Date: 11-12-2015

Case Style: Kazolias v. IBEW

Case Number: 13-4566

Judge: Christopher F. Droney

Court: UNITED STATES COURT OF APPEALS1 FOR THE SECOND CIRCUIT2

Plaintiff's Attorney: ROBERT T. MCGOVERN, Paula Clarit

Defendant's Attorney: Robert N. Felix, Esq

Description: Plaintiffs are three journeymen wiremen who are members of the International3
Brotherhood of Electrical Workers Local Union 363 (“the union”). The union refers its4
members for jobs with employers who are parties to the union’s Collective Bargaining5
Agreement (CBA) based on referral rules contained in the CBA and additional rules6
promulgated by the union. Members who seek job referrals sign an out-of-work list to7
indicate their availability for employment. With certain exceptions, members are referred8
for job openings chronologically based on when they signed the out-of-work list. 9
In December 2007, Plaintiffs were referred for a job with Defendant Lightmore10
Electric Associates, Inc. (“Lightmore”). Lightmore terminated Plaintiffs from the job in11
January 2008. Plaintiffs filed a series of grievances with the union, asserting that12
Lightmore failed to comply with safety protocols and with CBA provisions regarding age13
discrimination. A union representative investigated the grievances and secured certain14
concessions from Lightmore.15
Plaintiffs, however, were unhappy with the outcome of the grievance procedure. In16
June 2008, Plaintiff Roxby filed unfair labor practice charges with the National Labor17
Relations Board (NLRB), alleging, in part, that (1) the union failed to respond adequately18
to Plaintiffs’ safety-related grievances, and (2) the union retaliated against Plaintiffs by19
threatening them with disciplinary action and denying them job referrals. The NLRB20
dismissed the complaint. On September 15, 2008, Roxby and Kazolias filed charges of21
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age discrimination and retaliation with the Equal Employment Opportunity Commission1
(EEOC).2
At the union’s monthly meeting on February 24, 2009, the union’s business3
manager, John Maraia, complained about Plaintiffs’ charges. As recorded in the “Regular4
Monthly Meeting Minutes,” he said,5
I am tired of the 3 or 4 members trying to bring down this Local with their6 petty claims of workmanship on jobs we are doing. . . . You will be brought7 up on charges. I have fought too hard for these jobs that we are getting to8 have a few assholes screw it up. . . . We are in terrible times - no work,9 anti-union sentiment - and I am fighting all of these fights and will10 continue. And do not be mistaken, I will fight the few members who are11 trying to hurt this organization. I will use everything in the CBA,12 Constitution and By-Laws to stop this vendetta.13 .14 Maraia made similar statements at a meeting in May 2009.15
In May 2009, all three Plaintiffs filed further charges with the EEOC alleging age16
discrimination and retaliation. Kazolias and Roxby were issued right-to-sue letters. 17
Swingle’s charges were rejected as untimely, but in July 2009, Swingle filed another18
EEOC charge and, this time, was issued a right-to-sue letter. 19
Plaintiffs assert that throughout the relevant period they were improperly denied20
job referrals by the union, and have identified numerous instances in which someone with21
lower priority on the out-of-work list was referred for a job instead of Plaintiffs. The22
union does not dispute that these referrals went to members who had signed the list after23
Plaintiffs, but asserts that each referral was made pursuant to an established exception to24
the chronological referral rule in accordance with union procedures.25
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B. Procedural History1
Proceeding pro se, Plaintiffs filed suit in August 2009 against the union and2
Maraia (collectively, “Defendants”). Plaintiffs filed an Amended Complaint on August3
25, 2010. Plaintiffs later obtained counsel but did not further amend their complaint.4
The Amended Complaint included a variety of charges. We concern ourselves in5
this opinion with Plaintiffs’ allegations that Defendants (1) retaliated against Plaintiffs for6
engaging in speech protected by the LMRDA; (2) retaliated against Plaintiffs in violation7
of the ADEA for their filing of age-discrimination complaints with the EEOC; and (3)8
breached the union’s duty of fair representation of its members. 9
