was a breach of the CBA or that the Union permitted a breach to
McGregor's Complaint against the Union also must be dismissed.
The undisputed evidence demonstrates that McGregor suffered an
on-the-job injury resulting in certain medical restrictions being
placed on her ability to work and preventing her from performing
in her usual job classification and that the Union successfully
worked with her to obtain light duty work in the maintenance
department. Each time McGregor wished to pursue a grievance
regarding her light duty assignments, the Union represented her
through the Third Step.
For example, in March 1995 the Union represented McGregor in
her grievance complaining that Reynolds failed to reevaluate her
medical restrictions. The Union represented her at the Second
Step where the grievance was denied because the vacancy in the
maintenance department to which she had been placed no longer
existed, McGregor's medical restrictions were reevaluated, and,
as a result, she was returned to the labor pool. The Union
continued to represent McGregor to the Third Step where the
grievance was again denied because "McGregor was properly
returned to the Labor Pool on or about March 15, 1995 . . . [her]
`situation' was evaluated and the vacancy under which she was
placed no longer existed due to a reduction in force in the
Maintenance Service Department." See Oct. 16, 1995 Carey Letter
to Jim Peets.
The Union also assisted McGregor through the Third Step in a
similar grievance complaining that Reynolds unlawfully terminated
her. McGregor again sought to be returned to her light duty
position pursuant to CBA Article XXIII. This grievance also was
denied because: (1) McGregor was not terminated, but was out on
sick leave; (2) she could not return to the maintenance position
pursuant to CBA Article XXIII because no vacancies existed; and
(3) her medical restrictions precluded her from returning to her
usual job classification.
The Union ultimately assisted McGregor in changing her
permanent position to the maintenance department where she
apparently continues to work.
With respect to McGregor's complaints of sexual harassment, the
evidence similarly demonstrates that the Union took action on her
behalf. Upon receiving complaints of inappropriate behavior or
obscene materials at Reynolds, the Union spoke to the individual
involved and removed the offensive material. McGregor fails to
point to any other evidence where the Union failed to take action
in response to complaints of sexual harassment or discrimination.
Further, her deposition testimony reveals that she did not report
or ask for Union assistance with respect to instances of alleged
sexual harassment and, thus, the Union had no further obligation.
See McGregor Dep., at 60-62, 64-76, 111-114, 239, 259.
As with Norton and Badlam, any alleged discrimination by
Reynolds employees who also acted as Union stewards is
insufficient to impute liability upon the Union without a showing
that those individuals were acting in their capacity as, or
agents of, the Union. McGregor has failed to make such a showing.
Based upon the above undisputed facts, no reasonable minded
jury could conclude that the Union permitted a breach of the CBA
to go unrepaired.
The plaintiffs next claims that the Union retaliated against
them in violation of Title VII. To establish a prima facie case
of retaliation, plaintiffs must demonstrate that: (1) they
participated in a protected activity known to the Union; (2) they
suffered an adverse employment action; and (3) a causal
connection between the protected activity and the adverse
employment action. See Torres v. Pisano, 116 F.3d 625, 639 (2d
Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 563, 139
L.Ed.2d 404 (1997); Johnson v. Palma, 931 F.2d 203, 207 (2d
Here, Norton continues to work in Reynolds' Cast House and has
failed to identify what adverse employment action she has
suffered as a result of participation in a protected activity
known to the Union. Badlam was not fired, demoted, or the subject
of any adverse employment action. Badlam voluntarily left
Reynolds in April 1995 to work for General Motors. The only
arguable adverse employment action was her inability to obtain
light duty work. As noted, however, she was not entitled to light
duty work and failed to set forth any evidence that a vacancy for
a light duty position existed for which she was qualified.
McGregor claims that she was removed from her position in a
light duty assignment in retaliation for her having filed a
charge of discrimination with the EEOC. Of course, she was not
entitled to a light duty position and there is no evidence that
the Union caused her to be removed from a light duty position.
Nonetheless, the Union has pointed to evidence that there was a
legitimate, non-retaliatory reason for the complained of action.
See Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998). In
particular, documentary evidence submitted demonstrates that
there were no vacancies in the maintenance department available
for McGregor because of a reduction in force. See Peets Aff.,
Exs. "C"-"G". Plaintiff has failed to respond with sufficient
proof for a reasonable jury to find the proffered legitimate
reason to be a pretext for impermissible retaliation. See
Gallagher, 139 F.3d at 349.
