Thomas J. McAvoy, Senior District Judge.
Defendants move for summary judgment in this case involving claims that the Defendant union violated Plaintiff's rights under state and federal labor laws and discriminated against him on the basis of his race. The parties have briefed the issues and the Court has determined to resolve the issue on the submissions.
This case concerns Plaintiff's complaints of discrimination by the Defendants, the union that represented him and agents of that union. Plaintiff alleges Defendants refused to secure him training as a plant operator for which he was claims he was eligible under the collective bargaining agreement between his union and employer. The plant in question was the Ley Creek plant operated by the Onondaga County Resource Recovery Agency ("OCRRA"). Obtaining such training would have allowed him eventually to attain that position as plant operator. Plaintiff alleges that Defendants' actions violated the provisions of the collective bargaining agreement. Plaintiff seeks relief under the National Labor Relations Act and the Equal Pay Act. He also alleges racial discrimination and retaliation in violation of Federal law and similar claims under New York law.
Plaintiff began working for OCRRA in April 1987.
Defendant Local 158 of the International Union of Operating Engineers, AFL-CIO ("Local 158"), is a recognized employee organization and the exclusive bargaining agent for employees of OCRRA who occupy the job titles of MEO III, Ley Creek Solid Waste Plant Operator and certain other non-management positions. Id. at ¶ 7.
At all relevant times, Defendant Daniel McGraw was the Business Manager of Defendant Local 158. Id. at ¶ 10. Defendant Richard A. Ross was the President of Local 158 and District Manager of District 852 of Local 158. Id. at ¶ 11. Defendant Thomas Schweizer was a Business Agent for Local 158. Id. at ¶ 12. Defendant Jeremy Millson was an OCRRA employee and a shop steward for Local 158 at the Ley Creek transfer station. Id. at ¶ 13.
Local 158 and OCRRA are parties to a collective bargaining agreement ("CBA") that establishes terms and conditions of employment for those employees represented by Local 158. Id. at ¶ 15. Defendants claim that Millson, as shop steward, did not have the authority to file or process a contract grievance on behalf of the Plaintiff. Id. at ¶ 14. Plaintiff disputes this claim, contending that the CBA provides that Millson is to sign such grievances. Plaintiff's Response to Defendants' Statement of Material Facts ("Plaintiff's Response"), dkt. # 32-17, at ¶ 3.
The parties disagree about whether OCRRA and Local 158 properly entered into a "Side Letter Agreement" concerning training, and whether this alleged agreement altered the CBA. Defendants' Statement at ¶¶ 16-17; Plaintiff's Response at ¶ 4. Defendants contend that this "Side Letter Agreement" set up a "joint committee for the purpose of exploring mutually agreeable ways to increase training opportunities for members of the bargaining unit[.]" Defendants' Statement at ¶ 17. After executing this alleged Side Letter Agreement, the members of the training committee met to discuss ways to increase training opportunities.
The Training Committee met on June 29, 2012. Id. at ¶ 20. They "discuss[ed] training opportunities and confirmed their agreement that seniority would play the main role in determining the order in which training opportunities were offered to members of the bargaining unit." Id. The terms of this agreement were reduced to writing and a draft document was circulated among the members of the Joint Training Committee. Id. at ¶ 21. Paragraph (D) of that document provided that "[d]ecisions on" the "order of Training" would be "NOT always" be determined by seniority. Id. (emphasis in original). Others factors considered included "[a]vailability of equipment, work demands, skill of person involved, absenteeism, OT costs, etc." Id. The amount of training likely performed, the positions and equipment chosen for training would depend on the needs of management for "maximum flexibility." Id.
Members of the Joint Training Committee prepared and circulated a second joint training document in early July 2012. Id. at ¶ 22. This document also discussed the order of training, emphasizing the importance of seniority, but emphasizing that seniority was not the only factor to be considered. Id. Management agreed to "first consider those SENIOR with sufficient knowledge to be entitled or asked to move inot [sic] a higher slot when needed and they should be trained first." Id. (emphasis in original). Management's decision to disregard seniority was an "irrefutable" decision, but management was required to "disclose the reason to the employee and steward at interest." Id. The agreement required management to "disclose the reason" for disregarding seniority "to the employee and steward at interest." Id. Again, the parties agreed that the amount of training contemplated required "maximum flexibility" for management. Id.
