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June 9, 2000


The opinion of the court was delivered by: McMAHON, District Judge.


Plaintiff Anngela Cooper brings sex discrimination and sexual harassment claims under Title VII, 42 U.S.C. § 2000e, et seq., against her former employer, Defendant American Home Products Corporation ("AHP") (sued here as Wyeth Ayerst Laboratories)*fn1 and her former union, Defendant International Chemical Workers Union Local 143C ("Union") and a state law sexual harassment claim against her former supervisor, Defendant Richard Dumas. She also joins a state law employment claim against AHP.

Both the Defendant employer American Home Products, which has been charged with failure to protect Plaintiff against sexual harassment by her supervisor, and the Defendant Union, which has been charged with discriminatory breach of its duty of fair representation, have moved for summary judgment.

For the reasons stated below, AHP's motion is granted and all federal claims against it are dismissed. The Union's motion to dismiss Plaintiff's claim for discriminatory failure to carry out its duty of fair representation is also granted. The Court declines to exercise supplemental jurisdiction over Cooper's remaining state law claims against AHP and Dumas.


Viewed most favorably to Plaintiff, the non-moving party, the facts are as follows:

Plaintiff is an African-American woman who began working at Wyeth Ayerst Lederle (the predecessor in interest to and currently a subsidiary of AHP) in Pearl River, New York in 1977.*fn2 Defendant Union Local 143C served as representative for all bargaining unit employees. Plaintiff had been a member of Local 143C from 1977-1988 and rejoined in March 1996. (Def. Union's 56.1 Stmt.) The Union operated pursuant to a Collective Bargaining Agreement ("CBA") with AHP.

Plaintiff joined the Liquids and Ointments Department ("L & O" or "Department 260"), on or about November 14, 1990, as an Operator I on Shift C, a night shift. (Pl. Admissions ¶ 5.) At that time, Richard Dumas worked on the same shift as an Operator II, a non-supervisory position. (O'Brien Aff. ¶ 22.) On or about May 18, 1992, Dumas transferred from Shift C to Shift B, a day shift, and he and Plaintiff did not work the same shift for three years, until April 1995. (Pl. Admissions ¶¶ 6-8.)

On or about April 10, 1995, Plaintiff transferred to Shift B and was again on shift with Dumas, who at that time held the position of Senior Operator, L & O. (Pl. Admissions ¶ 18-19; O'Brien Aff. Ex. C.) While AHP characterizes this as a non-supervisory position, in that Dumas has no hire-fire-promote-demote-discipline power, it is undisputed that a Senior Operator, L & O, directed the work of Operators I and II. (O'Brien Aff. ¶ 30.) On or about June 19, 1995, Dumas temporarily assumed the duties of Supervisor, L & O, and seven months later he was formally promoted to that position. (Pl. Admissions ¶ 21.) Plaintiff was promoted to the position vacated by Dumas in February 1996. (Pl. Admissions ¶ 29.) Dumas made the promotional recommendation. (Gibberman Dep. at 21, 116.)

Sometime during the period when Plaintiff and Dumas were not working the same shift, they began a sexual relationship. At various times, Plaintiff or her counsel have alleged that the relationship began as early as March 1993, i.e. three years prior to March 1996 (Minter Letter of June 20, 1996) or as late as February 1995. (Tr. of Cooper's Test. before Workers' Comp. Bd., Mar. 26, 1998 at 15, attached to O'Brien Aff. at Ex. P.) Plaintiff has also characterized, or caused her counsel to characterize, the relationship in diametrically opposing ways: as both consensual (Minter Letter, supra.) and coerced, (Letter of Bert Pepper, MD, attached to Cooper Aff. at Exh C).*fn3 While this changeability bears on Plaintiff's credibility, it is not relevant for purposes of this motion. Whenever and however it started, it appears that Plaintiff stopped having sex with Dumas in or about March 1996, almost immediately after he promoted her into his old job. It is the post-sexual relationship behavior that is at issue in this suit.

On May 24, 1996, following what she deemed a particularly egregious incident of physical contact, Plaintiff went to Joanne Descher-Rose, the Human Resources Manager at the facility, and complained that Dumas was "harassing" and "disrespecting" her. (Descher-Rose Dep. at 27-9.) Cooper did not mention her prior sexual relationship with Dumas or give Descher-Rose any information that would have placed her complaint in the "sexual harassment" context. Descher-Rose recorded in her notes that Plaintiff had raised a Union, not an EEO, issue. (Descher-Rose Dep. at 115; PX 98.) Descher-Rose nevertheless spoke to both Dumas and his supervisor, Gary Muscarella, about Plaintiff's complaints of unfair treatment in work assignments. Dumas and Muscarella told her that Plaintiff was experiencing serious performance problems. (Descher-Rose Dep. at 59-60.)

