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June 30, 2000


The opinion of the court was delivered by: Ralph W. Smith, Jr., United States Magistrate Judge.


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.

I. Standard of Review

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).

II. Background

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.

III. Discussion

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 ...

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