Finally, on September 28, 2012, Local 158 and OCRRA "executed and entered into a Side Letter Agreement." Id. at ¶ 23. The Side Letter "detailed the manner in which the training program would be implemented." Id. As with the draft proposals, the Side Letter Agreement emphasized that seniority would not always determine the order of training. Id. Management agreed to consider those with seniority and "sufficient knowledge to be entitled or asked to move into a higher slot when needed[.]" Id. Those employees would "be trained first." Id. Though management's decision on training order was "irrefutable," management also agreed to disclose the reason for that decision to the "employee and steward at interest." Id.
Defendants contend that seniority is defined by Article 17 of the CBA. Id. at ¶ 24. That Article provides that "[s]eniority shall start from the last date of hiring. Agencywide seniority will apply to layoff, rehire and bidding on jobs posted by the Agency when the Agency assigns or reassigns employees to fill a scheduled vacancy of more than two (2) consecutive weeks." Id. Plaintiff disputes that this Article applies to the events at issue in this case. Plaintiff's
Ronald Boardway was an OCRRA employee and a member of the bargaining union represented by Local 158. Defendants' Statement at ¶ 25. On or about August 7, 2012, Defendant Tom Schweizer, a union business representative, was informed that the permanent Ley Creek plant operator would be absent from work on August 10, 2012. Id. at ¶ 26. OCRRA intended to assign a non-bargaining unit employee as a temporary replacement for the operator. Id. OCRRA made the temporary assignment on August 10, 2012, the fact of which Scheizer was made aware. Id. at ¶ 27. Schweizer contacted OCRRA Director Mark Donnelly to object to the assignment of a non-bargaining unit employee to perform bargaining-unit work. Id. Donnelly suggested that the union and OCRAA should implement the training program that the Joint Training Committee had generally agreed to. Id. Defendants contend that the agreement concerning the training program relied on the selection of persons for training based largely on seniority. Id. Since Donnelly advised Schweizer that Boardway was the most senior bargaining unit member, Donnelly contended that Boardway should be offered the opportunity to train as plant operator that day. Id. Plaintiff contends that Schweizer met with Joseph Fontanella, the OCRRA Transfer Director, on August 20, 2012 to discuss who should be permitted to train for the Plant Operator position. Plaintiff's Response at ¶ 6.
Boardway filed a complaint with OCRRA on August 13, 2012, claiming that Plaintiff had pushed him and attempted to intimidate him into changing his mind about accepting OCRRA's offer of plant operator training. Defendants' Statement at ¶ 28. OCRRA conducted an investigation and found that Plaintiff had created an environment which could have made Boardway feel uncomfortable about participating in the training. Id.
Defendants point out that OCRRA selected Boardway to receive training in the position of plant operator at the Ley Creek transfer station. Id. at ¶ 30. OCRRA employees Joseph Fontanella and Joseph Broome made the decision as to which employee possessed sufficient knowledge to be eligible for the training. Id. at ¶ 31. Fontanella and Broome did not rely on the civil service description of the job because the job required supervisory skills possessed only by the permanent plant operator. Id. By May 8, 2013, Boardway had received between forty and sixty hours of training for that position. Id. at ¶ 32. Most of this training included mentoring. Id. Plaintiff does not possess the qualifications necessary for a permanent competitive appointment to the plant operator position. Id. at ¶ 33.
On May 10, 2013, Plaintiff requested Local 158 to file and process a contract grievance concerning the selection of Boardway to receive this training. Id. at ¶ 34. The Local initially declined to file or process that grievance. Id. at ¶ 35. Eventually, however, Local 158 obtained an extension of time to file a grievance. Id. In light of the terms of the Training
Boardway again received training for the Ley Creek plant operator position on July 12, 2013, and Plaintiff again sought to file a grievance through Local 158. Defendants' Statement at ¶ 39. After soliciting a legal opinion that determined that such a grievance had no reasonable chance of succeeding, the Local decided not to file the grievance. Id. Plaintiff disputes these facts, alleging that the Side Letter Agreement was not part of the CBA and could not be used to deny his grievance. Plaintiff's Response at ¶ 10. The Local again denied Plaintiff's December 16, 2013 request to file a grievance after OCRRA selected Boardway for training in the plant operator position on December 13, 2013. Id. at ¶¶ 42-44.