Defendants moved for summary judgment in January 2012, after the close of10
discovery. Along with their motion, Defendants submitted an affidavit of Rosario11
Olivieri, the union’s referral agent. Olivieri’s affidavit describes the union’s job-referral12
procedures and avers that each referral challenged by Plaintiffs was made in accordance13
with established union procedures. For example, Olivieri explains that some referrals14
were properly made out of order because the employer requested workers with a15
particular certification or specialty that Plaintiffs did not have.16
Magistrate Judge Lisa Margaret Smith issued a Report and Recommendation17
(R&R) recommending that the district court grant judgment for Defendants on most18
claims. Over Plaintiffs’ objections, the district court adopted most of the R&R but granted19
summary judgment for Defendants on additional claims as well. Plaintiffs then20
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voluntarily dismissed the surviving claims. The district court entered a final judgment for1
Defendants, and Plaintiffs appealed.2
DISCUSSION3
A grant of summary judgment is reviewed de novo, construing the facts in the light4
most favorable to the non-moving party and drawing all reasonable inferences in that5
party’s favor. Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014). In this6
appeal, Plaintiffs raise approximately twenty challenges to the district court’s judgment. 7
One, we believe, meritoriously points to an error in the district court’s reasoning, which8
requires that we vacate a part of the judgment. Another raises a substantial issue as to the9
scope of the free-speech protections provided by the LMRDA. The great majority of the10
Plaintiffs’ numerous contentions, however, lack any substantial merit. In our discussion11
below, we focus on the more reasonable contentions and give little or no attention to12
manifestly insubstantial arguments. 13
A. ADEA Claims14
Plaintiffs contend that the district court erred in dismissing claims based on alleged15
retaliatory animus accruing prior to Maraia’s overtly retaliatory remarks at a February16
2009 union meeting. We agree.17
Plaintiffs allege that after they filed their ADEA-based age-discrimination18
complaints with the EEOC, Defendants took various retaliatory actions, including19
denying them job referrals. The magistrate judge acknowledged that Maraia’s comments20
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supported an inference that the union harbored retaliatory animus against Plaintiffs for1
their EEOC age discrimination complaints after Maraia made his comments on February 2
24, 2009, but concluded that Maraia’s remarks “provide insufficient evidence of the3
union’s intent” prior to the time Maraia made the remarks. The district court adopted this4
reasoning.5
This was error. Maraia’s remarks constituted evidence that, at the time he spoke,6
he (and consequently the union) harbored retaliatory animus against Plaintiffs for their7
complaints. A jury could reasonably infer that Maraia’s resentment against Kazolias and8
Roxby was not born at the instant he expressed it, but had been brewing ever since they9
brought their age discrimination charges in September 2008.110
The magistrate judge found inadequate several of the union’s explanations for11
passing over Plaintiffs for job referrals between September 15, 2008 and February 24,12
2009. To the extent that the magistrate judge’s only stated reason for her recommendation13
of summary judgment was that the denials of referral occurred prior to Maraia’s14
comments, we vacate the judgment and remand for further consideration.2 15
1 On appeal, Swingle challenges only referrals made in 2008, prior to his EEOC complaint, which he made in 2009, and in 2011, which were not identified in the Amended Complaint, but were first raised in Plaintiffs’ opposition to Defendants’ motion for summary judgment. Our ruling does not touch the district court’s dismissal of these claims. The first category could not have been in retaliation for Swingle’s complaints as he had made no complaint. The 2011 referrals are not properly a part of this case, as they were not pleaded.
2 This ruling does not affect referrals prior to the February 2009 union meeting for which the magistrate judge gave additional reasons justifying the grant of summary judgment. As to these, Plaintiffs have failed to show a basis for rejecting the magistrate judge’s additional reasons.
