the statutes upon which the plaintiff relies. Even if this were not the case, the claims against Toost fail for the same reasons as do the claims against Orsid, as will be discussed below.
Although the Employer Defendants allege that Mr. Vina was in the employ of Toost, that assertion is open to question. See footnote 5, infra.
2. Individual Defendants
In addition to suing Orsid and Toost, Mr. Vina has asserted claims against Kenneth Ludwig, the Senior District Manager for Orsid (Ludwig Aff. ¶ 1), Jose Luis Rosario, the building superintendent (Ludwig Aff. ¶ 3), and Delma Rosario, Mr. Rosario's wife and an employee at the building. (Am. Compl. ¶ 21). However, a supervisor or agent of an employer is not individually liable for acts of discrimination under Title VII, see Tomka, 66 F.3d at 1313-17, under the ADEA, see McKeever v. New York Medical College, No. 96 Civ. 7066, 1999 WL 179376, at *8 (S.D.N Y March 31, 1999); Bernhardt v. Interbank, 18 F. Supp.2d 218, 226 (E.D.N.Y. 1998), or under the ADA, see Hallett v. New York State Department of Correctional Services, 109 F. Supp. 2 d 190, 199 (S.D.N.Y. 2000); Harrison v. Indosuez, 6 F. Supp.2d 224, 229 (S.D.N.Y. 1998). Accordingly, the claims against each of the individual defendants must be dismissed.
3. Orsid Realty Corp. a. Title VII and ADEA Claims
Orsid contends that all of the discrimination claims against it should be dismissed because the plaintiff was not its employee, but was instead employed by Toost. (Employer Def. Memo. at fourth unnumbered page). However, all of the warning letters sent to Mr. Vina as well as the termination letter were issued by Orsid. (Ludwig Aff. Exhs. D-K). Accordingly, summary judgment on this basis is precluded by the implicit factual dispute.
Claims of discrimination under Title VII and the ADEA are analyzed in accordance with the three-part framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the first stage of the McDonnell Douglas analysis, the plaintiff must establish a prima facie case of discrimination by showing (1) that he is within a protected group, (2) that he was qualified for the job at issue, (3) that he was subjected to an adverse employment action, and (4) that this action occurred under circumstances giving rise to an inference of discrimination. See id. at 801 (Title VII); Tarshis v. Riese Organization, 211 F.3d 30, 35 (2d Cir. 2000) (ADEA); Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (same). Because an employer engaged in discrimination is unlikely to leave a "smoking gun," Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994), a plaintiff usually must rely on "the cumulative weight of circumstantial evidence" when proving bias. Rosen v.Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence "that the adverse employment actions were taken for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Despite this shift of the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; see also St. Mary's Honor Center, 509 U.S. at 507. If the defendant provides evidence of legitimate, nondiscriminatory reasons for its action, the burden returns to the plaintiff "to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253. A plaintiff opposing a motion for summary judgment "must produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false," Woroski, 31 F.3d at 110, and "that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia University in New York, 131 F.3d 305, 312 (2d Cir. 1997).
In this case, Mr. Vina satisfies the first three prongs of the McDonnell Douglas test. As an Hispanic man of Cuban origin (Am. Compl. ¶ 53) he is in a protected group under Title VII, and he is also apparently over forty years old and therefore protected by the ADEA. As a long-time employee of Orsid, he met the minimum qualifications for his position as doorman. Finally, his termination constituted an adverse employment action.
