United States District Court, N.D. New York
February 18, 2004.
PATRICIA BRIGHT, Plaintiff,
LE MOYNE COLLEGE and INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 3, Defendants
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 and facts they believe entitle them
to specific relief." Salahuddin v. Coughlin, 781 F.3d 24, 29
(2d Cir. 1986).
The court will first address plaintiff's Title VII claim against Le
Moyne. Plaintiff contends that she was the victim of sex and racial
discrimination and retaliation during her employment at Le Moyne. She
maintains that she was subjected to unequal terms and conditions of
employment and denied workers compensation benefits.
Under the analytical scheme established for employment discrimination
cases by the
Supreme Court in McDonnell Douglas Cor. v. Green, 411
U.S.792, 92 S. Ct 1817, 36 L.Ed.2d 668 (1973), if a plaintiff makes out
a prima facie case of prohibited discrimination, the burden
shifts to the defendant to advance admissible evidence of a legitimate
non-discriminatory reason sufficient to support a finding by a rational
trier of fact that the alleged discrimination was not a cause of the
challenged employment action, id, at 802, 93 S.Ct. 1817;
Heyman v. Queens Village Committee for Mental Health for Jamaica
Community Adolescent Program. 198 F.3d 68, 72 (2d Cir. 1999). If
such evidence is advanced by the defendant, the plaintiff then must show
that the discrimination was more likely than not a motivating factor in
the adverse employment action. McDonnell Douglas. 411 U.S. at
405, 93 S. Ct 1917. If the plaintiff is unable to rebut the defendant's
reason, summary judgment may be granted in favor of the defendant.
James v. New York Racing Association. 233 F.3d 149, 154 (2d
Cir. 2000). It is important to note, however, that although the
McDonnell Douglas presumption shifts the burden of production
to the defendant, "[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff. Texas Department of
Community Affairs v. Burdine. 450 U.S. 248, 253, 101 S.Ct. 1089,
1093, 67 L.Ed.2d 207(1981).
To establish a prima facie case of employment discrimination
the plaintiff must first show that: 1) she is a member of a protected
class; 2) her job performance was satisfactory; 3) she suffered an
adverse employment action; and 4) the action occurred under conditions
giving rise to an inference of discrimination. McDonnell
Douglas at 802, 93 S. Ct.1917.
On February 23, 2000, plaintiff filed a complaint with the EEOC
claiming that when she was hired by Le Moyne, she was not told that she
would be working different shifts, but her work schedule was being
changed to include Saturday evenings because another employee wanted to
spend more time with his family and didn't want to work Saturday
action subjected her to different terms and conditions of
employment because of her race and sex in violation of Title VII.
Plaintiff also filed a grievance with the Union about her shift change.
To state a prima facie Title VII, plaintiff must show that she
suffered an adverse employment action. An adverse employment action is
"materially adverse in the terms and conditions of employment."
Galabya v. New York City Board of Education. 202 F.3d 636, 640
(2d Cir. 2000). A material adverse change must be "more disruptive than
mere inconvenience or an alteration of job responsibilities."
Id. Examples of such a change include "termination of
employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indicies unique to a
particular situation." Id. An employment action that is neutral
or beneficial is inadequate to establish a prima facie case.
That plaintiff expressed a preference for one shift is insufficient to
conclude that her transfer was an adverse action. Doe v. Dekalb
County School District. 145 F.3d 1441 (11th Cir. 1998).
Whether an employment is "adverse" is an objective determination. "[I]f
a transfer is truly lateral and involves no significant changes in an
employee's condition of employment, the fact that the employee views the
transfer either positively or negatively does not of itself render the
denial or receipt of a transfer adverse employment action." Sanchez
v. Denver Public Schools. 164 F.3d 527, 532 n. 7 (10th Cir. 1998).
Changes in duties or working conditions that cause no material
disadvantage, such as plaintiffs reassignment will not establish the
advers conduct required to make a prima facie case.
McDonell Douglas. 37 F.3d 379, 382 (8th Cir. 1994).
A transfer is an adverse employment action if it "results in a change
of responsibilities so significant as to constitute a set back to
plaintiff's career." Galbaya. 202 F.3d at 640. A
"purely lateral transfer" that involves no demotion in form or
substance is not a material adverse action. Id. (citing,
Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th
Cir. 1996)). The "key inquiry `with regard to an involuntary transfer is
whether the transfer constitutes a negative employment action tantamount
to a demotion.'" Id. (quoting, Patrolmen's Benefit
Association of the City of New York. Inc. v. City of New York.
