United States District Court, Southern District of New York
October 15, 1990
MAVIS BUDD, PLAINTIFF,
THE CITY UNIVERSITY OF NEW YORK, BARUCH COLLEGE & THE DISTRICT COUNCIL # 37, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Plaintiff Mavis Budd ("Budd"), a former part-time college
assistant, brings this action against the City University of
New York, Baruch College ("Baruch") for employment
discrimination based on her being a black of Jamaican ancestry,
and against District Council 37 ("the Union") for breach of the
duty of fair representation. Plaintiff sues to recover under
42 U.S.C. § 2000e Title VII, 42 U.S.C. § 1981, and
42 U.S.C. § 1983. In the prayer for relief, plaintiff
requests that the Court: 1) grant her compensatory and punitive
relief in the amount of $600,000; 2) reinstate her to her
previous position with back pay; 3) enjoin Baruch from
continuing its alleged discriminatory promotional practices;
and 4) order the Union to render effective representation to
all of its members.
Defendants move for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Fed.R.Civ.P. 56.
The plaintiff has not submitted a 3(g) statement in
accordance with Civil Rule 3(g) of the District Court, which
The papers opposing a motion for summary judgment
shall include a separate, short and concise
statement of the material facts as to which it is
contended that there exists a genuine issue to be
Accordingly, the Court has endeavored to determine from the
plaintiff's answering papers whether evidence has been offered
to rebut any of the material facts stated by defendants.
Summary judgment is appropriate if the evidence offered
demonstrates that "there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter
of law." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving
party to demonstrate the absence of a genuine issue of material
fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970), and the court must view the
facts in the light most favorable to the non-moving party's
favor. Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985), cert.
denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
I. Title VII Claims
The Supreme Court has set forth a three-step analysis of
Title VII claims. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207
(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05,
93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Sorlucco v. New
York City Police Dept., 888 F.2d 4, 7 (2d Cir. 1989). The
initial burden is on plaintiff to establish a prima facie case
of unlawful discrimination. If that burden is satisfied, the
burden shifts to Baruch to articulate some legitimate,
non-discriminatory reasons for not renewing plaintiff's
contract. If Baruch carries this burden, plaintiff has the
ultimate burden of proving by a preponderance of the evidence
that Baruch's stated reasons are merely pretextual.
A. Discrimination In Promotion
First, Title VII prohibits employers from discriminating
"against any individual with respect to . . .
conditions, or privileges of employment, because
of such individual's . . . race . . . or national
origin." 42 U.S.C. § 2000e-2(a)(1).
Plaintiff alleges in her complaint that Baruch discriminatorily
denied her a promotion. Plaintiff alleges that she was told
when she was hired that she had to take a typing test before
she could be promoted to a full-time employee, but that white
part-time College Assistants were appointed to full-time
personnel employees "without taking a typing test." Complaint,
¶¶ 6, 7, 8. Baruch controverts plaintiff's allegation by
stating that when she was hired, her job application shows she
lacked typing experience or skills and that she has admitted to
still possessing less typing skills than required. Baruch also
points out that plaintiff has failed to identify any of the
white College Assistants who were allegedly promoted in her
place. Defendant Baruch's Memorandum of Law In Support of
Motion for Summary Judgment, December 13, 1989, at 17-18.
Baruch also shows that the two white College Assistants were
not promoted but resigned. Affidavit of Helena W. McIntosh,
November 27, 1989, at 5.
To establish prima facie her alleged case of discriminatory
denial of promotion, plaintiff must show that: (1) she belongs
to a protected class; (2) she applied for a position for which
the employer was seeking applicants; (3) despite her
qualifications, she was rejected; and (4) the position remained
open or was later filled by a white. Sweeney v. Research
Foundation at State University of New York, 711 F.2d 1179, 1185
(2d Cir. 1983). The record shows that 1) although plaintiff
belongs to a protected class, she has failed to produce any
evidence 2) that she ever formally applied for a promotion, 3)
that she was qualified for the position, LaBeach v. Nestle Co.,
Inc., 658 F. Supp. 676, 683 (S.D.N.Y. 1987), or 4) that white
part-time College Assistants were appointed as full-time
provisional employees without taking a typing test.
