The opinion of the court was delivered by: Cote, District Judge.
Plaintiff Blanca Agosto ("Agosto") filed this action pro se
on October 14, 1998, seeking redress for alleged discrimination
and retaliation by her union, defendant Correction Officers'
Benevolent Association ("COBA" or "Union"), in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
("Title VII"). Following this Court's December 30, 1998 denial of
a motion to dismiss, Agosto retained counsel. Discovery has been
completed and COBA now moves for summary judgment to dismiss the
entire action. For the following reasons, the motion is denied in
part and granted in part.
Agosto principally complains that her union representative
participated in and encouraged a campaign of sexual harassment
and retaliation by her fellow corrections officers. She accuses
COBA of failing both to discipline that representative and to
represent and protect her in the workplace. According to Agosto,
those failures encouraged her fellow officers to discriminate and
retaliate against her for her complaints about sexual harassment.
The following facts are either undisputed or as described by the
plaintiff and her former partner, Amado Pla ("Pla"), unless
Agosto was employed by the New York City Department of
Corrections ("DOC") and was a member of COBA from 1981 until
1998. Beginning in 1991, she was assigned to the Bellevue
Hospital Prison Ward ("Bellevue"). During the period 1995 to
1996, Agosto was assigned to the day shift on that ward with
nineteen other officers. In late 1995, a fellow officer showed
Agosto sexually explicit photographs of female Corrections
Officer Lydia Soler ("Soler") that Soler had been showing in the
workplace. The officer also suggested that Agosto pose with him
for a similar photograph. After Agosto complained to Soler about
the photographs, tensions developed between the two women,
culminating in a physical altercation between them in January
1996. When the Deputy Warden interviewed Agosto in February 1996
about this incident, Agosto explained that she had asked Soler to
stop displaying sexually explicit photographs. The Deputy Warden
responded that he did
not consider Soler's photographs to be offensive and that to his
knowledge Soler had been showing such photos since long before
the Deputy Warden's employment at Bellevue.
Agosto's Report to DOC/EEO and its Aftermath
On February 14, 1996, Agosto went to the DOC Equal Employment
Opportunity Office ("DOC/EEO") and described both the photographs
and the Deputy Warden's response to her complaints.*fn1 She
indicated that she did not yet wish to file a formal complaint.
Agosto requested that the DOC/EEO office keep the conversation
The very next day, February 15, the Deputy Warden reprimanded
Agosto for complaining about him to the EEO. He threatened to
transfer her and asked for a written report of the altercation
with Officer Soler. When Agosto gave him the report, he directed
her to leave out any reference to the photographs.*fn2
Agosto's DOC/EEO Complaint and Requests to COBA for
On February 16, Agosto faxed a written complaint to DOC/EEO.
Agosto has not provided a copy of that complaint, but it
apparently alleged that she was a victim of sexual harassment.
Although Agosto was not on good terms with her union delegate
Ronald Hendrickson ("Hendrickson"), she complained to him and to
COBA president Norman Seabrook ("Seabrook") about the Deputy
Warden's handling of her complaint regarding sexual harassment.
Both said they would look into these issues. Agosto also asked
for Hendrickson's assistance with her sexual harassment
complaint. Agosto attempted to follow up with Hendrickson, but
Hendrickson did not respond. These conversations with Hendrickson
and Seabrook apparently constitute Agosto's request that COBA
assist her in pursuing a sexual harassment grievance. COBA does
not dispute this characterization.
Hendrickson then began making derogatory comments about women,
calling Agosto names, and criticizing Agosto to other officers.
