         09-3916-cv
         Howd & Weyel v. UFCW Local 919, et al.


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
     IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
     ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 30th day of June, two thousand and ten.
 4
 5       PRESENT:
 6                    AMALYA L. KEARSE,
 7                    PIERRE N. LEVAL,
 8                    DEBRA ANN LIVINGSTON,
 9                                Circuit Judges.
10        _________________________________________
11
12       LOIS HOWD and LISA WEYEL,
13
14                       Plaintiffs-Appellants,
15
16                       v.                                            (09-3916-cv)
17
18       UNITED FOOD & COMMERCIAL WORKERS
19       UNION, LOCAL 919 and MARK A. ESPINOSA,
20
21                   Defendants-Appellees.
22       _________________________________________
23
24       FOR PLAINTIFFS-APPELLANTS:                   LEON M. ROSENBLATT , Law Offices of Leon M.
25                                                    Rosenblatt, West Hartford, Connecticut
26
27       FOR DEFENDANTS-APPELLEES:                    J. WILLIAM GAGNE, JR., Law Offices of J. William
28                                                    Gagne, Jr. & Associates, P.C., West Hartford,
29                                                    Connecticut
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 1          Appeal from a judgment of the United States District Court for the District of Connecticut

 2   (Droney, J.).

 3          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

 4   that the judgment of the district court be AFFIRMED. Defendants-Appellees’ motion to strike a

 5   portion of Appellants’ reply brief is DENIED AS MOOT.

 6          Plaintiffs-Appellants Lois Howd and Lisa Weyel appeal from an August 26, 2009 judgment

 7   entered in favor of Defendants-Appellees United Food & Commercial Workers Union, Local 919

 8   (“Union”) and its president Mark A. Espinosa by the United States District Court for the District of

 9   Connecticut (Droney, J.). The district court granted summary judgment in favor of the Union and

10   Espinosa on appellants’ claims alleging violations of the Labor Management Relations Act

11   (“LMRA”), 29 U.S.C. § 185, and Connecticut state law on the ground that appellants unjustifiably

12   failed to exhaust the intra-union remedies available to them before bringing suit. The court granted

13   summary judgment in favor of appellees on appellants’ claim under the Labor-Management

14   Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 412, on the grounds that Howd and

15   Weyel failed to show a genuine issue of material fact regarding whether appellees violated the statute

16   and that certain aspects of the claim were moot. We assume the parties’ familiarity with the

17   underlying facts and procedural history of the case and with the issues presented for review.

18          We review a grant of summary judgment de novo, drawing all reasonable inferences in favor

19   of the nonmoving party. Carrion v. Enter. Ass’n, Metal Trades Branch Local Union 638, 227 F.3d

20   29, 32-33 (2d Cir. 2000) (per curiam). Summary judgment is appropriate “if there is no genuine

21   issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. at

22   32 (citing Fed. R. Civ. P. 56(c)). Summary judgment for the moving party is appropriate when the


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 1   nonmoving party “has failed to make a sufficient showing on an essential element of its case with

 2   respect to which it has the burden of proof.” Phelen v. Local 305 of the United Ass’n of Journeymen,

 3   & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. and Can., 973 F.2d 1050, 1061 (2d

 4   Cir. 1992) (internal quotation marks and alterations omitted) (quoting Burke v. Bevona, 931 F.2d

 5   998, 1001 (2d Cir. 1991)). A nonmoving party does not adequately respond to a properly supported

 6   summary judgment motion by relying on “conclusory allegations or unsubstantiated speculation.”

 7   FDIC v. Great Am. Ins. Co., No. 09-1052-cv, 2010 WL 2246279, at *3 (2d Cir. June 7, 2010)

 8   (internal quotation marks omitted) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).

 9          The district court concluded with respect to Counts 1, 2, and 4 of the complaint, the claims

10   under the LMRA and Connecticut state law, that these claims were barred by the plaintiffs’ failure

11   to exhaust intra-union remedies. We review the district court’s dismissal of these claims on

12   exhaustion grounds for abuse of discretion. See Johnson v. Gen. Motors, 641 F.2d 1075, 1078 (2d

13   Cir. 1981). In determining whether to require a party to exhaust intra-union remedies before

14   bringing suit, a court looks to the following three factors:

15          First, whether union officials are so hostile to the employee that he could not hope
16          to obtain a fair hearing on his claim; second, whether the internal union appeals
17          procedures would be inadequate either to reactivate the employee’s grievance or to
18          award him the full relief he seeks . . . ; and third, whether exhaustion of internal
19          procedures would unreasonably delay the employee’s opportunity to obtain a judicial
20          hearing on the merits of his claim.
21
22   Maddalone v. Local 17, United Bhd. of Carpenters & Joiners of Am., 152 F.3d 178, 186 (2d Cir.

23   1998) (alteration omitted) (quoting Clayton v. Int’l Union, United Auto., Aerospace, & Agric.