Accordingly, defendants' motion for summary judgment is granted
as to the alleged discrimination in promotion.
B. Discrimination In Compensation
Title VII provides:
It is unlawful for an employer "to discriminate
against any individual with respect to his
compensation, . . . because of such individual's
race . . . or national origin.
42 U.S.C. § 2000e-2(a)(1).
Plaintiff alleges that she received disparate treatment by
Baruch with regard to compensation in that it gave overtime
benefits to similarly situated white employees for working
during Saturday testing sessions while it denied them to her.
Complaint at 5. She reaffirms in her response papers the
allegations in her complaint that four white College Assistants
were paid $50 extra for working on Saturdays, but
that she was not given such overtime benefits.
Baruch concedes that plaintiff worked on two Saturdays in
1983. McIntosh Aff. at 4. However, Baruch contends that
plaintiff's contract precluded her from receiving overtime
compensation. Baruch denies that any College Assistant received
overtime compensation for working at Saturday testing sessions,
but Baruch concedes that some of its full-time employees who
worked at those sessions were paid $50 extra for their
services. Affidavit of Ronny Widener, November 21, 1989, at
3-4. Baruch claims that such employees "were compensated in
accordance with the operative provisions of their union
contract and/or other Baruch College guidelines governing their
respective job titles." McIntosh Aff. at 4.
Plaintiff has not come forward with evidence to rebut
Baruch's explanation and to support the allegations in her
complaint. Plaintiff's deposition testimony is that she worked
two Saturdays in 1983 and first learned in mid-1984 by
statements from Jane Maynard, a secretary, that others had
received an extra check of $50 for working on Saturday; that
she spoke to her supervisor, McIntosh, about it in January 1985
and that her supervisor did not respond by offering her the $50
for such work, although plaintiff requested it. Plaintiff's
Deposition of June 9, 1989 ("Plaintiff's Deposition"), 9B-12B.
Later in her testimony, plaintiff stated she was also told on
the first Saturday she worked in 1983 by another part-time
College Assistant, Ida Bernardini, that McIntosh was paying
Bernardini an extra $50 for the Saturday testing. Plaintiff's
Plaintiff has produced no evidence contradicting Baruch's
evidence under the Collective Bargaining Agreement ("CBA") that
College Assistants are not entitled to any additional
compensation beyond their regular hourly wage for working at a
Saturday testing session. In addition, the record undercuts
plaintiff's allegation that white College Assistants were paid
$50 extra for Saturday work. It indicates that all College
Assistants who worked in the Testing Office, including Ms.
Suglia and Ms. Bernardini, were paid their regular hourly wage
for working Saturdays.*fn2
Nevertheless, Baruch's records for College Assistants
attached to its motion papers are records of attendance and
rates of pay and do not constitute records of the payments
received by College Assistants. This does not constitute clear
evidence that College Assistants did not receive the $50 in
1983-1986. Accordingly Baruch's motion for summary judgment on
plaintiff's discriminatory denial of promotion is granted and
its motion for summary judgment on overtime benefits claims is
denied, without prejudice to the renewal of the motion with
such evidence within 20 days of the filing of this opinion and
C. Discriminatory Termination Claim
Title VII provides:
It shall be an unlawful employment practice for an
employer to fail or refuse to hire . . . any
individual . . . because of such individual's race
. . . or national origin. 42 U.S.C. § 2000e-2(a)(1).
Plaintiff alleges that Baruch discriminatorily terminated her
(by failing to rehire her) because of her race and national
origin. Complaint, ¶ 11. The case at bar does not involve the
termination of plaintiff for misconduct, but rather the
non-renewal of her contract. However, "[n]on-renewal of a
contract is tantamount to a dismissal and constitutes an
actionable employment decision under Title VII." Tye v. Board
of Education, 811 F.2d 315
, 317 (6th Cir.