Plaintiff filed an improper practice charge with the New York State Public Employment Relations Board ("PERB") on June 28, 2013. Defendants' Statement at ¶ 41. He alleged that Local 158 breached its duty of fair representation by not filing the grievance on May 10, 2013 and not properly processing the June 18, 2013 grievance. Id. Plaintiff filed a similar charge regarding the December 16, 2013 request to file a grievance on January 7, 2014. Id. at ¶ 45. After an evidentiary hearing, both improper practice charges filed by the Plaintiff were dismissed on the merits. Id. at ¶ 46. Plaintiff contends that the Administrative Law Judge erred in dismissing the charges by relying on the "illegal and unlawful side letter[.]" Plaintiff's Response at ¶ 11.
Plaintiff filed a complaint with the New York State Division of Human Rights ("DHR"). Defendants' Statement at ¶ 47. Plaintiff alleged that Defendants allowed "`training standards to be lowered for the Caucasian employee in September 2012'" and permitted "`the non-qualified Caucasian employee to work in the capacity as Plant Operator, while knowing he lacked the civil service standards, as required.'" Id.
Jeremy Millson filed a complaint with OCRRA on May 8, 2014. Id. at ¶ 48. The complaint alleged that Plaintiff had harassed and intimidated Millson on May 7, 2014. Id. OCRRA investigated the complaint and concluded that Plaintiff had negaged in harassing and intimidating behavior toward Jeremy Millson. Id. at ¶ 49. OCRRA issued a written reprimand. Id. Millson did not file his complaint against Plaintiff in retaliation for Plaintiff engaging in protective activities.
Plaintiff filed an action against OCRRA in this Court on November 15, 2013, captioned as Jones v. OCRRA, et al., 5:13cv1425. Id. at ¶ 64. Plaintiff alleged that OCRRA discriminated against him on the basis of race by selecting Ronald Boardway for training in the Ley Creek plant operator position on August 10, 2012. Id. Magistrate Judge David E. Peebles granted the OCRRA's motion for summary judgment and dismissed all of Plaintiff's claims on April 1, 2015. Id. at ¶ 65. Magistrate Judge Peebles found that no reasonable finder of fact could conclude that "`the collaborative decision between OCRRA and the union that led to the offering of training to Ron Boardway was motivated by plaintiff's race.'" Id.
Plaintiff filed the instant Complaint on August 14, 2014. See dkt. # 1. The Complaint raises eight counts under various Federal and New York laws. Count One alleges that Defendants violated the National Labor Relations Act by failing to adhere to the terms of the CBA between OCRRA and the Union. Count Two alleges a conspiracy to violate the Equal Pay Act through the Side Letter, which Plaintiff contends was illegal. Count Three alleges employment discrimination and conspiracy to discriminate because of the Plaintiff's race. Plaintiff alleges that Defendants unlawfully failed to promote him. Count Four alleges unlawful discrimination by the Defendants in failing to offer Plaintiff training because of his race. Count Five alleges retaliation by the Defendants in failing to process his grievances. Count Six alleges a violation of New York Executive Law § 297(9). Count Seven alleges Defendants violated New York's Taylor Law by discriminating against him on the
After answering the Complaint, engaging in discovery, and participating in a mandatory mediation, the Defendants filed the instant motion for summary judgment. See dkt. # 29. Plaintiff responded to the motion, and the Court determined to consider the motion on the pleadings without oral argument.
Defendants have moved for summary judgment. It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).
Defendants seek summary judgment on each of the Plaintiff's claims. The Court will address each in turn.
Defendants first argue that Plaintiff's claims against them under the Labor Management Relations Act ("LMRA") must be dismissed because the Defendant Union's agreement with OCRRA, a public entity, does not implicate the provisions of the Act. Plaintiff contends that the Defendants, in entering into an "illegal side letter" and refusing to process his grievances, violated the LMRA and are liable to suit.
