Opinion
No. 00 Civ. 7913 (RWS).
December 7, 2004
ROY COMMER, Plaintiff Pro Se, Staten Island, NY.
SHAPIRO, BEILLY, ROSENBERG, ARONOWITZ, LEVY FOX Attorney for Defendants Gerald McEntee, John Sefarian, AFSCME International, AFSCME District Council 37, Robert Mariano, Uma Kutwal, Michelle Keller and Ralph Pepe, New York, NY, BARRY I. LEVY, ESQ., ELAN R. KANDEL, ESQ. Of Counsel.
OPINION
Defendants Gerald McEntee ("McEntee"), John Seferian ("Seferian"), American Federation of State, County and Municipal Employees ("AFSCME") International (the "International"), AFSCME District Council 37 ("District Council 37"), and Ralph Pepe ("Pepe") (hereinafter collectively referred to sometimes as the "Defendants") have moved pursuant to Rule 56, Fed.R.Civ.P., to dismiss the remaining count in the complaint of plaintiff pro se Roy Commer ("Commer"). For the reasons set forth below, the motion is granted.
By decision and order dated September 24, 2003, this Court dismissed Commer's complaint against Robert Mariano, Uma Kutwal, and Michelle Keller pursuant to Rule 12(b) (6) and Rule 56 of the Federal Rules of Civil Procedure. See Commer v. McEntee, 283 F. Supp. 2d 993 (S.D.N.Y. 2003).
Parties
Commer was a member of the AFSCME Municipal Employees, AFL-CIO and Local Civil Service Technical Guild ("Local 375"). Prior to May 1, 2000, Commer was the elected president of Local 375, and had held this position since 1998.
The International is a national labor organization that represents more than 1,300,000 members. AFSCME is governed by its duly elected officers pursuant to a written constitution.
McEntee is a member of AFSCME and is president of the International with an office and place of business at AFSCME's headquarters in Washington, D.C. Seferian is a member of AFSCME and is the AFSCME Judicial Panel chairperson with an office and place of business at AFSCME's headquarters in Washington, D.C.
District Council 37 is an intermediate labor organization that is affiliated with AFSCME International and is responsible for providing representation to 56 affiliated local unions in the New York metropolitan area, including Local 375.
Prior Proceedings
Commer commenced this action on October 18, 2000, asserting claims based on alleged violations of Labor Management Relations Act ("LMRA") § 301, Labor-Management Reporting and Disclosure Act ("LMRDA") § 501 and LMRDA § 101. The entire complaint was dismissed in Commer v. McEntee, 145 F. Supp. 2d 333 (S.D.N.Y. 2001).
On appeal, the Second Circuit affirmed that decision with regard to the § 301 and § 501 claims. Commer v. Giuliani, 34 Fed. Appx. 802, 2002 WL 826462 (2d Cir. May 1, 2002) (unpublished). However, the decision was vacated with regard to the § 101 claims. Id. at *3. Under § 101(a) (2), Commer claimed that he suffered retaliation for his exercise of free speech in taking various whistle-blowing actions. The Second Circuit held that the issue of whether the judicial panel's intent was pretextual was controverted, and that because a motion to compel discovery by Commer had not been ruled upon prior to the dismissal of the claim, the Court would not reach the adequacy of Commer's proof to defeat a motion for summary judgment. The grant of summary judgment was vacated without prejudice to the defendants' right to move again for such relief after the close of such discovery.Id.
In addition, the Second Circuit vacated the grant of summary judgment on the § 101 claim as it relates to defendants associated with Local 375. Id. Those claims had been dismissed based on a finding that the last private employees had disaffiliated from Local 375 as of mid-December 1999 and therefore the local union defendants were not subject to the LMRDA with respect to actions taken in 2000. The Circuit held that because Commer had made discovery requests for documents with respect to factual findings and that such requests had not been ruled upon, "Commer is entitled, at a minimum, to know whether any such documents exist and to receive copies if they do." Id. In addition, the Second Circuit noted that Commer's claims of actions occurring prior to 2000 should be explicitly addressed. Id.
By opinion filed September 24, 2003, Commer v. McEntee, 283 F. Supp. 2d 993 (S.D.N.Y., 2003), Commer's LMRDA § 101(a) (2) claim against Kutwal, Keller and Mariano was dismissed for lack of jurisdiction based upon the disaffiliation of private employees.
