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MORRIS v. AMALGAMATED LITHOGRAPHERS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 19, 1997

GLENN MORRIS, Plaintiff,
v.
AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL ONE, Defendant.

The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Lewis A. Kaplan, United States District Judge:

 Plaintiff Glenn Morris alleges that defendant Amalgamated Lithographers of America, Local One ("Local One" or the "Union") discriminated and retaliated against him on the basis of race in violation of Title VII. Local One has moved for summary judgment. For the reasons set forth below, I recommend that Local One's summary judgment motion be granted in part and denied in part. Specifically, Local One should be granted summary judgment on Morris' claim that the Union (1) disciplined him in 1994 in retaliation, since that claim is time barred, and (2) violated Executive Order 11246, since there is no private right of action under that Executive Order. Local One's summary judgment motion on Morris' Title VII duty of fair representation claim should be denied because there are material issues of fact as to whether the Union adequately pursued Morris' discrimination claim against Morris' employer, Scott Press.

 FACTS

 Local One is a labor union for lithographic production employees. (Local One 56.1 Stmt. P 1; Morris 56.1 Stmt. P 1; Lichten Aff. Ex. A at 1.) Plaintiff Morris, an African-American male, is a member of the Union. (Local One 56.1 Stmt. PP 2-3, 9; Morris 56.1 Stmt. PP 2-3, 9; Morris Aff. P 2.)

 Local One entered into collective bargaining agreements (the "Agreements") with the Metropolitan Lithographers Association, Inc., an association of lithographic printing firms. (Local One 56.1 Stmt. P 4; Morris 56.1 Stmt. P 4; Lichten Aff. Ex. A; Morris Aff. P 2.) The Agreements provide for a grievance resolution process that involves submission of the grievance initially to a Joint Committee of the Union and the Association, and ultimately to binding arbitration if the Joint Committee fails to resolve the dispute. (Local One 56.1 Stmt. PP 4-6; Morris 56.1 Stmt. PP 4-6; Lichten Aff. Ex. A at 24-25.)

 In January 1993, Morris began his employment at Scott Press, Inc., a member of the Association.(Local One 56.1 Stmt. P 15; Morris 56.1 Stmt. P 15; Lichten Aff. Ex. O: Morris Dep. at 18; Morris Aff. P 7 (g).) In September or October 1994, Scott demoted Morris from first operator to second operator. (Local One 56.1 Stmt. P 16; Morris 56.1 Stmt. P 16; Morris Dep. at 20-21; Morris Aff. P 16.) Morris alleges that Scott demoted him and disciplined him because of his race, in violation of the Agreement's non-discrimination clause. (Local One 56.1 Stmt. P 17; Morris 56.1 Stmt. P 17; Morris Aff. P 16; Lichten Aff. Ex. A at 3.)

 Morris contends that Local One failed to present his grievance against Scott for an extended period of time. (Morris Resp. P 18.) On March 3, 1995 and May 1, 1995, Morris filed charges against the Union with the Equal Employment Opportunity Commission ("EEOC"), alleging that Local One "suppressed" its actions on his behalf against Scott and that the Union discriminated against him based on his race and retaliated against him in violation of Title VII. (Morris Aff. P 19 & Exs. E & F.) Morris asserts that Local One only acted on his grievance against Scott after he filed his EEOC charges. (Morris Aff. P 19.)

 On May 3, 1995, Union Vice President Joseph Curto wrote to Scott, "to advise [Scott] that Local One has received serious allegations of racial harassment at the work place . . . [and] intends to vigorously investigate these charges." (Local One 56.1 Stmt. P 18; Lichten Aff. Ex. D.) Morris did not see this letter until this lawsuit. (Morris Aff. P 18; Morris 56.1 Stmt. P 18.) On May 12, 1995, the Union's attorney, Ira Cure, wrote to Morris and four other Scott employees, asking them to contact him to assist in the investigation. (Local One 56.1 Stmt. PP 19-20; Lichten Aff. Exs. E-F.)