"The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining." Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The LMRA "contemplates a primarily economic relationship between employer and employee, and provides a mechanism for resolving economic disputes that arise in that relationship." Brevard Achievement Center, Inc., 342 N.L.R.B. 982, 984-85 (2004). The question here is whether the Act applies to this case, since the employer in question is a political subdivision of the State of New York. The Act defines an "employer" as "any person acting as an agent of an employer, directly or indirectly, but shall not
Courts in the Second Circuit have concluded that a district court lacks jurisdiction to hear LMRA claims involving a "political subdivision" of a state that allege "the employer violated the collective bargaining agreement between it and the Union." Smith v. United Federation of Teachers, 162 F.3d 1148 (2d Cir.1998). That standard applies even when, as in Smith, the claim is against the union rather than the employer, since when "there is no federal jurisdiction over the employer, there is no jurisdiction over the companion claim of breach of the duty of fair representation." Id. (citing Manfredi v. Hazleton City Auth., 793 F.2d 101 (3d Cir. 1986)); Ayres v. International Bhd. of Elec. Workers, 666 F.2d 441, 443-44 (9th Cir.1982); Crilly v. Southeastern Pennsylvania Transp. Auth., 529 F.2d 1355, 1357 (3d Cir.1976). Courts have found that "the language of the LMRA makes plain [that] public employees are not covered by the statute" and dismissed cases brought against their union. Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir.2009) (citing 29 U.S.C. § 152(2)). The facts established above indicate that OCRRA, Plaintiff's employer, is a "public benefit corporation" created by the laws of the State of New York. OCRRA acts "in all respects for the benefit of the people of the county and the state of New York for the improvement of their health, welfare and prosperity" thus "performing an essential governmental function in the exercise of the powers conferred by this title." N.Y. Pub. Auth. Law § 2045-c(7). OCRRA is therefore a political subdivision of the state of New York, and the Court lacks jurisdiction to hear any LMRA claims. The motion will be granted in this respect.
Defendants also contend that Plaintiff's claims brought pursuant to the Equal Pay Act, 29 U.S.C. § 206, et seq., should be dismissed. Plaintiff does not oppose this portion of the motion. The Court will therefore dismiss the Plaintiff's claim under the Equal Pay Act as unopposed.
Defendants next seek to dismiss the Plaintiff's claims against the individual Defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., contending that the statute does not permit individual liability. Plaintiff does not address that issue, but instead simply contends that the individual Defendants participated in creating the allegedly "illegal" Side Letter. The Court will grant the Defendants' motion in this respect, as "`individuals are not subject to liability under Title VII.'" Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.2004) (quoting Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000)).
Defendants next assert that Plaintiff cannot prevail on his claims brought pursuant to Title VII and 42 U.S.C. §§ 1981 and 1983. Defendants offer a general argument and arguments related to each statute, which the Court will address in turn.
Defendants first point out that Plaintiff's claims are premised upon alleged discrimination by OCRRA in providing training for the plant operator position to a white male employee instead of him. Plaintiff contends that OCRRA's decision was motivated
Plaintiff essentially alleges that OCRRA discriminated against him and that the Union participated in this decision by agreeing to the Side Letter and then failing to file grievances to challenge the training offered to another worker who was not black. A member of a union bringing a discrimination claim against his union must show, "at a minimum, that the union breached its duty of fair representation and that its actions were motivated by discriminatory animus." McIntyre v. Longwood Cent. School Dist., 380 Fed. Appx. 44, 49 (2d Cir.2010).