1987), cert. denied sub nom. Board of Education v. Tye,
484 U.S. 924
, 108 S.Ct. 285
, 98 L.Ed.2d 246 (1987); Ford v. Nicks,
741 F.2d 858
, 860 n. 1 (6th Cir. 1984), cert. denied sub nom.
Nicks v. Ford, 469 U.S. 1216
, 105 S.Ct. 1195
, 84 L.Ed.2d 340
1. Prima Facie Case
Plaintiff bears the initial burden of establishing a prima
facie case of discrimination, which she may do by showing: 1)
that she belonged to a protected class; 2) that her performance
was satisfactory; 3) that she was discharged/not reappointed;
and 4) that afterwards, "the position remained open and the
employer continued to seek applicants from persons of
complainant's qualifications." McDonnell Douglas, 411 U.S. at
802, 93 S.Ct. at 1824. See Meiri, 759 F.2d at 995.
The record shows: 1) that plaintiff is a female black of
Jamaican origin; 2) that her job performance was satisfactory,
Plaintiff's Exhibit B.; 3) that she was not reappointed as a
College Assistant; and 4) that after plaintiff's contract was
not renewed, her position was filled by two female black
College Assistants of non-Jamaican origin. McIntosh Aff. at 6.
Thus, the Court finds that plaintiff has established a prima
facie case of discrimination on the basis of national origin in
regards to the non-renewal of her contract. The burden of proof
shifts to Baruch.
Baruch's asserted reasons for not renewing plaintiff's
contract are that plaintiff's job performance was inadequate
and her office behavior inappropriate. It supports these
contentions by pointing to the last job evaluation that
plaintiff received, which noted that plaintiff "often
antagonize[d] other people, [had displayed] a poor attitude,
[and had a] tendency to resent taking orders from [her]
supervisor." McIntosh Aff., Ex. F.
Further, Baruch also points to a letter that Ms. McIntosh
sent to plaintiff in October 1985 which noted plaintiff's
"general unpleasant and irrational demeanor . . . [r]udeness
. . . abusive and provocative . . . tones, and persistent
outburst . . ." McIntosh Aff., Ex. A. The Court finds that
Baruch has satisfied its burden of articulating legitimate
reasons for not renewing plaintiff's contract and the burden
shifts to plaintiff.
Plaintiff way satisfy the burden of demonstrating that
Baruch's stated reasons are merely pretextual by showing that
its explanation for not renewing her contract is unworthy of
credence. Burdine, 450 U.S. at 256-57, 101 S.Ct. at 1095-96.
Plaintiff contends that Baruch's stated reasons are pretextual
by pointing out that Ms. McIntosh gave her the following
ratings in her last job evaluation in January, 1986: 1)
satisfactory work performance; 2) good attendance and
punctuality; 3) good knowledge of duties; and 4) ability to
work with minimal supervision. Plaintiff's Exhibit B. Plaintiff
has also put forth evidence of statements by Baruch's Assistant
Provost that described her as "intelligent and responsible."
Plaintiff's Exhibit C. A court in a Title VII case may rely on
the evaluations rendered by supervisors to determine if an
employee's work performance was satisfactory. Meiri, 759 F.2d
The ultimate inquiry in this determination of whether
Baruch's charge of unsatisfactory job performance is legally
sufficient to dismiss plaintiff's Title VII claim at the
summary judgment stage is whether plaintiff's performance met
Baruch's legitimate expectations. Thermidor, 683 F. Supp. at
412. Plaintiff's satisfactory work performance rating by Ms.
McIntosh shows that plaintiff's performance met Baruch's
To demonstrate that Baruch's stated reasons are pretextual,
plaintiff has also presented direct evidence of anti-Jamaican
statements by McIntosh. Plaintiff maintains that upon hearing
that plaintiff's son was about to marry a white woman, McIntosh
Yes, this is what these Jamaicans do. They get a
chance to come to this country and when they get
here they do not care about us, the black
Americans. They are always going to marry white
women and the women from Jamaica feel
they are better than the `black American' woman.
