The opinion of the court was delivered by: Ralph W. Smith, Jr., United States Magistrate Judge.
MEMORANDUM DECISION AND ORDER
This is a civil action for damages for sexual discrimination,
retaliation, conspiracy to discriminate, and breach of duty of
fair representation brought pursuant to 42 U.S.C. § 1985, Title
VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., and New York state law.*fn1 The parties have
consented to have the undersigned conduct any and all further
proceedings in this case, including the entry of final judgment,
in accordance with 28 U.S.C. § 636(c). Presently before the
Court is the motion of Defendant Law Enforcement Officers Union
Council 82 AFSCME AFL-CIO for summary judgment (hereinafter
the "Motion"). For the reasons set forth below, the Court grants
Defendant's Motion in part and denies it in part.
Pursuant to Fed.R.Civ.P. 56(c), a court may grant a party's
motion for summary judgment only when there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Chertkova v. Connecticut
Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). When
analyzing the motion, the court's function "is not to weigh the
evidence, make credibility determinations or resolve issues of
fact, but rather to determine whether, drawing all reasonable
inferences from the evidence presented in favor of the nonmoving
party, a fair-minded jury could find in the non-moving party's
favor." Beatie v. City of New York, 123 F.3d 707, 710-11 (2d
Cir. 1997) (citing United States v. Rem, 38 F.3d 634, 644 (2d
Cir. 1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party
bears the initial burden of "informing the . . . court of the
basis for its motion, and identifying those portions of `the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which
it believes demonstrate the absence of a genuine issue of
material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once
the moving party satisfies this standard, the burden shifts to
the nonmoving party to set forth specific facts indicating that
genuine issues of material fact exist. Cifarelli v. Village of
Babylon, 93 F.3d 47, 51 (2d Cir. 1996). In opposing the motion,
the non-moving party may not merely rely upon the pleadings, but
"must set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). Where the evidence in the
record could reasonably support a verdict in favor of the
non-moving party, the court must deny the moving party's motion.
Beatie, 123 F.3d at 711 (citing Anderson, 477 U.S. at 252,
106 S.Ct. 2505). However, "[w]here the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party," the Court will grant the moving party's
motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Construing the evidence in the light most favorable to
Plaintiff, the facts are as follows. Plaintiff began his
employment with the New York State Department of Correctional
"DOCS") as a correction officer at the Coxsackie Correctional
Facility (hereinafter "Coxsackie") in December 1992. About six
months later, Plaintiffs co-workers began a persistent campaign
of verbally harassing and abusing him. An admitted homosexual,
Plaintiff was routinely called names such as "faggot,"
"pervert," "homo," and "queer." Plaintiffs co-workers often made
derogatory comments to Plaintiff and mistreated him on the basis
of his homosexuality, but when Plaintiff complained to his
supervisors, no action was taken. In addition, Plaintiffs
supervisors contributed to the harassing environment by
requiring Plaintiff to submit more documentation than his
co-workers whenever he took medical leave and, at one point, by
ordering that Plaintiffs personal firearm be confiscated.
When it became clear to Plaintiff that his supervisors at
Coxsackie were unwilling to address or resolve his grievances,
he sought assistance from Defendant, which was required to
represent him under the terms of the Collective Bargaining
Agreement that it had executed with DOCS. In response,
Defendant's representatives failed to act on Plaintiffs claims
and repeatedly told him that his claims were stupid. In contrast
to other employees who sought representation from Defendant,
Plaintiff was required to draft his grievances himself and had
to plead with Defendant to take any action on his behalf.
Moreover, at one point, Plaintiff overheard one of Defendant's
attorneys, who was supposed to be representing him, refer to him
as "David Martin, the faggot." When Plaintiff became
disenchanted with the environment in which he was forced to work
and quality of Defendant's representation of him in the pursuit
of his grievances, he filed Charges of Discrimination with the
Equal Employment Opportunity Commission. Upon receiving notice
of his right to sue, Plaintiff filed suit in federal court. In
addition to the claims that Plaintiff brings against the other
Defendants in the case, Plaintiff sues Defendant on the grounds
that it violated his federal and state civil rights, conspired
with the other Defendants to deprive him of his equal protection
rights, and breached its duty of fair representation. The Court
addresses each of these grounds below.
A. Plaintiffs Civil Rights Claims
In his complaint, Plaintiff alleges that Defendant
discriminated and retaliated against him, in violation of his
rights under Title VII, as amended, 42 U.S.C. § 2000e-2(c) and
2000e-3(a), and the New York Human Rights Law (the "HRL"),
N.Y.Exec.Law § 296(1)(c), (e). It is well-settled that claims
brought pursuant to the Human Rights Law are evaluated under an
identical standard as those brought pursuant to Title VII.
Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995),
abrogated on other grounds by Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)
(citations omitted). Accordingly, the Court will evaluate
Plaintiffs federal and state civil rights claims simultaneously
and with reference to both federal and state law.
