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United States District Court, S.D. New York

March 26, 2004.


The opinion of the court was delivered by: RICHARD CASEY, District Judge


This action arises out of Plaintiff's termination of employment by New York Telephone Company ("NYNEX") and her representation by Communication Workers of America, Local 1105 ("Local 1105") in grievance proceedings with respect to her termination. Plaintiff brings this action against NYNEX and Local 1105, alleging: (1) her termination by NYNEX was based on race and sex discrimination; (2) Local 1105 discriminated against Plaintiff based on her race and sex; and (3) Local 1105 breached its duty of fair representation to Plaintiff in grievance proceedings before NYNEX.


  Plaintiff is an African-American woman who was terminated from her employment with NYNEX on April 13, 1993. After notification of her discharge, Plaintiff brought a grievance proceeding against NYNEX through her union, Local 1105.

  Plaintiff was originally hired by NYNEX in 1981 as a clerk in the payroll department and Page 2 received various promotions within the company until she was discharged in 1993. (Shider Aff. ¶¶ 6-18.) In July 1992, Plaintiff's supervisor, Joseph Watkins, gave Plaintiff a copy of NYNEX's Code of Business Conduct and advised Plaintiff to read it and comply with its policies and practices. (Shider Dep. at 245-50.) A provision entitled "Privacy of Communications" prohibits employees from "disclos[ing] to any person (except an authorized employee of any NYNEX Company) any information about customers' communications or information processing arrangements." (Miklave Aff., Ex. 8.)

  On September 2, 1992, Regina Felton telephoned Plaintiff and asked Plaintiff to "verify" information concerning another customer's account. (Shider Dep. at 23.) Plaintiff accessed the customer's telephone records, determined that the account was a residential account, and verified the information. (Id. at 25.) When Felton asked Plaintiff to send her a copy of the information, Plaintiff printed out a copy of the customer's telephone account information and faxed it to Felton. (Id.) The document Plaintiff sent to Felton contained, among other things, the customer's name, address, and telephone number, the balance the customer owed to the telephone company, the type of service to which the customer subscribed, and the identity of the customer's long distance telephone carrier. (See Investigative Report, Security Division, Miklave Aff., Ex. 10 ("Investigative Report"). Both Plaintiff and Felton admitted during their depositions that Plaintiff gave Felton information that Felton did not already possess. (Shider Dep. at 275-78; Felton Dep. at 33-38.) Felton subsequently used the document sent by Plaintiff in support of an occupancy dispute initiated by Felton. (Felton Dep. at 33; Investigative Report.)

  On October 21, 1992, Martha Gonzales contacted NYNEX security and complained that Felton had obtained a copy of her telephone records and had utilized the records in a pending Page 3 court case. In response to this complaint, the Security Division of NYNEX commenced an investigation into the customer's allegation. (Miklave Aff., Ex. 10.) On January 20, 1993, NYNEX interviewed Plaintiff concerning the customer's allegation. During the interview, Plaintiff admitted that she had accessed the customer's records and provided the information to Felton. (Shider Dep. at 41.) At the conclusion of the interview, Plaintiff provided a handwritten statement, which read:

On this date the Agents showed me a copy of a customer's account . . . and asked me if I gave that document to Regina Felton. I told the Agents that Ms. Felton contacted me on 9-2-92 asking information on the account identified as Gonzales, I looked up in ICRIS that information and verbally gave the information to her and then at her request I faxed the same document to her office. I did not receive any money for this and I have never done this before, I realize its wrong and will never do it again. The above statement is true to the best of my knowledge.
(Shider Handwritten Statement, Miklave Aff., Ex. 11.)

  Plaintiff did not request union representation at her security interview or at any time prior to her discharge. (Shider Dep. at 41-42.)

  NYNEX terminated Plaintiff on April 13, 1993. On that date, Plaintiff's office supervisor, Vera Moea, asked Plaintiff to come into the conference room, where Manager Joe Watkins was waiting for them. Morea and Watkins asked if Plaintiff wanted union representation. Plaintiff said she did, and three union stewards attended the conference with her. Plaintiff was told that the meeting concerned the incident about which she had been previously questioned by the Security Division and that she was being terminated. After the managers left, Plaintiff told the union stewards what had happened, and they asked if she wanted to submit a grievance. (Shider Dep. at 129-132.)

