MEMORANDUM OF DECISION AND ORDER
This action arises from the claims of the plaintiff, John M. Lettis (“Lettis” or the . “plaintiff’), against the United States Postal Service (the “USPS”) and several of its employees (collectively, the “Postal Service Defendants”) for the breach of the national collective bargaining agreement (the “CBA”) between the USPS and the defendant, the National Association of Letter Carriers (“NALC”), and against the defendants NALC and its local branch, the National Association of Letter Carriers Branch 6000 (“Branch 6000” and collectively, the “Union”), for the breach of their duty of fair representation, in violation of the Postal Reorganization Act (the “PRA”), 39 U.S.C. § 1208. The gravamen of the plaintiffs action is that the USPS violated the CBA by suspending and then terminating his employment, and the Union failed to represent him properly in the resulting grievances and arbitrations. Presently before the Court are the defendants’ motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
I. BACKGROUND
Lettis had been employed as a letter carrier since 1968, for a period of twenty-six (26) years. As a letter carrier, he was a member of NALC, which is the postal employees’ collective bargaining representative, and its affiliated local labor organization, Branch 6000, for which he was, at one time, a shop steward. Even before the events which culminated in this action, Lettis had a history of disciplinary actions taken against him. On June 27, 1991, Lettis was issued a letter of removal from the USPS (the “June 27, 1991 removal letter”). The June 27, 1991 removal letter listed verbal abuse and threats to employees, as well as the failure to follow instructions, as the reasons for his termination. The letter alleged that: (1) Lettis verbally abused and cursеd at two employees and threatened to take them outside; (2) when a supervisor intervened, Lettis screamed obscenities at the supervisor and asked him to go outside to settle it; and (3) Lettis’ verbal explosion lasted from approximately 8:15 A.M. until 10:00 A.M., at which time Lettis left work for a doctor appointment. The letter also listed previous actions including harassment of other employees, such as telling an employee that she was “dead meat” while making a throat-slitting gesture and telling another employee that she should watch out for him.
In response to the June 27, 1991 removal letter, Branch 6000 filed a grievance. On August 26, 1991, the grievance was settled. The settlement provided, among other things, that although the removal was just and proper, Lettis would not be terminated but would be placed on probation for one (1) year during which time he would follow all lawful instructions and rules, receive psychological counseling, and conduct himself in a manner that would not be offensive to other people.
On February 21, 1992, before his probationary period ended, Lettis was issued another letter of removal (the “February 21, 1992 removal letter”). The February 21, 1992 removal letter cited the plaintiffs failure to follow instructions and unauthorized extension of street time as the reasons for his removal. Branch 6000 filed a grievance challenging the removal, which ultimately proceeded to arbitration. On May 10, 1992, the arbitrator ruled in Branch 6000’s favor, rescinded the removal, and reinstated Lettis to his previous position. However, the arbitrator held that Lettis was not without fault and therefore, refused to award back pay. In addition, Lettis’ probationary period was extеnded to May 10, 1998, one (1) year from the date of the arbitration award.
*188 A. The Emergency Suspension
On November 16, 1993, approximately six months after Lettis’ probation resulting from the February 21, 1992 removal letter ended, while working at the post office in Williston Park, New York branch (the “Williston Park Post Office”), Lettis and a fellow letter carrier, the defendant Andrew Kachianos (“Kachianos”), were involved in an altercation. The plaintiff alleges that Kachianos tripped and kicked him in the knee, and spit in his face. Marion Kang, a fellow postal employee, allegedly witnessed the entire incident. The plaintiff contends that as he went to get the defendant, Joe Celentano (“Celentano”), the acting supervisor, he saw Bob Green (“Green”) intervene and restrain Kachianos in a bear hug. Shortly thereafter, the police were summoned to the scene.
After the incident with Kachianos, Let-tis maintains that Celentano and the defendant, Postmaster Peggy Eng (“Eng”), attempted to coerce him to make a statement outside the presence of a union delegate or shop steward, in contravention of his rights under the CBA and the law. Thereafter, Celentano and Eng directed Lettis to go home and not to return to the Williston Park Post Office until further notification. Lettis obeyed the order while Kachianos lingered on the scene. When the police arrived, only Kachianos who was with the defendant, Don Daly (“Daly”), Branch 6000’s shop steward, was permitted to speak with the police.
On November 17, 1993, Lettis was advised by the defendant Dominic A. Presta-no (“Prestano”), Executive Vice-President of Branch 6000, not to report to work until further notification. By letters dated November 18, 1993, Lettis and Kachianos were рlaced on emergency suspension by the USPS (the “Emergency Suspension”), which advised them that they were placed in an off-duty, without pay status, effective November 16, 1993 because they might be injurious to themselves and others. The letter of suspension addressed to Lettis gave the following sole reason for the USPS’ action:
On November 16, 1993 you and letter Carrier Kachianos were involved in an altercation on the workroom floor. In that you may be injurious to yourself or other employees, to retain you in an active duty status would not be in the best interest of the Postal Service.
(Prestano Decl. dated May 29,1998 (“Pres-tano Decl”), Ex. 6.)
Branch 6000 filed a grievance on behalf of Lettis, objecting to his suspension. Branch 6000 appointed Don Daly, the only shop steward at that time at the Williston Park Post Office, to represent Lettis in Step One of the grievance procedure. On November 24, 1993, the grievance was denied by the USPS at the Step One meeting with management. Lettis was not present at the Step One meeting.
Branch 6000 pursued the grievance to Step Two. On December 10, 1993, a Step Two hearing was held. Prestano represented Lettis in Step Two; he did not handle any stage of Kachianos’ grievance. The USPS denied the grievance.
On December 13, 1993, Branch 6000 sent a grievance summary to William Yates (“Yates”), the National Business Agent for the New York region, to obtain his approval to submit the grievance to final and binding arbitration. On December 16, 1993, Yates filed for arbitration.
On February 25, 1994, the arbitration regarding the Emergency Suspension was held. The plaintiff was represented by Prestano and the USPS was represented by a senior labor relations specialist, a non-attorney. At the arbitration, the USPS offered a settlement that included some back pay and a transfer to a different post office as a regular carrier. However, upon learning that he would only be a substitute carrier and would lose all seniority, Lettis rejected the settlement offer.
NALC and the USPS stipulated that the following issue was to be decided by Arbi *189 trator Margaret Leibowitz: “Did the Service violate Article 16, Section 7 of the National Agreement when it placed the Grievant, Mr. John Lettis, on off-duty, non-pay status effective November 16, 1993 at 1405 hours? If so, what shall be the remedy?” On March 11, 1994, Arbitrator Leibowitz issued an Opinion and Award denying NALC’s grievance (the “March 11, 1994 Award”). Arbitrator Lei-bowitz characterized NALC’s position as follows:
The Union contended that the Service lacked just cause for the emergency off-duty placement of the Grievant. The Union argued that the Service improperly invoked Article 16, Section 7 with respect to the Grievant because he was the victim of a physical and verbal assault by Mr. Kachianos. The Union further asserted that the Grievant was subjected to disparate treatment because he was not returned to duty three weeks after the incident when Mr. Kachianos was returned to duty. As a remedy, the union demanded that the Grievant be reinstated with full back pay, overtime, benefits and interest.
