14-2861 Hofman v. Schiavone

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand fifteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

PIA HOFMANN, Plaintiff‐Appellant,

v. 14‐2861‐cv

SCHIAVONE CONTRACTING CORP., INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 14‐14B, Defendants‐Appellees,

GEORGE A. STAMBOULIDIS, ESQ., Ethical Practice Attorney for IUOE Local 14‐14B, UNITED STATES OF AMERICA, Intervenors‐Appellees,

SCHIAVONE CONSTRUCTION CO. LLC, Defendant‐Cross Defendant‐Appellee, JOHN HASSLER, Defendant‐Cross Claimant‐Third Party Plaintiff‐Appellee,

SKANSKA USA CIVIL NORTHEAST, INC., J.F. SHEA CONSTRUCTION, Third Party Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT PIA MICHAEL G. OʹNEILL, Law Offices of HOFMANN: Michael G. OʹNeill, New York, New York.

FOR DEFENDANT‐CROSS DEFENDANT‐ MARC S. WENGER, Kimberly N. APPELLEE SCHIAVONE Dobson, Timothy J. Domanick, Jackson CONSTRUCTION CO. LLC: Lewis P.C., Melville, New York.

FOR DEFENDANT‐APPELLEE JAMES M. STEINBERG, Brady, McGuire INTERNATIONAL UNION OF & Steinberg, P.C., Tarrytown, New York. OPERATING ENGINEERS LOCAL 14‐14B:

FOR INTERVENOR‐APPELLEE GEORGE LAUREN J. RESNICK, Patrick T. A. STAMBOULIDIS: Campbell, Denise D. Vasel, Baker & Hostetler LLP, New York, New York.

FOR INTERVENOR‐APPELLEE UNITED RICHARD K. HAYES, Varuni Nelson, STATES OF AMERICA: Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐CROSS CLAIMANT‐ JOSEPH H. GREEN, Law Office of Joseph THIRD PARTY PLAINTIFF‐APPELLEE H. Green, PLLC, Tarrytown, New York. JOHN HASSLER:

Appeal from the United States District Court for the Eastern District of

New York (Johnson, J.).

‐ 2 ‐ UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Pia Hofmann appeals from a judgment entered on July

16, 2014, by the United States District Court for Eastern District of New York (Johnson,

J.), which granted defendantsʹ motion for summary judgment and dismissed her claims

in full, including her gender discrimination claim under New York City Human Rights

Law (ʺNYCHRLʺ), N.Y.C. Admin. Code § 8‐107(1)(a), and her hybrid § 301(a)/duty of

fair representation claim under the Labor Management Relations Act (the ʺLMRAʺ),

(a). The district court explained its reasoning in a memorandum and order

filed the same day. Previously, on January 31, 2013, following argument, the district

court orally quashed a subpoena for documents that Hofmann had served on the

Ethical Practice Attorney (the ʺEPAʺ), who had been appointed pursuant to a consent

decree in other litigation. We assume the partiesʹ familiarity with the underlying facts

and procedural history of the case.

Hofmann is a female crane operator who is a member of defendant‐

appellee International Union of Operating Engineers Local 14‐14B (ʺLocal 14ʺ). This

case arises out of her allegations that Local 14, defendant‐appellee John Hassler (her

supervisor), and her employer instituted a shift to follow her shift on her crane,

employed Hasslerʹs son (John Hassler, Jr.) to work that later shift, and then removed

Hofmannʹs shift one week later, laying her off. Hofmann claims that she should have

‐ 3 ‐ been allowed to take Hassler, Jr.ʹs shift or the shift of an operator on a different crane

with whom she had previously switched cranes. We address in turn Hofmannʹs

arguments that the district court: (1) erred in granting summary judgment and (2)

abused its discretion by quashing her subpoena.

1. Summary Judgment on NYCHRL and Hybrid Claims

ʺWe review de novo the district courtʹs grant of summary judgment,

construing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in her favor.ʺ Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc.,

(2d Cir. 2013). A movant is entitled to summary judgment if

ʺthere is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). We ask whether ʺthe record taken as

a whole could not lead a rational trier of fact to find for the non‐moving party.ʺ

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). On appeal,

Hofmann argues that the district court erred in granting summary judgment on both

her NYCHRL gender discrimination claim and her hybrid § 301/duty of fair

representation claim. We disagree.

First, we generally analyze gender discrimination claims under the

McDonnell Douglas burden‐shifting framework. See Dawson v. Bumble & Bumble,

, 216‐17 (2d Cir. 2005). Under that framework, once the plaintiff demonstrates a

prima facie case, the burden shifts to the defendant to provide a legitimate, non‐

‐ 4 ‐ discriminatory reason for its actions. See Demoret v. Zegarelli,

(2d Cir.

2006). ʺ[T]he final and ultimate burden is on the plaintiff to establish that the

defendantʹs reason is in fact pretext for unlawful discrimination.ʺ Abrams v. Depʹt of

Pub. Safety,

(2d Cir. 2014).