However, Mr. Vina has not presented sufficient evidence from which it could be inferred that he was discharged on the basis of his national origin or age. To be sure, he provided vague testimony at his deposition that references were made to his Cuban nationality and that the building superintendent, Jose Rosario, commented on his age. (Vina Dep. at 72-74). But stray remarks do not satisfy a plaintiff's burden of demonstrating discriminatory animus absent a showing that they were related to the challenged decision. See Gorley v. Metro-North Commuter Railroad, No. 99 Civ. 3240, 2000 WL 1876909, at *6 (S.D.N.Y. Dec. 22, 2000); Burrell v. Bentsen, No. 91 Civ. 2654, 1993 WL 535076, at *8 (S.D.N.Y. Dec. 21, 1993). Moreover, of the seven employees in the building, four in addition to Mr. Vina were over forty, including Mr. Rosario himself who was fifty-eight and another man who was in his sixties. (Ludwig Aff. ¶ 17). All seven employees, including the superintendent, were Hispanic. (Ludwig Aff. ¶ 17). The plaintiff does not allege that he was replaced by a younger or non-Cuban employee. Indeed, in his complaint, Mr. Vina states that "t]he Cuban' and age factors mentioned in the EEOC dismissal letter were ancillary factors mentioned in the course of proceedings, as additional to the oppressive nepotism as the primary source of the infliction of redressable discriminatory injuries to this plaintiff." (Am. Compl. ¶ 53). But nepotism is not a form of discrimination that is prohibited by Title VII or the ADEA. See Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997); Paula v. Internal Revenue Service, No. 98 Civ. 7179, 1999 WL 1215557, at *8 (E.D.N.Y. Dec. 15, 1999); Wado v. Xerox Corp., 991 F. Supp. 174, 197 (W.D.N.Y. 1998).
This, of course, does not preclude the possibility that Mr. Rosario, although Hispanic, singled out Mr. Vina for adverse treatment specifically because the plaintiff is Cuban.
Even if Mr. Vina had succeeded in establishing a prima facie case under either statute, he has failed to demonstrate that the reason advanced by Orsid for terminating him was not the employer's true motivation. Mr. Vina had a long history of sleeping on the job and otherwise failing to perform his duties in a satisfactory manner. The evidence on which Orsid relied in discharging him included a videotape that clearly shows the plaintiff asleep at his post. (Ludwig Aff., Exh. M). Since the employer has thus proffered a legitimate reason for the termination, the burden shifts to Mr. Vina to demonstrate that this reason is merely pretextual and that Orsid's actual motivation was national origin or age bias. While Mr. Vina claims that the videotape was tampered with, he has provided no proof to support that conclusory allegation. Nor has he presented any further evidence from which discriminatory animus could be inferred. Therefore, Orsid is entitled to summary judgment on the plaintiff's Title VII and ADEA claims.
b. ADA Claim
The ADA prohibits an employer from discriminating against a "qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a prima facie case that he was terminated in violation of the ADA, a plaintiff must demonstrate that:
(1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (4) he was fired because of his disability.
See Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998) (citations omitted).
Mr. Vina has failed to satisfy at least two of these criteria. First, he has not shown that he is otherwise qualified to perform the duties of a doorman. It is beyond dispute that a doorman must remain alert to function effectively. Yet Mr. Vina contends that he has a condition that causes him to have "involuntary resting periods, akin . . . to narcolepsy." (Am. Compl. ¶ 26; Vina Dep. at 34-37). A building management company is not required to retain a doorman who, because of a disability or otherwise, sleeps on the job. See Jackson v. Boise Cascade Corp., 941 F. Supp. 1122, 1127 (S.D.Ala. 1996) (ADA claim rejected where plaintiff's sleep disorder prevented him from performing job).
Second, the plaintiff has failed to demonstrate that he was discharged "because of" any disability. While an employer is obligated under the ADA to provide reasonable accommodation for an employee's disability, it can do so only if the employer is aware of the impairment. Thus, an employee cannot recover damages under the ADA when the employer had no notice of the disability. See Parker v. Columbia Pictures Industries, 204 F.3d 326, 332 (2d Cir. 2000); Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995). Here, Mr. Vina admits that he never advised any supervisor that he suffered from a form of narcolepsy. (Vina Dep. at 70-71). At least where, as in this case, the manifestations of an alleged disability are indistinguishable from malingering, the plaintiff's failure to alert his employer to his condition is fatal to an ADA claim. c. Equal Pay Act Claims The Equal Pay Act provides that an employer may not discriminate in compensation among similarly situated employees on the basis of gender. See 29 U.S.C. § 206 (d)(1); see also Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). Mr. Vina has proffered no evidence that he was subject to disparate terms of employment on any such basis.