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Kazolias also contests the district court’s grant of summary judgment on some of1
his ADEA claims that do not involve job referrals. See Appellants’ Br. 61-62. The2
magistrate judge gave reasoned analyses why these claims should be dismissed.3
Kazolias’s objections in the district court consisted of only recitations of facts without4
explanation why those facts undermined the magistrate judge’s conclusions. The district5
court adopted the magistrate’s recommendation in the absence of any real argumentation6
to the contrary. Plaintiffs repeat their error here, insisting that their claims are “jury7
issues” without explanation of how their arguments would undermine the judgment. Id. at8
62. We affirm the judgment on these claims.9
B. LMRDA Claims10
Plaintiffs allege that Defendants violated Title I of the LMRDA by denying them11
equal access to job referrals in retaliation for their exercise of free-speech rights12
guaranteed by that statute. Title I of the LMRDA, titled “Bill of Rights of Members of13
Labor Organizations,” guarantees union members certain rights, including rights to14
freedom of speech and assembly in the context of union membership. Title I states, in15
relevant part:16
(1) Equal rights17
Every member of a labor organization shall have equal rights and privileges18 within such organization to nominate candidates, to vote in elections or19 referendums of the labor organization, to attend membership meetings, and to20 participate in the deliberations and voting upon the business of such meetings,21 subject to reasonable rules and regulations in such organization's constitution22 and bylaws.23
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(2) Freedom of speech and assembly1
Every member of any labor organization shall have the right to meet and2 assemble freely with other members; and to express any views, arguments, or3 opinions; and to express at meetings of the labor organization his views, upon4 candidates in an election of the labor organization or upon any business5 properly before the meeting, subject to the organization’s established and6 reasonable rules pertaining to the conduct of meetings: Provided, That nothing7 herein shall be construed to impair the right of a labor organization to adopt8 and enforce reasonable rules as to the responsibility of every member toward9 the organization as an institution and to his refraining from conduct that would10 interfere with its performance of its legal or contractual obligations.11
29 U.S.C. § 411(a)(1)-(2) (first emphasis added). The LMRDA creates a private right12
of action for “[a]ny person whose rights secured by [Title I] have been infringed by13
any violation of [Title I].” Id. § 412. 14
Plaintiffs allege that Defendants violated these provisions by denying them job15
referrals in retaliation for filing grievances with the union and complaints with the16
NLRB, EEOC, and the federal court. Defendants argue that Plaintiffs have failed to17
state a viable claim under the LMRDA because Plaintiffs’ complaints do not fall18
within the ambit of speech protected by the LMRDA. We agree. 19
The LMRDA was enacted “to encourage democratic self-governance in20
unions” as well as “to correct widespread abuses of power and instances of corruption21
by union officials.” See Franza v. Int’l Bhd. of Teamsters, Local 671, 869 F.2d 41, 4422
(2d Cir. 1989). In interpreting Title I’s protections, the Supreme Court has23
emphasized Title I’s concern with safeguarding union democracy. See, e.g., Sheet24
Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 354 (1989) (“LMRDA’s basic25
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objective [is] ‘to ensure that unions are democratically governed, and responsive to1
the will of the union membership as expressed in open, periodic elections.’” (internal2
alterations omitted) (quoting Finnegan v. Leu, 456 U.S. 431, 456 (1982))); United3
Steelworkers of Am., AFL-CIO-CLC v. Sadlowski, 457 U.S. 102, 112 (1982)4
(“Congress adopted the freedom of speech and assembly provision in order to5
promote union democracy. It recognized that democracy would be assured only if6
union members are free to discuss union policies and criticize the leadership without7
fear of reprisal.” (internal citations omitted)). 8
Plaintiffs point to the broad language of Title I, which states that union9
members have the right “to express any views, arguments, or opinions.” 29 U.S.C.10
§ 411(a)(2) (emphasis added). But the surrounding clauses of the provision plainly11
reflect a focus on union governance. See id. (establishing members’ rights “to meet12
and assemble freely with other members,” and “to express at meetings of the labor13
organization [one’s] views, upon candidates in an election of the labor organization or14
upon any business properly before the meeting”). Accordingly, this court has15
interpreted Title I to protect speech that concerns union governance and union affairs.16
See Maddalone v. Local 17, United Bhd. of Carpenters & Joiners of Am., 152 F.3d17
178, 183 (2d Cir. 1998) (explaining that “Title I . . . guarantees to union members the18
right to . . . express any views, arguments, or opinions concerning candidates and19
union policies,” and “protects union members from direct interference with union20