(Prestano Deck, Ex. 11 at 5.) In rendering an award for the USPS, Arbitrator Leibowitz summarized the testimony as follows:
Based upon the testimony of Mr. Otto, Mr. Celentano and the Grievant, I find that the Grievant participated in an altercation with Mr. Kachianos on the workroom floor which involved yelling and verbal threats, and which required supervisory intervention. Mr. Celenta-no’s crеdible and unrebutted testimony established that the Grievant and Mr. Kachianos were very excited as they yelled and threatened each other, and that the argument escalated. Mr. Cel-entano further testified that he was concerned about keeping the two men apart during the commotion. Mr. Celentano also explained that he and the Postmaster decided to place the two employees on emergency off-duty status so that they would not be in the Post Office at the same time.
(Prestano Deck, Ex. 11 at 7.) The March 11, 1994 Award reflects that the issue of who initiated the altercation was irrelevant to the Emergency Suspension:
It is well-accepted in labor arbitration that fighting on the job constitutes serious misconduct. Verbal threats, yelling, and other aggressive and hostile behavior compromise the safety and security of all employees and will not be condoned at the workplace. The Grievant’s participation in the November 16, 1993 altercation with Mr. Kachianos was unacceptable and constituted disciplinable misconduct. Under these circumstances, the Service was justified in finding that the Grievant was “injurious to self and others.”
(Id. at 8.)
B. The Removal
By letter dated March 28, 1994, Lettis was advised of his discharge from the USPS, effective May 2, 1994 (the “Removal”). This letter listed the following three reasons for Lettis’ termination:
(1) Verbal threat of a fellow postal employee. This charge included shouting at Kachianos in an aggressive and threatening manner, threatening Kachi-anos with physical harm, and telling Kachianos to see Lettis after work;
(2) Creating a hostile work environment. This charge stated that several employees interviewed had said that Lettis engaged in threatening, harassing, and coercive behavior toward them; and
(3) Conduct unbecoming a postal employee. This charge related to Lettis’ criminal conviction for attempted assault in 1974.
(Prestano Deck, Ex. 12.) The Removal prompted Branch 6000 to file a grievance objecting to Lettis’ discharge. On March 31,1994, Shop Steward Daly conducted the Step One grievance, which was denied by *190 the USPS. On April 18, 1994, Prestano conducted the Step 1A hearing. Step 1A was an alternate grievance step that was analogous to a Step Two meeting. On May 3, 1994, Prestano participated in the Step Three hearing.
On June 9, 1994, an arbitration hearing was held before Arbitrator Joseph Siref-man as to the following issue stipulated by the Union and the USPS: “Did the [Postal] Service have just cause to remove Grievant John Lettis on March 28, 1994. If not, what shall the remedy be?” Pres-tano represented Lettis and .the USPS was represented by a non-attorney. By an Award and Opinion dated August 23, 1994, Arbitrator Sirefman upheld the Removal on two of the three grounds cited in the letter dated March 28, 1994. Charge Three, relating to Lettis’ 1974 conviction for attempted assault, was dismissed as being too remote. Although Arbitrator Si-refman recognized that Lettis has changed since 1991 by becoming a born-again Christian and trying to stay out of conflict, he held that Lettis’ history of disciplinary problems coupled with his conduct during the altercation with Kachianos, justified his termination:
Even if, arguendo, Kachianos can be considered the aggressor (CP. Fred Otto’s written statement said “I clearly heard taunting by John Lettis towards Andy Kachianos”), it is the duty of each participant to step backward, and to deescalate the tension. A participant who physically or verbally continues to extend the conflict and increase its intensity commits a very serious offense, and, in effect, becomes the aggressor.... Given Lettis’ history of threats and confrontations, (including a relatively recent reinstatement with two years probation after a removal), Lettis’ taunting of Kac-hianos and his prolongation of the altercation by continued threats supports removal. Although Kachianos apparently responded in kind his short suspension was not disparate treatment. Management’s sense that Kachianos had been taunted once too often is supported by the testimony and statements of other employees as to the tense atmosphere Lettis created over the years. In addition, Kachianos did not have a record of discipline. Each employee must be considered on the basis of his or her individual record. The distinction between the two employees drawn by Management was justified.
(Prestano Deck, Ex. 19 at 9-10.) Arbitrator Sirefman concluded that
[b]oth the words and behavior of the employees are eloquent testimony to their genuine and reasonable concern, even fear, about working with Grievant, based upon numerous incidents which have persisted long after the time he claims to have changed his ways. He is not being charged for old incidents, as the Union claims. However, the older incidents, coupled with the more recent ones in Charges 1 and 2, are simply the continuation of an unfortunate pattern of behavior. Postal employees, be they Clerks, Carriers, or Managers, are entitled to a workplace free of the types of worries, anxieties and tension Lettis creates.
(Id at 13.)
C. The District Court Complaint
The plaintiff, proceeding pro se, commenced this action on February 15, 1995. On or about April 24, 1996, the plaintiff retained counsel and a motion was made to amend the complaint. By a Memorandum Decision and Order dated August 28, 1997, the Court granted the plaintiff leave: (1) to add the National Association of Letter Carriers and the United States Postal Service as defendants; (2) to add Don Daly and Dominic A. Prestano as defendants, to the extent that the plaintiff seeks to assert supplemental state causes of action against them and the applicable statute of limitations would not bar such claims; (3) to assert a cause of action arising from the arbitration held on February 25,1994 as to the plaintiffs suspension from the Willi- *191 ston Park Post Office, to the extent that such claim accrued within six months prior to February 15, 1995, the date the original complaint was filed; and (4) to assert supplemental state causes of action against the defendants Peggy Eng, Joseph Celen-tano, Andrew Kachianos, and Frederick Otto.
On September 29, 1997, the plaintiff filed the First Amended Complaint alleging a hybrid action against the Union for breach of the duty of fair representation in the handling of his grievances and arbitra-tions, and against the USPS for suspending and terminating his employment without just cause, in breach of the CBA. The plaintiff also alleges state law claims of: (1) defamation as against Otto, Celentano, and Eng; (2) conspiracy to deprive him of his employment and future employment as against Prestano, Celentano, Eng, Daly, and Otto; (3) intentional infliction of emotional distress as against Prestano, Celen- . tano, Eng, Daly, and Otto; and (4) assault and battery as against Kachianos.
II. DISCUSSION
A. Summary Judgement Standard
A court may grаnt summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact,
Samuels v. Mockry,
According to the Second Circuit “[s]um-mary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict.”
United Nat’l Ins. Co. v. Tunnel, Inc.,
However, mere conclusory allegations, speculation, or conjecture will not avail a party resisting summary judgment.
See Kulak v. City of New York,
It is within this framework that the Court addresses the grounds for the present motions for summary judgment.
B. The Union and the USPS
The PRA, 39 U.S.C. § 1208, provides federal subject matter jurisdiction for actions against the USPS for breach of a collective bargaining agreement, to the same extent that, the district courts have subject matter 'jurisdiction over such claims brought against private sector em
*192
ployers. Noting the PRA’s explicit incorporation of the NRLA, courts considering claims against the USPS have applied the same limitations to such claims that apply to claims brought against private sector employers pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a).