Accordingly, the Employer Defendants are entitled to summary judgment dismissing all of the claims against them.
C. Claims Against the Union Defendants
Mr. Vina contends that the Union breached its duty of fair representation apparently by acting "in complicity" with the employer and failing to provide adequate legal representation at the arbitration. To prevail, the plaintiff must show that the Union's conduct was arbitrary, discriminatory, or in bad faith. See Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 299-300 (1971); Vaca v. Sipes, 386 U.S. 171, 190 (1967); Ryan v. New York Newspaper Printing Pressmen's Union, 590 F.2d 451, 455 (2d Cir. 1979); Beckman v. United States Postal Service, 79 F. Supp.2d 394, 401 (S.D.N.Y. 2000).
Mr. Vina fails this test. His claim that the Union conspired with the employer is entirely conclusory and therefore must be rejected. See X-Men Security, Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 1999). His assertion that he received inadequate representation is belied by the undisputed facts. Counsel for the Union consulted with Mr. Vina and prepared for the arbitration. The attorney's efforts were, of course, hamstrung by the plaintiff's decision to walk out of the hearing without testifying. In any event, the employer's evidence was so substantial that it is difficult to imagine what more the attorney might have done. Mr. Vina offers no plausible suggestion, and his claims against the Union should be dismissed.
D. Claims Against the Contract Arbitrator
The plaintiff appears to contend that the Contract Arbitrator denied him due process by denying him an adjournment and by failing to enter a default against the employer. (Am. Compl. ¶¶ 41-50). Mr. Vina, however, has failed to submit the record of the arbitration in support of his claims. At any rate, since the arbitrator performs a quasi-judicial function, he is entitled to absolute immunity. See Barbara v. New York Stock Exchange, 99 F.3d 49, 58-59 (2d Cir. 1996); Austern v. Chicago Board of Options Exchange, Inc., 898 F.2d 882, 885-86 (2d Cir. 1990); Johnson v. American Arbitration Association, No. 98 Civ. 6314, 1999 WL 223154, at *2 (S.D.N.Y. April 16, 1999). The claims against him must therefore be dismissed.
E. Motion to Strike the Answer
Finally, Mr. Vina has moved to strike the answer of the Employer Defendants on the ground that counsel has breached a variety of Disciplinary Rules by undertaking representation of multiple defendants who may have adverse interests. (Notice of Motion to Strike Answer dated September 1, 1999). This motion is frivolous. First, even if there were merit to the plaintiff's argument that the attorney is laboring under a conflict, the appropriate remedy would be disqualification of counsel, not striking of the answer. Second, "[b]ecause litigants often make [disqualification] motions for tactical reasons, and because disqualification of counsel impinges on a party's rights to employ the counsel of its choice, the courts have required that the moving party bear the burden of establishing the need for disqualification." Burda Media, Inc. v. Blumenberg, No. 97 Civ. 7167, 1999 WL 413469, at *12 (S.D.N.Y. June 21, 1999) (citations omitted). Thus, the moving party must meet a high standard of proof before opposing counsel will be disqualified. See Evans v. Artek Systems Corp., 715 F.2d 788, 791 (2d Cir. 1983); Felix v. Balkin, 49 F. Supp.2d 260, 267 (S.D.N.Y. 1999). Here the plaintiff has offered no proof. He merely speculates that the employer and its supervisors may have inconsistent defenses. Yet such parties often employ common counsel, and there is no basis for a per se rule of disqualification in such circumstances. Furthermore, for the reasons discussed above, the claims against the individual defendants are defective on their face, so there can ultimately be no actual conflict in this case.
Conclusion
For the reasons set forth above, I recommend that the summary judgment motions of the Employer Defendants and the Union Defendants each be granted and the complaint be dismissed in its entirety. I further recommend that the plaintiff's motion to strike the answer of the Employer Defendants be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, Room 1610, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.