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membership rights in retaliation for their expression of opinions concerning union1
activities” (internal quotation marks omitted)).2
Relying on the text and purpose of the LMRDA, and drawing an analogy to3
First Amendment retaliation claims by government employees, the Fourth Circuit has4
recently described the test of Title I’s coverage terms as “whether the speech touches5
in some way the Act’s overarching concern for union democracy, or whether it is of6
purely tangential import to union governance.” Trail v. Local 2850 UAW United Def.7
Workers of Am., 710 F.3d 541, 547 (4th Cir. 2013). The plaintiff in that case alleged8
that her union violated the free speech provisions of the LMRDA by, inter alia, failing9
to support her in her employment dispute in retaliation for her having reported an10
incident in which she observed union officers viewing pornography on union11
computers in the union office on union time. Id. at 544, 547. The Fourth Circuit ruled12
against her, concluding that her speech was beyond the coverage of the Act. Id. at13
547. Noting that the plaintiff did not address her complaints to the general14
membership or “raise[] issues with respect to union policies,” the court reasoned in15
part that such an instance of minor misconduct by union officers was not of sufficient16
concern to the union membership that her reporting it constituted speech protected by17
the LMRDA. Id. at 547-48. 18
Similarly, in Hylla v. Transportation Communications International Union, the19
Eighth Circuit expressed the view that “[Title I’s] protection is limited to speech that20
relates to the general interests of the union membership at large.” 536 F.3d 911, 91721
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(8th Cir. 2008). The plaintiff in Hylla claimed he had been dismissed from his1
position as an officer in the union primarily in retaliation for his having expressed2
resentment of conduct towards him by a superior in the union hierarchy. Id. at 916.3
The court ruled against him. Contrasting the personal nature of his grievance with the4
circumstance in Lynn, in which a union officer was removed from his post by reason5
of his outspoken opposition to a proposed increase in union dues, the Eighth Circuit6
ruled that Hylla’s speech was not of sufficient concern to the union membership as a7
whole to come within the protection of the LMRDA. Id. at 920.8
We agree with the Fourth and Eighth Circuits that Title I’s protections are9
limited to speech of significant concern to the union membership as a whole. We10
believe that whether the speech comes within the protections of Title I turns in part on11
the subject matter of the speech and in part on the nature of the speech and what it12
seeks. The more the speech relates to matters of significant interest to the13
membership as a whole, and the more it seeks to influence union policies or actions14
with respect to such issues, the more such speech is likely to come within the scope of15
Title I. In contrast, the more the speech is limited to asserting a personal grievance of16
the plaintiff and the more it seeks merely personal relief for the plaintiff, as opposed17
to advocacy for changes that would affect the membership as a whole, the less likely18
that the particular speech comes within the scope of protection of Title I.19
We have no doubt that the administration of a union’s hiring hall is a subject of20
vital interest to the full membership, and that in certain circumstances complaints21
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about the improper administration of the hiring hall can constitute speech that is1
protected from retaliation by Title I. On the other hand, we do not think that every2
personal grievance premised on an allegation of an inappropriate job referral3
necessarily qualifies as protected speech under Title I. In this case, in making their4
complaints to the NLRB and the EEOC, Plaintiffs sought only redress for their5
personal grievances and made no attempt to publicize their grievances among the6
membership in an effort to change union practices. They sought only individualized7
personal relief. There is no indication in the record that an offer of personal8
compensation would not have been sufficient to satisfy Plaintiffs entirely, without any9
effect on union practices. The LMRDA was designed to protect the integrity of union10
governance, not to turn “nearly every criticism by a union member regarding an11
official’s conduct . . . into a federal case.” Trail, 710 F.3d at 548.312
For these reasons, we affirm the district court’s judgment with respect to13
Plaintiffs’ claims of retaliation in violation of the LMRDA.14
C. Duty of Fair Representation Claims15
Plaintiffs contend that the district court erred in granting summary judgment16
against them on claims that the union violated its duty of fair representation (DFR) in17
denying them job referrals. They argue that the district court should have applied the18
rule of the D.C. and Ninth Circuit Courts of Appeals, which holds that unions19
3 In any event, if Plaintiffs can show that the union’s actions toward them violated the ADEA because the actions constituted retaliation for their age discrimination claims, they are entitled to relief on that ground.