Plaintiff's Affidavit in Opposition to Defendant's Motion for
Summary Judgment, 7. Such derogatory statements constitute
sufficient evidence of discriminatory animus. See Thermidor,
683 F. Supp. at 410; Blesedell v. Mobile Oil Co., 708 F. Supp. 1408,
1419 (S.D.N.Y. 1989); Long v. A.T. & T. Information
Systems Inc., 733 F. Supp. 188
, 203 (S.D.N.Y. 1990). Baruch
College contends that McIntosh's alleged derogatory statements
"have been directly controverted," but nowhere in McIntosh's
affidavit does she deny making the statements.*fn3
At the summary judgment stage, plaintiff does not have to
prove that the employer's stated reasons for not renewing her
contract are pretextual. Sorlucco, 888 F.2d at 7. "The shifting
burdens of proof set forth in McDonnell Douglas are designed to
assure that the plaintiff [has her] day in court." Id. Based on
the evidence presented by plaintiff, it is evident that
plaintiff has demonstrated the existence of a genuine issue of
material fact as to whether Baruch's stated reasons for not
renewing her contract are pretextual. Moreover, the issue of
plaintiff's non-reappointment requires an inquiry into the
intent of Ms. McIntosh. Summary judgment is not appropriate on
motivation. Walker v. Triborough Bridge and Tunnel Authority,
89 Civ. 6371 (KMW), 1990 WL 52139 (S.D.N.Y. 1990); Meiri, 759
F.2d at 998.
Accordingly, summary judgment is denied on plaintiff's
discriminatory termination/non-renewal of contract claim.
D. Duty of Fair Representation
Plaintiff's allegation of breach of the duty of fair
representation by the Union is premised on the Union's refusal
to file a grievance or obtain an arbitration hearing on her
behalf with regard to Baruch's decision not to renew her
contract. In essence, plaintiff's claim is that: 1) she told
the Union about the discriminatory treatment she had endured at
Baruch; 2) the Union refused to follow the CBA's grievance
procedure; and 3) the Union recommended that she see a
psychiatrist. Plaintiff's Memorandum of Law at 6-7.
Although "a union may not arbitrarily ignore a meritorious
grievance or process it in perfunctory fashion," an individual
employee does not have an absolute right to have a Union take
his or her grievance to arbitration. Vaca v. Sipes,
386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1966). In order to
establish a breach of the duty of fair representation,
plaintiff must show that the Union's conduct toward her was
arbitrary, discriminatory, or in bad faith. Vaca, 386 U.S. at
190, 87 S.Ct. at 916; Patterson v. United Federation of
Teachers, 480 F. Supp. 550 (S.D.N.Y. 1979).
The record shows that Ms. Joan Reed, President of Local 2054
and a Grievance Representative, took affirmative action to
secure her re-appointment as a College Assistant. As stated
supra, Ms. Reed inquired about plaintiff's non-reappointment
and, accompanied by plaintiff, met with Mr. Potasky in an
attempt to get Baruch to reconsider its decision. Although such
action by the Union was unsuccessful in securing plaintiff's
re-appointment, it is evidence that the Union's conduct toward
plaintiff was not wholly arbitrary.
Plaintiff has not come forward with evidence that the Union
discriminated against her or acted in bad faith. Plaintiff
points to Ms. Reed's recommendation that plaintiff receive
psychological counseling from the Union's Personal Services
Unit ("PSU") as indicative of discrimination or bad faith by
the Union. Plaintiff's Deposition at 14D. Ms. Reed explains
that she recommended psychological counseling to plaintiff
before meeting Mr. Potasky because she felt that Baruch
officials might agree to reappoint her if they knew that she
would accept counseling. Reed Aff. at 5.