Plaintiff obtained medical leave from the plant nurse immediately after her interview with Descher-Rose. When she returned to work on June 3, bearing a doctor's note that established treatment for stress and anxiety, Plaintiff met with Descher-Rose once again. Descher-Rose told Cooper that she was having performance problems and suggested that further complaints should be handled through the Union. (Descher-Rose Dep. at 60.) Again, Plaintiff did not enlighten Descher-Rose about the matters that would have alerted Descher-Rose to the sexual aspect of the situation. Instead, she became upset and asked for another disability leave. Descher-Rose refused to grant her request and sent her back to work, under Dumas' supervision. (Descher-Rose Dep. at 61.)

No sooner had Plaintiff arrived back at work than Dumas presented her with a disciplinary Interview Record, in which he alleged that Cooper had committed six serious violations of company rules during the week of May 21. Shop steward Youhas represented Plaintiff when Dumas presented the Interview Record to her. Youhas was concerned that the Interview Record had been given in retaliation for Plaintiff's prior complaints about Dumas, but he took no action other than to ask Dumas if he was retaliating — which Dumas of course denied. (Youhas Dep. at 107.)

At Cooper's request, the Union filed a grievance on her behalf concerning the Interview Record. Despite Youhas' prior investigation into "sexual harassment," and his concerns about retaliation, the grievance referred neither to sexual harassment nor to retaliation. Cooper, stressed, went again to the company nurse, who again placed her on medical leave and assisted Plaintiff in drafting a letter to report the harassment to AHP. (Burke Dep. at 38-9; Cooper Dep. at 28-52.) Plaintiff revised the letter Burke drafted for her, typed it and mailed it on June 11 to Stephen White, the Plant Manager, with copies to Charles Hildenbrand, Director of Consumer Health Products, Joanne Descher-Rose, and Robert Glover, President of the Local Union. The letter stated as follows:

I, Anngela Cooper, am a Senior Operator in department # 620. My immediate supervisor is Richard Dumas.
The purpose of this letter is to advise management of a situation I'm confronted with an a daily basis. I have been consistently harassed for the past 6 to 7 weeks. Due to this its [sic] been difficult to maintain my normally high productivity at work. It has been a constant interference, also creating problems in my personal life.
I brought this to the attention of C. Hildenbrand Director of Consumer Health Products, J. Descher Rose — Human Resources and Robert Glover — Union president, verbally. To this date, it is still unresolved. Because of emotional, mental and physical harassment, I feel intimidated at this time I'm scared [sic].
At this point I'd like to resume my normal activities at work without feeling threaten [sic]. I'm hoping you can address this matter immediately.

(Cooper Letter, June 11, 1996, O'Brien Aff. at Ex. F.)

Although the letter obviously contained allegations of serious and disturbing harassment, it again failed to mention the key background facts: a prior sexual relationship that had ended and subsequent requests for sexual favors that were rejected.

However, while on medical leave, Cooper also hired a lawyer, Rachel Minter, who provided the missing piece of the puzzle. In a letter to Plant Manager White dated June 20, 1996, Minter alleged that her client had been subjected to "qui pro quo sexual harassment (i.e., retaliation for withholding sexual favors)" by Dumas. She further stated:

Ms. Cooper alleges that her immediate supervisor, Richard Dumas, issued the disciplinary notice without just cause and withdrew overtime in retaliation for (1) her unilateral termination, in or about March of this year, of a three-year romantic relationship over Dumas' objections; and (2) her complaint, on or about April 29, 1996, that Dumas had given inappropriate directives to employees regarding a contaminated product. . . .

(Minter Letter, June 20, 1996, O'Brien Aff. at Ex. G.)

There is no evidence in this record that AHP management (as opposed to the Union) had any specific information about the sexual nature of the harassment prior to the sending of Ms. Minter's letter.