  The collective bargaining agreement between Local 1105 and NYNEX provides for a Page 4 three-step grievance procedure. (See Miklave Aff. Ex. 6, "Collective Bargaining Agreement" at 33-35.) The first step occurred on or about May 6, 1993, at which time Local 1105 Chief Steward Doreen Sedley argued to NYNEX that discharge was too severe a discipline for Plaintiff and requested reinstatement. (See Giaritta Decl., Ex. A.) NYNEX denied the grievance and Local 1105 appealed the grievance to the second step. (See Giaritta Dec., Ex. B.)

  Plaintiff subsequently spoke with Local 1105 Business Agent Dexter Hendon and gave him additional information about her grievance prior to the second step meeting, which was held on January 18, 1994. (Shider Dep. at 145-146.) At this meeting, Local 1105 requested information from NYNEX, including the report prepared by the Security Division and argued that Plaintiff should be allowed to return to her position. (See Giaritta Decl., Exh. C.) The grievance was denied and Plaintiff was informed of that decision. (See Young Aff., Ex. 6.) Local 1105 appealed Plaintiff's grievance to the third step on March 3, 1994. (See Giaritta Decl., Ex. D.)

  In accordance with the CWA Constitution, the International Union of the Communication Workers of America ("International") is responsible for handling the final step of the contractual grievance procedure. (Local 1105 Rule 56.1 Stmt. ¶ 12.) Paul Sapienza, Executive Vice President of Local 1105, collected information for the third step of Plaintiff's grievance, which is the final phase prior to arbitration. On April 14, 1994, Plaintiff faxed to Sapienza a copy of a letter she had sent to the National Labor Relations Board, which stated, "I don't see how I'm being represented when the union didn't get the entire story from me. I've enclosed a copy of my side of the story." (Young Decl., Ex. 7; see also Shider Dep. at 155.)

  The third step meeting was held on May 16, 1994. Richard Martini, a representative of Page 5 the International, chaired the meeting, and Local 1105 representatives were present to assist the International. NYNEX produced its Security Report to the International, including Plaintiff's signed statement verifying that she had faxed a copy of a customer's account to Felton and that "I realize its [sic] wrong and will never do it again." (Martini Decl., Exh. B.) Martini argued that Plaintiff was a good employee and should be given a second chance. (Martini Decl. ¶ 10.) NYNEX stated that they would contact the International with a response at a later time. (Id. ¶ 5-9.)

  On that same day, Sapienza spoke to Plaintiff on the telephone. Sapienza told her that her grievance had been heard at the third step, that NYNEX and the International were making decisions about her case, and that she would receive something in the mail. (Giaritta Decl., Ex. E, Ltr. to M. Giaritta from P. Shider, dated Jan. 20, 1995, at 15.)

  By letter dated June 15, 1994, NYNEX Labor Relations Director John Ritch informed International representative Richard Martini that Plaintiff's grievance had been denied at the third step. (Young Decl., Ex. 8.) Plaintiff called Local 1105 on June 21, 1994 and was informed by Sapienza that her grievance had been denied. (Giaritta Decl., Ex. E, Ltr. to M. Giaritta from P. Shider, dated Jan. 20, 1995, p. 16.) Plaintiff informed Local 1105, by letter dated July 18, 1994, that she believed the local union had failed to represent her: "I have consulted counsel and was advised to commence an action against the union for failing to represent me for wrongful termination." (Young Decl., Ex. 9.)

  By letter dated July 29, 1994, Plaintiff requested Local 1105 to proceed to arbitration with her claim. (Plaintiff's Arbitration Request Letter; Miklave Aff., Ex. 17.) By letter dated January 6, 1995, Local 1105 informed Plaintiff that the International had decided not to arbitrate and Page 6 informed her that she could appeal that decision. (Giaritta Dec., Ex. F.) Plaintiff sent her appeal by letter dated January 20, 1995. (Giaritta Decl., Ex. E.) Local 1105 forwarded Plaintiff's appeal to District One of the International.

  On April 4, 1995, Jan Pierce, Vice President of the International, wrote to advise Plaintiff that the matter would not be brought to arbitration. Pierce advised Plaintiff that "the Union could not win this arbitration," and that "NYNEX has maintained [its] policy for more than twenty years and has consistently terminated employees who violate it." (International's Arbitration Appeal Rejection Letter; Miklave Aff., Ex. 20.)

  On May 24, 1995, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against the International. Her charge complained about the length of time it took to process her grievance and that the International Union had refused to take her grievance to arbitration. (Young Decl., Ex. A.) Plaintiff received notice of her right to sue on June 1, 1995. (Young Decl., Ex. B.)

