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August 11, 2000


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.


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 afternoons. Id.

On Friday, November 1, 1996 at about 3:30 p.m., Hussein attended roll call along with other waiters seeking job referrals. Meade Aff. ¶¶ 3-4. During roll call, a fight broke out among Hussein and two waiters of Greek national origin and Christian faith — Paris Paroussiadis and Zenon Constantine — neither of whom had ever criticized the Union. Id. ¶ 4. Union security and several Union officers, including Meade and Marvin Jefferson, President of Local 6, ran to the auditorium to restore order and resume the roll call. Id.

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 original).

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 (2000).

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 ...

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