 On July 7, 1995, pursuant to the Agreements' dispute resolution process, Local One wrote to Scott requesting that a Joint Committee be formed to hear Morris' grievance against Scott. (Local One 56.1 Stmt. PP 25; Morris 56.1 Stmt. P 25; Lichten Aff. Ex. G.) After the Joint Committee failed to resolve the dispute, the Union submitted the matter to arbitration in August-September 1995; an arbitration hearing was scheduled for April 29, 1996. (Local One 56.1 Stmt. PP 26-29; Morris 56.1 Stmt. PP 26-29; Lichten Aff. Exs. H-J; Morris Dep. at 50.)

 On or about March 22, 1996, Morris received a right to sue letter from the EEOC. (Lichten Aff. Ex. B: Ex. to Cplt.)

 On April 23, 1996, Morris delivered a letter to Local One's counsel stating that he "no longer wished to proceed with arbitration at this point." (Local One 56.1 Stmt. P 32; Morris 56.1 Stmt. P 32; Lichten Aff. Ex. K.) Morris' letter alleged that "it is becoming more apparent that it is the Union's lawyers intention to make minuscule, if not totally negate the discriminatory factors in our grievances." (Lichten Aff. Ex. K.) Morris wrote that he hoped that his withdrawal would "highlight the Union's conflict of interest . . . when it comes to minorities." (Id.) As a result of Morris' letter, the Union cancelled the arbitration hearing. (Local One 56.1 Stmt. P 33; Lichten Aff. Ex. L.)

 On or about June 19, 1996, Morris filed this Title VII action against Local One. (See Cplt.)

 Local One has moved for summary judgment, arguing that it "zealously represented Morris throughout the grievance process, and . . . took no adverse employment action against Morris." (Local One Br. at 1-2.) Local One claims that it was prepared to argue Morris' discrimination claim at the arbitration hearing, had Morris not withdrawn from the arbitration. (E.g., Local One Br. at 1.) To support its contentions, Local One points to two previous occasions when it represented Morris on discrimination charges against his former employers, Pace DeTorres and Lasky Company. (Local One 56.1 Stmt. PP 8, 10, 13-14; Morris 56.1 Stmt. PP 8, 10, 13-14; Morris Dep. at 6-7, 141-42, 145, 147; Lichten Aff. Ex. C.) However, both arbitrations ruled against Morris. (Morris Aff. PP 8, 12; Morris Dep. at 147.) Finally, Local One has presented evidence that it pursued discrimination claims against Scott on behalf of two other employees (Summerville and Ruiz) at arbitration hearings at which Morris was called as a witness. (Local One 56.1 Stmt. PP 34-35; Morris 56.1 Stmt. PP 34-35; Lichten Aff. Exs. M, N; Morris Dep. at 7-8, 57.)

 Although Morris does not dispute that the Union arbitrated his claims against his previous employers and his fellow employees' grievances against Scott, Morris alleges that Local One failed to provide evidence of racial discrimination at these proceedings. (Morris 56.1 Stmt. PP 10, 13-14, 34-35, 40-43, 51, 53; Morris Aff. PP 12-13, 18, 23-24.)

 Morris also alleges that Local One retaliated against him for his activism and criticism of the Union by imposing sanctions against him. (E.g., Morris Aff. PP 14-15.) In March 1994, Morris complained to Scott management that his shift was understaffed. In the same letter, Morris criticized a fellow union member as a "no-show, no-help invisible man," and described another union worker as an "inexperienced" operator, "not used to working under this type of pressure." (Morris Aff. Ex. S; Morris Aff. P 14.) At a Grievance Committee meeting, Local One found Morris in violation of several Union by-laws, including rules requiring that "differences between members shall not be discussed with management," and fined Morris $ 200. (Morris Aff. P 15; Morris Aff. Ex. M; Morris 56.1 Stmt. PP 43-44.) *fn1"

 Morris charges Local One with complicity "with [Scott] in establishing an affirmative action program for white males." (Cplt. P 8.) Morris alleges that Local One failed to prevent Scott from by-passing Union rules in the rehiring of white male operators. (Morris Aff. P 17.) Finally, Morris asserts that Local One failed to enforce Executive Order 11246, which requires, inter alia, contractors and subcontractors who perform under government contracts to develop affirmative action programs. (Morris Aff. P 25.)