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operating an exclusive hiring hall are under a heightened duty of fair representation.1
See Lucas v. NLRB, 333 F.3d 927 (9th Cir. 2003); Plumbers & Pipe Fitters Local2
Union No. 32 v. NLRB, 50 F.3d 29 (D.C. Cir. 1995). 3
The district court rejected many of Plaintiffs’ claims that denials of job4
referrals constituted breaches of the union’s DFR, based on the conclusion that those5
denials were consistent with the union’s ordinary operating rules. Plaintiffs contend6
that, if the district court had applied the heightened duty standard espoused by the7
D.C. and Ninth Circuits for hiring hall referrals, it would have ruled in Plaintiffs’8
favor. They have, however, neither identified which referrals, nor offered9
explanations why use of that standard would have affected the district court’s10
conclusion that, in each particular instance, the union acted in accordance with its11
rules. We therefore have no need to decide whether courts in this Circuit should12
employ the “heightened duty” standard. Plaintiffs have not shown that use of that13
standard would have made a difference.14
Plaintiffs also challenge the district court’s rejection of many job-referral based15
DFR claims as untimely under the applicable statute of limitations. They argue that all16
of their DFR job referral claims should be found timely under a “continuing violation”17
theory, because the “DFR violations have been repeated continuously for nearly four18
years.” Appellants’ Br. at 36. We disagree. The magistrate judge correctly concluded19
that, even assuming that a continuing violation theory can apply in the DFR context,20
each improper job referral is properly characterized as a “discrete act” under the21
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Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S.1
101, 113-14 (2002). Denials of job referrals do not present the problems of a hostile2
work environment claim, as to which, even though individual acts of hostility do not3
give grounds for relief, the cumulative effect of a series of acts creates an actionable4
harm. Because each job referral wrongfully denied in violation of the DFR is5
individually actionable, there is no basis for extending the statute of limitations to6
cover denials of referral for which the time for suit has expired.47
D. Procedural Contentions8
1) Plaintiffs argue that the district court erred in denying their request, pursuant9
to Federal Rule of Civil Procedure 56(d), to reopen discovery to allow them to depose10
Rosario Olivieri, the union’s referral agent. Their contention has no merit. Although11
explicitly invited by the magistrate judge to do so, Plaintiffs failed to make an12
application supported “by affidavit or declaration” that they could not “present facts13
essential to justify their opposition” as required by Rule 56(d). 14
In support of summary judgment, Defendants submitted an affidavit of Olivieri15
in which Olivieri described the union’s referral procedures and discussed Plaintiffs’16
challenged job referrals. In Plaintiffs’ statement of disputed and undisputed facts17
submitted in opposition to Defendants’ motion, they said they could neither confirm18
4 This is not to say that a denial of referral no longer within the statute of limitations cannot serve as “background evidence” of the sort described in Federal Rule of Evidence 404(b)(2) supporting a timely hostile work environment claim or a timely claim relating to a later denial. Morgan, 536 U.S. at 113. We express no views on this question beyond noting that Plaintiffs have not argued it.
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nor deny Defendants’ assertions made on the basis of Olivieri’s affidavit, and1
requested a continuance in order to depose Olivieri. The magistrate judge denied2
Plaintiffs’ request on the ground, inter alia, that they had not supported their request3
as Rule 56(d) requires. The magistrate judge, however, specified that the denial was4
without prejudice to renewal in proper form, and gave Plaintiffs more than two5
months to do so. Plaintiffs took no further action before the magistrate judge to secure6
this relief. Instead, after the magistrate judge submitted her Report and7
Recommendation to the district court recommending a partial grant of summary8
judgment for Defendants, Plaintiffs objected to it based on the magistrate judge’s9
denial of their request.10
Rule 56(d) expressly requires the nonmoving party who seeks further discovery11
in these circumstances to make a “show[ing] by affidavit or declaration” of the12
reasons for needing the relief. “[T]he failure to file an affidavit under Rule [56(d)] is13
itself sufficient grounds to reject a claim that the opportunity for discovery was14
inadequate.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994).15
Here, the magistrate judge gave Plaintiffs fully adequate opportunity to meet the16
requirements of the Rule by submitting their request in proper form. The district court17
did not abuse its discretion in rejecting Plaintiffs’ objection to the magistrate’s18
recommendation and refusing to reopen discovery.19
2) Plaintiffs also contend that the district court erred in allowing Defendants to20
submit additional evidence in support of their objections to portions of the R&R that21
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recommended denial of summary judgment as to certain claims. With their objections1
to the R&R, Defendants submitted an additional affidavit of Olivieri that further2
discussed the job referrals. Plaintiffs contend that the district court erred by3
considering new evidence not submitted to the magistrate judge. 4
While Plaintiffs cite instances in which district courts have declined to receive5
new evidence in similar circumstances, they cite no authority for the proposition that6
a district court may not receive new evidence. To the contrary, the governing statute,7
28 U.S.C. § 636(b)(1), expressly provides that the district court in these circumstances8
“may also receive further evidence.” See also Fed. R. Civ. P. 72(b)(3) (“The district9
judge may . . . receive further evidence . . . .”); Hynes v. Squillace, 143 F.3d 653, 65610
(2d Cir. 1998) (“The district court ha[s] discretion to consider evidence that ha[s] not11
been submitted to the Magistrate Judge.”). There is no merit to Plaintiffs’ contention.12
***13
We have considered the Plaintiffs’ other arguments and find them meritless

Outcome: The judgment is VACATED and the matter REMANDED with respect to the16
ADEA claims to which the magistrate judge’s recommendation of dismissal was17
based solely on the fact that the referral occurred prior to the February 2009 union18
meeting. In all other respects the judgment is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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