At some point, Agosto caught Hendrickson going through her
personnel file and later heard him tell others that she had been
disciplined, suspended, and administratively transferred. Agosto
called the Union to complain that Hendrickson had used his
position as a union delegate to get a copy of her personnel
On March 6, Seabrook wrote to Agosto stating that he had
forwarded her DOC/EEO complaint to a COBA attorney and had asked
the attorney to assist Agosto in any way possible.*fn3 He added
that COBA does not handle DOC/EEO complaints. Thereafter, two
attorneys representing COBA separately advised Agosto that COBA
could not assist her because sexual harassment issues were not
Agosto's New York State Division of Human Rights Complaint
On March 20, 1996, Agosto filed a complaint with the New York
State Division of Human Rights against DOC complaining of sexual
harassment and retaliation. Soon after filing the complaint,
Agosto discovered a sexually explicit photo of Soler in her
Agosto's First Two Complaints Filed with COBA About Hendrickson
Agosto and Pla complained to COBA Vice President Israel Rexach
("Rexach") about the situation, and on April 3, 1996, Agosto
filed a complaint against Hendrickson with COBA. The two-page
written complaint accused Hendrickson of not using objective
criteria to judge situations, of being misguided and uninformed
about his duties as a union delegate, of relying on the Deputy
Warden, and of retaliating against her in response to her
complaint to DOC/EEO. Agosto also accused Hendrickson of making
unspecified rude comments to her and of showing "playboy
magazines" to other officers. Although Rexach met with
Hendrickson once in April regarding the problems with Agosto and
Pla, he did not question Hendrickson specifically about the
allegations of sexual harassment and retaliation.
On May 17, 1996, Agosto sent a memorandum to Seabrook
containing a grievance against the Deputy Warden. The memorandum
again complained about Hendrickson, specifically that he was
spreading false rumors about her and looking at sexually explicit
materials in the workplace. In the memo, Agosto requested legal
representation for her "Step II Grievance."*fn4 On May 20, 1996,
Agosto filed a second complaint with COBA against Hendrickson,
alleging that he had engaged in dishonesty as a union
representative, conspiracy with management, retaliation, and
failure to represent her. On that same date, Agosto's partner
filed a grievance with DOC/EEO alleging retaliation for his
having supported Agosto's DOC/EEO complaint.
Failure to Provide Representation
On May 21, 1996, Agosto was required to attend a "corrective
interview" on charges that she had failed to salute a superior
officer, had failed to respond to an alarm, and had been
unprofessional while on duty. As described in a COBA newsletter,
[t]he COBA members have a right to representation at
any formal or informal meeting where disciplinary
charges may be brought. . . . The union recommends
that you call your Delegate for assistance with any
kind of inquiry.
A summary of COBA members' due process rights advises members
that for a "command discipline" interview,
[i]n the event your union rep. is not available you
may contact the union for central representation. And
the COBA must notify DOC Office of Labor Relations to
allow that office to make necessary arrangements to
allow an Executive Board member to be present at the
Agosto's Third and Fourth Complaints to COBA About Hendrickson
On May 24, Agosto filed a third written complaint with COBA
against Hendrickson, asserting that he had failed to represent a
union member. She again recounted various rude and accusatory
remarks that Hendrickson had made to her. She described various
sexual harassment complaints she had made against DOC and
reported her fear that she would be transferred. This fear, she
stated, was based on Hendrickson's threats and his comments that
Pla and another officer had already been transferred as a result
of their support of her. She concluded by asking how the Union
could permit its own representative to discriminate.
Agosto also called the Union to request that a COBA Executive
Board member or "someone neutral" represent her at a disciplinary
proceeding scheduled for June 4, 1996.*fn6 No one from COBA
attended the June 4 hearing to assist her. As various
disciplinary charges were filed by DOC against Agosto,
Hendrickson made comments to Agosto expressing his pleasure that
she was being disciplined.
On May 26, 1996, Hendrickson filed his own complaint with
DOC/EEO against Agosto charging her with aggressive sexual
conduct in the workplace. Pla contends that the charges were
false and were intended by Hendrickson to provide protection
against Agosto's complaints about him.
On May 30, 1996, a COBA attorney wrote to Agosto's private
attorney requesting that she ask Agosto to contact him at his
office "so that we can aggressively pursue her complaint with the
Department of Correction." As the DOC/EEO investigation of
Agosto's complaint began in June 1996, fellow officers, with
Hendrickson's encouragement, continued to ostracize Agosto.
Agosto's calls to Rexach about the situation went unreturned.
On June 3, 1996, Agosto wrote for a fourth time to Seabrook
complaining about Hendrickson and the Union's failure to
represent a member. She accused Hendrickson of revealing
information about her that ...