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December 19, 1997

GLENN MORRIS, Plaintiff,

The opinion of the court was delivered by: PECK

 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.


 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. ...

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