The Court will grant the motion in this respect because Plaintiff has no evidence to support a claim that the Union breached its duty of fair representation. A union breaches its duty of fair representation when that "union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Id. at 190, 87 S.Ct. 903; see also, Air Line Pilots Ass'n, Intern. v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (standard applies to "all union activity, including contract negotiation."). Still, "something more then negligence or the exercise of poor judgment on the part of the union must be shown in order to support a finding of arbitrary conduct." Local 337, International Bhd. of Teamsters, 307 N.L.R.B. 437, 438 (1992). While a "gross mistake or inaction which has no rational explanation may constitute a breach of the duty of fair representation," no claim can lie when "the union clearly had a rational basis for making its decision not to press on with [a worker's] grievance." Poole v. Budd Co., 706 F.2d 181, 184 (6th Cir.1983). The "union's conduct must also be within `[a] wide range of reasonableness'" and not "irrational." Air Line Pilots Ass'n, 499 U.S. at 76, 111 S.Ct. 1127 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)). "`This `wide range of reasonableness' gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong.'" White v. White Rose Food, a Div. of DiGiorgio Corp., 237 F.3d 174, 179 (2d Cir. 2001) (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45-46, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998)).
Here, the alleged breach of duty of fair representation came when the union negotiated an allegedly improper "Side Letter" and failed to file grievances that the Plaintiff requested the union file regarding his access to training. Plaintiff has not produced any evidence other than unsubstantiated claims that the agreement between the Union and OCRRA was somehow illegal, and such unsupported allegations cannot survive summary judgment. Plaintiff therefore cannot demonstrate a breach of the duty of fair representation by pointing to the Side Letter that the Union and OCRRA negotiated.
That agreement also played a central role in the grievances about which the Plaintiff sought to file. As explained above, that agreement permitted OCRRA to make the choice to train an employee for plant operator positions within certain parameters, taking into consideration experience, skills and aptitude for the job. Each time OCRRA offered plant operator training to a person besides the Plaintiff, Plaintiff sought to file a grievance. The union filed an initial grievance, but soon recognized — partly on the advice of counsel — that a grievance could not possibly succeed. The person selected for training, Boardway, had both the requisite seniority and skills for training in the position, and
Even if the Plaintiff could show that the Defendants somehow engaged in an unfair labor practice, Plaintiff has not pointed to any evidence by which a jury could conclude that Defendants were motivated by a discriminatory animus. Instead, Plaintiff again points to the allegedly illegal "Side Letter" and argues that the Defendants' negotiation and use of the terms of that letter are evidence of discrimination. Plaintiff offers no explanation, however, for why the letter represents evidence that Defendants were motivated by any particular discriminatory animus. The mere fact that Plaintiff considers the letter improper does not constitute any evidence that Defendants were motivated by discriminatory animus in negotiating the agreement and failing to pursue and/or file grievances. As such, Defendants' motion must be granted with respect to Plaintiff's claims of discrimination.
The parties disagree about whether Plaintiff has enough evidence to support his claim that Defendants are liable under a failure-to-promote theory. To prevail on a discriminatory failure-to-promote claim, a Plaintiff must show that "(1) [he] is a member of a protected class; (2)[he] `applied and was qualified for a job for which the employer was seeking applicants'; (3)[he] was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications." Petrosino v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir.2004) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998)). A plaintiff may not establish the second element of the prima facie case "merely with evidence that a plaintiff generally requested promotion consideration." Id. "A specific application is required to `ensure that, at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer.'" Id. Still, "narrow" circumstances may permit a plaintiff to avoid that requirement: "an employee must demonstrate that (1) the vacancy at issue was not posted; and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer." Id. Defendants contend that Plaintiff cannot make out a prima facie case because he admits that he did not apply for any position and in any case was not qualified for another position.
The Court agrees with the Defendants that Plaintiff has not produced evidence to support his prima facie case on the failure-to-promote claim. Plaintiff has produced no evidence that he actually applied for any position. In support of his claim that he applied for a position, Plaintiff simply references a "Ross Affidavit." He does not point to any particular statements in that affidavit. Plaintiff's own evidence submitted in support of his position does not contain any Ross Affidavit. The exhibits to Defendants' motion, however, contain the affidavit of Defendant Richard A. Ross, President of Local 158.
