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February 6, 2003


The opinion of the court was delivered by: John F. Keenan, United States District Judge


Procedural Background

Plaintiff Rosalee Scott ("Scott"), acting Pro Se, brought this litigation against her former employer, Beth Israel Medical Center ("BIMC") and New York Health and Human Services Union 1199/SEIU, AFL-CIO ("Union" or "Local 1199"). Scott seeks to recover damages for her allegedly unlawful discharge by BIMC and for Local 1199's breach of its duty of fair representation. In addition, Scott seeks reinstatement by BIMC. Jurisdiction is based on Title 29 U.S.C. § 135, which is the codification within the United States Code of Section 301 of the Labor Management Relations Act of 1947. Pursuant to Fed.R.Civ.P. 56, BIMC moves for summary judgment and Local 1199 moves to dismiss the complaint.*fn1 Prior to the completion of discovery and the briefing of this motion for summary judgment, Scott obtained counsel and filed an Amended Complaint.

Standard of Review

This Court may grant summary judgment only if the moving party is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S. Fire Insur. Co., 804 F.2d 9, 11 (2d Cir. 1986). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11; see also First Fed. Sav. & Loan Ass'n, 869 F.2d at 103 (stating that to resolve a summary judgment motion properly, a court must conclude that there are no genuine issues of material fact, and that all inferences must be drawn in favor of the non-moving party)

The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. See id.; Silver, 947 F.2d at 1022.

The opposing party may not solely rely on its pleadings, on conclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present specific evidence supporting its contention that there is a genuine material issue of fact. See Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact," then summary judgment must be denied. Schering Corp. v. Home Insur. Co., 712 F.2d 4, 9-10 (2d Cir. 1983). The Court will analyze the instant motion in accordance with these principles, relying only on those facts on which the parties all agree.


The Parties and the CBA

BIMC is a full-service tertiary*fn2 teaching hospital with divisions throughout Manhattan and Brooklyn, New York. See BIMC Mem. Supp. Summ. J. at 3. St. Luke's-Roosevelt Hospital Center ("St. Luke's") is a full-service community and tertiary care hospital located at 114th Street and Amsterdam Avenue in Manhattan. See id. In January of 1997, BIMC and St. Luke's combined to form Continuum Health Partners, Inc. ("Continuum") Today, Continuum delivers inpatient care at seven hospital facilities in Manhattan and Brooklyn. See id.

Local 1199 is an affiliate of the Services Employees International Union and AFL-CIO and represents voluntary hospital workers. Headquartered in New York City, Local 1199 represents employees, including transcriptionists, of Continuum. See id.

Plaintiff Scott was employed by BIMC from February 6, 1987 until June 7, 2000 as a transcriptionist in the hospital's Department of Radiology. See Pl. Decl. Opp. Summ. J. ¶ 4.*fn3 Beginning in 1994, Scott worked at BIMC's 215 Park Avenue location. See Pl. Dep. Tr. 22. Scott's primary responsibility was to type radiology reports, apparently dictated by the Radiology Department's medical staff, using special computer software. See Pl. Decl. Opp. Summ. J. ¶ 4.

As a transcriptionist on BIMC's payroll as of December 21, 1994, the terms of Scott's employment were covered by the collective bargaining agreement ("CBA") between BIMC and Local 1199. See BIMC Mem. Supp. Summ. J. at 4. Included as part of the CBA is the Agreement on Displacement and Training ("ADT"), negotiated and entered into by the Union and BIMC in October of 1998. The ADT became part of the CBA.*fn4 See id. The purpose of the ADT is to provide those employees who are displaced with an option other than termination and severance. Displaced employees are eligible, provided they are covered by the CBA, for retraining, as needed, and placement in another position within BIMC. See id. The procedures for determining eligibility, retraining and placement are set forth in the ADT.

Scott's Displacement

At a September 23, 1999 meeting, a BIMC administrator informed Scott and the other BIMC radiology transcriptionists that their unit would be consolidated with St. Luke's radiology transcription unit, effective January 3, 2000. The administrator told the employees that they would receive a formal confirmation letter regarding the merger in the near future. Although the administrator indicated that some transcriptionists would be displaced, Scott was told that she would be retained. See id. at 5. Scott's workplace, however, would be moved from 215 Park Avenue to St. Luke's 114th Street location. See id. at 5-6; Pl. Decl. Opp. Summ. J. ¶ 8.

Scott, not wanting to work at the St. Luke's location because it was not located near enough to her home, used the notice as an opportunity to explore other employment opportunities within BIMC. Scott applied for two secretarial positions, one in the Department of Medicine and the other in the Department of Nurse Education. Scott was not interviewed for the Department of Medicine position, and was informed by a BIMC recruiter that she was not qualified for the Department of Nurse Education position. According to the recruiter, Scott lacked the necessary background in payroll administration, Microsoft Word and Excel. See Pl. Decl. Opp. Summ. J. ¶ 8. On December 1, 1999, the members of Scott's unit received thirty-days written notice of the consolidation; and on January 3, 2000, Scott began working at the St. Luke's location. See id. ¶ 9.

On April 14, 2000, Local 1199 representative John Adler ("Adler") informed Maria Maldonado ("Maldonado") and Arlene McQuilkin ("McQuilkin"), two members of Scott's unit with less seniority than her, that as a result of the consolidation they would be displaced effective May 20, 2000. Upon learning of the displacements from McQuilkin, Scott telephoned Adler to request that she too be displaced. Scott told Adler that she was unhappy working at 114th Street and wanted to return to BIMC. Scott suggested that she be allowed to take the place of a St. Luke's transcriptionist slated to be displaced. Adler explained to Scott that he did not believe that such a swap could be arranged, but that he would at least discuss the possibility with the management of the two hospitals. Later that day, Scott sent a letter to the BIMC Department of Radiology's chairman, Dr. Michael Abiri, informing him of her desire to be displaced. The next day, Scott sent a follow-up letter to Adler. See id. ¶¶ 10-11.

Adler pursued Scott's request to be displaced with the hospitals' management, and on May 10, 2000, he telephoned Scott to tell her that her request would be granted. Adler faxed a displacement agreement to Scott for her to sign. See Id. ΒΆ 13. The agreement, among BIMC, the Union and Scott, indicated that Scott expressed a desire to be terminated; that the Union had informed her of her rights under the CBA; and that "Ms. Scott has elected to waive her right under her collective bargaining agreement to retain her position as a Typist Transcriptionist, and will be treated as a protected, displaced Employee pursuant to the terms of the collective bargaining agreement that exists between Beth Israel Medical Center and Local ...

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