Plaintiff was cleared by her physician to return to work, without restrictions, on June 23. She returned to work on June 24. AHP ordered Dumas to have another employee present whenever he gave Plaintiff an assignment, and Dumas complied with that directive. (Cooper Dep. at 282-23.) However, Plaintiff perceived that Dumas was still harassing her (Cooper Dep. at 282-86), and she again reported to the plant nurse, who sent her to Clifford Gibberman, AHP's Director of Labor Relations, for assistance, (Cooper Dep. at 294-95).

Gibberman testified that he suggested that Plaintiff transfer out of Department 620, although he did not specify any position that Plaintiff might take. Although he had read Minter's letter, Gibberman continued to insist that Cooper's problems related to performance, not harassment. (Gibberman Dep. at 60-68.) Gibberman inquired about any prior relationship between Plaintiff and Dumas, and learned that there had been a sexual relationship (although Dumas initially denied it). He also learned that a former supervisor had been aware of this relationship when he recommended Dumas for promotion.*fn4 Nonetheless, Gibberman deferred any investigation into Plaintiff's sexual harassment allegations to Descher-Rose. (Gibberman Dep. at 81, 85-87.)

Plaintiff's Step 1 grievance meeting was held on June 27, 1996. Plaintiff was represented by Shop Steward Michael Rambin; Muscarella and Dumas attended for the company. The meeting was truncated before all six of Plaintiff's alleged rules violations had been discussed, and Muscarella denied the grievance at the first level. (Muscarella Dep. at 150-53.) However, Muscarella told Rambin that the company had offered to tear up the Interview Record if Plaintiff would bid out of Department 620 and urged her to do so. (Cooper Aff. ¶ 62.) Plaintiff refused, saying that she had done nothing wrong and ought not be penalized. Rambin then directed her to return to work under Dumas' supervision. (Id. ¶ 63.) Instead, Plaintiff went to the one place where her complaints had been heard — Nurse Burke — and was immediately sent home on medical suspension. She did not return to work at the Pearl River facility again. (Cooper Aff. ¶¶ 60-63; Burke Dep. at 50 and Ex. 3.) Therefore, Dumas could not have committed any acts of sexual harassment toward Plaintiff after June 27, 1996. (Pl. Admissions ¶ 88.)

Plaintiff, now acting primarily through her lawyers, pursued her grievances against AHP. In early August 1996, Arthur J. Corrado, Esq., Director and Counsel Labor Relations Department of the Wyeth-Ayerst Division of AHP responded to Minter's June 20 letter. (O'Brien Aff. Ex. I.) Corrado indicated that an internal investigation had failed to substantiate Plaintiff's allegations of retaliation and unwarranted discipline. However, Corrado advised Minter that AHP would permit Plaintiff to invoke certain medical "bumping rights" under the Union contract, which would enable her to transfer to "a more satisfactory position" upon her return from medical leave. He did not specify any position for which she would be eligible (O'Brien Aff. Ex. 1), Neither Cooper nor her attorney made any inquiry as to what positions would be available.

However, at some point, Union President Glover and Labor Relations Officer Gibberman had a conversation about Plaintiff's job options. The two parties to that conversation sharply dispute what was said. Glover testified that Gibberman informed him that only two positions would be available to Cooper, both of which would result in a demotion; Gibberman claims to have said nothing of the sort and avers that Plaintiff could have transferred to any position for which she was qualified and had sufficient plant-wide seniority, even if the position was not vacant. (Gibberman Dep. at 97-100; Glover Dep. at 98-103.) Glover testified that he relayed Gibberman's proposal of allowing Cooper to invoke medical bumping rights — at or above her current pay rate — to Attorney Minter. (Glover Dep. at 99.) Neither man thought about whether any position would require Cooper to come back into contact with Dumas, which she greatly feared, and which her doctor indicated would be medically harmful to her. (Glover Dep. 102; Gibberman Dep. 102.)

Cooper also wished to pursue her Union grievance. She retained new counsel, who wrote to Gibberman to ask that the attorney be allowed to accompany her client to the Union grievance meeting and that Dumas be excluded. (Greene letter to Gibberman, Dec. 9, 1996.) Gibberman, an AHP management employee, refused to allow Plaintiff's attorney to attend the grievance meeting. He informed the attorney that if Cooper failed to participate in the grievance process as outlined in the Collective Bargaining Agreement, AHP would assume that it had been withdrawn with prejudice. (Gibberman Dep. Ex. 64-65.) Gibberman did not directly address the request to exclude Dumas from the grievance. However, AHP has a policy of permitting an accused employee to attend a sexual harassment grievance hearing and to confront his accusers. (Gibberman Dep. at 105).