Plaintiff's position could be read to be that, because he contends that he was the person most suited for the job, the union contract required that the temporary position be offered to him. He contends that failing to offer him the position establishes that element of the prima facie case. That argument is foreclosed by the Second Circuit's finding in Brown v. Coach Stores, Inc. There, the Plaintiff argued that she had established she had applied for a promotion by asking for one during her annual evaluations, but did not point to any specific instance when she actually applied for a position. Brown, 163 F.3d at 709-710. The Court found that these allegations failed to state claim because "if generally requesting a promotion in an annual review were sufficient to establish a prima facie case, employers would be unfairly burdened in their promotion efforts. Rather than simply considering individuals who have specifically applied for a promotion, an employer would additionally have to keep track of all employees who have generally expressed an interest in promotion and consider each of them for any opening for which they were qualified but did not specifically apply." Id. at 710. Here, as in Brown, Plaintiff provides no evidence that he actually requested a temporary appointment on any occasion before OCRRA filled that position. Instead, Plaintiff contends that OCRRA erred in selecting Boardway for a position for which he was better qualified and to which he was entitled. As OCRRA cannot be liable for failing to choose someone who did not seek the temporary position, the Plaintiff cannot make out a prima facie case under the circumstances.
Defendants also seek judgment on Plaintiff's retaliation claims brought pursuant to Title VII. Defendants contend that Plaintiff cannot establish a Title VII retaliation claim on several grounds: (1) he has not established any retaliatory acts; (2) he did not suffer any materially adverse changes in the conditions of his employment; and (3) he has not established "but for" causation. Plaintiff responds that he engaged in a protective activity by filing charges against the Defendants with the New York State Division of Human Rights and by filing an improper practice charge with the New York State Public Employment Relations Board. He alleges that he suffered adverse employment actions when Defendants failed to process his grievances, and that a causal connection existed between his protected activity and the establishment of the Side Letter dated September 28, 2012.
"`To establish a prima facie case of retaliation, a plaintiff must show that (1) the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.'" Gregory v. Daly, 243 F.3d 687, 700 (2d Cir.2001) (quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996)). To establish the third element, Plaintiff must point to a "materially adverse action," which courts have defined as a requirement that plaintiff "`show that a reasonable employee would have found the action one that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 25 (2d Cir.2014) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). "To establish causation, a plaintiff must show that the protected speech `was a substantial motivating factor in the adverse employment action[.]'" Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.2006) (quoting Morris v. Lindau, 196 F.3d 102, 196 (2d Cir.1999)). "A plaintiff may establish causation indirectly by showing his speech was closely followed in time by the adverse employment action." Id. at 168.
Here, Defendants contend that no evidence exists to support the third and
Defendants also seek judgment on Plaintiff's claim brought pursuant to 42 U.S.C. § 1981 and § 1983. Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]" 42 U.S.C. § 1981(a). "To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Section 1983 provides that "[e]very person who, under color of" law of "any State ... subjects, or causes to be subjected, any City of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws," is liable to the person whose rights were violated. 42 U.S.C. § 1983. "To state a § 1983 claim, a plaintiff must establish that the defendant deprived him of a federal or constitutional right while acting
Courts use the same legal framework to decide Title VII and Section 1981 and 1983 discrimination claims. Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir.2010); Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir.2015) (a "disparate treatment claim under Title VII, § 1981 and § 1983 is subject to the burden-shifting evidentiary framework set for in McDonell Douglas [v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)]"). Plaintiff offers the same argument in opposition to judgment on his Section 1983 and Section 1981 claims as he did for his Title VII claims: that he was denied a promotion by the operation of an "illegal side letter," and that the position went to a white man instead. Since the Court has found that the Plaintiff has failed to make out a claim under Title VII, the Court must also find that no evidence supports Plaintiff's claims under these two statutes, and Defendants' motion will be granted in this respect as well.
Defendants next seek judgment on Plaintiff's claims brought pursuant to New York Executive Law § 297(9). They argue that those claims bear the same basis as Plaitniff's Title VII claims and are judged by the same standards. Since Plaintiff's Title VII claims must be dismissed, Defendants argue that the Plaintiff's claims under New York law are equally unavailing. Plaintiff does not address this argument. He instead points out that he filed a complaint with the New York Division of Human Rights ("DHR") that charged Defendants with unlawful discriminatory practices. The DHR, Plaintiff claims, found it had jurisdiction over the claims and that probable cause existed, and granted Plaintiff leave to dismiss the action and pursue his claims in Court.