See Nat’l Ass’n of Letter Carriers, AFL—CIO v. Sombrotto,
Under federal labor law, an employee may bring a complaint against his or her union and the employer alleging: (1) that the employer breached a collective bargaining agreement; and (2) that the union breached its duty of fair representation in redressing her grievance against the employer.
See DelCostello v. International Bhd. of Teamsters,
1. The Union
a. Emergency Suspension
The Union asserts that any claim brought against it arising from the Emergency Suspension is time-barred. As stated above, the plaintiffs claim against the Union for breach of the duty of fair representation is governed by a six-month statute of limitations. Generally, “the cause of action accrue[s] no later than the time when plaintiff! ] knew or reasonably should have known that such a breach had occurred, even if some possibility of nonjudicial enforcement remained.”
Cohen,
*193 we deal not with a union manifestly opposing, rejecting or abandoning the interests or claims of a member, but rather with a union purporting to fulfill its duty of fair representation throughout an arbitration hearing process. In such circumstances, we will not attribute to an unsophisticated employee instant knowledge of tactical or legal errors made by her own advocate, “the best possible champion of [her] cause,” see Childs,831 F.2d at 435 . Rather, the employee is entitled, during the hearing process, to trust in the abilities of her representative and “reasonably believe[ ] the Union [is] proceeding in good faith,” see King,785 F.2d at 35 , at least until an adverse arbitral decision suggests otherwise. Knowledge of the breach by the Union will not be attributed to Ghartey prior to the issuance of the award. See Samples v. Ryder Truck Lines, Inc.,755 F.2d 881 , 887 n. 7 (11th Cir.1985).
Id.
at 165. Therefore, “under the ‘knew or should have known’ test for accrual of the hybrid claim, the employee in
Ghartey
first ‘should have known’ about that claim only after entry of the arbitrator’s decision.”
Buttry,
Applying Ghartey to the present action, the Court finds that the plaintiffs cause of action did not accrue until Arbitrator Liebowitz rendered the March 11, 1994 Award. The plaintiffs assertions regarding the Emergency Suspension relate to arguments allegedly not raised, evidence not submitted, and witnesses who were not called at the arbitration hearing. Similar to Ghartey, the Union represented the plaintiff in the Emergency Suspension grievance process through the issuance of the arbitrator’s decision. The Union asserts that Lettis “at no time before, during or immediately after the arbitration hearing suggested that additional witnesses should have been called or that any additional documents or evidence should have been introduced,” (Prestano Aff. dated 5/29/98 ¶ 25), which assertion Lettis disputes claiming that “[t]here were several times during the arbitration that I objected to the way that Prestano handled the case,” (Lettis Aff. dated 6/27/98 (“Lettis Aff.”) ¶ 15). Regardless of whether Lettis was aware of the alleged defects in Branch 6000’s representation of him during the arbitration hearing held on February 25, 1994 or before as is evidenced by his complaints to the NLRB and to Congressman Levy regarding the delay in proceeding to the Emergency Suspension arbitration, (see Lettis Aff. dated 6/27/98 ¶ 25; Seltzer Decl. dated 5/5/98, Ex. F at 74-75), Ghar-tey instructs the Court that the plaintiff was entitled to rely upon the skill of his union representatives and to focus his energies on the arbitration. Therefore, the statute of limitations did not begin to run until Arbitrator Liebowitz issued the March 11, 1994 Award. Even assuming that the plaintiffs cause of action did not accrue until he received a copy of the March 11, 1994 Award two weeks after it was issued, (see Lettis Aff. ¶ 18), the plaintiffs claim arising from the Emergency Suspension proceedings is still time-barred. Lettis, originally proceeding pro se, commenced this action on February 22, 1995, almost five (5) months after the limitations period expired. Consequently, the Court concludes that the plaintiffs claim for breach of the duty of fair representation arising from the Emergency Suspension grievance process, is time-barred.
The plaintiff attempts to salvage this claim by contending that: (1) the filing of the NLRB charge against Branch 6000 tolls the statute of limitations; and (2) Branch 6000’s conduct throughout the Emergency Suspension and Removal proceedings are “inextricably interwined” and hence, since his claim pursuant to the Removal proceedings is timely, his claim pursuant to the Emergency Suspension is brought within the six-month statute of *194 limitations. The Court is unpersuaded by these arguments.
On September 20, 1994, Lettis filed a complaint against Branch 6000 with the regional NLRB, alleging that it had committed an unfair labor practice. The complaint states that “[s]ince on or about June 9, 1994, the above-named labor organization by its officers, agents and representatives has failed and refused to represent John Lettis at his arbitration regarding his discharge.” (Prestano Dec!., Ex. 20.) On November 2, 1994, the regional NLRB denied Lettis’ claim and refused to issue a complaint. He appealed the decision to the NLRB General Counsel in Washington, D.C. On December 20, 1994, the General Counsel rejected Lettis’ claim and upheld the regional NLRB’s dеcision to deny issuance of a complaint. The plaintiff claims that when Lettis received the final determination from Washington, D.C., “[t]hat completed plaintiffs exhaustion of his administrative remedies.” (Pl.’s Memo, in Opp. § I.)
First, the Court notes that the plaintiffs NLRB charge relates to the Removal proceedings, not the Emergency Suspension proceedings. The NLRB charge states that “since on or about June 9, 1994,” Branch 6000 committed an unfair labor practice stemming from its representation, or lack thereof, of the plaintiff regarding his “discharge.” June 9, 1994 is the date that the arbitration hearing was held on the Removal. All proceedings relating to the Emergency Suspension had been completed prior to June 9, 1994. Hence, the Court concludes that the NLRB charge related to the Removal proceedings, not the Emergency Suspension proceedings.
Second, even if the NLRB charge related to the Emergency Suspension proceedings, courts within the Second Circuit and other circuits have held that exhaustion of NLRB procedures is not a prerequisite to filing an action in federal court against a union for breach of the duty of fair representation, and the filing of a complaint with the NLRB does not toll the statute of limitations of a subsequent federal court action.
See Arriaga-Zayas v. International Ladies’ Garment Workers’ Union
—Puerto
Rico Council,
Regarding the plaintiffs theory that the Emergency Suspension and the Removal proceedings are “inextricably intertwined,” Lettis states that he
... has not sued separately for a claim based upon the suspension. The claim is based upon the suspension and removal taken together. It is plaintiffs contention that the improper removal resulted, at least in part, from the Union’s mishandling of the suspension arbitration and grievance proceeding. Had the Union adequately represented him in the suspension proceeding, there most likely would have been a different result in the removal proceeding, if, indeed, USPS would have pursued a removal if they had lost at the suspension hearing. The two proceedings are inextricably intertwined.
(Pl.’s Memo, in Opp. § I.) The plaintiff proposes a novel doctrine of tolling the *195 statute of limitations but cites no case law in support of his theory. Generally, a statute of limitations would apply unless a tolling principle is applicable. The Court interprets the plaintiffs argument as one alleging a continuous violation. However, the Court finds that such a tolling principle is inapplicable to the present case.
For purposes of determining whether the statute of limitations bars a claim, “the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.”
