Opinion
CV-01-6726 (FB)(LB).
June 25, 2004
SINATRA YOUNG, Pro Se, Brooklyn, NY, for the Plaintiff.
MICHAEL DiCHARA, ESQ., Assistant Corporation Counsel of the City of New York, Law Department, New York, NY, for the Defendant, New York City Board of Education.
MAUREEN M. STAMPP, ESQ., Vladeck, Waldman, Elias, Engelhard, P.C., New York, NY, for the Defendant District Council 37.
MEMORANDUM AND ORDER
Pro se plaintiff Sinatra Young ("Young") brings this employment discrimination action against his former employer, the New York City Board of Education ("BOE"), and his former union, District Council 37 ("the union"). Young alleges that the BOE discriminated against him on the basis of his race, gender, color, national origin, age and disability, in violation of Title VII, the Age Discrimination and Employment Act ("ADEA") and the Americans with Disabilities Act ("ADA"). Young also alleges that he was retaliated against in violation of Title VII. With regard to the union, Young alleges that it too discriminated against him in violation of Title VII, and that it breached its duty of fair representation under state law.
By prior Memorandum and Order dated February 12, 2003, the Court adopted the Report and Recommendation of Magistrate Judge Bloom, and denied defendant BOE's motion to dismiss, finding Young's complaint to be timely filed. The union's motion to dismiss, however, was granted in part and the following claims against the union were dismissed: (1) the ADEA and ADA claims; (2) Title VII claims for discriminatory acts occurring prior to May 29, 1999; (3) the retaliation claim, and (4) all state law breach of fair representation claims except the claim relating to Young's termination. Both defendants now move separately for summary judgment on the remaining claims. For the reasons set forth below, both motions are granted.
The Court notes that Young was provided a Local Rule 56.2 statement, explaining the summary judgment standard and the consequences of a grant of summary judgment; Young responded with his own affidavit and exhibits.
I.
The following facts are uncontested. Young, a black male from Jamaica, was employed by the BOE and worked primarily as a senior lunch helper from October 5, 1993 to August 3, 2001 when he was terminated.
In November 1998, the cook at P.S. 158, where Young worked, transferred to another district. Young temporarily assumed the cook's duties and applied for the position; however, the position was filled by Theresa Bullock ("Bullock"). When Bullock left the position in January 1999, Young again assumed the duties of cook and applied for the position; the position was filled by Louisa Cabrera ("Cabrera"). Both Bullock and Cabrera, who already held cook positions at other schools and needed to be transferred because of problems at their schools, were transferred to P.S. 158 pursuant to the terms of the BOE and union's collective bargaining agreement and were entitled to "the first open position with [their] titles." See Declaration of Diane Frankel in Support of Defendant New York City Board of Education's Motion for Summary Judgment at ¶ 9; see also ¶ 12. Since the P.S. 158 positions were the first open position in each instance, Young's supervisor was required to accept Bullock and Cabrera's transfers and withdraw the job posting without considering Young for the position. In each instance, Young was encouraged to apply for other positions and was provided with a list of openings. Young unsuccessfully applied for a number of other positions within the school system; he testified at his deposition that he does not know the race or gender of any of the individuals who ultimately received those positions. See Young Depo. I at 111.
Between March 16, 1999 and March 2, 2000 Young received eleven letters of warning or reprimand for incidents of insubordination and unsatisfactory work performance. Throughout this time period, Young complained that he was given a heavier workload than other workers in the lunchroom. Young never submitted a grievance concerning his workload.
In May 1999, a personnel conference was held to discuss Young's pattern of insubordination, and the BOE suggested he apply for jobs in other districts; Young had union representation at that meeting. Thereafter, the union assisted Young in identifying open positions in other districts. Young cannot identify any action or comment made at any time by a union representative that would suggest that the union treated him differently because of his race or gender. See Young Depo., attached to the Affidavit of Maureen M. Stampp ("Stampp Affidavit") as Exh. K ("Young Depo. II") at 79.
On March 14, 2000, Young took photographs of the kitchen area and was reprimanded. On March 16, 2000, he was transferred to another school. Soon thereafter, Young wrote a letter to the union, requesting that the union cease representing him, and on March 23, 2000, Young filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the New York City Commission on Human Rights ("NYCCHR"), alleging disparate treatment because of his race, color and gender.
In October 2000, Young went on an approved medical leave of absence because of psychiatric problems; thereafter, he briefly returned to work, and then took another leave of absence, which expired on May 6, 2001. Young did not return to work after this leave expired. The BOE notified Young by letter, dated May 31, 2001, that he had to either "provide an updated doctor's note for an extension," "notify [the] office immediately of the date [he would] return to work," or "complete a resignation form," Stampp Affidavit, Exh. D; Young did not respond.