 ANALYSIS

 I. THE SUMMARY JUDGEMENT STANDARD IN EMPLOYMENT DISCRIMINATION CASES

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991); Hernandez v. New York City Law Dep't Corp. Counsel, 1997 U.S. Dist. LEXIS 620, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M. J.); Burger v. Litton Indus., Inc., 1996 U.S. Dist. LEXIS 5560, 91 Civ. 0918, 1996 WL 421449 at *7 (S.D.N.Y. April 24, 1996) (Peck, M. J.), report & rec. adopted, 1996 U.S. Dist. LEXIS 15602, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, here, Local One. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6; Burger v. Litton, 1996 WL 421449 at *7.

 In evaluating the record to determine whether there is a genuine issue as to any material fact, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S. Ct. at 2513; Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7. The Court draws all inferences in favor of the nonmoving party -- here, Morris -- only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489, 98 L. Ed. 2d 487 (1987); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Burger v. Litton, 1996 WL 421449 at *7. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

 In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine the existence of any disputed issues of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987); Watson v. McGinnis, 981 F. Supp. 815, 1997 WL 677488 at *3 (S.D.N.Y. 1997) (Peck, M.J.); Ruiz v. Selsky, 1997 U.S. Dist. LEXIS 3473, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] factual disputes that are irrelevant or unnecessary will not be counted." Id. (citations omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Watson v. McGinnis, 981 F. Supp. 815, 1997 WL 677488 at *3; Shaw v. City of New York, 1997 U.S. Dist. LEXIS 4901, 95 Civ. 9325, 1997 WL 187352 at *2 (S.D.N.Y. April 15, 1997) (Peck, M.J.); Ruiz v. Selsky, 1997 WL 137448 at *3. *fn2"

 When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224; see also, e.g., Chambers v. TRM, 43 F.3d at 40; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7. Because the employer (here, the Union) rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the defendant's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224; Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7. Nonetheless, when the defendant provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the defendant. See, e.g., Stern v. Trustees of Columbia Univ., 131 F.3d 305 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Burger v. Litton, 1996 WL 421449 at *7; Engelmann v. National Broadcasting Co., 1996 U.S. Dist. LEXIS 1865, 94 Civ. 5616, 1996 WL 76107 at *7 (S.D.N.Y. Feb. 22, 1996). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., N.Y.L.J., Dec. 19, 1997 at 28; see also, Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir.) (en banc), cert. denied, 139 L. Ed. 2d 752, 118 S. Ct. 851 (U.S. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge.'"); Feinson v. New School for Soc. Research, 1997 U.S. Dist. LEXIS 19109, 95 Civ. 7633, 1997 WL 742532 at * 8 (S.D.N.Y. Dec. 1, 1997) ("plaintiff must . . . carry the ultimate burden of persuasion, by demonstrating by a preponderance of the evidence that improper discrimination was a determinative factor motivating the employer's conduct"); Richardson v. Newburgh Enlarged City School Dist., 984 F. Supp. 735, 1997 WL 715824 at *6 (S.D.N.Y. Nov. 12, 1997); Cutler v. Parfums Givenchy, Inc., 1997 U.S. Dist. LEXIS 15928, 96 Civ. 9070, 1997 WL 634171 at *2-3 (S.D.N.Y. Oct. 15, 1997) (Kaplan, D.J.); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Scaria v. Rubin, 1996 U.S. Dist. LEXIS 9659, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

 II. THE UNION'S LIABILITY UNDER TITLE VII

 The Court reads Morris' complaint to state three claims against Local One: (1) the Union breached its duty of fair representation by failing to properly process his discrimination claims against Scott and by acquiescing in Scott's allegedly discriminatory conduct; (2) the Union retaliated against him by imposing sanctions against him in 1994; and (3) the Union failed to enforce Executive Order 11246. (Cplt. P 8; Morris Aff., Ex. B PP 13-14, 17-18 & 25.)