1. Defendant's Discriminatory Conduct
Title VII and the HRL make it unlawful for a labor
organization to discriminate against any individual because of
that individual's sex. 42 U.S.C. § 2000e-2(c)(1); N.Y.Exec.Law §
296(1)(c). Although there are two forms of sexual harassment,
quid pro quo harassment and hostile work environment harassment,
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106
S.Ct. 2399, 91 L.Ed.2d 49 (1986), only hostile work environment
harassment is at issue here. To prevail on this claim, Plaintiff
must show that: (1) Defendant breached its duty of fair
representation by allowing an alleged breach of the Collective
Bargaining Agreement to stand uncorrected; and (2) Defendant's
actions were motivated by animus toward a protected group.
Badlam v. Reynolds
Metals Co., 46 F. Supp.2d 187, 199 (N.D.N.Y. 1999) (citations
omitted). Further, a plaintiff need not show that the harassment
involved sexual advances or other explicitly sexual conduct.
Galdieri-Ambrosini v. National Realty & Dev. Corp.,
136 F.3d 276, 289 (2d Cir. 1998). The plaintiff must demonstrate,
however, that the harassing conduct was based on gender and that
it was sufficiently severe or pervasive to create a hostile
environment. Id. (citations omitted).
In its Motion, Defendant argues that Plaintiffs claims of
discrimination under Title VII and the HRL should be dismissed
for failure to satisfy the second prong of his prima facie case
because neither statute recognizes sexual orientation as a
protected class. It is true that, however desirable it is as a
matter of policy to redress discrimination on the basis of
sexual orientation, the Second Circuit has suggested that it is
not actionable under current law. DeCintio v. Westchester
County Med. Ctr., 807 F.2d 304, 307 (2d Cir. 1986) (citing with
approval those cases that narrowly construe Title VII and hold
inactionable non-traditional claims, such as those based on
sexual orientation). Most other courts that have considered the
issue agree that neither Title VII nor the HRL currently
provides an avenue for relief based upon sexual orientation.
See, e.g., Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 259 (1st Cir. 1999) (no cause of action under Title
VII); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745,
751-52 & n. 3 (4th Cir. 1996) (same); Williamson v. A.G.
Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (same);
Carrasco v. Lenox Hill Hosp., 2000 WL 520640, at *8 (S.D.N.Y.
Apr. 28, 2000) (same); Simonton v. Runyon, 50 F. Supp.2d 159,
163 (E.D.N.Y. 1999) (same); Nacinovich v. Tullet & Tokyo Forex,
Inc., 257 A.D.2d 523, 524, 685 N.Y.S.2d 17, 18 (1st Dep't 1999)
(no cause of action under N.Y.Exec.Law § 296(1)); Petri v. Bank
of New York Co., Inc., 153 Misc.2d 426, 428-29, 582 N.Y.S.2d 608,
610 (N.Y.Sup.Ct. 1992) (same). Thus, if sexual orientation
were the only reason proffered by Plaintiff in support of his
discrimination claims, the Court would be inclined to grant
Defendant's Motion on these grounds.
Plaintiff avers, however, that Defendant subjected him to
degrading and humiliating treatment because he did not match the
social stereotypes associated with his gender.*fn2 As the
Second Circuit has noted, "[e]vidence of sexual stereotyping may
provide proof that an . . . abusive environment was based on
gender." Galdieri-Ambrosini, 136 F.3d at 289 (citing Price
Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989) (superseded by statute on other
grounds)); Lindahl v. Air France, 930 F.2d 1434, 1439 (9th
Cir. 1991). As with other claims of sexual harassment, to
prevail on this claim, the plaintiff must show that members of
one sex are subjected to disadvantageous terms or conditions of
employment to which members of the opposite sex are not exposed.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80,
118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126
L.Ed.2d 295 (1993) (Ginsburg, J. concurring)).
The Second Circuit has analyzed a plaintiffs ability to
prevail in a gender discrimination case based upon sexual
stereotyping in a number of different factual scenarios. In a
case based upon discrimination in promotion, the Second Circuit
affirmed the dismissal of the complaint where the female
plaintiff neither alleged that she had been denied a promotion
in favor of a man nor provided evidence that she had ever
competed with a male employee for a promotion. Malarkey v.
Texaco, Inc., 704 F.2d 674, 674-75 (2d Cir. 1983) (per curiam).
In another case, the Second Circuit affirmed the district
court's granting of judgment as a matter of law where a female
employee alleged that she was subjected to sexual discrimination
based upon stereotype because there was no evidence that
similarly situated men were subjected to different terms and
conditions in employment than she. Galdieri-Ambrosini, 136
F.3d at 290-91. Finally, the Second Circuit recently rejected a
male plaintiff's claim that his dismissal for sexual harassment
violated Title VII because there was no ...