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BLOSSOMGAME v. NEW YORK'S HEALTH AND HUMAN SERVICE UNION

United States District Court, E.D. New York


ARTHURINE BLOSSOMGAME, Plaintiff,
v.
NEW YORK'S HEALTH AND HUMAN SERVICE UNION LOCAL 1199 SEIU, AFL-CIO and UNITED PRESBYTERIAN RESIDENCE, Defendants.

The opinion of the court was delivered by: E. THOMAS BOYLE, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Arthurine Blossomgame ("Blossomgame" or "plaintiff"), commenced this action on March 14, 2002, pursuant to 29 U.S.C. § 1985. The allegations contained in plaintiff's complaint arise from plaintiff's suspension and demotion by her former employer, United Presbyterian Residence ("UPR"). New York's Health and Human Service Union Local 1199 (the "Union"), who is a party to a collective bargaining agreement (the "CBA") with UPR, grieved plaintiff's suspension and demotion but was unsuccessful in having plaintiff returned to her former position. Although plaintiff wished to proceed to arbitration with respect to her grievance, the Union chose not to do so.

Plaintiff thereafter commenced this action, alleging the following causes of action: (1) that the Union breached the duty of fair representation owed to plaintiff by failing to pursue arbitration with respect to plaintiff's suspension and demotion; (2) that the Union breached its fiduciary duty to carry out the provisions of the CBA by refusing to negotiate on plaintiff's behalf with UPR, by failing to investigate plaintiff's claims of discrimination and by failing to present her grievances with respect to various disciplinary actions taken against plaintiff; and (3) that UPR breached the covenant of good faith and fair dealing by demoting her without just cause in violation of the CBA.

  Both UPR and the Union seek summary judgment, asserting that no triable issues of fact exist with respect to any of plaintiff's claims. Plaintiff opposes the defendants' motions. For the following reasons, UPR and the Union's motions are both granted.

  FACTS

  Plaintiff, Arthurine Blossomgame, is a 54-year old African-American woman (Aff. of Arthurine Blossomgame (herinafter "Blossomgame Aff.") dated Jan. 30, 2004, ¶ 1) who has been a Registered Nurse ("RN") for more than 25 years. (Id. ¶ 2.) In 1975, plaintiff began working in a supervisory position as a charge nurse*fn1 at United Presbyterian Residence, a long-term geriatric healthcare facility where many of the residents are severely debilitated. (Compl. ¶ 4; Decl. of Maureen Grech (hereinafter "Grech Decl.") dated Dec. 12, 2003, ¶ 2.)

  During her employment with UPR, plaintiff was repeatedly disciplined, with a record of poor job performance dating back to 1977. (Grech Decl. Exs. A-Q.) Local 1199, the certified representative of UPR employees including plaintiff, repeatedly negotiated with UPR to reduce the disciplinary action imposed on plaintiff each time she committed an infraction. (Decl. of Veronica Villanueva (herinafter "Villanueva Decl.") dated Dec. 12, 2003, Exs. 12, 14,15.)

  A. Plaintiff's Disciplinary Record Prior to 1999

  In 1977, UPR demoted plaintiff from her position as a charge nurse to a non-supervisory position as a staff nurse*fn2 because she was "[unable] to handle the responsibilities of a [c]harge nurse." (UPR R. 56.1 Statement ¶ 22.) UPR reinstated plaintiff to her charge nurse position in 1980. (Id. ¶ 24.) During the 1980's, UPR disciplined plaintiff for the following infractions: (1) insubordination; (2) failing to administer treatments; (3) improperly filling out paperwork; (4) failing to follow UPR's chain of command; and, (5) "creating unnecessary work." (Id. ¶ 25). In the 1990's, UPR again disciplined plaintiff on numerous occasions for similar infractions, including: (1) improperly disposing of infectious waste; (2) administering medicine to a patient at the incorrect frequency (id. ¶ 26); and, (3) improperly removing a catheter from a patient. (Id. ¶ 29.) As a result, plaintiff received at least three counselings and warnings per year during the 1990's. (Id. ¶¶ 26-55.) In addition, in 1992 and 1998, plaintiff received unfavorable year-end evaluations for: (1) poor attendance; (2) calling in sick late — within the first hour of her shift; and, (3) poor interpersonal, organizational and leadership skills. (Id. ¶¶ 27, 49-50.)