ʺIt is unclear,ʺ however, ʺwhether, and to what extent, the McDonnell

Douglas burden‐shifting analysis has been modified for NYCHRL claims.ʺ Mihalik,

n.8 (citing Melman v. Montefiore Med. Ctr.,

(N.Y. App. Div. 1st

Depʹt 2012); Bennett v. Health Mgmt. Sys., Inc.,

(N.Y. App. Div. 1st Depʹt

2011)). But we need not resolve this issue, because under either the traditional

McDonnell Douglas framework or an arguably modified framework articulated in

Melman and Bennett, Hofmannʹs gender discrimination claim fails as a matter of law.

No evidence suggests that appelleesʹ legitimate, non‐discriminatory

reason was pretextual or that appellees were motivated by gender animus. Appellees

claimed that they no longer needed a crane operator for Hofmannʹs shift because

changes in the workflow made a later shift better able to accommodate deliveries and

coincide with certain construction operations. Hofmannʹs claim of pretext is little more

than speculation that her employer, her union, and her supervisor collaborated to take a

coordinated series of actions culminating in her layoff. Likewise, the only evidence of

any gender animus consists of one sexually inflected dinner conversation between

Hassler and Hoffman nearly a year before the layoff and Hasslerʹs subsequent rudeness

‐ 5 ‐ to her after she rebuffed him. A reasonable jury could not find, on such meager

evidence, that appellees took their actions against Hofmann because of her gender.

Second, to prevail on a hybrid § 301/duty of fair representation claim, ʺa

plaintiff must prove both (1) that the employer breached a collective bargaining

agreement and (2) that the union breached its duty of fair representation vis‐a‐vis the

union members.ʺ White v. White Rose Food,

(2d Cir. 2001). To find that

the union breached its duty of fair representation, the plaintiff must show that the

unionʹs conduct is ʺarbitrary, discriminatory, or in bad faith,ʺ Marquez v. Screen Actors

Guild, Inc.,

(1998), and that such conduct caused her injuries, see Spellacy

v. Airline Pilots Assʹn‐Intʹl,

, 126 (2d Cir. 1998).

Hofmann contends that her employer and Local 14 breached their

respective duties by denying her the opportunity either to operate her crane on a later

shift or to switch cranes with another operator. A reasonable jury could not find that

the employer breached, however, because the collective bargaining agreement does not

even address crane rights. Likewise, as to Local 14, its bylaws only require:

If a contractor brings in a second machine to work alongside of the first machine, doing similar work on the same contract, and then decides to lay off one machine, the first engineer on the job would have a claim on the job for twenty (20) consecutive working days. After twenty (20) consecutive working days, the engineerʹs claim is on the machine.

‐ 6 ‐ Suppl. J. App. at 237. This provision, Hofmann concedes, is ʺnot strictly applicable,ʺ but

she asserts nonetheless that Local 14 breached it or other unwritten rules. Appellantʹs

Br. at 35. Local 14, however, interpreted the provision to mean that Hofmann only had

a right to ʺ[her] machine on [her] shift,ʺ not to a later shift or a different crane. Suppl. J.

App. at 182‐83. Hofmann presents no contrary evidence on summary judgment that

this interpretation of an ambiguous bylaw was arbitrary, discriminatory, or in bad faith.

2. Motion to Quash Hofmannʹs Subpoena

We review an order to quash a subpoena for abuse of discretion. In re

Subpoena Issued to Dennis Friedman,

(2d Cir. 2003). Hofmann sought in

subpoena Request 2 documents from the EPA appointed by the district court pursuant

to a consent decree between the Department of Justice and Local 14 to investigate and

eliminate corruption. The EPA and the United States intervened and moved to quash,

asserting, inter alia, the attorney‐client privilege, attorney work product, investigatory

privilege, and special officer privilege as to 341 documents responsive to Request 2. The

district court granted the motion.

In our Circuit, we have not adopted a blanket ʺinvestigatoryʺ or ʺspecial

officerʺ privilege for consent decree monitors. See United States v. Bleznak,

(2d Cir. 1998) (declining to address merits of investigatory or other privilege), affʹg

United States v. Alex. Brown & Sons, Inc.,

, 242‐43 (S.D.N.Y. 1997)

(addressing investigatory privileges, including ʺspecial officer privilegeʺ adopted in In

‐ 7 ‐ re LTV Securities Litigation,

(N.D. Tex. 1981)). We need not decide whether

to do so here because the record before the district court was sufficient to support a

finding that the documents sought in Request 2 were protected by the work product

doctrine. The documents responsive to Request 2 consisted of e‐mails between the EPA

and his counsel as well as his counselʹs own investigative notes concerning Hofmannʹs

complaint that she was laid off in violation of Local 14ʹs bylaws. The EPA was

operating under continuous anticipation of litigation given his role under the consent

decree. Hofmann failed to demonstrate either a substantial need for the documents or

that she could not, without undue hardship, obtain their substantial equivalent by other

means, see Fed. R. Civ. P. 26(b)(3), as she could have obtained the documents or the

information contained therein directly from other custodians, witnesses, or defendants.

In these circumstances, the district court did not abuse its discretion in granting the

EPAʹs motion to quash.

We have reviewed Hofmannʹs remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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