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United States District Court, Southern District of New York

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. ¶ 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 1199." Id. Ex. 5 (emphasis added). Scott reviewed the agreement with BIMC Employee Relations Manager Randi Karp,*fn5 and on May 15, 2000, Scott signed the agreement and faxed it to Karp.

Attempts to Place Scott in a New Position

On May 24, 2000, Scott met with Zenaida Chape ("Chape"), a BIMC Jobs Recruiter, to evaluate Scott's skills and discuss possible job opportunities. Chape suggested that Scott interview for a secretarial position available in the hospital's Methadone Maintenance Treatment Program, the clinic for which is located at 125th Street in Manhattan. Scott refused to interview for the position because she neither wanted to work in that neighborhood, nor with individuals with drug addictions. According to Scott, Chape told her that she understood her concerns and never raised the job again. See id. ¶¶ 22-23.

Chape next suggested that Scott interview for a secretarial position in BIMC's Food Services Department ("Food Services"). Scott interviewed for the Food Services position on May 30, 2000. Scott claims that during the interview she realized that she was not qualified for the position because she lacked the necessary background in a variety of computer programs and administrative duties. The following day Scott expressed her concern to Chape and requested a temporary assignment and training. Chape scheduled a second interview for the Food Services position, which Scott attended on June 5, 2000. See id. ¶¶ 24-27.

On June 6, 2000, the day after her second interview for the Food Services position, Scott again informed Chape of her belief that she was not qualified for the position. Scott also told Chape that she was not interested in the position, and requested that she be placed in a temporary position until other opportunities became available. According to Scott, Chape informed her that her time to find another position was running out and that there were no other positions available at that time. Scott, upset with Chape's response, contacted Adler to complain about Chape. Adler's response was to encourage Scott to accept the Food Services position and warn her that failing to do so could result in her termination. See id. ¶¶ 28-30.

Later that evening, Chape left a message on Scott's answering machine. Chape informed Scott that she no longer had a position in the Radiology Department, and that she should report to work in Food Services on June 7, 2000. Scott claims that Chape told her to call her back before 5:00 p.m. to let her know whether she was going to accept the Food Services position. Scott left a message on Chape's voicemail stating that she was neither interested in nor qualified for the Food Services position. Scott did not report to work on June 7, 2000. See id. ¶ 31.

Attempts to Get Union to File a Grievance

Scott, believing that BIMC had breached the CBA, wrote Local 1199 President Dennis Rivera ("Rivera") on June 7, 2000 to ask for his assistance. One week later, Scott received a letter from James Pellegrinon ("Pellegrinon"), BIMC's Director of Labor Relations, advising her that she was "considered to have opted for layoff status effective June 7, 2000." Pellegrinon wrote that he had been informed that Scott had "turned down or refused to consider two other positions in the Medical Center due to personal reasons," and that Scott had told Chape that BIMC could "terminate" her. See id. Ex. 9. Scott denies having ever told Chape that BIMC could terminate her. See id. ¶ 35. Upon receiving Pellegrinon's letter, Scott called Adler. According to Scott, "[Adler] scolded me and stated, `You didn't take the job, that's it . . . The Union cannot do anything for you." Id. ¶ 37.

On June 21, 2000, Scott again wrote Rivera, this time requesting that the Union file a grievance on her behalf. She also informed Rivera of the June 28, 2000 deadline for filing a grievance. See id. Ex. 12. On August 1, 2000,*fn6 Scott received a letter in response from Rivera. Rivera wrote that he had "asked Executive Vice President John Reid to look into your concern and attempt to resolve it with you." Scott was advised to contact Rivera's office if she did not get a response within two weeks. Id. Ex. 13. A grievance had not been filed. Scott made no further attempts to contact Rivera or anyone else in Local 1199's management.

Scott subsequently filed a grievance with the NLRB. Her grievance was dismissed on October 31, 2000. Her appeal to the NLRB's Office of the General Counsel was denied on February 12, 2001. See BIMC Mem. Supp. Summ. J. at 13.