Further, as previously noted, there is no evidence that the
Union acquiesced in sexual harassment at Reynolds in retaliation
for plaintiffs having engaged in protected activity. With respect
to Norton, the evidence demonstrates that the Union attempted to
resolve her problems informally and advised her to file a
complaint with personnel or contact company headquarters if she
wished to pursue the matter further. Compare Johnson,
931 F.2d 203. Norton never requested that the Union process a formal
grievance on her behalf in connection with her allegations of
sexual harassment. Badlam and McGregor similarly never requested
that the Union pursue a sexual harassment grievance on their
Finally, plaintiffs do not point to any evidence demonstrating
a causal connection between any protected activity and an adverse
employment action. Accordingly, plaintiffs retaliation claims
must be dismissed.
For the foregoing reasons, plaintiffs' claims pursuant to Title
VII and the Human Rights Law against the Union are dismissed.
D. Continuing Violation Doctrine
Finally, Reynolds moves to dismiss an alleged occurrence of
sexual harassment occurring in 1991 relating to an injury
sustained by Badlam and McGregor (the "dust collector incident")
on the ground it is time barred.*fn10 Plaintiffs respond that
they have been subjected to a ongoing policy of discrimination
and, therefore, any conduct alleged to have occurred more than
300 days prior to the filing of the EEOC charge may be considered
under the continuing violation doctrine.
"The continuing-violation exception `extends the limitations
period for all claims of discriminatory acts committed under an
ongoing policy of discrimination even if those acts, standing
alone, would have been barred by the statute of limitations.'"
Quinn, 159 F.3d at 765 (quoting Annis v. County of
Westchester, 136 F.3d 239, 246 (2d Cir. 1998)). "`[M]ultiple
incidents of discrimination, even similar ones,
that are not the result of a discriminatory policy or mechanism
do not amount to a continuing violation.'" Id. (quoting
Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert.
denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994)).
"However, a continuing violation may be found `where there is
proof of specific ongoing discriminatory polices or practices, or
where specific and related instances of discrimination are
permitted by the employer to continue unremedied for so long as
to amount to a discriminatory policy or practice.'" Id.
(quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.
Here, the evidence is sufficient to enable a jury to infer a
persistent failure by Reynolds to rectify plaintiffs complaints
of sexual harassment thereby entitling them to invoke the
continuing violation doctrine. However, the dust collector
incident in 1991 does not fall within the continuing violation
doctrine because this incident is unlike the other claimed
incidents of sexual harassment and it is not sufficient as a
matter of law to support a claim of sex discrimination.
Plaintiffs have proffered no evidence that the dust collector was
activated because of their gender. The unequivocal evidence
demonstrates that the individual who activated the machine did
not know, and could not have known, that plaintiffs, or any other
persons, were working on the dust collector. Thus, the 1991 dust
collector incident is not actionable.
E. State Law Negligence Claims
Plaintiffs have conceded that the negligence causes of action
F. Norton's Defamation Claim
Plaintiff Norton has asserted a claim for defamation arising
out of the publication of a cartoon depicting her in a sexually
offensive manner. Defendants move to dismiss this claim on the
ground that it is time-barred and there is no evidence that the
cartoon was written at the direction of, or on behalf of,
Reynolds or the Union.
Pursuant to N.Y.C.P.L.R. § 215(3), an action to recover damages
for libel or slander must be commenced within one year of
accrual. Although the Complaint alleges that Norton found the
cartoon on December 25, 1994, her deposition testimony
demonstrates that she discovered it in January 1993. See Norton
Dep., at 505-10. The Complaint was not filed until August 1995,
more than one year from the date her defamation cause of action
accrued. Plaintiff has not demonstrated her entitlement to any
tolling period and, thus, her defamation action is barred by the
statute of limitations.
For the foregoing reasons, Reynolds' motion for summary
judgment is GRANTED IN PART and plaintiffs' negligence and
defamation claims are DISMISSED in their entirety. Reynolds'
motion is DENIED in all other respects. The Union's motion for
summary judgment is GRANTED and all causes of action against it
are DISMISSED in their entirety.
IT IS SO ORDERED