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July 24, 2000


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 otherwise indicated.

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 confidential.

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 Assistance

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 records.

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 grievable.

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 mailbox.

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 interview.

Agosto asked Rexach for a COBA representative other than Hendrickson to attend the May 21 corrective interview with her. No COBA representative appeared at the interview and Agosto refused to sign the report of the interview because she had been "without representation."*fn5

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 ...

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