  B. Plaintiff's Disciplinary Record and Union Representation Between 1999 and 2001

  1. July 1999

  On July 29, 1999, the Union grieved a five-day suspension on behalf of plaintiff for the following infractions, which occurred in February 1999: (1) loss of an IV dose of Ampicillan; (Blossomgame Resp. to UPR R. 56.1 Statement ¶¶ 58-59); (2) failure to report the loss in a timely manner (id.); and, (3) improper handling of urine samples of two different patients by not labeling each sample and by leaving the samples at the nurse's desk without a surrounding barrier. (Id. ¶¶ 57,61-65.) As a result of the Union's efforts, the five-day suspension was reduced to a written warning. (Union R. 56.1 Statement ¶ 26.) The Union also asserts that, as a result of its efforts, plaintiff was reimbursed for the five days pay she lost while on suspension. (Id.) Plaintiff, however, disputes whether she was paid for the suspension. (Blossomgame Resp. to Union R. 56.1 Statement ¶ 71.) Although she admits she committed these infractions and that the Union was successful in reducing the severity of the discipline, she contends that the Union's representation was inadequate, in that she should not have been written up in the first place. (Id. ¶¶ 67-68, 70-71.) Nevertheless, plaintiff signed the settlement reducing the suspension to a written warning under the heading, "[A]greed and accepted as a [f]inal settlement to the [g]rievance." (Id. ¶ 72.)

  2. August 2000

  On or about August 17, 2000, the Union grieved a three-day suspension and an involuntary transfer to the day shift (Union R. 56.1 Statement ¶¶ 31-32), which plaintiff received for yelling at and scaring a patient and for improperly operating a "CPM" (knee rehabilitation) machine. (Blossomgame Resp. to UPR R. 56.1 Statement ¶¶ 78-81.) Plaintiff claimed that the patient misinterpreted her conduct because the patient was depressed. (Id.) The Union reached a settlement with UPR, which reinstated plaintiff to the night shift, but only on a "float assignment." (Union R. 56.1 Statement ¶¶ 35-36.) The Union contends that the settlement saved plaintiff from losing the 10% pay differential that night shift nurses receive. (Id.; Villanueva Decl. ¶ 42.) Plaintiff, however, contends that she was inadequately represented. (Union R. 56.1 Statement ¶ 36; Blossomgame Resp. to Union R. 56.1 Statement ¶ 33.) Notwithstanding this contention, on August 21, 2000, plaintiff signed the settlement to the grievance under the heading, "Agreed and accepted as final settlement to grievance." (Union R. 56.1 Statement ¶ 37.)

  3. October 2000

  On October 13, 2000, plaintiff was terminated for administering the wrong medication to a patient. (Blossomgame Resp. to UPR's R. 56.1 Statement ¶¶ 100-05, 109.) The Union negotiated on plaintiff's behalf to have her reinstated to her position as a charge nurse. (Id.) When questioned about her termination at her deposition, plaintiff testified that she had given a dialysis patient with renal problems Percocet instead of Tylenol with Codeine. (Blossomgame Dep. dated Mar. 25, 2003 (hereinafter "Blossomgame Dep. Part 1"), at 163, annexed as Ex. X to Sutton Decl.) According to plaintiff, "the Percocet made the patient confused" and she did not return to her "mental status" until "after a few days." (Id. at 169; Blossomgame Resp. to UPR's R. 56.1 Statement ¶¶ 100-05).

