A. Duty of Fair Representation and Title VII
Agosto argues that COBA failed to represent her fairly because
of her gender, or alternatively, for retaliatory reasons, and
thereby violated Title VII. A union owes a duty of fair
representation to those on whose behalf it acts. This duty
derives "from the union's statutory role as exclusive bargaining
agent." Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65,
74, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). The duty of fair
representation was developed in a series of cases involving
allegations of racial discrimination by unions, id. at 76, 111
S.Ct. 1127, wherein the Supreme Court recognized that "`the
exercise of a granted power to act in behalf of others involves
the assumption toward them of a duty to exercise the power in
their interest and behalf.'" Id. at 74, 111 S.Ct. 1127 (quoting
Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 202, 65
S.Ct. 226, 89 L.Ed. 173 (1944)); see also Vaca v. Sipes,
386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
The duty of fair representation requires a union "`to serve the
interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct.'" O'Neill, 499
U.S. at 76, 111 S.Ct. 1127 (quoting Vaca, 386 U.S. at 177, 87
S.Ct. 903). A union breaches this duty when its actions are
"`arbitrary, discriminatory, or in bad faith.'" Id. at 67, 87
S.Ct. 903 (quoting Vaca, 386 U.S. at 190, 87 S.Ct. 903). The
actions of a union "are arbitrary only if, in light of the
factual and legal landscape at the time of the union's actions,
the union's behavior is so far outside a wide range of
reasonableness as to be irrational." Id. (internal quotation
omitted). The duty of fair representation applies to all union
activity, id., and in all "instances in which a union is acting
in its representative role," id. at 77, 87 S.Ct. 903.
Under Title VII, it is unlawful for a labor union "to exclude
or to expel from its membership, or otherwise discriminate
against, any individual because of his race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(c)(1) (emphasis
added). It is well established that a union's breach of its duty
of fair representation may subject it to liability under Title
VII. See Cooper v. Wyeth Ayerst Lederle, No. 98 Civ. 1865(CM),
2000 WL 973628, at *18 (S.D.N.Y. June 9, 2000); Gorham v.
Transit Workers Union of Am., AFL-CIO, Local 100, NYCTA, No. 98
Civ. 313(JGK), 1999 WL 163567, at *3 (S.D.N.Y. Mar.24, 1999),
aff'd, 205 F.3d 1322 (2000) (Table); Nweke v. Prudential Ins.
Of Am., 25 F. Supp.2d 203, 220 (S.D.N.Y. 1998); Morris v.
Amalgamated Lithographers of Am., Local One, 994 F. Supp. 161,
169 (S.D.N.Y. 1998); Blaizin v. Caldor Store # 38, No. 97 Civ.
1604(DAB), 1998 WL 420775, at *2 (S.D.N.Y. July 27, 1998); Ross
v. Communication Workers of Am., Local 110, No. 91 Civ.
6367(LAP), 1995 WL 351462, at *5-*6 (S.D.N.Y. June 9, 1995),
aff'd, 100 F.3d 944 (2d Cir. 1996) (Table); Tabois v. CWA Local
1101, No. 89 Civ. 4921(MBM), 1992 WL 131038, at *4 (S.D.N Y
June 1, 1992); Dolittle v. Ruffo, No. 88-CV-1175, 1990 WL 2648,
at *3 (N.D.N.Y. Jan.16, 1990); Morpurgo v. Board of Higher Ed.,
423 F. Supp. 704, 717 (S.D.N.Y. 1976). For example, a labor union
"otherwise discriminate[s]" in violation of Title VII when it
fails to represent one of its members in the grievance process
because of that member's race, color, religion, sex, or national
origin. See Goodman v. Lukens Steel, 482 U.S. 656, 667-69, 107
S.Ct. 2617, 96 L.Ed.2d 572 (1987) (holding that union violated
Title VII by following a policy of refusing to file grievable
racial discrimination claims);*fn9 Johnson v. Palma, 931 F.2d
203, 208 (2d Cir. 1991) (holding that a union violates Title VII
when it fails to file a grievance alleging discrimination "`on
the ground that the employer looks with disfavor on . . . such
grievances'" (quoting Goodman, 482 U.S. at 669, 107 S.Ct.
2617)); Ross, 1995 WL 351462, at *6.
The duty of fair representation and Title VII plainly overlap
in that they both prohibit discrimination; indeed, some courts
essentially equate the two. See, e.g., Tabois, 1992 WL 131038,
at *4; see also Nweke, 25 F. Supp.2d at 220; Ross, 1995 WL
351462, at *6. Consequently, where a plaintiff claims that a
union violated Title VII based on its failure to represent a
member, courts in this Circuit generally incorporate the duty of
fair representation as one of the elements of the alleged Title
VII violation. See, e.g., Gorham, 1999 WL 163567, at *2;
Nweke, 25 F. Supp.2d at 220-21; Morris, 994 F. Supp. at 169;
Ross, 1995 WL 351462, at *5; Dolittle, 1990 WL 2648, at *3.
Based on the foregoing, the Court concludes that a union violates
Title VII when it breaches its duty of fair representation
because of race, color, religion, sex, or national origin.