The BOE sent Young another letter, dated June 21, 2001, stating that he had failed to submit proper documentation to extend his leave of absence and directed Young to contact supervisor Diane Frankel by July 5, 2001. See Stampp Affidavit, Exh. E. Instead of contacting Frankel, Young went to the field office in person and submitted a letter to Charles from a doctor at the Kingsboro Psychiatric Center, which stated that Young was "being treated for a psychiatric condition," was receiving treatment "throughout the period of June 8th" and had an "unscheduled appointment in August 2001." Id., Exh. F. Young also submitted to Charles a handwritten note for an extension of his leave because he was "unable to return until [he saw his] doctor in August." Id., Exh. G.
Thereafter, Young was sent another letter, dated July 25, 2001, by certified mail, informing him that the doctor's note he had submitted was insufficient to justify the extension and did not cover the correct time period; Young was given five days from the receipt of the letter to provide further documentation of his condition and was warned that if he did not do so, the BOE would "assume that [he did] not wish to continue [his] employment." Id., Exh. I. Young failed to respond and was given notice of his termination by letter dated August 3, 2001. Young never contacted the BOE after receipt of this letter and never grieved his termination. At his deposition, Young gave contradictory testimony as to whether he ever contacted his union after he was terminated; he admitted, however, that he could not identify any role the union played in his termination. See Young Depo. II at 111.
Young now contends that he never received this letter; however, the letter was sent certified mail and signed as received by Young's father, who resides with Young. Young testified at his deposition that when his father receives his mail, he normally delivers it to him. See Young Depo. II at 144-45.
Young contends that Bullock and Cabrera were given the cook positions because they were Hispanic, and that his supervisor Herman McKie ("McKie"), who is black, "prefers the white legs in front of his face instead of the Black man." Young Depo. attached to BOE Notice of Motion as Exh. R at 75 ("Young Depo. I"). In support of this contention, Young submits documents from Bullock and Cabrera's personnel files. These documents, rather than support his contention, actually demonstrate that Bullock and Cabrera were also disciplined while working at P.S. 158.
Young also disputes the validity of some of the reprimands he received, contending that many were unfounded and the result of McKie's preference for the Hispanic female employees or because his coworkers lied about his conduct to supervisors. Young also complains that one of the written reprimands for insubordination, from supervisor Shawanda Charles ("Charles"), a black woman, was unfounded because Charles went along "with the idea of Mr. McKie and the rest that colored ladies be treated in a professional way." Young Depo. I at 85. Finally, Young alleges that his union representative failed to vigorously represent him and that he was called "insane" during his personnel meeting. Compl., Exh. 3.
II.
Summary judgment is appropriate when there is no genuine issue of material fact to be tried and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has carried its burden to demonstrate the absence of a genuine issue of material fact, see Celotex Corp., 477 U.S. at 323, the opposing party "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (quoting Fed.R.Civ.P. 56(e)) (other citations omitted). Furthermore, the submissions of a pro se plaintiff must be read liberally and interpreted "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The "non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
III.
A. Claims Against the BOE
1. ADA and ADEA Claims
Young never raised his age or disability discrimination claims in his complaint to the EEOC and CCHR; hence, his ADA and ADEA claims must be dismissed. See Holtz v. Rockefeller Co, Inc., 258 F.3d 62, 83 (2d Cir. 2001) ("Exhaustion of remedies is a precondition to suit [under the ADEA and ADA]."). In that regard, the EEOC/NYCCHR complaint concerned only race, color and gender discrimination and the ADA and ADEA allegations cannot be said to "fall within the scope of the EEOC investigation" nor "reasonably be expected to grow out of the charge of [race, color and gender] discrimination." Butts v. Cinty of New York Dept. of Hous. Pres. Dev., 990 F.2d 1329, 1402-03 (2d Cir. 1993).
2. Title VII Discrimination Claims
Young contends that he was: not promoted, given a heavier workload, unjustifiably disciplined and ultimately terminated because of his race, gender and national origin. Young's claims are analyzed under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). To establish a prima facie claim for race, gender or national origin discrimination under Title VII, a plaintiff must show that: "(1) he belonged to a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Once a prima facie case is established, "the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions." Id. Once the defendant makes this showing, "to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to inter that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Id.