 A. A Union's Breach of Its Duty of Fair Representation Can Render It Liable Under Title VII

 It is well established that "a union's breach of its duty of fair representation may render it liable under [Title VII] . . . ." Morpurgo v. Board of Higher Educ., 423 F. Supp. 704, 717 (S.D.N.Y. 1976) (citing Macklin v. Spector Freight Sys., Inc., 156 U.S. App. D.C. 69, 478 F.2d 979, 988-89 (D.C. Cir. 1973), and Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers v. NLRB, 368 F.2d 12, 24 (5th Cir. 1966), cert. denied, 389 U.S. 837, 88 S. Ct. 53, 19 L. Ed. 2d 99 (1967)); see also, e.g., Gavenda v. Orleans County, 1997 U.S. Dist. LEXIS 1527, 95-C V-0251, 1997 WL 65870 at *5 (W.D.N.Y. Feb. 10, 1997); Doolittle v. Ruffo, 1996 U.S. Dist. LEXIS 4032, 88-C V-1175, 1996 WL 159850 at *3-4 (N.D.N.Y. March 27, 1996); Ross v. Communication Workers, Local 1110, 1995 U.S. Dist. LEXIS 7959, 91 Civ. 6367, 1995 WL 351462 at *5-6 (S.D.N.Y. June 9, 1995) (where union's breach of its duty of fair representation "allegedly was motivated by discriminatory reasons based on reasons of race or gender, such a claim may be brought under Title VII."), aff'd mem., 100 F.3d 944 (2d Cir.), cert. denied, 136 L. Ed. 2d 61, 117 S. Ct. 108 (1996); Tabois v. CWA Local 1101, 1992 U.S. Dist. LEXIS 7571, 89 Civ. 4921, 1992 WL 131038 at *4 (S.D.N.Y. June 1, 1992) ("Because plaintiff's Title VII claim is based on defendant's alleged violation of its duty of fair representation, 'a finding of a dfr [duty of fair representation] breach [is] essential to the existence of the Title VII claim.'"); Shaw v. General Motors Corp., 1991 U.S. Dist. LEXIS 20386, 81-C V-143, 1991 WL 155581 at *4 (W.D.N.Y. Aug. 5, 1991); Dolittle v. Ruffo, 1990 U.S. Dist. LEXIS 376, 88-C V-1175, 1990 WL 2648 at *3 (N.D.N.Y. Jan. 16, 1990) ("It is well settled that 'a union's breach of the duty of fair representation . . . subjects it to liability under Title VII if the breach can be shown to be because of the complainant's race, religion, sex, or national origin.'"); James v. Local 32 B-32J, Serv. Employees Int'l Union, 1987 U.S. Dist. LEXIS 11976, 86 Civ. 0197, 1987 WL 33622 at *2 (S.D.N.Y. Dec. 28, 1987) ("A union's role in ratifying an employer's discriminatory practice could be enough to compel a finding of union liability . . . A union's breach of its duty of fair representation may also render it liable under Title VII.").

 B. The Standard of Proof Applicable to a Title VII Breach of the Duty of Fair Representation Claim, and Its Application Here

 The parties' dispute the appropriate legal standard to be applied to Morris' Title VII claim. Local One points to the traditional Title VII standard enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and contends that Morris fails to establish any adverse employment action with respect to the Union. (Local One Br. at 5-7.) Morris, in contrast, relies on duty of fair representation cases generally, without citing to Title VII duty of fair representation cases. (See Morris Br. at 8-15.)

 After reviewing the case law in this and other circuits, the Court in Doolittle v. Ruffo, 1996 U.S. Dist. LEXIS 4032, 88-C V-1175, 1996 WL 159850 at *4 (N.D.N.Y. March 27, 1996), announced a two-part test applicable to Title VII union duty of fair representation cases:

 

Based upon the above-cited case law, this court concludes that in this circuit the first prong of the Bugg test is not necessary to plaintiffs' establishment of a prima facie case that the Union Defendants breached their duty of fair representation and thus violated Title VII. Instead, plaintiffs must satisfy a two-prong test. They must demonstrate (1) that the Union Defendants breached their duty of fair representation by allowing an alleged breach to go unrepaired and (2) that the Union Defendants' actions were motivated by gender animus.

