New York Law Journal, September 20, 2000
Copyright 2000 New York Law Publishing Company
New
York Law Journal
September 20, 2000 Wednesday
SECTION: COURT DECISIONS;
Pg. 25
LENGTH: 2430 words
HEADLINE: Opposing Parties'
Summary Judgment Motions Are Denied; Material Issues of Fact Are Cited;
COMMER v. KELLER
BODY:
SUMMARY U.S. District Court: S.D.N.Y. Labor Law
PLAINTIFFS
BROUGHT an action against defendant union officers, alleging a
violation of federal labor laws, in connection with the suspension of one of the
plaintiffs from his position as president of the union. Both
parties made cross-motions for summary judgment. The court noted that the
central issues in the instant case, revolved around the motivations of a handful
of executive board members and the allegation that they retaliated against
plaintiff union president for his actions taken to reform the
union. The court stated that this fact-laden inquiry was not a
case where judgment could be made at this stage, as a matter of law. The court
found that the submissions of both parties demonstrated that there were
significant issues of fact. Thus, the court denied the motions, stating that
only a trial on the merits could resolve the material issues implicated.
Judge Schwartz
[Footnotes Deleted for Publication]
COMMER v. KELLER QDS:02762980 - On November 11, 1998,
plaintiffs commenced this action against defendants, union
officers, alleging the violation of federal labor laws in connection with the
suspension of plaintiff Roy Commer ("Commer") from his position as president of
Local 375. Currently before the Court are the parties' cross-motions for summary
judgment. For the reasons set forth below, the motions are denied.
I. Background
Local 375 is affiliated with AFSCME and its regional
governing body, District Council 37 ("DC 37"), and is governed by the AFSCME
constitution. (Pls.' 56.1 P1.) Plaintiff Roy Commer was elected president of
Local 375 in January 1988 on a slate running in opposition to the long-time
incumbent president. (Pls.' 56.1 P4; Defendants' Statement of Undisputed
Material Facts Pursuant to Local Rule 56.1 ("Defs.' 56.1") P1.) The named
plaintiffs, in addition to Commer, are officers of the Executive Board of Local
375. (Second Amended Complaint and Jury Demand ("Compl.") PP3-4.) The 27
defendants are officers of Local 375 and/or members of the Executive Board of
the union. (Pls.' 56.1 P3.) After assuming office, plaintiffs
assert, Commer became a leader in efforts to reform Local 375 and DC 37 and
expose alleged corruption; in particular, Commer helped to
establish an intra-DC reform group, the Committee for Real Change ("CRC") and
allowed CRC to use Local 375 meeting rooms. (Id. P4; Defendants' Memorandum of
Law in Reply to Plaintiff's Opposition to their Motion for Summary Judgment and
in Opposition to Plaintiff's Cross-Motion ("Defs' Rep.") at 8 (stating that
Commer was a "dissident" in his own union).) In late October
1988, Commer was featured in articles in which he criticized the
union leadership, at least one of which appeared in The New
York Times. (Id. P6; Defs.' 56.1 P12.)
On or about November 2, 1998, a
petition signed by a majority of the Local 375 Executive Board and delivered to
the Local 375 Secretary ordered the immediate suspension of Commer from the
presidency of the Local. (Pls.' 56.1 P9; Defs.' 56.1 PP5,6.) Attached to the
petition were internal union charges against Commer, which
included acceptance of illegal gifts and services, improper use of funds, aid to
a competing and "dissident" organization (i.e., CRC), presenting resolutions to
the AFSCME International that had not been approved by the local, and
instituting legal action without exhausting internal remedies. (Defs.' 56.1 P6;
Declaration of Roy Commer In Opposition to Motion for Summary Judgment ("Commer
Decl."), Ex. Q; Declaration of Rachel J. Minter in Support of Motion for Summary
Judgment ("Minter Decl."), Ex. D.)
The suspension was based on Article
IX, Section 43 of the AFSCME which permits the executive board of a subordinate
body to immediately suspend a union officer, pending full
investigation. (Pls.' 56.1 P10; Defs.' 56.1 P7.) On November 4, 1998, the
petition for Commer's suspension was discussed at a meeting of the Local 375
Executive Board. Certain members made a motion to endorse the Executive Board's
decision to suspend Commer, and after discussion concerning Commer's alleged
conduct and a roll call vote, the motion passed. (Pls.' 56.1 PP11-12; Defs.'