Discovery proceeded on the remaining claims in this action, and Commer's request for an extension of the discovery period to April 21, 2004 was granted.
The instant motion was heard and marked submitted on May 12, 2004.
It should be noted that according to defendants' counsel, Commer apparently submitted a sur-reply letter in opposition to defendants' motion for summary judgment on May 7, 2004. This document was never filed with the court, a fact that was brought to Commer's attention on or about September 23, 2004. On October 21, 2004, Commer submitted to the Court a new document entitled "Plaintiff[']s Surrejoinder." This October 21st document was submitted more than five months after this motion was marked fully submitted. Furthermore, Commer has not submitted to the Court a copy of his May 27, 2004 surreply.
It should be noted that on November 30, 3004, the Second Circuit affirmed this Court's July 25, 2003 decision dismissing Commer's claims in a related case. See Commer v. Am. Fed'n of State, County and Mun. Employees. In dicta in its November 30th opinion, the Second Circuit indicated that Commer could amend his complaint in the present action to allege a violation of 29 U.S.C. § 411(a)(2) ("LMRDA § 101(a)(2)"). As discussed above, Commer's complaint in this action already includes an alleged § 101(a) (2) violation. The Facts
The facts are set forth in the parties' submissions and are not in dispute except as noted.
In January of 1998, Commer was elected president of Local 375 by its membership, running on a slate of local union candidates that advocated a reform movement. The slate included Uma Kutwal ("Kutwal") and others and was successful in replacing the then incumbent officers. As president of the local, Commer undertook certain actions which became controversial: promotion of certain candidates in the local elections; distribution of literature in the name of the local; and retention of outside counsel to initiate litigation in connection with a Local 375 group legal service plan.
Commer and the Executive Committee of Local 375 developed differences with respect to certain decisions adopted by the Board of Delegates or Executive Committee.
In November 1998, Kutwal and other members of the Executive Committee filed charges contending that Commer's conduct violated both the International and the Local 375 Constitutions.
By letter dated November 2, 1998, Commer was provided with a copy of the internal charges by Local 375's secretary, and was advised that the local Union's Executive Committee had concluded that he should be suspended with pay, pending an investigation pursuant to Article IX, Section 43 of the International Constitution. On November 23, 1998, International president McEntee directed that Commer be reinstated as president pending a hearing and determination of the charges.
Because the Local 375 Executive Committee had suspended Commer with pay pending an investigation pursuant to Article IX, Section 43 of the Constitution, an AFSCME judicial panel assumed jurisdiction over the charges on or about November 12, 1998 and the matter was designated Judicial Panel Case No. 98-111.
Pursuant to Article XI of the International Constitution then in effect, the International president appointed, with the advice and consent of the International Executive Board, a chairperson of AFSCME's Judicial Panel, and eight other members of AFSCME to serve as members of the Judicial Panel to hear and adjudicate charges brought against members of AFSCME in specific designated circumstances.
Pursuant to Article XI, Section 8 of the International Constitution, Judicial Panel Member Robert Lyons (the "Trial Officer") was selected to serve as the Trial Officer in the matter after both parties, Commer and the charging parties, were permitted to strike names from the list of Judicial Panel members. On May 6, 1999 and May 7, 1999, a hearing on the charges against Commer was held by the Trial Officer.
On June 23, 1999, the Trial Officer issued a 27-page written decision outlining the charges against Commer and the evidence that was presented by the parties. The Trial Officer dismissed 15 of the 18 charges, but concluded that the evidence supported the conclusion that Commer was guilty of 3 violations of the respective Constitutions as described in Charges 6, 14, and 18.
Charge # 6 related to an issue of the Tech Guild News which contained a report critical of incumbent chapter officers which the Trial Officer concluded was intended to influence a pending election and was funded by union dues thereby violating Appendix D, Section 1(A) and Section (B) of the International's Constitution, which prohibit subordinate body endorsement of candidates for elective office.
Charge # 14 related to occasions when reports on Local 375 letterhead were mailed by Commer to the membership of the Local 375 without the approval of the Executive Committee. The Trial Officer concluded that this conduct violated Article XIX, Section 3 of the Local 375 Constitution barring distribution of literature without the approval of the Executive Committee.