The test set forth above differs from a test applied frequently
in this Circuit which is sometimes referred to as the "Bugg
test." Prior to the Supreme Court's decision in O'Neill, the
Seventh Circuit in Bugg v. International Union of Allied Indus.
Workers, Local 507, 674 F.2d 595 (7th Cir. 1982), enunciated a
test for evaluating Title VII claims based on a union's failure
to represent a member. The Seventh Circuit explained that
To establish a claim against the Union, the plaintiff
was required to show: (1) that the company committed
a violation of the collective bargaining agreement
with respect to the plaintiff; (2) that the Union
permitted that breach to go unrepaired, thus
breaching its own duty of fair representation; (3)
that there was some indication that the Union's
actions were motivated by racial animus.
Id. at 598 n. 5; see also Greenslade v. Chicago Sun-Times,
Inc., 112 F.3d 853, 866 (7th Cir. 1997) (applying same test).
This test has been adopted by some courts in this Circuit, see,
e.g., Gorham, 1999 WL 163567, at *3; Nolan v. Epifanio, No. 96
Civ. 2562(JSR), 1998 WL 665131, at *4 (S.D.N.Y. Sept.28, 1998);
Ross, 1995 WL 351462, at *2, and indeed, was applied by this
Court in the December 30, 1998 Opinion and Order denying COBA's
motion to dismiss this case. Other courts in this Circuit have
modified the Bugg test and determined that a plaintiff need
establish only the last two elements of this test. See, e.g.,
Cooper, 2000 WL 973628, at *22; Nweke, 1998 WL 760176, at *17;
Morris, 994 F. Supp. at 170; Doolittle v. Ruffo, No.
88-CV-1175, 1996 WL 159850, at *4 (N.D.N.Y. Mar.27, 1996).
Having had further opportunity to consider the appropriate
standard, the Court finds that the Bugg test, which arose in
the context of an alleged breach of a collective bargaining
agreement, is too narrow a statement of the law. A Title VII
claim may lie when there is a breach of the duty of fair
representation outside the context of a breach of a collective
bargaining agreement. There is nothing in the language of Title
VII or in the Supreme Court's decision in Goodman to suggest
otherwise. To the contrary, it is well established that a breach
of the collective bargaining agreement is not required to
establish a breach of the duty of fair representation. See,
e.g., Breininger v. Sheet Metal Workers Int'l Ass'n,
493 U.S. 67, 82-83, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989); Lewis v.
Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1145 (2d Cir. 1994).
Furthermore, as the court in Doolittle concluded after careful
analysis, see 1996 WL 159850, at *4, courts in this Circuit,
citing the first element of the Bugg test, have not generally
found it necessary to apply it, and thus, reference to this
element largely remains dicta. See, e.g., Nolan, 1998 WL
665131, at *4; Ross, 1995 WL 351462, at *10-*12; Gorham, 1999
WL 163567, at *3.
Even those district courts in this Circuit that have applied
the modified Bugg test were confronted only with allegations
that a union breached its duty of fair representation in relation
to the grievance process. Consequently, the references to that
aspect of the second element of the Bugg test that limits Title
VII claims to those based on the failure to represent in
connection with a breach of a collective bargaining agreement are
Finally, even the third element of the Bugg test is flawed.
To the extent that it requires a union's actions to be motivated
by discriminatory animus, it is inapplicable to claims against a
union under a disparate impact theory of discrimination. For
example, in Goodman, the Supreme Court held that "[a] union
which intentionally avoids asserting discrimination claims . . .
so as not to antagonize the employer . . . is liable under . . .
Title VII . . . regardless of whether, as a subjective matter,
its leaders were favorably disposed toward minorities."
Goodman, 482 U.S. at 669, 107 S.Ct. 2617 (internal quotation
omitted); see also Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d
Cir. 1992) (remanding to district court to consider plaintiff's
disparate impact discrimination claim based on union's failure to
In sum and to reiterate, all that is required to state a Title
VII claim against a union is a breach of the duty of fair
representation because of race, color, religion, sex, or national
B. Discrimination Based on the Union's Refusal to Process
Agosto's Sexual Harassment Complaint Against DOC
Agosto argues that the Union discriminated against her in
violation of Title VII when it rejected her request to file a
sexual harassment grievance against DOC. A union's deliberate
refusal to file grievable discrimination claims violates Title
VII. See Goodman, 482 U.S. at 667-69, 107 S.Ct. 2617; see also
Johnson, 931 F.2d at 207 (refusal to proceed with grievance
process because of the filing of an EEOC complaint constitutes
retaliation in violation of Title VII); Morris, 994 F. Supp. at
170. A plaintiff attempting to establish such a violation of
Title VII need not prove discriminatory animus. See Goodman,
482 U.S. at 669, 107 S.Ct. 2617.
The Union argues that because the CBA does not prohibit sexual
harassment, sexual harassment is not grievable. The Union
contends that sexual harassment complaints must instead be
referred to DOC's EEO office.
The CBA defines a grievance, in relevant part, as
a claimed violation, misinterpretation or
misapplication of the rules, regulations, or
procedures of the agency affecting terms and
conditions of employment, provided that . . . the
term "grievance" shall not include disciplinary
CBA Art. XXI, Section 1(b). DOC has had an EEO policy prohibiting
sexual harassment in place since at least 1993. The policy is
enforced through Departmental rules and regulations.