  Plaintiff filed this action against Local 1105 on June 29, 1995, before Judge Sonia Sotomayor, alleging violations of Title VII of the Civil Rights Act of 1964 (`Title VII") and breach of the union's duty of fair representation. Plaintiff subsequently amended the complaint to include additional claims and to add NYNEX as a second defendant. By Order of August 14, 1997, Judge Sotomayor dismissed Plaintiff's Title VII claims against NYNEX due to Plaintiff's failure to name NYNEX in her complaint to the EEOC. See Shider v. Communication Workers of Am., Local 1105, 1997 WL 470112 (S.D.N.Y. Aug. 15, 1997.) Plaintiff continues to maintain a claim based on § 1981 against NYNEX and claims based on 42 U.S.C. § 1981 ("Section 1981"), Title VII, and section 301 of the National Labor Relations Act against Local 1105. After Page 7 this case was transferred from Judge Sotomayor, Defendants filed motions for summary judgment on all claims.


 A. Standard for Summary Judgment

  In order to prevail on a motion for summary judgment, the moving party must establish that there are no genuine issues of material fact and that judgment is warranted as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Facts, and all inferences drawn therefrom, must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); American Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 250.

  In discrimination cases, a trial court must be particularly cautious about granting summary judgment where the employer's intent is at issue, because direct proof is often lacking. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). The court, therefore, must look to circumstantial evidence, which, if believed, would show discrimination. Id. However, summary judgement may be appropriate where no evidence exists or where only conclusory allegations have been offered to suggest that an employer's motives are improper. Minott v. Port Auth. of New York, 116 F. Supp.2d 513, 518 (S.D.N.Y. 2000).

 B. § 1981 Claim against NYNEX

  Because Plaintiff's Title VII claim against NYNEX was dismissed by Judge Sotomayor, her only remaining claim against NYNEX is based on a violation of Section 1981, which Page 8 prohibits racial discrimination in the making and enforcement of contracts. See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998). Although Plaintiff claims that NYNEX discriminated against her on the basis of her race and her sex, Section 1981 only provides a remedy for racially-motivated discrimination. See id.*fn1

  Section 1981 discrimination claims are analyzed under the same legal framework as claims brought under Title VII. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir 2000); Martin v. Citibank, N.A., 762 F.2d 212, 216-17 (2d Cir. 1985). A plaintiff alleging that she was discharged in violation of § 1981 carries the initial burden of establishing a prima facie case of discrimination by showing that (1) she belongs to a protected minority; (2) she is qualified for the position; (3) she was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of racial discrimination. Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir. 2000).

  If the plaintiff meets this burden, the employer must produce evidence that the adverse employment action was taken for a "legitimate, nondiscriminatory reason." St. Mary's Honor Or. v. Hicks, 509 U.S. 502, 509 (1993); McDonnell Douglas, 411 U.S. 792, 802 (1973). In order to overcome this defense, the plaintiff must demonstrate that the proffered reason is simply a pretext for discrimination. McDonnell Douglas, 411 U.S. at 803. While the burden of production shifts throughout the analysis, the burden of proving the employer's discriminatory intent remains with the plaintiff. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Page 9

  NYNEX does not dispute Plaintiff's ability to establish the first three elements of a prima facie case; it disputes only that her discharge occurred in circumstances giving rise to an inference of racial discrimination. In determining whether a plaintiff has presented evidence of circumstances giving rise to an inference of discrimination, the role of the court is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997).

  Plaintiff does not contest that she violated company policy; rather, she claims that white employees who violated the same policy were not discharged. In her amended complaint,

  Plaintiff claims that "[o]ther white employees who provided the same information and acted similarly were not subjected to the same treatment." (Am. Compl. ¶ 16.) In particular, Plaintiff alleges that her violation of the company's policy resulted in her discharge, while other white employees who repeatedly committed the same violation were not discharged.

  A plaintiff can raise an inference of discrimination by showing that the employer subjected her to disparate treatment, that is, treated her less favorably than a similarly situated employee outside her protected group. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Plaintiff attempts to demonstrate such an inference by alleging that employee Dorothy Judge provided private information to a third party but was not fired for her actions. (See Pl.'s Mem. of Law at 5.) Plaintiff additionally claims that other employees in her position provided such information, but were not disciplined for their actions.*fn2 Page 10

  The case of Dorothy Judge does not support Plaintiff's claim. Dorothy Judge is also an African-American woman, and thus belongs to the same protected group as Plaintiff. Thus, the fact that Ms. Judge was treated more favorably than Plaintiff is not evidence that Plaintiff was treated differently on account of her race.

