The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff brings this action pro se against her former
employer defendant Le Moyne College ("Le Moyne") and her bargaining labor
representative Teamsters Local 317 ("the
Union"). Plaintiff's complaint alleges that she was the victim of
sex and racial discrimination and retaliation during her employment at Le
Moyne, and that defendant Union breached its duty of fair representation
("dfr") by discriminating against her in the manner it dealt with the
grievances she filed against Le Moyne, all in violation of Title VII of
the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq.
Plaintiff began working for defendant Le Moyne College "(Le Moyne") on
July 6, 1999, as a custodian for the College's athletic facilities.
Custodial staffing needs are partially based on the type and number of
events occurring on campus. When she was hired, plaintiff was told that
the job required flexible hours and variations in the work week,
including evening and weekend work.
In the fall of 1999, plaintiff was assigned to work the Saturday
evening shift on several occasions. In November 1999, fellow employee,
Richard Davidson, requested a change in assignment so he would not have
to work every Saturday evening. Having begun working at Le Moyne July
1998, he was senior to plaintiff. Plaintiff and Richard Davidson were
both represented by Teamsters Local 317 ("the Union") at that time. Le
Moyne decided that the most equitable solution was to have the two
employees rotate Saturday evening work periods. The two employees were
told of this arrangement on January 13, 2000, by the Assistant Facilities
Manager, Daniel Scheen. The agreement did not effect plaintiff'3s wages,
benefits or promotion opportunities.
Plaintiff filed a grievance with the Union objecting to the shift
rotation agreement. However, the work schedule rotation was within the
terms of and conditions of her job and the collective bargaining
agreement between Le Moyne and the Union.
Approximately one month after the new work schedule was in effect,
plaintiff filed a discrimination charge against Le Moyne with the Equal
Employment Opportunity Commission
("EEOC"), alleging that the change in her work schedule was
illegally based on her race and sex. Upon investigating the charges, they
were dismissed by the EEOC. Plaintiff resigned her position with Le Moyne
on July 12, 2000, and filed a second charge with the EEOC claiming that
she was subjected to retaliation after filing her first charge with the
Plaintiffs second charge had several allegations of retaliatory on the
job conduct. They were: that she was required to punch in and out for
lunch breaks while other employees were not; was not invited to social
events; that co-workers were instructed not to talk to her; and that her
incident reports were ignored. After investigating plaintiff's second
claim charges, the EEOC dismissed this complaint.
In June 2000, plaintiff was twice exposed to polyurethane, an
non-hazardous substance applied to the bleachers in the gymnasium, but
one she claimed she had a personal sensitivity to. On each exposure, she
left work before the end of her shift without notice or authorization.
Plaintiff was informed that payment for her lost time would be considered
if she furnished a suitable written report from her doctor describing her
ailment and need to leave work. This report was not forthcoming, and she
did not respond to attempts by Le Moyne's Worker's Compensation
Coordinator to contact her. Nevertheless, plaintiff was paid for her time
off before her resignation in July 2000.
Le Moyne has a Equal Employment Opportunity and Affirmative Action
Policy ("EEO/AA") that specifically prohibits racial harassment and set
forth procedures for investigating complaints. Plaintiff did not make any
complaints under this policy or to her supervisors regarding any verbal
abuse or other harassing behavior by her fellow employees. She did
complain to Le Moyne's Human Resources that she was upset that a copy of
George magazine, published by the late John F. Kennedy, Jr., was left on
her janitor cart opened to an article which plaintiff believed to be
racially offensive. Human Resources forwarded the
complaint to the EEO/AA officer for investigation the same day it
was received, July 5, 2000. Plaintiff was notified of this action, but
failed to respond to several attempts by the EEO/AA office on July
6th and 7th to contact her. Before further
action could be taken, plaintiff resigned on July 12, 2000.
