The opinion of the court was delivered by: Scheindlin, District Judge.
Pro se plaintiff Mamdouh Hussein is suing the defendants for
alleged violations of the Labor Management Reporting and
Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq., and Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.*fn1
The Complaint alleges that the Hotel Employees and Restaurant
Union, Local 6 ("Local 6" or the "Union"), Vanessa Meade and
Peter Ward retaliated against Hussein for his criticism of
certain Union policies, in violation of LMRDA §§ 101(a)(1) and
609, 29 U.S.C. § 411(a)(1) and 529.*fn2 Second, the Complaint
alleges that the Union violated Title VII by refusing to change
its longstanding roll call procedures for per diem jobs, thereby
denying Hussein an individualized religious exemption from
attendance at Friday afternoon roll calls. Defendants have moved
to dismiss the Complaint under Federal Rule of Civil Procedure
56(c) on the following two grounds: (1) failure to state a claim
for relief; and (2) failure to exhaust internal Union remedies.
For the following reasons, defendants' motion is granted and the
case is dismissed.
The Union is a labor organization within the meaning of Title
VII and the federal labor laws, representing workers employed at
the overwhelming majority of hotels and motels in the City of New
York. See Affidavit
of Peter Ward, Business Manager of Local 6, dated April 5, 2000
("Ward Aff."). The membership of Local 6 reflects the diversity
of the City of New York as to race, religion and national origin.
Id. § 4. Internal Union affairs are governed in accordance with
the Bylaws of Local 6 and of the New York Hotel & Motel Trades
Council (the "HTC") and the Constitution of the Hotel Employees
and Restaurant Employees International Union, AFL-CIO ("HEREIU"),
with which Local 6 is affiliated. Id. ¶ 10. The terms and
conditions of employment of workers represented by Local 6 are
set forth primarily in the Industry-Wide Agreement ("IWA")
between HTC and the Hotel Association of New York City, Inc. (the
"Hotel Ass'n"), an employer bargaining group, in certain
individual hotel collective bargaining agreements, and in the
practices of the parties and the industry. Id. ¶ 6.
Peter Ward was elected Business Manager of Local 6 in 1996 and
again in 1997 in an election supervised and certified to be free
and fair by the United States Department of Labor. Id. ¶ 3.
Vanessa Meade was appointed Business Agent for Local 6 in 1993
and was elected to be Vice President in 1996 and 1997. See
Affidavit of Vanessa Meade, Vice President of Local 6, dated
April 4, 2000 ("Meade Aff.").
Local 6 operates a referral hall, known as "roll call," which
refers waiters to hotels on an as needed, spot-function basis.
See Affidavit of Adela Maya, Dispatcher of Local 6, dated April
5, 2000 ("Maya Aff.") ¶ 2. Each waiter desiring roll call jobs is
assigned a number maintained on a list of available waiters.
Id. At about 3:30 p.m. on business days, Monday through Friday,
the roll call waiters gather at the Union's Gertrude Lane
Auditorium located at West 44th Street off of Eighth Avenue and
are referred out by the dispatcher by their number in rolling
order. Id. For example, if there is a job requiring 10 waiters,
those present with numbers 1-10 receive a ticket to the hotel for
the referral; if a waiter is not present, the next number is
called.*fn3 Id. The roll call resumes the next day and
continues until all jobs have been announced. Id.
Hotels are obligated by labor agreement to accept waiters
referred by the Union via roll call except where the hotel gives
prior written notice that a waiter is "barred" for misconduct.
Id. ¶ 4. Roll call jobs can pay between $200 and $300 per job
and are in great demand. Id. Members who wrongly believe that
roll call has been administered unfairly have been known to sue
Local 6 in federal court or before the United States National
Labor Relations Board. Ward Aff. ¶ 9. Adherence to the roll call
rules is therefore necessary to insure a fair and orderly process
and comply with the Union's duty of fair representation under
federal labor law. Id.
Plaintiff, who has been employed as a roll call waiter in the
hotel industry since the 1980s, is a member of the Union. See
Affirmation of Barry N. Saltzman, attorney for defendants, in
Support of Defendants' Motion for Summary Judgment, dated April
5, 2000 ("Saltzman Aff."). Plaintiff has participated in "roll
call" under number 217. Maya Aff. ¶ 5. In late 1997, Hussein
first claimed that attending roll call for jobs on Friday
afternoons interfered with his Muslim faith. Id. ¶ 7. Until
then, plaintiff had regularly attended roll call on Friday
As a result of this incident, Meade filed a complaint and the
Union commenced Trial Board disciplinary proceedings against all
three waiters. Id. ¶ 5. The Union notified Hussein,
Paroussiadis and Constantine that each would be barred from
entering the Union premises, including roll call, pending hearing
before the Trial Board. Id. Ex. C. The Union's Trial Board
scheduled a hearing for January 31, 1997 and requested the
appearance of Hussein, Paroussiadis and Constantine. Id. ¶ 6 &
Ex. D. Paroussiadis and Constantine attended, but not Hussein.