Charge # 18 related to the retention of outside counsel to initiate legal proceedings relating to the Local's group legal service plan contrary to action taken by the group's trustees. The Trial Officer concluded this constituted an interference with the duties of the trustees in violation of Article X, Section 25 of the International Constitution.
The penalty assessed was a formal reprimand, a warning and, an order to make restitution of certain costs associated with Commer's improper conduct.
Commer appealed the June 23, 1999 decision to the Full Judicial Panel, which heard the appeal on November 17, 1999. By decision dated December 8, 1999, the Full Judicial Panel voted to sustain the decision of the Trial Officer by a vote of 5-0.
Commer then appealed the decision of the Full Judicial Panel to the International Convention, which was held in June of 2000. The decision of the Full Judicial Panel was affirmed by the Convention.
Commer did not make restitution to Local 375 although he sought to arrange a payment plan with deductions from his salary.
In late 1999, the administrator of District Council 37 announced an election to select a member of Local 375 to serve on behalf of the Local on the District Council. Kutwal and Commer were candidates. According to Kutwal, the eleven standing delegates to District Council 37 from Local 375 were eligible to vote in this election. Commer was charged by Kutwal with sending a postcard to the Local 375 members at the Local's expense stating:
Note to Local 375 members nominating and election for Local 375 vice president to DC 37 Executive Board will be on January 19, 2000. Only Local 375 delegates to DC 37 vote. Members should communicate their preferences for office of vice president to the following Local 375 delegates.
After listing the delegates, the card continued: "Messages can be left at the local union office (212) 815-1375."
Kutwal brought charges on January 11, 2000 against Commer, alleging that the card was construed to endorse Commer's candidacy and had not been authorized by the Executive Committee. Additional charges were filed. The Judicial Panel in a case designated 00-13 heard testimony concerning the charges on April 13, 2000. Seferian, as chair of the Panel, rendered his decision on May 1, concluding that the charges were sustained and stated:
These charges are extremely serious . . . This is the second time [Commer] has ignored the constitutional process established by the local's constitution simply because it did not suit him.
Sefarian Opinion at 20-21.
Seferian suspended Commer from elected union office for a period of two years and ordered restitution. In addition, he was required to comply with the prior Judicial Panel decision.
Seferian has submitted an affidavit on this motion that he was not aware of any disagreement between Commer and the International and that his decision was based solely on the evidence presented during the hearing. Commer has claimed that Seferian is an old friend of McEntee.
Commer appealed the May 1, 2000 decision to the Full Judicial Panel. That appeal was heard on September 7, 2000. By decision dated September 8, 2000, the Full Judicial Panel voted to sustain the decision of the Trial Officer by a vote of 5-0.
Commer has submitted a 51-page statement with exhibits that fails to identify the speech that he has claimed caused the defendants to retaliate by initiating the disciplinary proceedings described above. In addition, leaving aside the Tech Guild News and the postcard concerning the election of an officer to the District 37 council, which were considered in the disciplinary proceeding, no additional speech is identified or related temporally to the disciplinary proceedings.
The exhibits to the Commer submission refers to press clippings of events relating to maladministration of union affairs, an audit in 2004, ballot stuffing in 1996, and charges against District 37 officials in 1998, and the August 1999 District 37 election. These events are not related by the Commer submission to any speech by Commer nor any retaliation. The exhibits also contain materials from Analytical Techniques Seminar of the Organized Crime Task Force, the relevance of which is neither self evident nor explained by the Commer submission.
Commer's response to the affidavit of Seferian and the Defendants' statement of facts is in effect a conclusory denial.
Discussion A. Summary Judgment Standard
Under Rule 56(c), Fed.R.Civ.P., summary judgment is warranted when, in viewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 251 (1986).
A motion for summary judgment requires the party with the burden of proof at trial to "make a showing sufficient to establish the existence of an element essential to that party's case . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the "record taken as a whole could not lead a rational trier of fact to find for the moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Accordingly, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997 (quoting Fed.R.Civ.P. 56(c)).
B. The LMRDA § 101(a)(2) Claim Is Dismissed
LMRDA § 101(a)(2) provides as follows:
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.29 U.S.C. § 411(a)(2) (emphasis in original). Pursuant to 29 U.S.C. § 412, a private right of action exists for violation of the rights provided pursuant to § 411.