Lorance v. AT&T Technologies,
In addition, in the case of
Local Lodge No. 1424 v. NLRB,
It is doubtless true that § 10(b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admissibility of past events, due regard for the purposes of § 10(b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely “evidentiary,” since it dоes not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.
Id.
at 416-17,
Thus, in the present case, the plaintiff is not barred from using evidence of the events surrounding the Emergency Suspension proceedings to “shed light” on a breach of the duty of fair representation arising from the Removal proceedings, since conduct even if time-barred as a separate ground for relief, can shed light on claims which are within applicable time limits.
See Haerum v. Air Line Pilots Assoc.,
Finally, the Court notes that in his affidavit, the plaintiff asserts that he filed the NLRB charge “[fjollowing the advice of a federal official.” (Lettis Aff. dated 6/27/98 ¶ 32.) The plaintiff, who is now represent *196 ed by counsel, does not argue that he was wrongly advised by any of the defendants that he must first file a charge with the NLRB before he will be permitted to file an action in federal court, and therefore, that this affirmative misrepresentation prohibits the defendant from asserting the statute of limitations as a defense. Hence, the issue of estoppel is not before the Court.
In sum, the Court finds that the plaintiffs claim of breach of the duty of fair representation arising from the Suspension proceedings, is time-barred. Consequently, the Court grants the Union’s motion for summary judgment regarding this claim.
b. Removal
The duty of fair representation requires that a union make “an honest, thorough effort to present [the employee’s] claims through the arbitral process in a manner best calculated to secure [his or her] rights under the collective bargaining agreement.”
Samuels v. Air Transport Local 504,
[i]n hindsight, any decision a union makes in the informal yet complex process of handling its member’s grievances may appear to the losing employee to be erroneous.... Tactical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union’s part does not give rise to a breach. “[P]roof of mere negligеnce or errors of judgment ... is insufficient. ... £As long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.’ ”
Barr,
Lettis argues that the Union breached its duty of fair representation in its representation of him during the Removal griev- *197 anee and arbitration proceedings. Specifically, he alleges that the Union: (1) did not inform him when the Step One meeting was to occur nor was he invited to attend; (2) failed to assign separate representatives to Kachianos and him at the Step meetings, which constituted a conflict of interest; (3) moved slowly in the grievance proceedings until Lettis contacted his Congressman; (4) failed to call Bob Green, Billy Fisher, Bill Britton, Nick Sicilano, and Bud Peterson, Lettis’ pastor, as witnesses; (5) failed to locate a potential witness, a truck driver, who was allegedly present in the post office when the November 16, 1993 altercation occurred; (6) failed to introduce into evidence a climate survey dated October 1993 of the Williston Park Post Office which allegedly indicates the poor communication and performance of management; (7) failed to introduce evidence of Kachianos’ alleged mental and disciplinary problems or the drinking which occurred at the Williston Park Post Office; (8) failed to strike Otto’s testimony because Otto only testified in part, refusing to give further testimony “without counsel”; and (9) failed to inform him of his right to counsel at the arbitration. For the reasons set forth below, the Court finds that while each of the specifically alleged breaches may, with the benefit of hindsight, be viewed as a possible tactical error or negligence by the Union, none of them, taken either singly or collectively, are nearly sufficient to make out a prima facie case that the Union breached its duty fairly to represent the plaintiff The Court examines each of the plaintiffs allegations of the Union’s misconduct.
i. Breach of Duty
Notification of the Step One Meeting and Right to Counsel
Lettis alleges that he was not informed of when the Step One meeting would occur nor was he invited to attend the meeting. The Union counters that its practice is not to have the grievant participate in the early steps of the grievance procedure, partly due to its experience that “it is difficult to get management to respond in a constructive manner if the grievant is present.” (Prestano Decl. ¶ 4.) Indeed, Lettis acknowledges that “it may be unusual for the employee to be present at the Step 1 hearing.” (Lettis Aff. dated 6/28/98 ¶ 8.) In addition, the Union emphasizes that there is no requirement that a • grievant be present at Step One meeting where, as here, the Union, not the individual, has initiated the grievance. Article 15 of the CBA which governs the procedures utilized in grievances and arbitrations explicitly states that
[t]he Union also may initiate a grievance at Step 1 within 14 days of the date the Union first became aware of (or reasonably should have become aware of) the facts giving rise to the grievance. In such case the participation of an individual grievant is not required.
(Prestano Deck, Ex. 1 at 75.)
The failure to kеep a grievant informed of the status of the grievance is not a breach of the duty of fair representation.
Caputo v. National Association of Letter Carriers,
Furthermore, in his complaint, Lettis maintains that the Union breached its duty of fair representation by not providing him with an attorney. (First Am. Compl. ¶ 43.) The plaintiff has shifted his position and now maintains that the Union breached its duty by not informing him of his right to obtain private counsel at his own expense. (Lettis Aff. dated 6/28/98 ¶ 30.) In the Court’s view, both arguments advanced by the plaintiff fail to establish a breach by the Union.
A grievant has no right to a private attorney, or to require a union to utilize a lawyer, at an arbitration.
Henry v. Community Resource Center, Inc.,
No. 95 Civ. 5480,
[t]his is not to say, ... that a union may act 'arbitrarily or in bad faith concerning the presence of counsel in an arbitration. For example, a union must provide nondiscriminatory representation to all bargaining unit employees, without reference to union membership status. When a union customarily provides an attorney to union members in arbitration proceedings, the refusal to provide an attorney to represent a nonunion employee at arbitration is a breach of the duty of fair representation. Castelli v. Douglas Aircraft Co.,752 F.2d 1480 , 1483 (9th Cir.1985) (citations omitted).
Lettis has not presented any evidence that the Union’s use of an officer, not a lawyer, for the arbitration was a departure from the Union’s previous policy. Indeed, in Prestano’s experience, Branch 6000 has never hired attorneys to represent it in disciplinary arbitration hearings. (Presta-no Decl. ¶ 7.) The USPS did not use attorneys for any of the Removal proceedings. (Prestano Decl. ¶ 22, 29.) Lettis does not cite to a provision in the CBA or in the Union Constitution which would entitle him to counsel at any stage of the grievance proceedings. In addition, the plaintiff had been through the arbitral process in 1991 and 1992 and was successfully represented by Prestano on both occasions. (Prestano Deck ¶¶ 10-13; Ex. 5.) Further, even if the Union neglected to inform Let-tis of his right to retain a private attorney, such omission, in the Court’s view, constitutes mere negligence.
Assignment of Daly to Represent Lettis and Kachianos at Step One
Lettis contends that Daly’s representation of both Kachianos and himself at Step One of the grievance proceedings presented a conflict of interest. The Court is unaware of, nor does the plaintiff сite to, any case law in support of the plaintiffs argument that the representation of two employees in separate grievance proceedings by the same union official constitutes a per se breach of the duty of fair representation. Indeed, “a union must necessarily, and without violating anyone’s rights, represent employees who have antagonistic interests.”