Nature of Scott's Claim

Scott alleges that she is the victim of not one, but two separate breaches by two separate defendants. In a strict sense, Scott's complaint comprises two distinct causes of action. Because she is alleging a breach of the CBA by her employer, Scott's suit against BIMC rests on Section 301 of the Labor Management Relations Act (the "Act"). Her suit against the Union is for breach of the duty of fair representation, as implied under the scheme of the Act. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983). The duty of fair representation developed based upon a recognition that the statutory authority granted to unions to act as the exclusive representatives of all members created a statutory obligation on the part of the unions "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967); see also Johnson v. Soft Drink Workers Union, 568 F. Supp. 1203, 1204 (S.D.N.Y. 1983) (explaining that the purpose of the duty of fair representation is to protect employees from union action that is discriminatory, dishonest, arbitrary or perfunctory).

Although the two causes of action are distinct, courts have combined them to create one claim known as the hybrid § 301/duty of fair representation claim ("hybrid § 301/DFR"). In White v. White Rose Food, 237 F.3d 174 (2d Cir. 2001), the Second Circuit set forth the elements of a hybrid § 301/DFR claim. "To establish a hybrid § 301/DFR claim, a plaintiff must prove both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union members." Id. at 178-79. Due to the fact that the hybrid § 301/DFR claim is a combination of two distinct, yet inextricably interdependent causes of action, the plaintiff must prove each prong of the claim in order to be successful. See DelCostello, 462 U.S. at 164-65; Wilder v. GL Bus Lines, 258 F.3d 126, 129 (2d Cir. 2001).

Did the Union Breach its Duty of Fair Representation?

Second Circuit case law dictates analyzing whether the union has breached its duty of fair representation as the threshold question. See Young v. U.S. Postal Serv., 907 F.2d 305, 307 (2d Cir. 1990) ("[T]he Union's breach is a prerequisite to consideration of the merits of plaintiff's claim against her former employer for improper discharge."). Scott asserts that Local 1199 breached its duty of fair representation by failing to file a grievance on her behalf. While it is true that the Union did not file a grievance on her behalf, not every failure on the part of a union resulting in damage is remediable as a breach. To amount to a breach, the failure must have an additional element to it. Ryan v. N.Y. Newspaper Printing Pressmen's Union No. 2, 590 F.2d 451, 455 (2d Cir. 1979). To rise to the level of a breach of the duty of fair representation, the union's conduct must be (1) arbitrary, discriminatory or in bad-faith; and (2) a direct cause of the plaintiff's injuries. See White, 237 F.3d at 179; Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir. 1998) ("Establishing that the union's actions were sufficiently `arbitrary, discriminatory or in bad faith,' is only the first step toward proving a fair representation claim. Plaintiffs must then demonstrate a causal connection between the union's wrongful conduct and their injuries.").

Scott alleges that Local 1199's conduct was arbitrary, and therefore, a breach of the duty of fair representation. See Pl. Mem. Opp. Summ. J. at 5. When are a union's actions deemed arbitrary? This circuit has made clear that a union may be deemed to have acted arbitrarily "even in the absence of bad faith or hostility in the form of ill will or common law malitia." Ryan, 590 F.2d at 455; quoted by Price v. United Auto. Aerospace and Agric. Implement Workers of Am., 795 F.2d 1128, 1135 (2d Cir. 1986). Still, the Supreme Court has stated repeatedly that a union's actions breach the duty of fair representation only if its conduct can be fairly characterized as so far outside a "wide range of reasonableness" that it is wholly "irrational" or "arbitrary." Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45 (1998) (quotation marks omitted); see also Air Line Pilots v. O'Neill, 499 U.S. 65, 78 (1991); Communications Workers v. Beck, 487 U.S. 735, 743-44 (1988); Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). "This `wide range of reasonableness' gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong." Marguez, 525 U.S. at 45-46. As the Second Circuit commented in Barr v. United Parcel Serv. Inc., 868 F.2d 36, 43-44 (2d Cir. 1989):

Tactical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach. Proof of mere negligence or errors in judgment . . . is insufficient. . . . As long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.
Recognizing this, the Court's review of Local 1199's actions must be highly deferential and take into account the wide latitude the Union needs to be effective as a bargaining agent for its members. Spellacy, 156 F.3d at 126.

