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August 26, 1998


The opinion of the court was delivered by: MCAVOY


 McAvoy, Chief Judge:

 The present action arises out of alleged violations of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and common law causes of action for negligence. Plaintiff alleges that the Defendants Reynolds Metals Company ("Reynolds") and United Steelworkers of America, Local 450-A, Aluminum, Brick and Glass Division (the "Union") sexually harassed and discriminated against her and that the Union negligently hired, retained, and supervised Union officials and stewards. The Union has moved pursuant to FED. R. CIV. PRO. 56 for summary judgment dismissing the Complaint in its entirety. Plaintiff has cross-moved pursuant to FED. R. CIV. PRO. 15 to amend the Complaint.


 A. Facts *fn1"

 Plaintiff Christina Szarka has been employed by Reynolds for approximately twenty years. By the fall of 1993, plaintiff was employed as a cryolite operator in the Recovery Department, a classified position. (Complaint PP9, 10, 12).

 In late 1993, Reynolds shut down a portion of the St. Lawrence Reduction plant which resulted in a reduction in force. (Cook Aff. PP4, 5).

 The collective bargaining agreement ("CBA") entered into by the defendants governed the layoff procedures. Pursuant to the CBA, the least senior union members were laid off first. (CBA, Art. XII, § 2). Because of her level of seniority, plaintiff was not laid off. Due to the reductions in force in each department, however, plaintiff was reduced in rank and wage grade from her classified position in the Recovery Department to an unclassified position in the Labor Pool on November 1, 1993. (CBA, Art. XII, § 12; Complaint P13).

 From time to time plaintiff was transferred back to the Recovery Department to fill in for temporary vacancies or when extra workers were required. (CBA, Art. XIV, § 2; Cook Aff. P7). From November 4 to November 27, 1993, plaintiff worked in her former department (Recovery) in a temporary capacity at her prior wage. (Cook Aff. Ex "C").

 On November 25, 1993, plaintiff "bid" for a position in the Cast House, another classified position. (Cook Aff., P8). The procedure for filling classified jobs is governed by the CBA which requires that the position be filled with the most senior employee who is capable of performing the work. (CBA, Art. XI, § 2). Plaintiff was placed in the Cast House.

 In the month of December 1993, employees on plaintiff's former shift in the Recovery Department (the "B" shift) worked certain days that entitled them to overtime compensation. (See generally CBA, Art. VII). Because plaintiff was reduced to the Labor Pool and/or because of her new position in the Cast House, plaintiff was on the "A" shift. The "A" shift did not work certain holidays on which the employees were entitled to overtime. In addition, plaintiff was in an initial period of disqualification due to her transfer to the Cast House; thus, her transfer also disqualified her from receiving overtime during the month of December, 1993. (Cook Aff., P10).

 A permanent vacancy was created in the Recovery Department due to a retirement. Accordingly, on January 3, 1994, plaintiff was recalled to fill this vacancy at her initial wage classification. (Complaint, P13, Cook Aff., P14).

 Plaintiff claims that she was unfairly treated in the reduction procedure and the subsequent recall of the reduced employees. (Complaint, P13). Plaintiff also thought that a more junior, male employee, Mark Richards, was receiving better treatment than she. (Complaint, P14). Richards was reduced to the Labor Pool at the same time as plaintiff. (Cook Aff., P15; June 22, 1998 Peets Aff., Exs. "C", "D"). On September 4, 1994 (after plaintiff had been recalled to Recovery), Richards was recalled to the Recovery Department at a time when there were no vacancies, thereby adding one classified person to the department. On September 19, 1994, another employee, Bob McGee, bid out of the Recovery Department and was not replaced. Thus, the Department was reduced by one person, thereby returning to its initial number of classified persons. (Cook Aff., P16).

 In September 1994, plaintiff approached Mr. Gary Cook, the then Union shop steward of Reynolds, requesting to submit a grievance. (Cook Aff., P14). Plaintiff's grievance alleged that Reynolds failed to assign her to temporary vacancies in the Recovery Department during December 1993. (Cook Aff., Ex. "B"). Plaintiff felt that Reynolds was not honest with her when stating the reasons she was reduced to the Labor Pool and that she was discriminated against when Richards was recalled when there were no vacancies in the Recovery Department. (Cook Aff., Ex. "C"). Plaintiff apparently sought to be paid lost wages and overtime to which she would otherwise have been entitled had she not been reduced to the Labor Pool and had she not been placed in the Cast House. (Cook Aff., Ex "B"). There is no evidence, however, that plaintiff ever submitted or sought to submit any grievance or complaint regarding sexual harassment.

 On September 29, 1994, at Step Two of the Grievance Procedure, Larry Alderman, the supervisor of the Recovery Department, denied the grievance stating that the CBA was not violated. (Alderman Letter dated Sept. 29, 1994). The Union then processed the grievance to Step Three in accordance with the CBA. The grievance remained at Step Three until it was remanded back to Step Two for additional fact finding in early 1997. The parties offer no explanation why the grievance remained at Step Three for over two years.

 On January 9 and February 20, 1997, meetings were held regarding plaintiff's grievance at which time the parties allegedly agreed on the facts giving rise to plaintiff's grievance. (DeRosie memorandum dated March 3, 1997). Based upon these facts and the meetings with plaintiff, the grievance was again denied on the basis that there was no violation of the CBA. The grievance was again referred to Step Three in the spring of 1997.