  Plaintiff testified that following her termination, her Union delegate, Isaiah Roberts, called at at home saying, "You've been here 26 years, we are not going to let them do this to you." (Blossomgame Dep. Part 1 at 165.) Subsequently, through Mr. Roberts' successful negotiation with UPR, plaintiff was reinstated to her charge nurse position with a two-week suspension, effective November 5, 2000. (Id. at 165-68.) Although plaintiff does not dispute these facts, she does "dispute[] the Union negotiation of the settlement of [her] grievance in light of the fact that [she] should not have been terminated at all." (Blossomgame Resp. to UPR's R. 56.1 Statement ¶¶ 106-08.) She also asserts that, although she signed the settlement under the heading "[A]greed and accepted as a [f]inal settlement to the grievance," she only did so at Mr. Roberts's insistence. (Id. ¶ 113.)

  C. Plaintiff's Allegations of Inadequate Union Representation

  1. December 2000

  Plaintiff contends that the Union failed to grieve a two-day suspension she received on December 8, 2000, despite her "numerous" requests for representation. (Blossomgame Resp. to UPR's R. 56.1 Statement ¶ 116.) In December 2000, UPR suspended plaintiff for: (1) violating its policy by giving a patient medication one hour and ten minutes ahead of schedule without notifying a doctor; and, (2) falsely documenting the time she dispensed the medication in a nurse's report. (Id. ¶¶ 116-17.) When questioned about this at her deposition, plaintiff testified that "an hour and ten minutes was no big deal" (Blossomgame Dep. dated Mar. 18, 2003 (herinafter "Blossomgame Dep. Part 2"), at 100-01, annexed as Ex. X to Sutton Decl.) and that this practice was not out of the ordinary. (Blossomgame Resp. to UPR's R. 56.1 Statement ¶¶ 117-18.) According to plaintiff, the patient was being discharged before the scheduled time for receiving medication, such that waiting until the scheduled time would not have been feasible. (Id.) However, plaintiff noted on the nurse's report that she dispensed the medication at the correct scheduled time, rather than an hour and ten minutes earlier. (Id. ¶ 122.) Plaintiff testified at her deposition that she did not make the appropriate notation because she was "just so busy trying to do everything." (Blossomgame Dep. Part 1 at 102.)

  2. March 2001

  On March 8, 2001, plaintiff received a verbal warning for failing to properly assess a resident before calling a doctor (Blossomgame Dep. Part 2 at 271), for yelling in a public area and for walking away from a doctor and a nurse in mid-conversation. (Id.; Villanueva Decl. Ex. 5.) The record suggests that plaintiff neither requested nor was offered Union representation for this incident. However, plaintiff now contends that she did not agree with the allegations against her. (Blossomgame Resp. To UPR 56.1 Statement ¶ 46.)

  D. Plaintiff's Demotion and the Union's Decision Not to Arbitrate

  1. The Three-Step Grievance Process Pursuant to Article 32 of the CBA, plaintiff was entitled to a three-step grievance process each time she was disciplined. (Decl. of Richard D. Sutton (hereinafter "Sutton Decl." dated Dec. 12, 2003, Ex.W at 86.) In Step One of the grievance process, the employee and her Union delegate can present a grievance to her immediate supervisor. (Sutton Decl. Ex. W at 90.) If the grievance is not settled in Step One, the employee can advance to Step Two and present her grievance in writing to the department head or his or her designee. (Id. at 91.) If the grievance is still not settled after Step Two, the employee and her Union delegate can advance to Step Three and present her grievance in writing to the "Personnel Director" or "Administrator of the Residence" or a named designee. (Id.) However, the employee can forego steps one and two and initially present her grievance at the third-step level. (Id.) If a third-step grievance is denied, the Union delegate may choose to present the employee's case for arbitration. (Union R. 56.1 Statement ¶ 88.) If the delegate chooses not to arbitrate, the employee may appeal to the Chapter Hearing and Appeals Board, comprised of three to seven delegates, who vote on whether or not to reverse the delegate's decision. (Villanueva Decl. ¶ 11-15.) In the absence of a favorable determination from the Chapter Hearing and Appeals Board, the employee can appeal to the Division Hearing and Appeals Board, whose decision is final and binding. (Id.)