Attorney Greene also responded to Corrado's August letter. On December 13, 1996, Attorney Greene advised Corrado in writing of the risk facing her client if she had to confront Dumas. Greene also wrote, "[T]he company has failed to take any action whatsoever to address the situation," despite knowledge of Cooper's complaints. (O'Brien Aff. Ex. J.) Greene rejected the transfer offer on behalf of her client, saying that, based on her discussions with Glover, it would constitute a demotion and would inappropriately punish Cooper rather than her harasser. (Id.) Corrado did not respond.

On January 23, 1997, Attorney Greene wrote Corrado a letter in which she alleged that the company's failure to take any meaningful steps to redress Plaintiff's complaints meant that she had been "constructively discharged." (O'Brien Aff. Ex. K) Plaintiff herself never wrote a letter of resignation. She would later testify that she herself did not resign and did not feel compelled to do so (Cooper Dep. at 311-14), statements that Defendants find highly significant, but that are in fact both highly ambiguous and virtually meaningless, in light of Plaintiff's contention that she was "discharged" and her lawyer's January 23 letter to Corrado so stating.

On January 31, Corrado responded to Attorney Greene's last letter, reiterating AHP's belief that Cooper's allegations could not be substantiated but again offering her "bumping rights" to an unspecified position. The letter concluded, "Please have Ms. Cooper directly contact her Human Resources Department to arrange for the retrieval of her personal belongings and surrendering any company property in her possession." (O'Brien Aff. Ex. M.) Other than making this indirect acknowledgment that Plaintiff did not plan to return to work, Corrado never responded to Cooper's contention that she had been constructively discharged. (Id.)

The next day, on February 1, 1997, Dumas was disabled in an automobile accident. His employment with AHP ended six months later, pursuant to a company policy that required the termination of any non-Union employee who did not return to work after six months' medical disability leave. (O'Brien Aff. ¶¶ 51-52.) Kenneth O'Brien, AHP's Senior Director and Counsel for Labor and Employment, advised Attorney Greene that Dumas had been terminated and offered to restore Plaintiff to her former position without regard to her claims against AHP. (Pl. Admissions ¶ 116.) Plaintiff elected not to return, ostensibly because AHP would not commit never to rehire Dumas. She was formally terminated after thirty months of medical disability leave, on December 28, 1998, again pursuant to company policy and the CBA. (O'Brien Aff. ¶¶ 54-55 and Ex. L and O.)

On June 19, 1997, Plaintiff filed a charge of discrimination with the EEOC. This was within 180 days of her alleged constructive discharge by AHP, but nearly a year after her last day at work and the last possible act of sexual harassment by Dumas. Cooper named both AHP and Local 143 as respondents in her charge. She alleged race discrimination, sex discrimination and retaliation. She particularized her charges as follows: constructive discharge due to quid pro quo and hostile environment sexual harassment, race and sex discrimination and retaliation. She alleged that she was subjected to physical and verbal abuse and threats by her supervisor, that she was subjected to unwarranted disciplinary action when she complained, that she was forced into a disability leave as a result, that neither the company nor the union took any action to resolve the situation and that Plaintiff had been given the choice to either accept a demotion or return to work under Dumas. The last discriminatory act was alleged to have taken place on January 31, 1997. The EEOC issued a right to sue letter with respect to the charge on January 13, 1998. The right to sue letter listed only AHP as Respondent, although the charge on its face had named the Union as well.


This action was commenced on March 16, 1998. An Amended Complaint was filed on April 22, 1998. All three Defendants moved under Rule 12(b)(6) to dismiss the Amended Complaint; the Union moved in the alternative for summary judgment. The Hon. Barrington D. Parker granted the motions in part and denied them in part: he dismissed Plaintiff's claims of race discrimination under §§ 1981 and 1985 without leave to replead; he denied the motions to dismiss on the basis that the charge was never filed with the New York State Division of Human Rights, so that the 300 day statute of limitations was inapplicable; he granted the Union's motion to dismiss all claims asserted against it under state law, on the authority of Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988); and he otherwise denied the Union's motion for summary judgment on the ground that there were disputed issues of fact concerning a number of material issues. See Cooper v. Wyeth Ayerst Lederle, et al., 34 F. Supp.2d 197 (S.D.N.Y. 1999). Following a period of protracted and contentious discovery, all three Defendants have moved for summary judgment.


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