Johnson v. American Postal Workers Union,
AFL—
CIO,
The Union maintains that
[t]he elected shop steward in a Post Office is almost always assigned to represent Branch 6000 during Step One of a grievance at that Post Office, particularly in post offices with fewer than 49 employees, such as Williston Park, where the CBA permits only one steward. Ex. 1 [the CBA] at 92. Only on extremely rare occasions when the shop steward is unavailable to present the Step One grievance will another individual be designated by the Branch.
(Prestano Decl. ¶ 8; see also Whalen Decl. dated 6/4/98 ¶ 4.) Lettis does not raise an issue of fact as to the Union’s regular procedures for having the shop steward represent a grievant at Stеp One or the fact that Daly was the only shop steward assigned to the Williston Park Post Office. Prestano represented Lettis at the other steps of the Removal grievance procedure and the arbitration hearing. Lettis does not allege that Prestano also represented Kachianos in the other grievance steps.
Furthermore, Lettis does not expand upon how Daly and the Union’s representation of Kachianos and himself created a conflict of interest. Although Lettis maintains that the Union did not believe his version of the altercation, when asked at his deposition whether he had any evidence as to Prestano’s bad faith in representing him, Lettis answered that Presta-no became upset when questioned as to why Kachinos was returned to work while he was not. (See Seltzer Decl., Ex. G at 1114-15.) Lettis testified that the fact that only Kachianos was returned to work, was proof of the Union’s bad faith. (See id. at 116.) However, this is mere speculation and is insufficient to create a triable issue of material fact. The plaintiff has not presented any proof that Daly took a position adverse to him at the Step One meeting. Accordingly, the Court concludes that the Union did not breach its duty of fair representation by having Daly represent both Kachianos and Lettis during Step One of their respective grievances.
Dilatory Conduct
Lettis alleges that the Union breached its duty of fair representation by its dilatory conduct in the Removal grievance proceedings and arbitration.
See Cruz v. Local Union Number 3 of the Int’l Brotherhood of Elect. Workers,
Union’s Preparation for and Performance at the Arbitration
Lettis criticizes the Union’s preparation and performance at the Removal arbitration. The plaintiff maintains that the Union breached its duty of fair representation by failing: (1) to call witnesses; (2) to locate a potential witness; (3) to introduce evidence of Kachianos’ alleged mental and disciplinary problems and the poor working environment at the Williston Park Post Office; and (4) to strike Otto’s testimony. The Court finds the plaintiffs arguments unavailing.
First, the plaintiff asserts that Prestano failed to call Bob Green, Billy Fisher, Bill Britton, Nick Sicilano, and Bud Peterson, Lettis’ pastor, as witnesses. Lettis contends that it was Bob Green who intervened in the altercation, not Celentano, as Celentano had testified at the Removal arbitration. Therefore, Lettis asserts that Bob Green could have refuted Celentano’s testimony. Significantly, the Court notes that Lettis does not set forth the substance of the testimony which would have been proffered by these witnesses.
On the other hand, the Union maintains that Lettis desired more character witnesses in his defense but when Prestano began to interview the people Lettis wished to call, they did not have any helpful character testimony and that many did not wish to testify on Lettis’ behalf. (Prestano Decl. ¶ 31.) Although the parties contend that each advised the other to contact Lettis’ pastor, the Union maintains that both Ray Beers and Robert Solitto served as character witnesses for the plaintiff and in its judgment, additional character witnesses would not have helped his case. (Id.) According to the Union, other witnesses, such as Bob Green, would have hurt Lettis’ case. (Id.) Bob Green testified at his deposition that both men were arguing and that Lettis told Kachia-nos to “meet him after work.” (Seltzer Supp.Decl. dated 7/5/98, Ex. C.) Bob Green did not recall physically restraining Lettis or Kachianos. (Id.)
In the Court’s view, the most ominous view of the Union’s alleged failure to call additional character witnesses is that it reflects an error of judgment. “[T]hese omissions by themselves do not support a claim of bad faith.”
Kirkland v. Local 32B/32J, Int’l Service Workers Union,
No. 90 CIV. 2238,
Second, Lettis cites the Union’s failure to locate a potential witness, a truck driver, as evidence of the Union’s bad faith:
Although the truck driver’s testimony may not have been too helpful, Prestano and the Union should have taken steps to find him because he was an individual who was in a location proximate to where the incident transpired and could possibly have had vital information regarding the incident. If I was able to find this driver after calling two people, I do not believe that the burden placed on the Union to locate the truck driver was too difficult. Also, when I asked Prestano if he had found the driver he stated “I am not a detective.” The Union’s and Prestano’s indifference to my suggestions that he be located demonstrates the Union’s bad faith and its perfunctory performance.
(Lettis Aff. ¶ 27) (еmphasis added). At his deposition, the plaintiff testified about the truck driver, as follows:
Q Has Mr. Thompson made a statement for you?
A No.
Q Has he signed a statement?
A No.
Q Have you met with him?
A No.
Q Have you talked to him?
AI spoke to him once on the phone. He said he didn’t want to get involved.
Q Did you talk to him about the incident?
A Yes, a little bit.
Q What did he say?
A He said, “When it was all over, I heard yelling and screaming, but I didn’t really see everything.” So I asked him, I said, “Are you telling the truth?” And then he tells me he didn’t want to get involved, which I can understand.
Q Other than saying he heard a lot of yelling and screaming, did he say anything else about what he saw that day?
A No.
Q Or heard?
A No, he didn’t.
Q Did he say whether he saw Mr. Kae-hianos do anything?
A He didn’t say.
Q Did he say whether he saw you do anything?
A He didn’t say. He was very evasive ....
(Seltzer Deck, Ex. G at 118-19.) Given the above-cited deposition testimony by the plaintiff, the Court doubts that the truck driver’s testimony at the arbitration would have benefitted Lettis. As stated above, the plaintiff bears the burden of establishing that a witness’ testimony would have been useful.
See Passo,
Third, Lettis maintains that the Union failed to introduce into evidence: (1) a climate survey of the Williston Park Post Office dated October 1993; (2) information regarding Kachianos’ alleged mental and disciplinary problems; and (3) the drinking which allegedly occurred at the Williston Park Post Office. Lettis asserts that the climate survey dated October 1993 in which the letter carriers at the Williston Park Post Office rated their station 4.97, on a scale of 1 to 10, “in many aspects thereof indicates the poor communication and poor performance of the manage
*202
ment.” (Lettis Aff. dated 6/28/98 ¶ 28.) Lettis cites Branch 6000’s use of a climate survey dated February 14, 1995 in the arbitration held in July 1995 regarding letter carrier Gerald Carmody’s (“Carmo-dy”) removal (the “Carmody Arbitration”), as a result of which arbitration Carmody was reinstated, as proof of the Union’s breach of duty of fair representation. However, upon a review of the Carmody Arbitration award, the Court finds that the climate survey was not relied upon to any great extent by the arbitrator in reinstating Carmody. In any event, the arbitration over Carmody’s removal involved a different employee with a different disciplinary and work history. Indeed, the Court agrees with the Union that “the reinstatement of Carmody shows how an employee’s previous history is often highly relevant to an arbitrator’s ruling on just cause for removal.” (Union’s Reply Memo, at 6.) The Court concludes that the failure of the Union to present the climate survey was negligence, at most.
