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.
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
Andrew J. Peck
United States Magistrate Judge