74 F. Supp.2d 321, 335 (S.D.N.Y. 1999).
In essence, the transfer must create a "materially significant
disadvantage," which may be shown by evidence of a transfer to a position
that is materially less prestigious, less suited to ones skills, or less
conductive to advancement. Id.
Plaintiff's transfer was not an adverse employment action. She offers
no evidence of differences between the two shifts in pay, benefits,
responsibilities, opportunity for advancement or other terms, conditions
and privileges of employment. There is no evidence that it was a
permanent change in plaintiff's work shift. She had previously worked
Saturday evenings and was asked to rotate Saturday evening work shifts
with a senior co-worker. An employment action that is neutral or
beneficial is inadequate to establish the prima facie case. That
plaintiff expressed a preference for one shift is insufficient to
conclude that her transfer was an adverse action. Doe v. Dekalb
County School District. 145 F.3d 1441 (11th Cir. 1998).
In its Collective Bargaining Agreement with the Union, Le Moyne is
reserved the right, upon proper notice, to assign work at its
installations at any time. (Article XII Section 2:). Moreover,
the newspaper want ad and the job posting at Le Moyne for plaintiff's
position clearly stated that the work would require varied hours. Le
Moyne had a valid, non-discriminatory reason for changing plaintiff's
Title VII provides that "[i]t will be an unlawful employment practice
for an employer to discriminate against any of his employees . . .
because [the employee] has opposed any practice
made an unlawful employment practice by Title VII.
42 U.S.C. § 2000e-3(a)." The objective of this section is obviously to forbid
an employer from retaliating against an employee because of the latter's
opposition to an unlawful employment practice. Manoharan v. Columbia
University College of Physicians and Surgeons. 842 F.2d 590, 593
(2dCir. 1988). A retaliation claim is also examined under the analytical
scheme set forth in McDonnell Douglas. St. Mary's Honor Center v.
Hicks. 509 U.S. 502, 506, 113 S.Ct. 2742, 2746, 125 L.Ed.2d 407
A prima facie case of retaliation under Title VII requires the
plaintiff to show " participation in a protected activity by opposing
a practice made unlawful by Title VII; that the employer was aware of
that activity; that she suffered adverse employment action; and
that there was a causal connection between the protected activity and
the adverse employment action." Reed v. A.W. Lawrence &
Co., 95 F.3d 1170. 1178(2dCir. 1996). With respect to the first
element, participation in a protected activity, the plaintiff need not
establish that the conduct she opposed was actually a violation of Title
VII, but only that she possessed a "good faith, reasonable belief that
the underlying employment practice was unlawful" under that statute.
Id. The reasonableness of plaintiffs belief is to be assessed
in light of the totality of the circumstances, Reed v. A.W. Lawrence
& Co., 95 F.3d at 1178. As to the second element, implicit in
the requirement that the employer was aware of the protected activity is
the requirement that it understood, or could reasonably have understood,
that the plaintiffs opposition was directed at conduct prohibited by
There is no disagreement that plaintiff engaged in a protected activity
when she filed her first grievance with the Union about her work shift
change, filed her EEOC charge, and commenced her lawsuit. Rather the
dispute centers on whether plaintiff was subjected to any adverse and
disadvantaging employment actions and, if so, what causal connection, if
any, exists between those actions and her protected activities.
Plaintiff asserts that after she filed her first EEOC complaint, Le
Moyne retaliated against her by subjecting her to different terms and
conditions of employment, to wit, instructing co-workers not to speak to
her, ignoring her incident reports, not receiving wages for time off due
to a job related injury, having to punch out and in for lunch breaks and
not inviting her to social functions. Furthermore, when she reported that
she was verbally abused by a fellow employee, and also found a racially
offensive magazine open on her work cart, no action was taken by her
employer. Plaintiff states that she resigned her position on July 7,
2000, because of these events.
She was required to punch in and out for lunch periods and other
employees were not. The affidavits of plaintiffs boss, Daniel Sheehan, Le
Moyne's Assistant Facilities Manager, and Lynn McMartin, Le Moyne's Human
Resources Director, both point out that it was the policy of the Athletic
Center where plaintiff worked, that all employees leaving the facility
for their lunch periods were required to punch in and out. (Sheen
Aff. ¶ 7, McMartin Aff. ¶ 8).