See Ca-puto,
Likewise, the Court finds that the failure of the Union to present evidence of the alleged drinking which occurred at the Williston Park Post Office, and to strike Otto’s testimony does not rise to the level of arbitrary, perfunctory, or bad faith behavior.
Finally, regarding the evidence pertaining to Kachianos, Lettis states that he does “not think that Prestano or the Union even attempted to determine if Kachinaos had a discipline problem and, if they did, they failed to introduce that problem as evidence.” (Lettis Aff. ¶ 29.) Lettis has provided no evidentiary support that Kachianos had a disciplinary history. The plaintiff does not supply excerpts of deposition testimony of witnesses thаt support this allegation. Rather, he states that
[t]he affidavits of other employees who attest to much of the foregoing are unavailable. I have spoken to a number of them and they are fearful that, if they supply an affidavit, their jobs will be in jeopardy. I am fully confident that once called to be witnesses, these employees will give truthful answers.
(Lettis Aff. dated 6/27/98 ¶ 35.) However, “the mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party.”
Quinn v. Syracuse Model Neighborhood Corp.,
In sum, the Union’s representation during the Removal proceedings was not a cursory one, nor was the Union’s conduct arbitrary, discriminatory, or in bad faith, as a matter of law. The Union argued that Kachianos was the aggressor and raised the issue of disparate treatment. As stated above, it presented witnesses and Lettis testified on his own behalf. In the Court’s opinion, “[u]nion officials are not attorneys, and should not be held to a standard akin to legal malpractice.”
Smith v. Drug, Chemical, Cosmetic, Plastics and Affiliated Industries Warehouse Employees Local 815,
ii. Likelihood that the Breach Contributed to an Erroneous Arbitration Award
Even if the Court concluded that the Union breached its duty of fair representation, Lettis has not presented evidence of any nexus between the alleged breach and the outcome of the arbitration. Lettis does not allege that the delay in the Removal proceedings caused him any injury. The plaintiff does not and cannot contend that the Union’s delay in enforcing his rights prejudiced the arbitrator’s decision. The Court similarly finds that Lettis has not presented any evidence that the Union’s failure to advise him of the Step One meeting contributed to the erroneous outcome of the Removal arbitration. Nor does the plaintiff present evidence that a privately retained attorney would have attained a different result; he merely states that “if I had obtained counsel from the outset the outcome of my grievance might well have been different.” (Lettis Aff. ¶ 30.) Such a speculatory and conclusory allegation is insufficient to raise a material triable issue of fact.
As to the alleged conflict of interest, Lettis does not set forth how Daly’s alleged conflict undermined the Removal arbitration. The plaintiff has not presented any evidence of the effect of this alleged conflict of interest. Furthermore, Lettis does not present evidence of how the Union’s alleged failure to believe his version of the events prejudiced Mm. It is undisputed that Branch 6000 took his grievance to аrbitration and argued that Kachianos, not Lettis, was the aggressor. (Prestano Deck, Ex. 19 at 6.) The Removal arbitration award reflects that the question of who instigated the altercation was irrelevant:
Even if, arguendo, Kachianos can be considered the aggressor (CP. Fred Otto’s written statement said “I clearly heard taunting by John Lettis towards Andy Kachianos”), it is the duty of each participant to step backward, and to deescalate the tension. A participant who physically or verbally continues to extend the conflict and increase its intensity commits a very serious offense, and, in effect, becomes the aggressor.
(See id. at 9.) The plaintiff does not present evidence that the Union did not believe him or that the Removal arbitration was in any way affected by conduct related to the subjective belief as to his version of the altercation.
The failure to call witnesses, introduce certain evidence, and strike certain testimony did not, in the Court’s opinion, undermine the arbitrator’s decision. The arbitrator’s decision focused on the altercation between Lettis and Kachianos, Let-tis’ disciplinary history, and the hostile working atmosphere that Lettis created. Thus, the Court finds that the alleged deficiencies in the Union’s representation would not have altered the arbitrator’s decision.
The Court concludes that the Union’s allegedly poor preparation did not seriously undermine the Removal arbitration process and the Union’s allegedly poor representation at the arbitration hearing did not cause the arbitrator to decide incorrectly. Rather, the alleged inadequacies in the Union’s representаtion individually, or in their totality, do not present a material issue of fact as to whether the Union’s conduct affected the Removal arbitration award. In the Court’s view, this is not a case where the arbitral process “has fundamentally malfunctioned by reason of the bad faith performance of the Union.... ”
Hines,
2. USPS
a. Emergency Suspension
USPS likewise argues that the plaintiffs claim of breach of the CBA arising from the Emergency Suspension, is time-barred. The Court agrees. The Court finds that the plaintiffs claim against the USPS for breach of the CBA arising from the Emergency Suspension accrued, at the latest, when the plaintiff received a copy of the March 11, 1994 Award, and is time-barred. Accordingly, the Court grants USPS’ motion for summary judgment as to this claim.
b. Removal
As stated above, because Branch 6000 was the plaintiffs exclusive bargaining agent, Lettis was required in this hybrid action to prove that the Union breached its duty of fair representation before proceeding against the USPS. “The ‘indispensable predicate’ of a[n] ... action against an employer is a ‘demonstration that the Union breached its duty of fair reрresentation.’ ”
Flanigan,
3. Individual Defendants
a. Peggy Eng. Fred Otto, Joe Celenta-no, and Andy Kachianos
i. Assault, Battery, Defamation, and Intentional Infliction of Emotional Distress
Section 215(3) of the New York Civil Practice Law and Rules (“ § 215(3)”) provides that intentional torts such as “assault, battery, false imprisonment, malicious prosecution, libel, slander, [and] false words causing special damages are limited by a one-year statute of limitations.”
See also Casper v. Lew Lieberbaum & Co. Inc.,
No. 97 Civ. 3016,
Assault and Battery
Causes of action for assault and battery accrue immediately upon the occurrence of the tortious act and thus, are not appropriate for the continuing violation exception.
Abdullajeva v. Club Quarters, Inc.,
No. 96 CIV. 0383,
Defamation
Like assault and battery, a cause of action for defamation accrues immediately upon the occurrence of the tortious act and thus, is not appropriate for the continuing violation exception. Id. The plaintiff asserts in his complaint that the acts of defamation of which he complains occurred “prior to November 16, 1993.” (See First Am.Compl. ¶ 53.) This action was commenced with the filing of a pro se complaint on February 15, 1995, more than one year from November 16, 1993. At his deposition, Lettis confirmed that the alleged defamatory statements were made more than one year prior to the commencement of this action.
The plaintiff alleges that Celentano defamed him by telling Kachianos that Lettis had reported Kachianos for “working off the clock,” an infraction of the USPS work rules. (See First Am.Compl. ¶ 54; Gold-berger Decl. dated 6/3/98 (“Goldberger Decl.”), Ex. 3 at 55-56.) The plaintiff testified at his deposition that this statement was made sometime in 1993 but prior to November 16, 1993. (Goldberger Deck, Ex. 3 at 55-56.) Hence, the Court finds that Lettis claim of defamation against Celentano is barred by the statute of limitations.