 See also Gavenda v. Orleans County, 1997 U.S. Dist. LEXIS 1527, 95-C V-0251, 1997 WL 65870 at *5 (W.D.N.Y. Feb. 10, 1997) ("the plaintiff must first establish a prima facie case of discrimination or retaliation, which requires her to show, inter alia, that she belongs to [a] protected group or -- to demonstrate retaliation -- was engaged in a protected activity, that she suffered an adverse union action -- viz., that the union breached its duty of fair representation -- and that such adverse action occurred under circumstances giving rise to a reasonable inference of [racial] or retaliatory animus.").

 Applying that test here, it is undisputed that Morris is a member of a protected group -- African-Americans -- and that he engaged in a protected activity -- complaining of racial discrimination in employment including filing charges with the EEOC. Second, to demonstrate that the union breached its duty of fair representation, Morris must prove that Local One's conduct was "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916, 17 L. Ed. 2d 842 (1967); *fn3" accord, e.g., Gavenda v. Orleans County, 1997 WL 65870 at *6; Ross v. Communication Workers, 1995 WL 351462 at *5 ("the standards enunciated in Vaca concerning DFR [duty of fair representation] claims apply to Title VII claims against a union as well"); Tabois v. CWA Local 1101, 1992 WL 131038 at *4.

 The evidence before the Court about the Union's actual conduct in pursuing the Scott (and earlier) discrimination arbitrations is minimal, conclusory and contradictory. The Union contends that until Morris declined to go forward, the Union was prepared to pursue Morris' discrimination claim in arbitration, just as it had his prior discrimination claims against his former employers. (E.g., Local One Br. at 1; Local One 56.1 Stmt. PP 8, 10, 13-14, 18-35.) Morris contends that the Union did not vigorously pursue his prior arbitrations and, based on his discussions with the Union's counsel leading up to his Scott arbitration, was not going to vigorously pursue his discrimination claim against Scott. (E.g., Morris Dep. at 49-72, 141-52.) Moreover, Morris points out that the Union did not begin to pursue his discrimination claim against Scott for many months, and did so only after he filed charges with the EEOC. These factual disputes, and the lack of hard evidence from either side on this motion, preclude summary judgment.

 Moreover, Morris need not prove that the Union itself held any racial animus against African-Americans. Its deliberate failure to pursue grievance claims of an employer's racial discrimination, if proved, is enough to establish the union's violation of Title VII. As the Supreme Court has made clear, "'A union which intentionally avoids asserting discrimination claims . . . is liable under . . . Title [VII] . . ., regardless of whether, as a subjective matter, its leaders were favorably disposed towards minorities.'" Goodman v. Lukens Steel Co., 482 U.S. 656, 669, 107 S. Ct. 2617, 2625, 96 L. Ed. 2d 572 (1987) (union found liable under Title VII for deliberately avoiding discrimination claims and for refusing to assert racial discrimination as a ground for grievances). *fn4"

  C. Morris' Retaliation Claim Concerning The Union's Sanctions Against Him Is Time Barred

 Morris alleges that Local One imposed sanctions upon him in 1994 in retaliation for his activism and criticism of the Union. (Morris Aff. Ex. B PP 13-14, 18.) This claim, however, is time barred.

 "Filing a charge with the EEOC is a jurisdictional prerequisite to a private civil action under Title VII." Chojar v. Levitt, 773 F. Supp. 645, 650 (S.D.N.Y. 1991) (citing 42 U.S.C. § 2000e-5(e), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 1822, 36 L. Ed. 2d 668 (1973)); accord, e.g., Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991); Rivera v. Baccarat, Inc., 1996 U.S. Dist. LEXIS 6355, 95 Civ. 9478, 1996 WL 251850 at *2 (S.D.N.Y. May 10, 1996); Dortz v. City of New York, 904 F. Supp. 127, 142 (S.D.N.Y. 1995).