She was not invited to employee social functions.
McMartin's affidavit states that there was only one employee social
function that took place during the period plaintiff was employed at Le
Moyne and that was the summer picnic in June, and she recalls that
plaintiff attended this function with a guest. (McMartin Aff. ¶ 8).
She did not receive wages for time off due to a job related injury.
Even though she left work on two occasions without notice or
authorization due to this injury, and never provided Le Moyne with
medical documentation of her injury and needed to be out of work,
plaintiff admits in ¶ 10 of her Response Affidavit-College, that Le
Moyne did pay her wages for this time off.
Le Moyne instructed her co-workers not to speak with her.
Plaintiff does not state when or who gave this instruction, however, in
her Response Affidavit-College, at ¶ 8, she indicates that Lynn did
not give the instruction, and at
¶ 13 that she had a good working relationship with Dan Sheehan.
Plaintiff may have misinterpreted a directive Dan Sheehan issued that all
requests for custodial services be made through him rather than to the
custodial and maintenance staff directly in order to permit him to
prioritize work assignments and efficiently staff the facilities.
(Sheehan Aff. ¶ 10).
Her incident reports were ignored.
Attached to Lynn McMartin's affidavit are copies of incident reports
filed in response to various concerns raised by plaintiff after the
filing of her first charge with the EEOC in February 2000. There is no
indication that further action was needed or asked for by plaintiff.
She was verbally abused by fellow employees.
Le Moyne has an Equal Employment Opportunity/Affirmative Action Policy
("EEO/AA") which specifically prohibits racial harassment and has
procedures in place for complaint investigations in this area. Plaintiff
never made a complaint under the EEO/AAC program regarding any verbal
abuse from her fellow employees. (Mc Martin Aff. ¶ 11). Furthermore,
hostility from fellow employees is not an ultimate employment decision
and thus not an adverse employment action. Carter v. New York
Department of Corrections. 2001 WL 345170, at *2 (2d Cir.
4/5/01)(citing Mattern v. Eastman Kodak Company, 104 F.3d 702,
707 (5th Cir.), cert. denied, 522 U.S. 922, 118 S.Ct. 336,
139 L.Ed.2d 260(1997)).
She found a magazine on her work cart open to a racially offensive
article, but no action was taken by her employer.
Plaintiff did complain about this matter to Lynn McMartin, who, on her
own initiative, quickly forwarded the complaint to the EEO/AA office for
investigation. Plaintiff was notified of this action, but never responded
to several attempts by the EEO/AA to contact her for further information
to support the claim that the magazine was left on her cart by an officer
or employee of Le Moyne. (McMartin Aff. ¶ 12).
It is clear that Le Moyne had reasonable programs in place to deal with
plaintiffs complaints, and that its personnel took action on them as soon
as they were made aware of their occurrences. Quinn v. Green Tree
Credit Corporation, 159 F.3d 755, 766 (2d Cir. 1998).
These situations compelled her to resign from her employment at Le
Plaintiff is apparently alleging that her resignation was, in fact, a
constructive discharge. In considering whether or not a constructive
discharge has taken place, it must be determined that the working
conditions would have been so difficult or unpleasant that a reasonable
person in the employee's shoes would have felt compelled to resign.
Pena v. Brattleboro Retreat. 702 F.2d 322, 325 (2d Cir. 1983).
Courts have also required plaintiffs to show that the employer wanted the
employee to resign and intentionally made the working conditions
unpleasant for the purpose of achieving that result. "The employer must
have deliberately made an employee's working conditions so intolerable as
to force the resignation." Martin v. Citibank, 762 F.2d 212,
221 (2d Cir. 1985). The law of constructive discharge in the Second
Circuit is clearly unfavorable to the plaintiff. Greenberg v. Hilton
International Company. 870 F.2d 926, 936 (2d Cir. 1989). It is
insufficient that the employee's working conditions are merely difficult
or unpleasant. Stetson v. NYNEX Service Company, 995 F.2d 355,
361 (2d Cir. 1993), and a constructive discharge cannot be established
simply through evidence that an employee was dissatisfied with an
unfavorable job assignment. Muller v. United States Steel
Corporation. 509 F.2d 923 (10th Cir.) cert. denied,
423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975).