Even though the "burden of making out a prima facie case is minimal," Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001), and even assuming arguendo that Young could establish the first three elements of a prima facie case, he cannot establish the fourth. Short of conclusory allegations, Young has not produced any evidence even suggesting that his failure to be promoted, differences in his workload, disciplinary actions taken against him or his termination occurred under circumstances giving rise to an inference of discrimination. The evidence submitted by Young — namely the disciplinary records of other employees, as well as his own disciplinary records — demonstrates that there were perhaps personal difficulties between himself, his supervisors and co-workers, but does not suggest any disparate treatment because of race, gender or national origin. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("Even in the discrimination context, a plaintiff must prove more than conclusory allegations of discrimination to defeat a motion for summary judgment."); see also Lumhoo v. Home Depot USA, Inc., 229 F. Supp.2d 121, 148 (E.D.N.Y. 2002) (granting summary judgment where plaintiffs had "produced no evidence of circumstances giving rise to an inference of defendants' discriminatory animus other than the conclusory allegations that [p]laintiffs were treated differently because of their race and color").
Moreover, even assuming arguendo that Young could establish a prima facie case of discrimination for his failure to promote and termination claims, the BOE has come forward with legitimate nondiscriminatory explanations. With regard to the promotions, Bullock and Cabrera received the cook positions over Young because of the terms of the BOE and union collective bargaining agreement; Young could not even be considered for the position of cook, let alone be promoted to cook over employees that already held that title. With regard to his termination, the evidence clearly establishes that Young was terminated because he failed to return to work after his lengthy leave of absence and failed — after repeated requests from the BOE — to provide documentation to support another extension of his leave. Young has not presented any evidence indicating that the BOE's proffered explanation was a pretext for discrimination. See Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) ("[p]urely conclusory allegations of discrimination, absent any concrete particulars, are insufficient" to establish a genuine issue of fact). Thus, no rational finder of fact could infer that defendant's actions were based in any way on race, gender or national origin discrimination.
3. Title VII Retaliation Claim
To establish a prima facie case of retaliation, an employee must show: "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Terry, 336 F.3d at 141. Young contends he was terminated in retaliation for filing a complaint with the EEOC and NYCCHR; however, he offers no evidence to support this claim. Furthermore, his termination occurred approximately seventeen months after the complaints were filed. See Clark County School District v. Breeden, 532 U.S. 268, 273-74 (holding that to establish causal connection, temporal proximity between filing of complaint and termination must be "very close" and noting that periods of three or fours months were insufficient).
B. Claims against the Union
1. Title VII
A union can be found liable for discrimination under Title VII if its agents actively participate in discriminatory acts or if the union breached its duty of fair representation and there is evidence that discriminatory animus motivated the breach. See 42 U.S.C. § 2000e-2(c)(1); Nweke v. Prudential Ins. Co. of America, 25 F. Supp.2d (S.D.N.Y. 1998) (discussing Title VII standards for claims against unions). A breach of the duty of fair representation occurs "when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Kavowras v. N.Y. Times Co., 328 F.3d 50, 54 (2d Cir. 2003) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)). Young's discrimination claim against the union is based upon his belief that the union treated Hispanic female employees more favorably that it treated him, that the union often sided with the BOE when he was reprimanded, and that it did not grieve his termination; however Young has not produced any evidence, short of conclusory allegations, that the union's actions were based on his race, gender or national origin, were otherwise arbitrary or in bad faith, or that any alleged breach of the duty of fair representation was motivated by discriminatory animus; accordingly, this claim must fail.
2. State Law Breach of Duty of Fair Representation and Young's Termination
Even though the Court has dismissed Young's federal claims, the Court does not decline to exercise supplemental jurisdiction over his state law claim because it arises from the same controversy as the federal claims, and will serve the priniciples of judicial efficiency. See 28 U.S.C. § 1367; Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (among the factors a court should weigh in determining whether to retain supplemental jurisdiction are "judicial economy" and "convenience").
Whereas Young's Title VII claim against the union requires a showing that the breach of the duty of fair representation was motivated by a discriminatory animus, the breach of the duty of fair representation, under state law, occurs any time a union's conduct is arbitrary, discriminatory or in bad faith. See, e.g., Braatz v. Mathison, 581 N.Y.S.2d 112 (2d Dept. 1992) (under state law, "[i]t is well settled that a union breaches its . . . duty of fair representation only when its conduct towards a member is arbitrary, discriminatory or in bad faith"). Young requested that the union cease representing him approximately a year and a half before he was terminated. Young cannot even clearly remember if he ever contacted the union after he was terminated, let alone produce evidence that its failure to grieve his termination was arbitrary, discriminatory or in bad faith; thus, this claim must also fail.
CONCLUSION
Defendants' motions for summary judgment are granted and the complaint is dismissed in its entirety.