During her period of employment at Le Moyne, plaintiff filed grievances
with defendant Union on January 28, 2000. These grievances are: changes
in her work shift schedule; June 29, 2000, discrimination due to her
union activity; and July 7, 2000, not paid for her time when she left to
leave work to obtain medical attention. The Union advised Le Moyne that
it intended to have plaintiffs three grievances arbitrated. In a letter
dated July 12, 2000, plaintiff advised the Union that she had resigned
from Le Moyne's employment but "to keep all records concerning my
grievances and pursuant of arbitration," because these documents would be
needed in the federal case she was instituting. (Ex. I, Mark May aff'd.)
The Union was not named as a party in either of the complaints against
Le Moyne that plaintiff filed with the EEOC.
Currently before the court is a motion by each defendant for summary
judgment dismissing the complaint as against it pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Plaintiff has entered opposition to
these two motions.
Rule 56 allows for summary judgment where the evidence demonstrates
that "there is no genuine issue of any material fact and the moving party
is entitled to judgment as a matter of law." Anderson v. Liberty
Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). Summary judgment is properly regarded . . . as an integral part
of the Federal Rules as a whole, which are designed to "secure the just,
speedy and inexpensive determination of every
action." Celotex Corp. v. Catreet, 477 U.S. 317, 327,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)(quoting Fed.R.Civ.P. 1). In
determining whether there is a genuine issue of material fact a court
must resolve all ambiguities and draw inferences against the moving
party. United States v. Diebold, 369 U.S. 654, 655,
82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)(per curiam). An issue of
credibility is insufficient to preclude the granting of a motion for
summary judgment. Neither side can rely on conclusory allegations or
statements in affidavits. The disputed issues of fact must be supported
by evidence that "could not lead a rational trier of fact to find for the
non-moving party." Mashusita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Nor will factual disputes that are irrelevant to the disposition of the
suit under governing law preclude any entry of summary judgment.
Anderson, 477 U.S. at 247, 106 S.Ct. at 2509.
Pro se complaints are held to a less stringent standard than
those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir.), cert. denied, sub nom. Leeke v.
Gordon. 439 U.S. 570, 99 S.Ct. 464, 58 L.Ed.2d 431 431 (1978), and
a federal district court is charged with liberally construing and
interpreting a complaint filed by a pro se litigant "to raise
the strongest arguments that they suggest," Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994), to allow development of a potentially
meritorious claim. Hughes v. Rowe, 449 U.S. 5, 9, 101S. Ct.
173, 66 L.Ed.2d 163 (1980). When a federal court is evaluating a pro
se petition, the petitioner's allegations are assumed to be true.
Fine v. City of New York. 529 F.2d 70, 74 (2d Cir. 1975).
Examining the pro se complaint under this less stringent
standard, this action should be allowed to go forward.
Summary judgment movants must give pro se litigants with
actual notice, provided in an acceptable manner, of the consequences of
the pro se litigant's failure to comply with the requirements of
Rule 56 requires that "[a]n adverse party may not rest upon the mere
allegations of the complaint or denials of the . . . pleadings, but
[rather] the. . . . response, by affidavits or other documentary evidence
as provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Since it is not
obvious to a layman that when his opponent files a motion for summary
judgment supported by affidavits, she must file her own affidavits
contradicting her opponent's if she wants to preserve factual issues for
trial, either the district court or a moving party is to supply the
pro se litigant with notice of the requirements of Rule 56.
McPherson v. Coombe, 174 F.3d 276, 280-81 (2d Cir. 1999). "[A]
district court need not advise a pro se litigant as to the
nature of summary judgment where an opposing party has already advised
the litigant with the requisite notice . . . or where the record makes
clear that the litigant understood the nature and consequences of summary
judgment." Id. at 281.In the case at bar, defendant Union did
provide the required Rule 56 notice to plaintiff when it served her with
its motion for summary judgment on April 11, 2003.
When a motion for summary judgment is supported by documentary evidence
and sworn affidavits, the opposing party must present significant
probative evidence and sworn affidavits to create a genuine issue of
fact. Victoria v. O'Neil, 688 F. Supp. 84 (D. Conn. 1988). This
burden is not altered simply because plaintiff is a pro se
victim. "At some point in a lawsuit, even pro se litigants must
make clear to the court their claims ...