 Acts of discrimination occurring more than 300 days before filing of charges with the EEOC are time barred. 42 U.S.C. § 2000e-5(e)(1); see, e.g., Butts v. City of New York Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 ("When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred. . . . The statute of limitations for filing a charge of discrimination with the EEOC is 300 days."); Shull v. Rite Aid Corp., 1997 U.S. Dist. LEXIS 7609, 94 Civ. 8552, 1997 WL 289460 at *4 (S.D.N.Y. May 30, 1997) ("'The complainant has 300 days to file a complaint with the EEOC . . . . [and] failure to file an agency charge within the applicable time period precludes a plaintiff from bringing a Title VII suit in federal court.'"); Perezic v. Crespo, 902 F. Supp. 438, 440 (S.D.N.Y. 1995) ("'The statute of limitations for filing a charge of discrimination with the EEOC is 300 days' after the alleged unlawful employment practice occurred. . . . Failure to comply with this timing requirement will cause a claim to be time barred.'"); Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994), aff'd mem., 50 F.3d 3 (2d Cir. 1995). Morris' first EEOC complaint was brought on March 3, 1995. (Morris Aff. Ex. A.) The Union's imposition of $ 200 sanctions on Morris occurred on May 4, 1994. (Morris Aff. P 15 & Ex. M; see Local One Reply Br. at 4.) May 4, 1994 is 303 days before March 3, 1995, and thus the claim as to the $ 200 sanctions is time barred. *fn5"

 D. Morris' Claim That the Union Did Not Pursue Claims Against Employers Under Executive Order 11246 is Barred Because There is No Private Right of Action Under That Executive Order

 Morris charges the Union with failure to enforce Executive Order 11246. (Morris Aff. PP 25-26.) The Order mandates rules to promote "equal opportunity for all persons, without regard to race, color, religion, sex, or national origin, employed or seeking employment with Government contractors or with contractors performing under federally assisted construction contracts." 41 C.F.R. § 60-1.1. It requires such employers to develop affirmative action programs. 41 C.F.R. § 60-2.1.

 Enforcement of Executive Order 11246, however, is restricted to the Department of Labor; a private employment discrimination action can not be maintained under the Order. E.g., Weise v. Syracuse Univ., 522 F.2d 397, 411 n.23 (2d Cir. 1975); McPartland v. American Broad. Cos., 623 F. Supp. 1334, 1339-40 (S.D.N.Y. 1985); Pecorella v. Oak Orchard Community Health Ctr., Inc., 559 F. Supp. 147, 149 (W.D.N.Y. 1982), aff'd mem, 722 F.2d 728 (2d Cir. 1983). The Union, therefore, could not have pursued such a claim against employers. Accordingly, the Union should be granted summary judgment dismissing Morris' claim under Executive Order 11246.

 CONCLUSION

 For the reasons set forth above, I recommend that defendant Local One's summary judgment motion be granted in part, dismissing plaintiff Morris' claim (1) of retaliation based on the Union's sanction against him in 1994, and (2) under Executive Order 11246. I further recommend that the Court in all other respects deny defendant Local One's summary judgment motion as to plaintiff's Title VII claims based on the Union's breach of its duty of fair representation.

 FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

 Preparation of the Pretrial Order

 The parties are to file a joint pretrial order, in compliance with Judge Kaplan's rules for preparation of the pretrial order, by February 18, 1998. Because plaintiff is (once again) pro se, defendant's counsel shall be responsible for coordinating and filing the pretrial order. To assure the orderly preparation of the pretrial order, the parties are to exchange drafts of their portions of the pretrial order as follows: defendant on January 14, 1998, plaintiff on January 30, 1998, and defendant's responses on February 11, 1998. These drafts are not to be submitted to the Court; only the final proposed pretrial order is to be submitted to the Court (the original to be filed in the Clerk's Office, with courtesy copies to my chambers and Judge Kaplan's chambers). The case will be considered trial ready, on 24-hours' notice, as of February 23, 1998. The deadlines herein for preparation and submission of the pretrial order remain applicable even if either party files objections to this Report and Recommendation.

 DATED: New York, New York

 December 19, 1997

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge


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