In addition, the plaintiff alleges that Otto defamed him by stating that he was “no good. He’s a troublemaker. He should be removed from the Postal Service. His wife should divorce him.” (First Am.Compl. ¶ 56; Goldberger Deck, Ex. 3 at 44.) The plaintiff testified at his deposition that these statements were made in 1990 or 1991, and in 1993. (Goldberger Deck, Ex. 3 at 44-46, 56.) Accordingly, the statute of limitations bars these statements allegedly made by Otto from forming the basis for a defamation cause of action.
At his deposition, the plaintiff also maintained that Otto defamed him while testifying at the Removal arbitration. (Goldberger Deck, Ex. 3 at 45.) The arbitrator noted in his decision to uphold Lettis’ removal thаt Otto “testified that after the altercation Lettis said to Kachianos ‘I’ll see you at the candy store,’ ... a reference to a lunch place.... ”
(See
Prestano Deck, Ex. 19 at 9-10.) However, the Court finds that Otto’s testimony at the Removal arbitration is privileged. Statements made during quasi-judicial proceedings, like those made during formal judicial proceedings, are entitled to absolute immunity.
Allan and Allan Arts Ltd. v. Rosenblum,
The function of witnesses is fundamental to the administration of justice. The court’s judgment is based on their testimony and they are given every encouragement to make a full disclosure of all pertinent information within their knowledge. 1 Harper & James, supra at 424. The common law perceived that the policy of encouraging a witness’ free and uninhibited cooperation in the fact-finding process would best be served by insulating the witness from the threat of civil liability for his testimony. Without such immunity, the witness might gauge each of his statements in terms of the possibility of his own personal liability and, therefore, lack the candor and freedom of expression considered essential to the proper functioning of the judicial process. See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 469 (1909). The resulting lack of any civil remedy against the dishonest witness “is simply part of the price that is paid for wit *206 nesses who are free from intimidation by the possibility of civil liability for what they say.” Prosser, supra at 778.
Dale v. Bartels,
Courts have held that testimony at arbi-trations are entitled to absolute immunity.
See e.g., Hasten v. Phillips Petroleum Co., Inc.,
In the Court’s opinion, defamation suits predicated on statements made in the grievance procedures would tend to inhibit the offer of honest statements in arbitration proceedings. Federal policy is to promote industrial stabilization through collective bargaining agreements, and to achieve industrial peace through the inclusion of a provision for arbitration of grievances in such agreements, which is “part and parcel of the collective bargaining process itself.”
United Steelworkers of America v. Warrior & Gulf Navigation Co.,
Finally, Lettis maintains that Eng defamed him when she allegedly stated that she did not “want him back in my Post Office no matter what. He’s a troublemaker. He belongs to Hell’s Angels.” (First Am.Compl. ¶ 57; Goldberger Decl., Ex. 3 at 56-57.) Once again, the plaintiff testified at his deposition that these statements were made in approximately 1990 but prior to 1993. (Goldberger Decl., Ex. 3 at 56-57.) Likewise, the defamation claim against Eng is time-barred.
Intentional Infliction of Emotional Distress
The Court finds that the plaintiffs claim of intentional infliction of emotional distress is similarly time-barred. Lettis alleges that the “[djefendants maliciously embarked on a course of conduct intended to cause plaintiff to suffer mental and emotional distress, tension and anxiety.” (First Am.Compl. ¶ 72.) The plaintiff testified at his deposition that Celentano, Eng, and Otto made statements intended to cause him mental and emotional distress. The plaintiff maintains that he was the “scapegoat” at the Williston Park Post Office, and that Celentano and Otto lied about him. (Goldberger Decl., Ex. 3 at 40-41.) The statements that Otto made go back many years, starting from when the plaintiff joined the USPS. (Goldberger Deck, Ex. 3 at 41-44.) However, the *207 plaintiff has difficulty identifying the specific statements made by Eng, Celentano, and Otto other than those that form his defamation cause of action, to support his claim of intentional infliction of emotional distress. Lettis testified at his deposition that in 1992 or 1993, Celentano allegedly told him that no one at the Williston Park Post Office liked him. (Goldberger Decl., Ex. 3 at 49.) In addition, Celentano informed Kachianos of Lettis’ “court problems” concerning his divorce and informed Kachianos that Lettis had reported him for working off the clock. (Id. at 50.) These statements were made more than one year prior to the commencement of this action and therefore, the Court finds that the plaintiffs claim of intentional infliction of emotional distress is time-barred.
The Court notes that even if this claim was not time-barred, summary judgment would still be granted to Eng, Celentano, and Otto because the statements complained of do not constitute the kind of outrageous conduct necessary to support this cause of action. Liability for the tort of intentional infliction of emotional distress requires “extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society ....”
Freihofer v. Hearst Corp.,
In the present case, the plaintiff does not provide clarification of the defendants’ acts in support of this claim. In opposition to the defendants’ motion on this issue, the plaintiff merely states that
[t]he question of what constitutes outrageous conduct is not something to be decided on these motions. That is a question that should be left to the trier of the facts. Plaintiff submits the acts alleged by him were clearly outrageous.
(Pl.’s Memo, in Opp. § III(D).) However, in the Court’s opinion, it cannot be said that Eng, Celentano, and Otto’s conduct meets the threshold standard of outra-geousness. As a matter of law, the Court holds that their conduct was not so extreme in degree as to be intolerable in a civihzed society.
See Natoli v. City of Kingston,
ii. Conspiracy to Deprive Lettis of Employment and Future Employment
As noted in the Court’s previous decision permitting the plaintiff to amend his complaint, a cognizable independent civil claim for conspiracy does not exist. (Memorandum Decision and Order dated August 28, 1997 at 22.) Notwithstanding this admonition, the plaintiff persists in bringing this conspiracy claim. Even if the Court was to interpret this cause of action as one for tortious interference with employment, this claim would be barred by the one-year statute of limitations.
See Ligaya v. American Friends of the Hebrew University, Inc.,
No. 96 Civ. 240,
Similarly, if the Court were to interpret the plaintiffs claim as sounding in deprivation of future employment or as interference with prospective economic advantage, such a claim must also be dismissed. Such a cause of action exists “where a party would have received a contract but for the malicious, fraudulent and deceitful acts of a third party.”
Gertler v. Goodgold,
To state a claim for tortious interference with prospective economic advantage, the plaintiff must demonstrate “(1) business rеlations with a third party; (2) defendants’ interference with those business relations; (3) defendants acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the relationship.”
Purgess v. Sharrock,
In reference to my claim that action of the defendants have deprived me of employment, I have made numerous attempts to obtain some but have been unable to obtain meaningful employment. I am unable to obtain employment through the appropriate New York State agency because of derogatory comments made to the N.Y.S. Unemployment Agency when and after I applied for benefits.
(Lettis Aff. ¶ 63.) The Court finds that such vague and speculative assertions are insufficient to defeat a motion for summary judgment. Lettis does not specify the derogatory comments allegedly made nor does he identify the people who allegedly made them.
In addition, at his deposition, Let-tis made reference to only one occasion where he claims Celentano deprived him of an economic advantage. In 1993 or 1994, the plaintiffs credit application was denied after Celentano, who was contacted by the credit company, advised the company that the plaintiff had been terminated from the USPS. (See Goldberger Deck, Ex. 3 at 59-63.) This is the only instance which Lettis cited in support of this claim. However, Celentano’s statement is not malicious, fraudulent, or deceitful. The plaintiff merely alleges that Celentano responded to a query from a credit agency that the plaintiff had been fired by the USPS, which is a true statement.