In certain circumstances, the failure of a union to file a grievance on behalf of one of its members can be considered arbitrary and a breach of the duty of fair representation. See Young, 907 F.2d at 308 ("This circuit has recognized that a union may breach its duty when it fails to process a meritorious grievance in a timely fashion with the consequence that arbitration on the merits is precluded."). That is not to say, however, that a union must file every grievance that any one of its members wants it to file. See Tsikitas v. N.Y. Hotel & Motel Trades Council, 2001 WL 940565, *6 (S.D.N.Y.) (Sweet, J.) ("A plaintiff is not entitled to have his [u]nion representative advance every conceivable theory at an arbitration hearing."). A union need not pursue a grievance that it believes meritless. See Young, 907 F.2d at 308. "The individual employee [does not have] an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement." Vaca, 386 U.S. at 191. What a union may not do is "arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion." Id. Thus, the question before this Court is, did Local 1199 ignore Scott's claim?*fn7

Scott argues that Local 1199 ignored her pleas to file a grievance and largely dismissed her complaints. In support of her view, Scott points to her conversations with Adler on June 6 and 9. According to Scott, when she threatened Chape with the possibility of reporting her conduct to Adler, Chape told her that Adler was already well aware of the situation. See Pl. Decl. Opp. Summ. J. ¶ 29. When Scott called Adler on June 6, 2000, Scott claims Adler dismissed her concerns and, like Chape, attempted to persuade her to accept the Food Service position. Id. ¶ 30. Scott further argues that when she called Adler on June 14, 2000 after receiving a termination letter, "Adler was hostile and angry and stated that the union could no longer assist [her]. He told [Scott] that because she did not take the position in Food Service, there was nothing else that the union could do for her. Adler refused to discuss the particulars of BIMC's June 9, 2000 termination letter and its misrepresentations, or [her] rights under the CBA." Pl. Mem. Opp. Summ. J. at 22.

As further support for her claim that she and her proposed grievance were ignored by Local 1199, Scott directs the Court's attention to the manner in which her request of Rivera for help was treated. Scott sent her letter to Rivera on June 21, 2000. Her letter specifically informed Rivera, "I have until June 28, 2000 to file [a grievance]." Pl. Decl. Opp. Summ. J. Ex. 12. Despite the fact that she clearly warned Rivera of the impending deadline, Scott's letter went without a response until August 1, 2000. More than a full month after the deadline had passed.

That Scott's request went so long without an answer — and was dated June 22, 2000, but not sent until July 31, 2000 — is troubling. To say Scott was ignored, however, would be a stretch and inaccurate. Scott offers no evidence that the delay was intentional or caused by anything other than negligence on the part of the Union. Such negligence, although upsetting and worthy of being chastised, is not grounds to find a breach of the duty of fair representation. See Barr, 868 F.2d at 43-44.*fn8

Furthermore, Adler's involvement in Scott's case largely negates the notion that she was ignored. Although Scott may not be pleased with Adler, or the decisions he made, it is clear that Adler did not ignore her. It was Adler who took Scott's initial request to be displaced to the management of St. Luke's and BIMC. Convincing the hospital to consent to the unusual, possibly even unique, displacement agreement likely required a good deal of persuading by Adler. By Scott's own admission, Pl. Mem. Opp. Summ. J. at 22, Adler continued to keep himself apprized of her situation and attempts at placement. When she called Adler on June 6, he strongly suggested she accept the Food Service position and warned her that failing to do so would result in her being terminated.

The fact that Adler told Scott that there was "nothing else the union could do for her," does not mean he ignored her. Considering the lengths to which Adler went to accommodate Scott's displacement request, there is no evidence that he acted anything but honestly and fairly.

Whether Adler, or for that matter the other Local 1199 officials aware of Scott's situation, was correct or not in his assessment of her claim is not relevant. As is discussed supra, tactical errors and errors in judgment are not grounds for finding a breach of the duty of fair representation. Because the validity of Adler's decision is not at issue, it cannot be deemed to be a material question of fact that would preclude granting summary judgment. Nonetheless, it is worth recognizing that Scott's situation was unique. Scott had volunteered to be displaced and Adler had to persuade both St. Luke's and BIMC to allow her to be displaced. Thus, there was no precedent on which Adler could rely, or specific language in the CBA to guide him in analyzing whether Scott had a legitimate grievance. Combined with the fact that Adler believed that BIMC's actions were justified by the CBA, see Adler Dep. pp. 23-24, 30, 38, had every reason to believe there was "nothing else the union could do for her."