  2. Plaintiff's Demotion

  On April 18, 2001, the Union filed a third-step grievance on behalf of plaintiff, grieving her one-week suspension and demotion from a charge nurse to a non-supervisory position as a staff nurse (Blossomgame Dep. Part 2 at 377), which plaintiff received for failing to timely report a resident's "critical lab value."*fn3 (UPR R. 56.1 Statement ¶ 129.) The grievance was denied. (Union R. 56.1 Statement ¶ 53.) UPR's Director of Human Resources, Maureen Grech, presided over the hearing and refused to reduce the discipline in light of plaintiff's extensive poor job performance record. (Grech Dep. dated April 3, 2003, at 52, 68, annexed as Ex. Y to Sutton Decl.)

  The Union alleges that even though the CBA only provides for one third-step grievance, delegate William Kee convinced UPR to hold a second third-step grievance hearing so that plaintiff could have another opportunity to plead her case. (Union R. 56.1 Statement ¶ 54.) On May 18, 2001, a second third-step grievance hearing was held. (Id. ¶ 55.) Plaintiff testified during her deposition that delegate Nora Sellers, who represented plaintiff at her second third-step grievance hearing, argued on plaintiff's behalf "to the best of [Sellers'] abilities, as a unit ward clerk." (Blossomgame Dep. Part 2 at 301.) In response to the present motion, however, plaintiff disputes that the second third-step grievance hearing resulted from any efforts by the Union and alleges that the Union failed to adequately argue on her behalf at the hearing. (Blossomgame Resp. to Union R. 56.1 Statement ¶ 55.) Plaintiff offers no specific facts to support this allegation.

  The Union decided not to further grieve the issue through arbitration because it believed success was unlikely. (Union R. 56.1 Statement ¶ 61.) Plaintiff appealed the Union's decision to the Chapter Hearings and Appeals Board and, subsequently, to the Division Hearings and Appeals Board. (Id. ¶¶ 104, 115.) Both Boards denied plaintiff's grievance. (Id.) The Division Hearings and Appeals Board's decision was final, effective November 15, 2001. (Id.)

  Shortly after the Union chose not to arbitrate the grievance, plaintiff took two concurrent leaves of absences. (Blossomgame Aff. ¶¶ 113, 121-23.) First, she took a leave of absence under the Family Medical Leave Act, 29 U.S.C.S. § 2601 et seq. ("FMLA"), from April 2001 to August 2001, to care for her father. (Id. ¶ 113). That leave was thereafter extended until November 2001.

  Immediately after that leave of absence was complete, plaintiff took a medical leave of absence for abdominal discomfort. (Id. ¶¶ 121-123.) At the end of her leaves of absence, plaintiff refused to return to UPR as a staff nurse.*fn4 (Blossomgame Dep. Part 1 at 220.) Under the CBA, plaintiff was required to return to her employment by April 2003, two years from the time she first commenced her leave of absence, in order to maintain her position. (Kee Aff. ¶¶ 17-19.) By letter dated April 29, 2003, UPR informed plaintiff that if she failed to provide a valid excuse for not returning to work, she would be deemed to have abandoned her position as a staff nurse. (Grech Decl. ¶ 80.) UPR and the Union were notified by plaintiff's counsel on May 30, 2003 that plaintiff would not be returning to UPR and thus considered her to have abandoned her employment. (Id. ¶ 82, Ex. X.)

  E. The Instant Action

  Plaintiff seeks relief, including but not limited to reinstatement, backpay and frontpay, for her claims that (1) the Union breached both its fiduciary duty as well as its duty of fair representation and (2) that UPR breached both the covenant of good faith and fair dealing arising from the CBA as well as the CBA itself. (Compl. ¶¶ 22, 28-32.)