  Beyond her argument with respect to Dorothy Judge, Plaintiff's arguments are conclusory and speculative, and she offers no evidence with which they can be substantiated. Although her amended complaint asserts that white employees were not discharged for acting similarly, Plaintiff's opposition papers fail to mention even one case in which a white employee was treated differently from Plaintiff. For these reasons, the Court concludes that Plaintiff has not made out a prima facie case of discrimination against NYNEX.

  Even assuming, arguendo, that Plaintiff has made out a prima facie case, NYNEX has established a "legitimate, nondiscriminatory reason" for Plaintiff's discharge. NYNEX asserts that Plaintiff was discharged for acting contrary to the company's written employee policy. Plaintiff does not deny that she violated the written policy.

  NYNEX's business records reveal that during the relevant time period — late 1990 through Page 11 April 1993 — NYNEX terminated fifteen out of eighteen bargaining unit employees who were found to have improperly disclosed confidential customer telephone account information to third-parties. Of the fifteen employees terminated, seven were African-American, seven were Caucasian, and one was Hispanic. (Miklave Aff., Exs. 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 34, 35, 36, 37, 38, 39.) Of the three employees who were ultimately not terminated, one was African-American and two were Caucasian. (Miklave Aff., Exs. 21, 22, 30, 31, 33.)

  The evidence before the Court does not support an argument that NYNEX's justification for Plaintiff's termination is pretextual. Therefore, Plaintiff's Title VII claim cannot survive summary judgment.

 C. Title VII Claim against Local 1105

  In order to maintain a Title VII suit, a plaintiff must have first filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 200e-5(e). A defendant who is not named in the EEOC charge may nonetheless be sued for violations of Title VII where a clear identity of interest exists between the unnamed defendant and the party named in the administrative charge. See Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991).

  Here, Plaintiff's EEOC charge names "Communication Workers of America" as the offending party and gives the address of the International, not Local 1105. The main objection in Plaintiff's charge is that "respondent union was denying [her] appeal and would not take [her] grievance to arbitration." Because Local 1105 was not named as a party in Plaintiff's EEOC charge, Plaintiff's Title VII claim can only proceed if there is an identity of interest between Local 1105 and the International. Page 12

  The Second Circuit applies a four-part test in determining whether there is an identity of interest between two entities. See Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). The factors considered are: (1) whether the role of the unnamed party could, through reasonable effort by the complainant, be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary reconciliation 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 unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be conducted through the named party. Id.

  The Second Circuit has declined to recognize an identity of interest between a local union and its international affiliate in a Title VII claim in similar circumstances to those present here. See id. at 210. In Johnson, the Second Circuit applied the test set forth above in affirming the district court's dismissal of a Title VII action against an international union because only the local union had been named in the underlying EEOC charge. See id.

  Similarly, there is no identity of interest between Local 1105 and the International. Plaintiff knew that the International and Local 1105 were separate entities with clearly defined roles. On January 5, 1995, Local 1105 informed Plaintiff by letter that the International had decided not to arbitrate her grievance. (Giaritta Dec., Ex. F.) It is clear that Plaintiff was aware of this fact because she quoted it in her appeal of the International's decision not to arbitrate. (Giaritta Decl., Ex. E, at 18.) The response to Plaintiff's appeal was from the International Union, not Local 1105, and was printed on the International's letterhead, which contained a Page 13 different address than that of Local 1105. (Young Decl., Ex. 10.)

  Like the unions in Johnson, the International and Local 1105 have different interests. Local 1105 is completely responsible for the first two steps of the grievance procedure and appealing the grievance to the third step. At the third step, Local 1105 assists the International, which chairs the meeting and has all the decision-making power. Local 1105 has no role in determining whether to arbitrate a grievance.

  The absence of Local 1105 from the EEOC charge resulted in prejudice. Had Local 1105 been named, the ensuing EEOC investigation would have discovered that Local 1105 had not been involved in the determination not to arbitrate Plaintiff's grievance, the crux of Plaintiff's charge.

  Because Plaintiff failed to name Local 1105 in its charge to the EEOC, and because the Court finds that there is no identity of interest between the International and Local 1105, her Title VII claim against Local 1105 cannot proceed.