In order to establish a prima facie case of retaliatory discipline in violation of the LMRDA, a plaintiff must establish that: (1) his conduct constituted "free speech" under the LMRDA; (2) that the speech was a cause for the Union taking action against him; and (3) damages. Milne v. International Ass'n of Bridge, Structural, Ornamental Reinforcing Iron Workers, AFL-CIO Local 15, 156 F. Supp. 2d 172, 181 (D. Conn. 2001) (internal quotations omitted) (citing Hussein v. Hotel Employees Restaurant Union, 108 F. Supp. 2d 360, 366 (S.D.N.Y. 1990),rev'd on other grounds, 14 Fed. Appx. 39, (2d Cir. 2001)).
The evidence here has not established that either (a) the filing of the charges against Commer, or (b) the resulting decision of the Full Judicial Panel was in retaliation for any protected speech by Commer. A review of the transcript from the Judicial Panel hearing held in Judicial Panel Case 00-13 demonstrates that there was evidence to support the charges against Commer, including admissions by Commer that he had violated the Constitution because he did not have approval of the Local 375 Executive Committee to use union funds for the mailing, and did not make restitution to Local 375 for the money that was improperly expended in 1998.
As this Court has previously recognized, see Commer v. McEntee, 121 F. Supp. 2d 388, 398 (S.D.N.Y., 2000), Commer has not sought to challenge, under LMRDA § 101(a) (5), the process by which the charges were heard or decided by the Judicial Panel Chairman and the Full Judicial Panel. As a result, the "Court is not to look beyond the decision itself so long as there is `some evidence' to support the charges." Id.
The penalty imposed by the Judicial Panel in JPC 00-13 was designed by its terms to ensure that Commer fulfilled his responsibilities to the labor organization and its members.See, e.g., Newman v. Communications Workers of Am., 570 F.2d 439, 445 (2d Cir., 1978) (stating that LMRDA § 101(a)(2) does not insulate union officers from removal for conduct inconsistent with their duties to the union and its membership). The issue of the Tech Guild News, which was one of the subjects of the first judicial panel, was found to have sought to influence a union election by charging the incumbents with dereliction. The postcard in the second proceeding also involved a union election. Neither were approved by the Executive Committee.
Commer has charged the Defendants with not completing their discovery obligations, but no motions have been made to compel additional discovery. Although Commer has asserted the existence of significant factual disputes, as indicated above, his opposition fails to establish material facts in dispute.
Although Commer makes conclusory allegations that Kutwal and Frank Thomas conspired to remove him as president and union member, no facts are elicited to support the charge.
Commer has charged that the proceedings against him resulted from his effort to reveal a $2 million embezzlement but no evidentiary link, temporal or causal, is demonstrated between Commer's charges and either of the Judicial Panel's proceedings. To support his contention that the Judicial Panel decisions were pretextual, Commer references other litigation and judicial proceedings where unauthorized-expenditure charges were apparently dismissed on the grounds that the expenditures at issue were made in good faith. The time and nature of the good-faith findings referenced by Commer have not been established. Commer has also failed to establish that these good-faith findings were presented to the Judicial Panel.
Commer's attack on the Judicial Panel's determinations is simply a reiteration of his positions taken during those proceedings. Although certain checks are referred to as well as the theft of $2 million and an investigation by the District Attorney for New York County, no relationship is established between any speech involving these events and the charges brought against Commer. There is no temporal connection between these events and the charges. Nor is there any evidence relating to any speech by Commer, other than the newsletter and postcard that were the subject of the charges — both of which dealt exclusively with election issues. The newsletter was found by the Panel to imply the criticism of the incumbent officers and the postcard was charged as constituting support for Commer's candidacy.
Although Commer states that his acts were authorized by the 1993 Constitution of Local 375, no evidence with respect to that Constitution or the time of its replacement has been adduced at this proceeding or the Judicial Panel proceeding. That District 37 has had its troubles and that Commer has aggressively sought union office is established by press clippings annexed to Commer's papers. However, retaliation and a connection between these events and Commer is nowhere established by a showing of material facts requiring a trial.