24   Implement Workers of Am., 451 U.S. 679, 689 (1981)).

25          Howd and Weyel do not contend that they did exhaust the procedures set forth in the



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 1   constitution of the United Food & Commercial Workers Union (“UFCW”) and the Union’s bylaws

 2   for bringing charges against Union officials for violations of the constitution or bylaws. Instead, they

 3   challenge only the district court’s application of the second factor, contending that the intra-union

 4   procedures were inadequate to afford them full relief. Even assuming this argument was adequately

 5   raised and litigated before the district court, it is without merit because the UFCW constitution

 6   allows the Executive Board of a local union to impose all “appropriate penalties” against officers

 7   found guilty of violating the UFCW constitution or the local union’s bylaws, subject only to the

 8   limitation that such penalties be “reasonable[,] . . . fair,” and explained with specificity. See UFCW

 9   Const. art. 26(A)(14). Had Howd and Weyel filed specific charges against Espinosa in a timely

10   fashion, see id. art. 26(A)(6) (providing a ten-day window within which a charging party may refile

11   charges dismissed for lack of specificity), or appealed the dismissal of the second set of charges they

12   filed, see id., the Union’s Executive Board could have imposed penalties on Espinosa for violating

13   Howd and Weyel’s rights to participate in collective bargaining negotiations if the charges were

14   meritorious. As Espinosa could have been fined or removed from his position as an “appropriate

15   penalt[y],” see Bylaws of Local 919, art. XIV(14), the lesser sanction of an order to Espinosa (and

16   therefore to the Union as a whole) to respect members’ rights in the future would presumably also

17   have been available.

18           To the extent appellants also are seeking relief in the form of damages, we conclude that any

19   such relief would not be available in a civil action, and thus it is no answer to an exhaustion defense

20   to contend that the intra-union remedies also could not provide them. First, appellants are not

21   entitled to any compensatory damages because the new CBA was ratified in June 2005 retroactive

22   to January 1 of that year. Second, appellants are not entitled to damages for emotional distress or


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 1   punitive damages. See, e.g., Int’l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 52 (1979) (punitive

 2   damages may not be assessed against union for breach of duty of fair representation); Drywall

 3   Tapers & Pointers of Greater N.Y., Local 1974 of I.B.P.A.T., AFL-CIO v. Local 530 of Operative

 4   Plasterers & Cement Masons Int’l Ass’n, 36 F.3d 235, 240 (2d Cir. 1994) (punitive damages

 5   generally may not be assessed in breach of contract action under LMRA); Baskin v. Hawley, 807

 6   F.2d 1120, 1133 (2d Cir. 1986) (emotional distress damages only available for “truly outrageous”

 7   conduct in fair representation cases). We therefore find no abuse of discretion in the district court’s

 8   dismissal of appellants’ LMRA and Connecticut state law claims for failure to exhaust internal

 9   Union remedies.

10          With respect to Count 3 of the complaint, which asserts a violation of § 101(a)(1) of the

11   LMRDA, 29 U.S.C. § 411(a)(1),1 we agree with the district court that Howd and Weyel have

12   produced insufficient evidence to create a genuine question of fact regarding whether they were

13   subject to discrimination by the Union. See, e.g., Calhoon v. Harvey, 379 U.S. 134, 139 (1964)

14   (“[LMRDA § 101(a)(1)] is no more than a command that members and classes of members shall not

15   be discriminated against in their right to nominate and vote.”); Members for a Better Union v.

16   Bevona, 152 F.3d 58, 65 (2d Cir. 1998) (Section 101(a)(1) “curbs no abuse other than discrimination

17   against some union members and in favor of others with respect to voting rights.”). First, to the

18   extent appellants’ complaint alleges discriminatory treatment of Union members with respect to their

19   ability to participate in collective bargaining negotiations, § 101(a)(1) does not protect against such


            1
             Section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1), guarantees to “[e]very
     member of a labor organization . . . equal rights and privileges within such organization to
     nominate candidates, to vote in elections or referendums of the labor organization, to attend
     membership meetings, and to participate in the deliberations and voting upon the business of
     such meetings . . . .”

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 1   a deprivation because it is not sufficiently connected to voting rights. Second, even assuming the

 2   district court was incorrect to compare Howd and Weyel only to members of their own bargaining

 3   unit, appellants point to absolutely no evidence in the record regarding how members of other

 4   bargaining units were treated with respect to their voting (or other) rights. Espinosa’s general

 5   statement to the effect that it was the Union’s usual practice to send questionnaires prior to collective

 6   bargaining negotiations is insufficient to create a genuine question of fact regarding whether

 7   appellants suffered unlawful discrimination at the Union’s hands. We therefore affirm the district

 8   court’s grant of summary judgment on the LMRDA claim in appellees’ favor.

 9           We have considered Howd and Weyel’s remaining arguments and conclude that they are

10   without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

11   Appellees’ June 4, 2010 motion to strike a portion of appellants’ reply brief is DENIED AS MOOT.

12

13                                                           FOR THE COURT:
14                                                           Catherine O’Hagan Wolfe, Clerk
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