During the June 12, 1986 meeting with Mr. Potasky, Ms. Reed
maintains that she
spoke to him separately and sought to explore the possibility
of reappointment by the following question: "If I get her to go
to PSU would you reconsider appointing her for another year?"
and that Mr. Potasky responded: "You can do whatever you want.
I'm not making you any promises." Reed Aff. at 6. After the
meeting, plaintiff refused Ms. Reed's recommendation that she
agree to accept counseling. Since the Union has explained why
it had recommended psychological counseling to plaintiff,
plaintiff's reliance on the recommendation without more is
insufficient evidence of discrimination or bad faith by the
Plaintiff also alleges that the Union conspired with Baruch
to deprive her of the CBA's procedures regarding an employee's
termination for misconduct. Plaintiff's Memorandum of Law at
12. Since the case at bar involves the non-renewal of
plaintiff's contract and not the termination of plaintiff for
misconduct, the Court does not have to interpret the various
CBA provisions concerning termination procedures. As for the
non-renewal of plaintiff's contract, there is no CBA provision
which entitles plaintiff to a contract renewal nor does any
provision describe procedures surrounding a contract
There are no genuine issues of material fact as to whether
the Union acted arbitrarily, discriminatorily, or in bad faith
in representing plaintiff. Accordingly, the Union's motion for
summary judgment dismissing plaintiff's claim of a breach of
the duty of fair representation is granted.
II. Section 1981 Claim
Section 1981 provides:
All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts . . .
as is enjoyed by white citizens.
42 U.S.C. § 1981. In Patterson v. McClean Credit Union,
491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme
Court set forth the scope of section 1981. The Supreme Court
held that the right to make contracts "extends only to the
formation of a contract, but not to problems that may arise
later from the conditions of continuing employment," and that
the right to enforce contracts "embraces protection of a legal
process, that will address and resolve contract-law claims
without regard to race." Id. 109 S.Ct. at 2372-73. See
Alexander v. New York Medical College, 721 F. Supp. 587
Plaintiff's allegations against Baruch do not relate to
discriminatory treatment during the formation of the
contractual relationship or with respect to the legal process
for enforcing established contractual rights. Instead, the
allegations of discriminatory denial of a promotion and
overtime benefits, and termination against Baruch exclusively
concern issues which arose after the formation of the contract.
Accordingly, the section 1981 claims against Baruch are
The Union is entitled to summary judgment on the plaintiff's
section 1981 claim. A union violates section 1981 when it
"follow[s] a policy of refusing to file grievable racial
discrimination claims." Goodman v. Lukens Steel Co.,
482 U.S. 656, 668-69, 107 S.Ct. 2617, 2625, 96 L.Ed.2d 572 (1986). As
discussed in the previous section, plaintiff has not presented
any evidence that the Union refused to file her grievance for
any bad faith reason.
III. Section 1983 Claim
Section 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, or any
State or Territory or the District of Columbia,
subjects or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress.
42 U.S.C. § 1983. In Will v. Michigan Dept. of State Police,
491 U.S. 58
, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme
Court described which parties are to be considered "persons"
liable under section 1983. The Supreme Court held that
"neither a State nor its officials acting in their official
capabilities are `persons' under section 1983." Id. 109 S.Ct.
at 2309-10. Baruch is an institution of New York State pursuant
to New York Education Law section 6203 and therefore is not a
"person" within the meaning of section 1983. Accordingly,
plaintiff's discrimination claims against Baruch are not
actionable under section 1983 and are dismissed.
Baruch's motion for summary judgment on plaintiff's
discriminatory denial of promotion is granted. Baruch's motion
for summary judgment on plaintiff's discriminatory compensation
is denied without prejudice. Baruch's motion for summary
judgment on plaintiff's discriminatory termination claim is
denied. The Union's motion for summary judgment on plaintiff's
claim of a breach in the duty of fair representation is
granted. Plaintiff's discrimination claims under sections 1981
and 1983 are not actionable and are dismissed.
IT IS SO ORDERED.