Even if Celentano’s statement could form the basis for a claim of tortious interference with prospective economic advantage, this claim is barred by the Federal Tort Claims Act (the “FTCA”). Section 409(c) of the Postal Reorganization Act applies the FTCA to the USPS. The defendant has submitted a Certificate of Scope of Employment stating that Celentano was acting within the scope of his employment and hence, argues that the United States is the real party in interest. Since the United States has not waived sovereign immunity for a claim of tortious interference with prospective economic advantage,
see Chen v. United States,
In
McHugh v. University of Vermont,
“To determinate whether a federal employee was or was not acting within the scope of his employment, the [plaintiff] looks to the state law in which the allegedly wrongful conduct took place.”
Maldonado v. Colon,
No. 97 CIV. 3966,
In conclusion, the Court grants Eng, Celentano, and Otto’s motion for summary judgment as to the plaintiffs claim of tor-tious interference with prospective economic advantage.
b. Don Daly and Dominic Prestano
Daly and Prestano maintain that the plaintiffs claims of conspiracy to deprive him of his employment and of future employment, and intentional infliction of emotional distress, are preempted by the PRA because they relate to the representation of Lettis in the Emergency Suspension and Removal proceedings. However, for the reasons that follow, the Court need not reach the issue of preemption because the plaintiffs claims fail on other grounds.
i. Conspiracy to Deprive Lettis of Employment and Future Employment
As stated above, an independent cause of action for conspiracy does not exist and therefore, the plaintiffs claim of conspiracy to deprive him of his employment and future employment is dismissed. Were the Court to give a very liberal construction of this cause of action, the only allegation in the complaint regarding this claim which specifically mentions either of the individual Union defendants Daly or Prestano, is that the “[defendants Eng, Prestano, Celentano and Otto conspired to allow or create an incident to *210 cause the plaintiff to be removed and falsely charged that the plaintiff had provoked the actions of Kachianos.” (First Am. Compl. ¶ 65.) There are no specific allegations in the complaint concerning Daly. Rather, the plaintiff makes the gеneral allegation that the “defendants conspired with each other and formed a deliberate design and purpose to injure plaintiff and to cause him to lose a valuable property right, to wit, his employment and possible future employment, as well as unemployment. ...” (Id. ¶ 64.)
When asked at his deposition what evidence Lettis had to support this claim against Prestano, he gave the following response:
Q Do you have any evidence of Mr. Prestano being involved in the conspiracy to allow or create an incident to cause you to be removed and falsely charged other than what you’ve just testified to?
A Dominic knew all about Otto when he was a shop steward, I used to tell him. It took him a while to have Otto removed as shop steward and I replaced him. The other thing, he knew what was going on in the office. The office was a time bomb, if you really want to know, and talking to Dominic was like talking to the walls because he didn’t want to do nothing.
Q Was that because he didn’t agree with everything you wanted him to do?
A No, I went by the union rules and anything I — Daly, himself, called up Prestano about people working off the clock and he still refused to do it.
Q Pm talking about your arbitration.
A Same thing.
Q What is the same thing?
A There shouldn’t have been an arbitration.
Q Do you have any evidence, other than what you’ve just testified about, that Prestano conspired to allow or create an incident, which is what happened on November 16?
A Yes. Other than when Andy was brought back and I wasn’t brought back, I asked him — I questioned him and he got very verbally abusive to me on the phone, so I hit a nerve there and I said — -so I think maybe he was in cohoots with Eng to bring Andy back and leave me out.
Q If the postal service decided to bring Kachianos back, do you think that the union had a responsibility tо stop them from doing that?
A Sure, they did. Because, first of all, Kachianos was lying, he wasn’t telling the truth. He assaulted me, not once, but twice and I had an eyewitness that saw it too.
Q So you believe that the fact that the postal sendee brought Mr. Kachia-nos back proves that the union was involved in the conspiracy?
A Yes, I do.
'(Seltzer Deck, Ex. G at 114-16.) Such speculative assertions do not suffice to defeat a motion for summary judgment. When questioned regarding his claim of intentional interference with future employment, Lettis replied as follows:
Q Is it your contention that any of the other individual defendants [other than Celentano] in this action made statements to prospective employers about you?
A Other individuals, no, I don’t know.
(Goldberger Deck, Ex. 3 at 63.)
In addition, the plaintiff contends that the Union, specifically Prestano, refused to assist him in obtaining unemployment benefits. (Ph’s Memo, in Opp.' § 111(C).) This latter allegation is most likely preempted by the PRA since it concerns the Union’s obligations, if any, pursuant to the Union Constitution to assist Lettis in obtaining such benefits. The plaintiff does not state that the Union, specifically Pres-tano, had an affirmative duty pursuant to the Union Constitution to assist Lettis ob *211 tain unemployment insurance. Even if this allegation was not preempted, it is insufficient to state a claim since the plaintiff does not maintain that Prestano interfered or prevented him from obtaining unemployment benefits from the appropriate state agency; rather, Prestano merely did not aid Lettis. Hence, given the lack of evidence presented by the plaintiff as against Daly and the insufficiency of the evidence as against Prestano, the Court grants summary judgment on this cause of action as against Daly and Prestano.
ii. Intentional Infliction of Emotional Distress
Lettis provided the following deposition testimony regarding his claim of intentional infliction of emotional distress as against Daly and Prestano:
Q Is your evidence of Mr. Prestano and Mr. Daly “maliciously embarking on a course of conduct intended to cause mental and emotional distress” the same evidence that you gave in response to my earlier questions about the conspiracy [to interfere with his employment and for future employment]?
A Yes. Other than, like I said, Daly was friends with Kachianos and anything management told Daly he would believe. No matter what I told him he wouldn’t believe me.
Q Did he tell you he didn’t believe you?
A Yes, he did, a couple of times.
Q When did he do that?
A When I was working there prior to ’93 and my discharge.
Q Did he tell you he didn’t believe you in regard to the incident of November that resulted in your suspension?
AI never got to talk to Daly.
(Seltzer Deck, Ex. G at 116.) Even if this claim was not preempted, the plaintiffs claim would be dismissed because the transgressions which the plaintiff describes are clearly not within the purview of “extreme” or “outrageous” behavior. As stated above, the plaintiff in his opposition papers to the present motions, does not expand on the factual bases for this claim but rather asserts that this issue should be decided by the trier of fact and in a conclusory fashion, alleges that the acts are outrageous. Accordingly, the Court grants the defendants Daly and Prestano’s motion for summary judgment as to the plaintiffs claim of intentional infliction of emotional distress. The Court notes in passing that such a cause of action arising from any statements made by Daly prior to 1993 is time-barred.
III. CONCLUSION
Having reviewed the parties’ submissions and for the reasons set forth above, it is hereby
ORDERED, that the defendants’ motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, is GRANTED in all respects. The First Amended Complaint is dismissed in its entirety.
The Clerk of the Court is advised that this decision closes the case.
SO ORDERED.