Scott is not happy with the outcome of her displacement, and feels that the Union should have done more for her. While Scott's feelings are understandable, the evidence does not support a conclusion that Local 1199 breached its duty of fair representation. The union had no obligation to file a grievance it believed doomed to failure. Thus, the Union did not breach its duty and Scott's hybrid § 301/duty of fair representation claim cannot succeed. Regardless of this fact, in the interests of completeness and clarity, the Court will analyze whether BIMC breached the CBA.

Did BIMC Breach the CBA?

Was Scott Terminated Prematurely?

Scott claims that BIMC breached the CBA in a multitude of manners. "The essence of plaintiff's unlawful discharge claim is that she was terminated prior to the expiration of the thirty-day [notice] period mandated by the CBA." Pl. Mem. Opp. Summ. J. at 12. The CBA states:

4. When Department Heads notify the affected employees that they will be displaced, they will further advise them that they will meet with Human Resources and a member of the Jobs Committee to review current job postings and ongoing training programs (e.g. PCPI) for consideration. The employee's interest and skills will be discussed at this meeting. The hospital will give a confirming letter either in person or by mail to the employee's home notifying them that they will be displaced within 30 days. A copy of the letter will be provided to the jobs committee.
5. If, after 30 days, a worker has not found a permanent or temporary job he/she is interested in and qualifies for, management will have the right to assign the worker to a permanent or temporary job.
Pl. Decl. Opp. Summ. J. Ex. at 3 (emphasis added). Scott interprets these provisions of the CBA to entitle her to a thirty-day period following her displacement during which she could have searched for a new job without risk of termination or being assigned a position by BIMC. Scott signed her displacement agreement on May 15, 2000, and was terminated effective June 7, 2000; a period of only 23 days.

BIMC and Local 1199 do not share Scott's interpretation of these provisions. It is the defendants' contention that the thirty-day notice period applies to positions and not particular employees. See Adler Dep. at 38 ("the 30 day requirement is pursuant to the elimination of the position, not a particular employee."). Using the defendants' interpretation, the thirty-day period commenced on April 14, 2000 — the day the hospital informed the Union and department heads of the reduction in staff — and ended prior to Scott signing her displacement agreement. According to the defendants, were the thirty-day period to apply to each individual, the displacement process would be unworkable and reductions in staffing would take months to effect. If Scott's interpretation is correct, each time an employee is "bumped"*fn9 a new thirty-day period would commence. Considering that each time a position is eliminated it results in a series of "bumps", under Scott's interpretation of the ADT it would be months before the hospital was able to reduce its staff and payroll. Such a system would be inflexible and unworkable from a business perspective.

"When courts interpret CBAs, traditional rules of contract interpretation apply as long as they are consistent with labor policies." Aeronautical Indus. Dist. Lodge 91 of Int'l Ass'n of Machinists & Aerospace Workers v. United Tech. Corp., 230 F.2d 569, 576 (2d Cir. 2000). It is well-established that if the language of a contract is clear and unambiguous, its interpretation is a question of law and left to the court. If, however, the contract's language is ambiguous and susceptible to differing, reasonable interpretations, the contract's interpretation becomes a question of fact for a jury or trier of fact. Bourne v. Walt Disney Co., 68 F.3d 621, 629 (2d Cir. 1995).

In this instance, the defendants' interpretation of the ADT seems the sensible one. In addition, the defendants were the parties who negotiated the terms of the agreement, are in accord as to how it should be interpreted, and have — from opposite sides of the employment relationship — enforced the agreement for more than four years in a manner consistent with the interpretation they now advance. Even if the Court was inclined to find Scott's interpretation reasonable, which the Court is not inclined to do, such a finding would be immaterial in light of Scott's failure to prove a breach by the Union.

Did Scott Waive her Status as a Protected Employee?

Defendants argue that even if Scott's interpretation of the thirty-day notice period provision is accepted, BIMC acted within its rights when it terminated her. BIMC argues that by refusing the position at the methadone clinic Scott waived her status as a protected employee.*fn10 BIMC draws support for this argument from paragraph 1(iv) of the ADT which states, "Nothing herein diminishes the employment protection of a protected employee, unless he/she refuses a vacant position hereunder." Pl. Decl. Opp. Summ. J. Ex. 6 at 2. Once Scott refused the position at the methadone clinic, BIMC claims, she forfeited the protection of the ADT. This position is supported by the Union. See Adler Dep. Tr. 53-54; Reid Dep. Tr. 51.