Defendants are correct that "[c]laims under Title VII and the [Human Rights Law] are analyzed under the same standards." Pfeiffer v. Lewis County, 308 F.Supp.2d 88, 102 (N.D.N.Y.2004) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1312-1313 (2d Cir.1995)). Since the Court has found that summary judgment is appropriate for Defendants on Plaintiff's Title VII claims, the Court will likewise grant the motion with respect to Plaintiff's claims brought pursuant to New York Executive Law § 297(9).
Defendants contend that Plaintiff's claims brought pursuant to New York's Taylor Law, N.Y. Civ. S.L. § 200, et seq., should likewise be dismissed. Defendants claim all Plaintiff's claims are time-barred in this respect. Defendants also contend that Plaintiff is estopped from claiming that Defendants breached their duty of fair representation by failing to file and process grievances in 2013 because a New York administrative law judge dismissed those claims. Defendants also assert no evidence supports Plaintiff's claim that the Defendants engaged in unfair bargaining by refusing to file a grievance about OCRRA's refusal to provide Plaintiff with plant operator pay on May 14, 2014.
New York law provides that "[a]ny action or proceeding against an employee organization ... which complains
Thus, only Plaintiff's complaints about Defendants' refusal to file a grievance regarding OCRRA's refusal to award him plant-operator pay in May 2014 can be considered by the Court on the merits. New York law provides that a union representing a public employee like the Plaintiff can be liable for a "breach [of] its duty of fair representation[.]" N.Y. Civ. S. § 209-a(2)(c). Under New York law, "[i]n order to establish a claim for a breach of the duty of fair representation against a union, there must be a showing that the activity, or lack thereof, which formed the basis of the charges against the union was deliberately invidious, arbitrary or founded in bad faith." Civil Serv. Emples. Ass'n v. Pub. Empl. Rels. Bd., 132 A.D.2d 430, 432, 522 N.Y.S.2d 709, 710-11 (3d Dept.1987). Such rules apply when a union declines to file a grievance, as here. Gordon v. Board of Educ., 167 A.D.2d 509, 562 N.Y.S.2d 180 (2d Dept.1990) (dismissing claim against union because there was no evidence to find that the union's failure to file a grievance "was deliberately invidious,
For the reasons stated above, the Court will GRANT the Defendant's motion for summary judgment, dkt. #29.
IT IS SO ORDERED.
The responding Statement of Material Facts is not a mere formality, and the courts apply Rule 7.1(a)(3) strictly. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir.2005)(upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the nonmovant submitted a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998) (per curiam)(accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F.Supp.2d 104, 108 (N.D.N.Y.2000)(deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations — specific or otherwise — to the record")(emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y.1999)(McAvoy, J.)("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted"); Osier v. Broome County, 47 F.Supp.2d 311, 317 (N.D.N.Y.1999) (McAvoy, J.)(deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where "plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record").
Plaintiff responded to the Defendants' statement of material facts, at times citing to the record for the facts over which the parties have a dispute. Plaintiff ignored the rule that requires a response to the "corresponding numbered paragraphs," however, and instead submitted a statement with numbered paragraphs of the Plaintiff's device. See dkt. # 32-17. The first numbered paragraph, for instance, admits to paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15, 35, 41, 43, 44, 45, 47, 51, 60, 61, 62 and 64. Id. at ¶ 1. The second paragraph of the statement then lists the paragraphs of the Defendants' statement with which the Plaintiff has a disagreement. Id. at ¶ 2. The remaining paragraphs address individually the paragraphs over which the Plaintiff claims a dispute of material fact exists.
The Court is able to use the Plaintiff's statement to assess the facts at issue in the case. The Plaintiff is proceeding pro se, and the Court will read his pleadings liberally. As such, the Court will cite to the Defendants' statement for facts about which the parties have no dispute. Where a dispute exists, the Court will note that. By failing to follow the format outlined in the Court's rules, however, the Plaintiff has undermined the purpose of the Court's rules on these statements. The rules are supposed to provide an efficient means of comparing the facts at issue by providing matching numbered paragraphs that point toward areas in the record where a dispute of fact exists. Failing to follow this rule makes the Court's task in evaluating the motion more time-consuming and less straightforward.