To oppose a motion for summary judgment, material facts must be presented. See Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) ("[T]o defeat a motion for summary judgment supported by proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required . . . to set forth specific facts showing that there is a genuine issue of material fact to be tried."). Regrettably, Commer has merely collected conclusory allegations and blanket denials without reference to admissible evidence. Therefore, his statement is insufficient to comply with the requirements of the rule. See, e.g., Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000), cert. denied, 531 U.S. 1035 (2000); Cooper v. Gottlieb, No. 95 Civ. 10543 (JGK), 2000 WL 1277593, at *4 (S.D.N.Y. Sept. 8, 2000) (holding that a denial without evidence to support the denial is "conclusory" and "wholly inadequate under Local Civil Rule 56.1(d)"); Wenzhou Wanli Food Co., Ltd. v. Hop Chong Trading Co., Inc., No. 98 Civ. 5045 (JFK), 2000 WL 964944, at *3 (S.D.N.Y. July 11, 2000) (noting that `[u]nsupported allegations will not suffice" in responding to a motion for summary judgment").
In addition, Commer has submitted no evidence to support the conclusion that either McEntee or Pepe played any role or participated in advancing the internal charges, the internal hearing process, or the resulting decision. As such, Commer's LMRDA § 101(a)(2) claim against these Defendants is subject to dismissal on this independent basis alone. See Rosario v. Amalgamated Ladies' Garment Cutters' Union, 605 F.2d 1228, 1246 (2d Cir. 1979) (stating that in order to support a private action against a union official for violation of LMRDA § 101, plaintiff must show that the official "aided, abet[ted], instigate[d], or direct[ed] a wrongful use of union power to deprive a member of his rights."); Farkas v. Rumore, 881 F. Supp. 884, 889 (S.D.N.Y. 1995) (dismissing LMRDA § 101(a)(1) claim against Union President where he played no part in the activities alleged to constitute a violation of the statute).
C. Additional Discovery Is Not Appropriate
Pursuant to Rule 56(f), Fed.R.Civ.P., Commer has requested additional discovery to oppose this motion. Rule 56(f) provides that:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed.R.Civ.P. 56(f). However, Commer has had more than two years to conduct discovery following the Second Circuit's decision in Commer v. Giuliani, 34 Fed. Appx. 802 (2d Cir. 2002). For the past four years, Commer has continued to serve the identical discovery demands, which this Court has previously decided were "[w]ithout a temporal connection to the issue in this action or any indication of an interrelationship between these alleged acts and the proceedings taken against Commer."Commer v. McEntee, No. 00 Civ. 7913 (RWS), 2004 WL 374883 at *1 (S.D.N.Y. Feb. 27, 2004); see also Commer v. McEntee, No. 00 Civ. 7913 (RWS), 2003 WL 1878239 at *1-2 (S.D.N.Y. April 11, 2003) (delineating scope of discovery).
Moreover, Rule 56(f) is not a shield against all summary judgment motions. A party seeking relief under the rule must show that the material sought is germane to the defense, and that it is neither cumulative nor speculative. See, e.g., Sundsvallsbanken v. Fondmetal, Inc., 624 F. Supp. 811, 814-15 (S.D.N.Y. 1985). Specifically, the requesting party must file an affidavit demonstrating: (1) the facts sought and how they will be obtained; (2) how the facts sought are reasonably expected to create a genuine issue of material fact; (3) efforts to obtain the facts previously; and (4) why those efforts were unsuccessful. See Sage Realty Corp. v. Insurance Co. of North Am., 34 F.3d 124, 128 (2d Cir. 1994).
With respect to the pending motion, Commer has not submitted the required affidavit, nor has he, in any specific way, identified the documents that he requires, or how they would lead to information which would be sufficient to defeat the Defendants' present motion. See Ofori-Awuku v. Epic Sec., No. 00 Civ. 1548 (AGS), 2001 WL 180054 at *6 (S.D.N.Y. February 23, 2001). To the extent that he has referred to documents, such as the investigative report of KPMG commissioned by McEntee, Commer has not demonstrated its relevance to this proceeding even if it is assumed that it constitutes support for Commer's allegation of Union corruption. Such charges have not been evidenced or connected to the proceedings brought against Commer except by his bare assertion of the existence of such connection.
Conclusion
For the reasons set forth above, Defendants' motion is granted. However, in view of Commer's pro se status, he is granted leave within twenty (20) days to submit any additional materials in light of this opinion and to move for any particular further discovery.
It is so ordered.