  Plaintiff argues that the Union did not properly represent her because all of the delegates who negotiated on her behalf — and successfully reduced her disciplines — were not registered nurses ("RN's"). She contends that as a result, they could not "comprehend what was being said [at meetings]" and could not "properly argue on [her] behalf." (Blossomgame Resp. to UPR's R. 56.1 Statement ¶¶ 136, 147.) The Union claims, however, that RN delegates were not provided because (1) a delegate is not assigned to represent only members who share the same department or job title as the delegate (Union R. 56.1 Statement ¶ 12); and, (2) there were no RN candidates in the 2000 elections and therefore no RN delegate was elected. (Id. ¶ 10.)

  Plaintiff also argues that the Union breached its fiduciary duty, on the grounds that it violated Article 30 of the CBA by relying on outdated infractions in its decision not to arbitrate plaintiff's final grievance. (Blossomgame Mem. Opp'n. at 10-11.) Pursuant to Article 30, disciplinary actions imposed for infractions of a serious nature are to be removed from the employee's personnel file after two years and those of a non-serious nature after one year. (Sutton Decl., Ex. W at 86.) Mr. Kee testified at his deposition, however, that the Union made its decision not to arbitrate based on the overall unlikelihood of success. (Kee Dep. at 40.) Kee stated that the factors leading to that decision were (1) plaintiff's extensive poor job performance record, and (2) the fact that arbitrators tended to take outdated records "under advisement," irregardless of Union objection. (Id.)

  Plaintiff bases her allegations against UPR on its alleged breach of Article 30 as well, claiming that UPR also relied on outdated infractions when levying disciplinary action against her for the incident that led to her demotion and ultimate termination of employment.*fn5 (Blossomgame Aff. ¶ 11-12.) She contends, and UPR does not dispute, that it does not physically remove disciplinary records from an employee's files. (Grech Decl. ¶ 11.) UPR asserts, however, that disciplinary records physically remain in an employee's file solely for record keeping purposes totally unrelated to disciplinary action.

  Although not raised in her complaint, plaintiff now alleges that she was subject to discrimination on the basis of her race and her age by both UPR and the Union in that she was more severely disciplined than her white counterparts. (Blossomgame Mem. Opp'n. at 8-9; Blossomgame Dep. at 192, 455-57.) Plaintiff claims that she brought these allegations to Mr. Kee's attention, the African-American Union delegate presiding over plaintiff's second third-step grievance hearing, citing what she purported to be specific examples of three white employees who were not disciplined as severely as she was. (Id.) Upon investigation, however, Mr. Kee discovered that these employees had almost exemplary performance records — in stark contrast to plaintiff's multiple infractions.*fn6 (Kee Dep. at 239.) Plaintiff has not filed a claim of discrimination with any federal, state or local agency. (Blossomgame Dep. at 198-200.)

  DISCUSSION

  A. Legal Standard

  Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to establish the lack of any factual issues. See id. The very language of this standard reveals that an otherwise properly supported motion for summary judgment will not be defeated because of the mere existence of some alleged factual dispute between the parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The requirement is that there be no "genuine issue of material fact." Id. at 248.

  The inferences to be drawn from the underlying facts are to be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). When the moving party has carried its burden, the party opposing the summary judgment motion must do more than simply show that "there is some metaphysical doubt as to the material facts." Id. at 586. Under Rule 56(e), the party opposing the motion "may not rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing there is a genuine issue for trial." Anderson, 477 U.S. at 248.

  B. Plaintiff's Hybrid Section 301/Duty of Fair Representation Claim

  Plaintiff's claims against UPR and the Union fall under Section 301 of the Labor Management Relations Act ("LMRA") and are part of what courts consider a "hybrid § 301/fair representation claim." Del Costello v. Int'l Bhd. of Teamsters, 462 U.S. 11, 164-65 (1983); see also National Labor Relations Act, 29 U.S.C. § 185(b). A hybrid action consists of two separate claims: one against the plaintiff's employer for an alleged breach of the collective bargaining agreement, pursuant to LMRA § 301, and one against the plaintiff's union for breach of the union's duty of fair representation. See Del Costello, 462 U.S. at 164. The two claims are "inextricably interdependent." Id.

