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.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
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), 29
U.S.C. § 185(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., 715 F.3d 102, 108 (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., 475 U.S. 574, 587 (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, 398
F.3d 211, 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, 451 F.3d 140, 151 (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, 764 F.3d 244, 251 (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, 715
F.3d at 110 n.8 (citing Melman v. Montefiore Med. Ctr., 98 A.D.3d 107 (N.Y. App. Div. 1st
Depʹt 2012); Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29 (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, 237 F.3d 174, 178 (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., 525 U.S. 33, 44 (1998), and that such conduct caused her injuries, see Spellacy
v. Airline Pilots Assʹn‐Intʹl, 156 F.3d 120, 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, 350 F.3d 65, 68 (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, 153 F.3d 16,
20 (2d Cir. 1998) (declining to address merits of investigatory or other privilege), affʹg
United States v. Alex. Brown & Sons, Inc., 963 F. Supp. 235, 242‐43 (S.D.N.Y. 1997)
(addressing investigatory privileges, including ʺspecial officer privilegeʺ adopted in In
‐ 7 ‐
re LTV Securities Litigation, 89 F.R.D. 595 (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
‐ 8 ‐