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February 18, 2004.


The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge



  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 Page 2 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. ยง 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 Page 3 ("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 EEOC.

  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 Page 4 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 Page 5 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. Page 6

  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 ...

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