  As a threshold matter, the plaintiff must establish that the union breached its duty of fair representation in its handling of her grievance. See Chauffers, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990). Then, and only then, can the employee seek to demonstrate that the employer breached the CBA. See King v. N.Y. Tel. Co., Inc., 785 F.2d 31, 36 n. 2 (2d Cir. 1986 ("It is not until a union breaches its duty of fair representation that an employee has all the necessary elements of a claim against the employer for breach of contract."). "Where, `it is shown that the union fairly represented the employee, the suit against the employer cannot stand'" Kavowras v. N.Y. Times Co., No. 00 Civ 5666, 2004 U.S. Dist. LEXIS 14266, at *22 (S.D.N.Y. July 23, 2004) (quoting Flynn v. Prudential Ins. Co. of Am., No. 95 Civ 113, 1996 U.S. Dist. LEXIS 7638, at *5 (S.D.N.Y. June 3, 1996). In the instant action, the plaintiff's hybrid claim against UPR and the Union fails because she has not established that the Union breached its duty of fair representation, as discussed below.

  1. The Union's Duty of Fair Representation

  A union's duty to fairly represent its employees is not codified; rather, it is "implied under the scheme of the National Labor Relations Act." White v. White Rose Food, 128 F.3d 110, 113 (2d Cir. 1997) (citing Del Costello, 462 U.S. at 164). "`[A]s the exclusive bargaining representative of the employees, . . . the Union ha[s] a statutory duty fairly to represent all . . . employees, both in its collective bargaining . . . and in its enforcement of the resulting collective bargaining agreement.'" United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)).

  To establish a breach of the duty of fair representation, plaintiff must demonstrate that the union's conduct: (1) was "arbitrary, discriminatory, or in bad faith," Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1999) (citing Vaca, 386 U.S. at 190), and (2) "`seriously undermined the integrity of the arbitral process.'" Kavowras, 2004 U.S. Dist. LEXIS 14266, at 22 (quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976)). "Under this standard, `any substantive examination of a union's performance . . . must be highly deferential.'" Kavowras, 2004 U.S. Dist. LEXIS 14266, at *22-23 (quoting Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 78 (1991)).

  Under the first prong of the test, a union's actions are considered arbitrary only if the union's behavior is so far outside a "`wide range of reasonableness . . . as to be irrational'" in light of the factual and legal landscape at the time of the union's actions. Spellacy, 156 F.3d at 129 (quoting Air Line Pilots, 499 U.S. at 67); NLRB v. Local 282, Int'l Bhd. of Teamsters, 740 F.2d 141, 147 (2d Cir. 1984) (holding that the union's conduct must be "so egregious, so far short of the minimum standards of fairness to the employee and so unrelated to legitimate interest, as to be arbitrary"). "This `wide range of reasonableness' gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong." Marquez, 525 U.S. at 45046. Discriminatory conduct can be established by a showing of substantial evidence of discrimination that is "intentional, severe and unrelated to legitimate union objectives. . . ." Amalgamated Ass'n of St., Elec., Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971). "Bad faith requires a showing of fraudulent, deceitful or dishonest action." Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999). Accordingly, "a union's purported breach cannot be based on mere negligence or tactical errors," Kavowras, 2004 U.S. Dist. LEXIS 14266, at *23 (citing Barr v. United Parcel Serv., 868 F.2d 36, 43 (2d Cir. 1989), and "as long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage." Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985) (internal quotation marks and citation omitted). The second prong of the test is essentially a causation requirement whereby the plaintiff must establish a "causal connection between the union's wrongful conduct and [her] injuries." White, 237 F.3d at 179; Spellacy, 156 F.3d at 126.

  a. Plaintiff's Claims Regarding Representation Prior to her Demotion are Time-Barred

  Hybrid claims brought pursuant to LMRA § 301 are subject to a six-month statute of limitations. 29 U.S.C. § 185(b); see also Del Costello, 462 U.S. at 169-72. The statute of limitations begins to run when the employee knows or has reason to know that the breach has occurred. See id.