56.1 P8, 10-13.) In the wake of the suspension, Commer distributed literature
opposing his suspension, continued to receive his salary, and continued to
attend Local 375 meetings, although plaintiffs claim that Commer's ability to
speak and his involvement with the union was sharply curtailed.
(Pls.' 56.1 P17; Defs.' 56.1 PP14-19.)
On November 23, 1998, Commer was
reinstated to his position as president of Local 375, but the charges against
him remained. (Pls.' 56.1 P18; Defs.' 56.1 P20.) After amendment of the charges,
a judicial hearing officer of the AFSCME issued a decision against Commer on
June 23, 1999, which decision was upheld by the AFSCME Judicial Panel on
December 8, 1999. (Minter Decl., Exs. D, E.) Pursuant to the decision, Commer
was required to make restitution of the costs of certain mailings to
union members, which mailings the hearing officer found to be
unauthorized. (Id., Ex. E.)
Plaintiffs filed the instant action on
November 11, 1998, alleging that Commer's suspension violated federal labor
laws. Plaintiffs' claim is brought under Title I, Section 101(a)(2) of the Labor
Management Reporting and Disclosure Act ("LMRDA" or "the
Act"), 29 U.S.C. @ 411(a)(2). They allege that in signing the
petition suspending Commer from office, defendants "adopted a set of baseless
internal union charges." (Compl. P7.) Rather, they assert that
Commer's suspension was "motivated in large part by his criticism of the
leadership of DC 37, and his efforts to reform Local 375" and/or was imposed "to
punish plaintiff for speaking to the media." (Id. PP7, 10.) As such, plaintiffs'
claim that Commer's suspension violated his free speech rights and the free
speech rights of the majority of the Local 375 members who elected Commer to
office, as guaranteed by federal labor law and the AFSCME Constitution, because
the suspension was designed to silence speech and suppress dissent. (Id. P10.)
Discovery closed at the end of February 2000. Subsequently, 22 of the 27
defendants filed a motion for summary judgment, and plaintiffs' cross-moved for
summary judgment. In their moving papers and reply, defendants claim that
plaintiffs cannot successfully challenge Commer's suspension under the LMRDA
because plaintiffs have not adduced sufficient facts that would enable them to
prove, as they must by "clear and convincing evidence," that (i) defendants had
an improper motivation in suspending plaintiffs, (ii) that plaintiffs' free
speech rights were impaired by Commer's suspension, either as part of a scheme
to suppress dissent or by any other mechanism. (Defs.' Rep. at 1-2, 6-13.)
Defendants assert that Commer's allegations "consist largely of speculation,
conclusions, and hearsay" or are dependent on unreasonable inferences. (Defs.'
Mem. at 24; Defs.' Rep. at 2.)
In opposing defendants' motion, and
"suggesting" summary judgment in their favor, plaintiffs allege that they (i) do
not have to demonstrate a scheme to suppress dissent in order to assert a
cognizable Title I claim under the LMRDA, and (ii) even if they did, the
evidence surrounding Commer's suspension and the development of the charges
against him raises at least an issue of material fact as to whether such a
scheme existed. (Pls.' Mem. at 10-19). Moreover, plaintiffs' assert that they
are entitled to summary judgment because Commer was suspended on the basis of
charges that included protected activity, which, as a suppression of the speech
of Commer and other union members, is invalid as a matter of
law under the LMRDA. (Id. at 13-16.)
II. Discussion
A
district court may grant summary judgment only if it is satisfied that "there is
no genuine issue as to any material fact and... the moving party is entitled to
a judgment as a matter of law." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the
moving party to demonstrate the absence of a genuine issue of material fact,
which may be satisfied if it can point to the absence of evidence necessary to
support an essential element of the non-moving party's claim. See Goenaga
v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see
also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). All inferences and
ambiguities are resolved in favor of the party against whom summary judgment is
sought. See Gallo
v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)
(citations omitted).
If the moving party meets its burden, the opposing
party must produce evidentiary proof in admissible form sufficient to raise a
material question of fact to defeat the motion for summary judgment, or in the
alternative, demonstrate an acceptable excuse for its failure to meet this
requirement. See Kolp
v. New York State Office of Mental Health, 15 F. Supp.2d 323, 326 (W.D.N.Y.
