The opinion of the court was delivered by: Robert L. Carter, United States District Judge
Plaintiff, LaVien Sales, commenced this action against the YM & YWHA of Washington Heights and Inwood ("Y"); District Council 1707, Community and Social Security Agency Employees Union AFSCME, AFL-CIO; Casandra Cox, as President of District Council 1707, Community and Social Security Agency Employees Union, AFSCME, AFL-CIO; Local 215, District Council 1707, Community and Social Security Agency Employees Union, AFSCME, AFL-CIO; and Brenda Stokely ("Stokely"), as President of Local 215, District Council 1707, Community and Social Security Agency Employees Union, AFSCME, AFL-CIO ("Union").
Plaintiff sues the Y claiming racial discrimination, hostile work environment due to sex and race-based harassment, and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and employment discrimination under the New York State Human Rights Law and the New York City Human Rights Law. Plaintiff also brings a hybrid § 301 and duty of fair representation ("DFR") suit pursuant to 29 U.S.C. § 185, alleging breach of the collective bargaining agreement ("CBA") by the Y and breach of the Union's duty of fair representation to plaintiff.
The Union and Y move for summary judgment pursuant to Rule 56, F.R.Civ.P., on plaintiff's § 301/DFR claim and the Y seeks summary judgment on plaintiff's claims under Title VII and the New York City Human Rights Law. The Union also seeks attorney's fees and costs pursuant Rule 54(d), F.R.Civ.P.
The relevant facts construed in the light most favorable to plaintiff are as follows. Plaintiff, a black male, was hired by the Y as a porter/driver in October 1998. (Pl.'s Aff. ¶ 2.) He was a member of the Union and covered by the CBA.*fn1 (Joint Pre-Trial Order, § VII, ¶ 6.) Plaintiff's responsibilities were to clean the first floor of the Y's facility and drive the Y's vans and buses. (Joint Pre-Trial Order, § VII, ¶ 7, 11.) Plaintiff was supervised by Pedro Hernandez, Director of Facilities, although David Crespo, Assistant Superintendent, stepped in if Hernandez was unavailable. (Pl.'s Dep. at 20; Englisher Aff. ¶ 7.)
Plaintiff endured a steady stream of ridicule and insult due to his race while working at the Y. For example, Hernandez, Crespo, and his coworkers repeatedly referred to plaintiff as the racial epithet "Bolunga."*fn2 (Pl.'s Dep. at 64-5.) Crespo would state "fuck the black guy" in plaintiff's presence and frequently express his desire that plaintiff be fired. (Pl.'s Aff. ¶ 5.) On one occasion, Hernandez and a coworker insinuated that plaintiff used to be a slave in Alabama. (Pl.'s Aff. ¶ 5.) Hernandez and plaintiff's coworkers also found it amusing to place plaintiff's uniforms on a gorilla.*fn3 (Pl.'s Aff. ¶ 6.)
The ridicule and insult followed plaintiff on his off-hours when plaintiff and his coworkers would play basketball together. Crespo repeatedly mocked plaintiff as the "only black person who could not play basketball." (Pl.'s Aff. ¶ 5; Pl.'s Dep. at 147-8.) After one game, a police academy cadet stationed at the Y, Teddy Lopez, told plaintiff he played "like an animal." (Pl.'s Dep. at 59.)
Plaintiff's cleaning duties in the kitchen brought him into contact with Jacob Murray, the Y's Executive Chef, on a daily basis. (Joint Pre-Trial Order, § VII, ¶ 10; Pl.'s Dep. at 102.) Plaintiff initially found Murray's compliments about plaintiff's good looks innocuous, a comment Murray made about three times. (Pl.'s Dep. at 113.) Plaintiff, however, did not know how to react or what to think when Murray attempted to embrace him on an elevator.*fn4 (Pl.'s Dep. at 107.) Soon after this incident, when plaintiff mentioned to Murray that he wanted to get engaged and Murray responded by saying, "I can cook for you and you could be my husband," plaintiff openly questioned Murray about his intentions toward him and began to reconsider Murray's conduct. (Pl.'s Dep. 113-14.) Murray, however, continued to make plaintiff uncomfortable by repeating the husband comment once (Pl.'s Dep. at 115) and telling plaintiff he had a dream about him.*fn5 (Pl.'s Aff. ¶ 18; Pl.'s Dep. at 119.)
Murray's attentions towards plaintiff included treating him preferentially. Murray would prepare breakfast only for plaintiff and no other staff member and while he did prepare food for other employees to take home, Murray gave plaintiff especially abundant quantities. (Pl.'s Aff. ¶ 18; Pl.'s Dep. at 118.) When Murray offered to buy him an air conditioner in the summer of 1999, plaintiff began to think that Murray was homosexual and interested sexually in plaintiff. (Pl.'s Dep. at 121.)
Plaintiff's rejection of Murray's advances led to increasing tension between the two coworkers. Plaintiff alleges that on one occasion, Murray, out of frustration with plaintiff's (Englisher Aff. Ex. D.)
Following this suspension, plaintiff wrote a letter addressed to Englisher informing him about the hostile treatment that plaintiff endured at the hands of Hernandez, Crespo, the police academy cadets stationed at the Y, and Murray. (Pl.'s Aff. Ex. A.) Plaintiff wrote that he found the lack of respect shown to him by his coworkers upsetting and indicated that on a couple of occasions Murray's conduct drove him to be verbally insubordinate and abandon his responsibilities. (Pl.'s Aff. Ex. A.) Prior to sending the letter, plaintiff requested that Chase review it for him. (Pl.'s Dep. at 170.) Chase obliged and after reviewing the letter, recommended to plaintiff that he should soften its tone.*fn6 (Pl.'s Dep. at 167-68.) Plaintiff initially disagreed with Chase but later concluded that sending the letter would do more harm than good and did not send the letter. (Pl.'s Dep. at 170.)
Soon after his suspension, plaintiff was involved in an incident with Lopez. (Pl.'s Dep. at 56.) While playing basketball at the Y with Lopez and Harry Mendez, plaintiff passed the basketball towards Lopez and it hit him in the face, breaking his glasses. (Pl.'s Dep. at 57.) Instead of resolving the issue between themselves, Lopez found Hernandez and told Hernandez plaintiff intentionally threw the basketball at his face. (Pl.'s Dep. at 57.) Two days later, Hernandez told Englisher about Lopez's complaint and the incident was seemingly forgotten. (Hernandez Dep. at 41.)
Two more incidents involving plaintiff occurred during the winter. On December 16, 1999, plaintiff was given a formal written warning for inappropriate use of the Y's two way radios to reach his supervisors and for disobeying his supervisors. (Pl.'s Dep. at 31-40; Englisher Aff. Ex. E.) Then, on February 15, 2000, plaintiff was suspended two days without pay because the day before he ran out of gas while driving a bus for the Y. (Pl.'s Dep. at 44-8; Englisher Aff. Ex. F.)
Two weeks later on March 1, 2000, in a meeting with Englisher and Hernandez, Englisher confronted plaintiff with allegations of more workplace infractions. (Pl.'s Dep. at 80; Englisher Aff. ¶ 20.) These infractions were: (1) the route plaintiff was taking to return to the Y on his bus routes was unnecessarily long (Pl.'s Dep. at 82); (2) plaintiff was starting the bus before its occupants could sit down (Englisher Aff. ¶ 20); (3) plaintiff was doing personal errands while on the ...