Id. The Trial Board therefore adjourned to February 7, 1997 to
permit Hussein to appear. Id.
On February 7, 1997, Paroussiadis and Constantine again
appeared and this time presented evidence and testimony to the
Trial Board. Id. ¶ 11. Hussein, however, again chose not to
attend. Id. ¶ 7. The Trial Board proceeded without Hussein as
authorized by the Union Bylaws and the HEREIU Constitution. Id.
The evidence at the hearing showed that at roll call on Friday,
November 1, 1996, the assistant roll call dispatcher Sharron
Durant informed Hussein that he had been barred by the Hotel
Pennsylvania for a job that day. Id. ¶ 8. Hussein refused to
let roll call proceed until he got his bar letter, thereby
preventing all waiters behind him from getting their jobs. Id.
A near riot then broke out with a resulting melee involving
Hussein, Constantine and Paroussiadis. Id. ¶¶ 9-10.
Following the February 7 hearing, the Trial Board issued its
decision dated March 20, 1997, finding each waiter guilty of the
specified misconduct and imposing an identical penalty on each —
suspension from November 1, 1996 to the effective date of the
Trial Board decision, i.e., time served. Id. ¶ 12.
In or about late August, 1997, Hussein allegedly informed the
Union that because he is a Muslim he could not attend roll call
on any Friday afternoon because of his religious obligations.
See Affidavit of Mamdouh Hussein, dated May 2, 2000 ("Hussein
Aff.") ¶ 18. Initially, Union officials were skeptical of
Hussein's request that he receive jobs despite his absence as he
had attended roll call on Fridays for over ten years. Ward Aff. ¶
19. Nevertheless, Union officials considered the merits of
Hussein's request and learned from Muslims in the Union that
Friday is not an absolute "day of rest" from work in the Muslim
faith. Id. ¶ 18. Rather, a practicing Muslim may work on Friday
so long as he attends a midday service which commences as early
as noon and ends no later than 2:30 p.m. Id. There are numerous
mosques in Manhattan holding Friday services which Hussein could
have attended and still be present at roll call at 3:30 p.m.
Id. In light of the importance of fair referrals to all roll
call waiters under federal labor law, Local 6 denied Hussein's
request. Id. ¶ 19.
A. Standard for Summary Judgment
A motion for summary judgment may be granted only when the
"pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). "[G]enuineness runs to whether disputed
factual issues can reasonably be resolved in favor of either
party, [while] materiality runs to whether the dispute matters,
i.e., whether it concerns facts that can affect the outcome
under the applicable substantive law. A reasonably disputed,
legally essential issue is both genuine and material and must be
resolved at trial." Mitchell v. Washingtonville Cent. Sch.
Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotation marks
and citations omitted).
In assessing the record to determine whether genuine issues of
material fact are in dispute, courts must resolve all ambiguities
and draw all reasonable factual inferences in favor of the
non-moving party. See Nora Beverages, Inc. v. Perrier Group of
Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998) (citation omitted).
The moving party bears the initial burden of demonstrating an
absence of genuine issues of material fact. See Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986)). However, if the moving party meets its initial burden,
the non-moving party may not rely on conclusory allegations or
speculation to create factual disputes. See D'Amico v. City of
New York, 132 F.3d 145, 149 (2d Cir. 1998) (citations omitted),
cert. denied, 524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151
(1998). Instead, the non-moving party "must produce specific
facts indicating that a genuine issue of fact exists. If the
evidence [presented by the non-moving party] is merely colorable,
or is not significantly probative, summary judgment may be
granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)
(internal quotation marks and citations omitted) (alteration in
These principles apply to cases of employment discrimination as
they do other cases. The "`salutary purposes of summary judgment
— avoiding protracted, expensive and harassing trials — apply no
less to discrimination cases than to commercial or other areas of
litigation.'" Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.
1997) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985)). However, courts must be particularly sensitive to the
fact that evidence of discrimination is seldom overt. See
Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999),
cert. denied, ___ U.S. ___, 120 S.Ct. 2688, 147 L.Ed.2d 960
Courts must also "carefully distinguish between evidence that
allows for a reasonable inference of discrimination and evidence
that gives rise to mere speculation and conjecture. . . . Thus,
the question is whether the evidence can reasonably and logically
give rise to an inference of discrimination under all of the
circumstances." Id. And while the court "has an obligation to
read [the pro se party's] supporting papers liberally, and . . .
interpret them to raise the strongest arguments they suggest, . .
., a pro se party's bald assertion, completely unsupported by the
evidence, is not sufficient to overcome a ...