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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 ...

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