On the date plaintiff resigned her position on July 12, 2000, Le Moyne
was engaged in the process of evaluating several contentions set forth in
this action. In fact, a mediation conference with the EEOC on plaintiff's
original discrimination claim was scheduled to take place on that date.
The purposes of the meeting was to give the parties a chance to ascertain
the reasons for any problems, Le Moyne's responses thereto and what it
asked from plaintiff as an
employee. The mediation concluded when plaintiff submitted her
resignation and refused to take part in the meeting.
The record in this case does not display evidence adequate enough to
support that Le Moyne deliberately compelled plaintiff to resign or
establish a prima facie case that her work environment was
intolerable and that Le Moyne was engaged in intentional efforts to
compel her resignation.
In her second cause of action, plaintiff alleges that her union did not
represent her properly in her disputes with Le Moyne.
Initially, the Union maintains that plaintiff's allegations against it
are not properly before the court because she did not exhaust her
As a general rule, a party seeking to assert a Title VII claim against
a particular defendant in federal court must first have named that party
as a respondent in the charge filed with the EEOC or authorized state
agency. 42 U.S.C.A. 2000e-5(f)(a); Johnson v. Palma,
931 F.2d 203, 209 (2d Cir. 1991). This requirement serves the two-fold
purpose of providing notice of the alleged violation to the charged party
and insuring that all relevant parties are brought before the administrative
agency, so that the agency can attempt to negotiate voluntary compliance
with the law through conciliation proceedings. Gilmore v. Local
295. 798 F. Supp. 1030, 1037-38 (S.D.N.Y 1992), aff'd, 23 F.3d 296
(2d Cir.) cert. denied, 513 U.S. 936, 115 S.Ct. 335,
130 L.Ed.2d 293 (1994). However, because Title VII plaintiffs are often
pro se and are not "vested in the vagaries of Title VI and its
jurisdictional and pleading requirements," courts have taken a flexible
position in interpreting Title VII's procedural provisions. Johnson
v. Palma, 931 F.2d at 209.
With this consideration in mind, courts have created two exceptions to
the general rule that a party must be named in an EEOC charge in order
for a court to have jurisdiction over it.
The first exception is based on "identity of interest." Under this
exception, the plaintiff may sue a defendant who was not named in the
charge. Id. In order to determine whether a "clear identity" of
interest exists between the named and unnamed parties, the courts look at
1) whether the role of the unnamed party could through reasonable
effort be ascertained at the time of the filing of the EEOC charge;
2) whether, under the circumstances, the interests of a named party are
so similar as the unnamed party's that for purposes for obtaining
voluntary conciliation and compliance it would be unnecessary to include
the unnamed party in the EEOC proceedings;
3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party;
4)whether the unnamed party has in some way represented to the
complainant that its relationship with the complainant is to be through
the named party. Id. at 209-10.
None of the four factors are present in this case. Plaintiff knew of
the existence of the Union and any role it might have played at the time
she filed her charge with the EEOC. Second, the Union's interest and that
of the employer are not sufficiently similar for the purpose of obtaining
conciliation and compliance. Third, the Union's absence from the EEOC
proceedings resulted in actual prejudice to it since the EEOC
investigation might have found that the Union played no part in any of
the discriminatory act alleged by plaintiff. Finally, there is no
allegation that the Union represented to the plaintiff that its
relationship with her was through the employer.
An exception has also been created for cases in which, from the facts
in the EEOC charge, the agency could have inferred that the named
defendant and unnamed defendant were part of a common discriminatory
scheme. Glus v. G.C. Murphy Company. 562 F.2d 880, 888
(3d Cir. 1977), cert. denied, 449 U.S. 949, 101 S.Ct. 351,
66 L.Ed.2d 212 (1980). (Plaintiff can maintain a Title VII claim without
having defendants named in the EEOC charge, if the EEOC could infer from
the facts alleged in the body of the complaint that named and unnamed
parties were acting in a common discriminatory scheme). That exception is
inapposite in the instant case because plaintiff's EEOC charge does not
even mention the Union.
Since plaintiffs failure to name the Union as a defendant in her EEOC
charge does not fall under either of the two judicially created
exceptions, this court does not have jurisdiction over her Title VII
claim against the Union.
Accordingly, the summary judgment motions brought by defendants Le
Moyne and the Union are GRANTED, and the complaint is
IT IS SO ORDERED.
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