  Even assuming, however, that there was an identity of interest between the International and Local 1105, Plaintiff's Title VII claim against Local 1105 cannot survive summary judgment. Plaintiff fails to present any evidence — and indeed, does not even allege — that any employees of Local 1105 or decisions that they made discriminated against her in any way. The Court finds that she has not made out a prima facie case of discrimination against Local 1105; therefore Title VII claim must be dismissed for this reason also.*fn3

 D. Duty of Fair Representation Claim Against Local 1105

  Plaintiff also alleges that Local 1105 breached its duty of fair representation ("DFR"). In Page 14 her amended complaint, Plaintiff asserts that Local 1105 violated its duty to her by: (1) taking too long to process her grievance; (2) failing to inform Plaintiff of the status of her grievance; and (3) refusing to meet with her to discuss her grievance. (Complaint, ¶¶ 11, 12, 28.)

  A union has a duty to fairly represent all employees subject to a collective bargaining agreement. Spellacy v. Airline Pilots Assn. Int'l, 156 F.3d 120, 126 (2d Cir. 1998). A plaintiff alleging a duty of fair representation claim must establish that the union's actions were arbitrary, discriminatory, or in bad faith, and that such actions caused the plaintiff's injuries. Id. Breach of a union's duty will be found only if the union's actions "can fairly be characterized as so far outside a wide range of reasonableness . . . that [they are] wholly arbitrary, discriminatory, or in bad faith." Id. (alterations in original) (internal quotation marks and citations omitted). Tactical errors by the union, or even negligence, do not constitute a breach of its duty of fair representation. United States Steelworkers v. Rawson, 495 U.S. 362. 372-73 (1990). Moreover, judicial review in this context is "highly deferential, recognizing the wide latitude that [unions] need for the effective performance of their bargaining responsibilities." Spellacy, 156 F.3d at 126 (alterations in original) (internal quotation marks and citations omitted).

  Two elements are involved in a duty of fair representation claim: (1) a breach of the collective bargaining agreement claim against the employer; and (2) a breach of the duty of fair representation claim against the union. DelCostello v. Teamsters, 462 U.S. 151, 164-65 (1983). Because these two claims are "inextricably interdependent," to prevail against either NYNEX or Local 1105, Plaintiff must establish both that NYNEX breached the collective bargaining agreement when it dismissed her and that Local 1105 breached its duty of fair representation.

  Plaintiff has failed to demonstrate that Local 1105 acted in bad faith or in an arbitrary or Page 15 discriminatory manner. Plaintiff complains that Local 1105 took too long to process her grievance, failed to inform her of the status of her grievance, and refused to meet with her to discuss her grievance. The record indicates, however, that Local 1105 represented Plaintiff at every stage of the grievance process, discussed Plaintiff's grievance with her, and kept her abreast of the status of her grievance. (See Shider Dep. at 134-35; Giaritta Decl., Ex. E, at 6, 12, 15; Young Decl., Ex. 6.)

  Even if Plaintiff could establish that Local 1105 breached its duty of fair representation, she has not shown that the union's action caused her termination. In order for a plaintiff to recover on a DFR claim, the union's action or inaction must have been such that it would have changed the outcome of a grievance in the plaintiff's favor. DeGennaro v. New York City Hous. Auth., 1995 WL 37850, at *5 (S.D.N.Y. Jan. 31, 1995).

  Plaintiff does not indicate how any of Local 1105's alleged shortcomings may have contributed to NYNEX's decision to terminate her. The record indicates that NYNEX terminated Plaintiff because she violated its company policy that customer records be kept confidential. As Local 1105 has demonstrated, NYNEX has routinely discharged employees who were members of Local 1105 when NYNEX could prove that the employee at issue had disclosed such information. (See Giaritta Decl., Exs G, H, I, J). Moreover, Local 1105 has demonstrated that Plaintiff's claim was unlikely to succeed in arbitration, had the International decided to proceed in that manner. (See Young Decl., Ex. E, at 15). This evidence weighs against a finding that Local 1105's action or inaction had any determinative effect on Plaintiff's termination.

  Plaintiff has presented no evidence that Local 1105 treated Plaintiff unfairly in any Page 16 manner or that any action by the union resulted in her termination. For these reasons, the Court concludes that Plaintiff's claim that Local 1105 breached its duty of fair representation cannot survive summary judgment.


  For the reasons set forth above, Defendants' motions for summary judgment are GRANTED and the amended complaint is dismissed in its entirety. The Clerk of the Court is hereby directed to close the case and remove the file from the active docket.


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