On its face this provision is rather unambiguous. The only reasonable interpretation is that if a person refuses a vacant position, the person loses protected status. What is not as clear is whether this provision is modified by the thirty-day provisions. In particular, paragraph 5 of the ACT. Paragraph 5, supra, provides BIMC with the right to assign a displaced worker to a position after 30 days. Pl. Decl. Opp. Summ. J. Ex. 6 at 3. Scott claims that the provision allowing termination if a job is refused must be read in conjunction with paragraph 5. The use of the word "hereunder" at the end of paragraph 1(iv), Scott suggests, modifies the provision based on other provisions in the ADT. According to her, paragraph 5 indicates that an employee cannot be forced to accept a job the employee is not interested in, prior to the expiration of the thirty-day period. That being the case, Scott argues, paragraph 1(iv) cannot be invoked by BIMC until the thirty-day period elapses. Once again, the Court is not inclined to agree with Scott's interpretation of the contract. Even if the Court were to accept Scott's interpretation as reasonable, the viability of her claim would remain unchanged.

Did BIMC Breach by Failing to Provide Scott with New Training?

Scott argues that the ADT obligated BIMC to provide her with an opportunity to meet with a Training and Upgrading Fund Career Counselor. In pertinent part, paragraph 6 of the ADT reads:

6. Displaced staff will be offered the opportunity to meet with a Training and Upgrading Fund Career Counselor to discuss career planning during the notice period.
At no time did Scott meet with a training counselor. Scott claims to have repeatedly requested an opportunity to meet with a counselor.

Defendants concede that Scott may never have been afforded the opportunity to meet with a counselor, see Local 1199 Reply Supp. Summ. J at 7, but believe this failure to be irrelevant. Local 1399 offers that the purpose of paragraph 6 is to provide training to those displaced employees that are in need of training because they do not qualify for any of the vacant positions. Despite Scott's beliefs, Scott was deemed qualified for two vacant positions. Furthermore, defendants claim she was not entitled to the benefits of paragraph 6 because she waived her status as a protected employee.

Regarding the intent of paragraph 6, nothing in the wording of the provision leads the Court to accept the notion that the right it sets forth is limited to only certain displaced staff members. Although the Court recognizes that a collective bargaining agreement is not a typical contract, and must be interpreted understanding that it is meant to cover a wide myriad of often unforeseeable circumstances, Consol. Rail Corp. v. Ry. Executives' Ass'n, 491 U.S. 299, 311-12 (1989), the language of this provision is straight forward. It makes sense that a displaced worker would want to meet with a counselor even if she is qualified for a host of other positions. The worker may well want to discuss which new position offers her the best career opportunities. Thus, there is no reason to believe that the provision should be read as anything other than an important right.

Was Scott Treated Disparately?

Scott asserts that she was treated disparately from Maldonado and McQuilkin. Considering the unique circumstances surrounding Scott's displacement, her case cannot accurately or fairly be judged against those of Maldonado or McQuilkin. Furthermore, differences in job opportunities offered Maldonado and McQuilkin versus Scott are easily explained by the lapse of time between the start of their job search and Scott's. Naturally, not all, or even many, of the vacancies available when Maldonado and McQuilkin began looking in September 1999 could be expected to be available in May 2000 when Scott began her search. Job markets are fluid, particularly when the circumstances are as they were within the Continuum. To compare Scott's situation with that of the other displaced transcriptionists would prove nothing.


Scott has raised a number of issues of fact regarding whether BIMC breached the CBA. Were Scott's only burden to prove a breach of the CBA, these issues of fact would render summary judgment inappropriate. As discussed, however, in order to sustain a hybrid § 301/duty of fair representation claim, the plaintiff must prove both a breach by the employer and one by the union. Just as this Court could reasonably believe that BIMC did not breach the CBA, Local 1199 could believe that BIMC was not in breach and that a grievance would lack merit. Thus, Scott's claim of a breach by Local 1199 fails, and any questions of fact regarding whether BINS breached the CBA are rendered immaterial.

For the reasons set forth above, the Court grants defendants' motion for summary judgment in its entirety. The Court orders this case closed and directs the Clerk of Court to remove it from the Court's active docket.


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