1998). When reasonable minds could not differ as to the import of the
proffered evidence, then summary judgment is proper. See Anderson,
supra, 477 U.S. at 250-52; Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Moreover, "mere conclusory
allegations, speculation or conjecture will not avail a party resisting summary
judgment." Cifarelli
v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
On
cross-motions for summary judgment, the rule governing inferences and burden of
proof is the same as for a unilateral summary judgment motion. See Straube
v. Fla. Union Free Sch. Dist., 801 F. Supp. 1164, 1174
(S.D.N.Y. 1992). That is, each cross-movant must present sufficient evidence
to satisfy its burden of proof on all material facts. See Barhold
v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988) (citing Eastman
Machine Co., Inc. v. United States, 841 F.2d 469, 473-74 (2d Cir. 1988));
see also Prowse v. IRS, No. 89 Civ. 2084, 1992 WL 330213, at *1 (E.D.N.Y.).
The Supreme Court has noted that summary judgment is inappropriate when
a case will turn on credibility determinations. See Anderson,
supra, 477 U.S. at 255. Moreover, courts are hesitant to grant summary
judgment when intent and state of mind are at issue. See, e.g., Gallo,
supra, 22 F.3d at 1224; Croce v. Hirsch, No. 88 Civ. 8514, 1991 WL 95397, at
*6 (S.D.N.Y.) (in breach of contract and fraud action, denying summary judgment
where questions remained as to defendants' intent); Banque
Arabe et Internationale D'Investissement v. Maryland Nat'l Bank, 819 F. Supp.
1282, 1288 (S.D.N.Y. 1993) (holding that ambiguity which leaves in doubt
contracting parties' intent precludes a finding of summary judgment); Coolspring
Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d
Cir.1993) (finding that "issues of knowledge and intent are particularly
inappropriate for resolution by summary judgment, since such issues must often
be resolved on the basis of inferences drawn from the conduct of the parties")
(citation omitted). However, "although the ultimate issue of a defendant's
intent in taking the... action often is disputed, that alone is not sufficient
to defeat a motion for summary judgment." Rosen v. Columbia Univ., No. 92 Civ.
6330 (AGS), 1995 WL 464991, at *5 (S.D.N.Y.).
The central issues in this
case revolve around the motivations of a handful of Executive Board members, and
the allegation that they retaliated against Commer for his actions taken to
reform the union, specifically, certain comments to the media
regarding the union leadership. This fact-laden inquiry is not
a case where judgment can be made at this stage as a matter of law. The
submissions of both parties demonstrate that there are significant issues of
fact as to the bringing of charges against Commer and the motivation of
defendants in suspending him as president of Local 375. Drawing all inferences
in their favor, plaintiffs have demonstrated - from the minutes at the November
4, 1988 meeting and the alleged conduct of union members before
and after the meeting relating to Commer's suspension - that there are facts
which, if proven at trial, could establish that his suspension was motivated by
suppression of dissent and threatened the rights of union
members, including Commer, to speak out. (Pls.' Mem. at 6-9, 15-19.) Further,
drawing all inferences in their favor on plaintiffs' motion, defendants have
adduced sufficient evidence - from the conduct of union members
at the November 4, 1998 meeting, Commer's purported conduct after his
suspension, and the findings (or lack thereof) of investigative and judicial
authorities considering the cases of Commer and other union
members - that could establish that (i) the charges against Commer were not
motivated by a desire to suppress dissent but were grounded in actual misconduct
by Commer while he was president, and (ii) Commer's suspension did not suppress
the speech of Commer or other union members. (Defs.' Mem. at
8-24; Defs.' Rep. at 9-13.) Moreover, defendants have established that there are
genuine issues of fact remaining as to the construction and meaning of certain
of the union charges relating to the CRC and their purported
suppression of the speech of Commer and other union members.
(Defs.' Rep. at 6-11.)
This case was filed nearly two years ago. There
has been extensive discovery, including depositions of several important fact
witnesses. (See, e.g., Minter Decl., Ex. A; Commer Decl., Exs. G-J.) The parties
have prepared a joint pretrial order, which has been signed by the Court, and
the case is now ready for trial. Only a trial on the merits can resolve the
material issues implicated by this case.
III. Conclusion
For the foregoing reasons, the Court denies the motions for summary
judgment, and orders that the case proceed to trial.
So Ordered.
LANGUAGE: ENGLISH
LOAD-DATE: September 29, 2000