 At Step Three the Union attempted to settle the grievance as is required by the CBA. (See CBA, Art. VI). By letter dated March 7, 1997, plaintiff's attorney, Mr. Nichols, wrote to the Union's attorneys stating that "under no circumstances are either the Union or the employer authorized to settle any case or any grievance Ms. Szarka has, except through her attorneys . . . . [and that] under no circumstances are you authorized to discuss any settlement or any of these legal issues or grievance issues with my client until or unless I consent."

 By letter dated March 10, 1997, the Union's attorneys responded to Mr. Nichols stating that:

the Union does not distinguish, when processing grievances, between members who have consulted an attorney and members who have not. Be assured that the Union will continue to fairly represent Ms. Szarka in her grievance under the terms of the [CBA]. The 'authorization' of grievant's attorney is neither desired nor necessary for the Union to discharge its obligations to Ms. Szarka. I strongly suggest that you advise Ms. Szarka to cooperate with Union representatives in the grievance procedure.

 In another letter dated March 10, 1997, Mr. Nichols wrote to the Equal Employment Opportunity Commission ("EEOC"). In a short, two sentence paragraph, Mr. Nichols alleged that plaintiff had been subjected to a hostile work environment comprised of pornography in and about the work place. The paragraph made no reference to the Union. The majority of the letter was devoted to describing the facts surrounding the above-discussed grievance and seemingly was aimed at Reynolds.

 Mr. Nichols sent another letter to the EEOC dated March 17, 1997, along with a New Charge Questionnaire. The March 17 letter did not implicate the Union in charges of sexual harassment. Rather, that letter accused the Union of "allowing this situation to continue in that the Union has yet to file a grievance to arbitration."

 By letter dated April 23, 1997, James Peets, the President and Business Agent of the Union, wrote to plaintiff stating his belief that the Union could "settle the [ ] grievance on terms acceptable to you." Peets requested that plaintiff submit financial information regarding the amount of lost income to which she believed she was entitled. Mr. Peets requested plaintiff to advise the Union in writing if she did not want the Union to continue to represent her. There was no response to this letter.

 On June 11, 1997, plaintiff filed a Charge Statement with the EEOC alleging that the Union failed to fairly represent her in the grievance procedure because of her sex and age. By letter dated June 20, 1997, the EEOC requested additional information from plaintiff. Plaintiff failed to submit any additional information.

 The EEOC then sent the Union a Notice of Charge of Discrimination and requested the Union to submit a position statement. The Union filed its position statement which essentially reiterated the facts discussed above stating that:

the Union has attempted, without success, to have Ms. Szarka provide the amount of lost income she believes she is entitled so that the Union is in a position to settle her grievance satisfactory to her. She has declined to provide this information and apparently, on the advice of counsel, refuses to discuss the matter with Union officials. Ms. Szarka's attorney has taken the position that any settlement of the grievance must be dealt with through him. Local 450 refuses to do so, and Reynolds would be in violation of the National Labor Relations Act if it dealt with Mr. Nichols as Ms. Szarka's representative rather than Local 450.

 On July 24, 1997, the EEOC closed its file on the discrimination claim against Reynolds because it was not filed within the time limit required by law. The EEOC also advised plaintiff of her right to sue Reynolds.

 On October 24, 1997, plaintiff commenced the instant lawsuit against Reynolds and the Union. In the meantime, plaintiff's grievance was again remanded to Step Two for fact finding. Another Step Three meeting was held on November 26, 1997.

 By letter dated January 27, 1998, the EEOC concluded its investigation of the claims against the Union. The EEOC "determined that it is unlikely that further investigation of the charge would result in finding reasonable cause to believe Title VII . . . or the . . . [ADEA] were violated." (March 19, 1998 Lapoff Affirmation, Ex. "D"). The EEOC concluded that "given that you have not provided any information to show that there were similarly situated individuals who were afforded preferential treatment, and the information indicates that you were represented by [the Union] in the grievance process, the evidence does not support your allegations of age-based or gender-based employment discrimination." Id. Annexed to the letter was a right to sue letter against the Union.

 By letter dated March 17, 1998, Reynolds wrote a letter to the Union stating that "the company attempted on several occasions to resolve this grievance amicably and to the satisfaction of grievant. Following these attempts, the grievant's attorney directed the company not to attempt to negotiate or settle this grievance directly with grievant. As a result of his intervention, there is no further recourse the company can take. Grievance denied."

 B. Procedural History

 Plaintiff filed a Complaint against both Reynolds and the Union on October 24, 1997 (the "1997 Complaint"). At the time plaintiff filed the 1997 Complaint, she had not yet received a "right to sue" letter against the Union. By Notice of Motion filed April 15, 1998, the Union moved for summary judgment. In response, plaintiff's attorney acknowledged his error in commencing the lawsuit against the Union without first obtaining a right to sue letter. Having obtained a right to sue letter against the Union on January 27, 1998, plaintiff's attorney filed a virtually identical Complaint on April 24, 1998 (the "1998 Complaint").

 By Order dated May 22, 1998, this Court consolidated the October 1997 and April 1998 actions.

 On July 6, 1998, plaintiff cross-moved pursuant to FED. R. CIV. PRO. 15 to amend the 1997 Complaint to cure the defect caused by commencing the lawsuit against the Union prior to receiving a "right to sue" letter and to add a cause of action for retaliation against the Union.


 A. Summary Judgment Standard

 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, judgment may be entered in favor of the moving party if "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). on a motion for summary judgment, all facts must be construed in ...

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