  Plaintiff here claims that the Union breached its duty of fair representation because the delegates who negotiated on her behalf at her numerous grievance hearings — and successfully reduced her disciplines — were not registered nurses ("RN's"), as she. She contends that as a result, they could not "comprehend what was being said [at meetings]" and could not "properly argue on [her] behalf." (Blossomgame Resp. to UPR's R. 56.1 Statement ¶¶ 136, 147.) Plaintiff filed the complaint herein on March 14, 2002, within six months of the November 15, 2001 Division Hearing and Appeals Board's final decision on her demotion. Thus, her allegations are timely with respect to any claims of unfair representation surrounding the hearings of April 18, 2001, May 18, 2001 and November 15, 2001 (the "demotion hearings").

  Incorporated in the March 14, 2002 complaint, however, are claims that the Union did not adequately represent plaintiff at other grievance hearings prior to the demotion hearings. Such claims fall outside the six-month statute of limitations period. Therefore, plaintiff's claims that the Union failed to provide her with a delegate who was also an RN are time-barred with respect to the grievance hearings that occurred on July 29, 1999 (Blossomgame Resp. to UPR's 56.1 Statement ¶¶ 58-59), on or about August 17, 2000 (Union R. 56,1 Statement ¶¶ 31-32), and on October 23, 2000. (Blossomgame Resp. to UPR's 56.1 Statement ¶¶ 100-05, 109.)

  b. The Union's Use of Non-RN Delegates

  Neither the law nor the CBA to which UPR and the Union were parties requires that an RN be represented by an RN union delegate at grievance proceedings. (Blossomgame Aff. Ex. A, ¶ 33); see also United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372 (1990) (finding that an employee claiming that the union did not fulfill an obligation must be able to point out specific language in the agreement which creates this obligation). As such, the Union cannot be held liable for a breach of the duty of fair representation when no such obligation to provide plaintiff with an RN delegate even exists.

  Moreover, the various non-RN union delegates who represented plaintiff successfully negotiated, time and again, to ameliorate disciplinary action taken against her. For instance, on July 29, 1999, plaintiff's representative negotiated a five day suspension be reduced to a written warning, with pay to compensate plaintiff for the five days she spent out of work. (Blossomgame Dep. Ex. 1.) On June 9, 2000, plaintiff's delegate obtained a reversal of plaintiff's involuntary transfer to the day shift, preserving plaintiff's 10% pay differential. (Blossomgame Dep. Ex. 5.) Finally, on October 23, 2000, termination of plaintiff's employment was reversed and the discipline was reduced to a two-week suspension due to the efforts of her union representative. (Blossomgame Dep. at 15-68.) The foregoing examples render plaintiff's claims that non-RN delegates could not "comprehend what was being said [at meetings]" (Blossomgame Resp. to UPR's 56.1 Statement ¶ 136) and could not "properly argue on [her] behalf" (id. ¶ 147) unpersuasive.

  c. The Union's Decision not to Arbitrate Plaintiff's Case was Neither Arbitrary, Discriminatory nor in Bad Faith

  "Courts have afforded unions a considerable amount of discretion in grievance matters." Smith v. Drug, Chem., Cosmetic, Plastics and Affiliated Indus. Warehouse Employees, Local 815, 943 F. Supp. 224, 237 (E.D.N.Y. 1996) (citing cases). "`As long as the Union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.'" Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985) (quoting Capobianco v. Brink's, Inc., 543 F. Supp. 971, 975 (E.D.N.Y. 1982), aff'd, 722 F.2d 727 (2d Cir. 1983).

  An employee does not have an absolute right to have her grievance presented for arbitration. See Vaca, 386 U.S. at 191. Moreover, a union is under no obligation to arbitrate what it believes to be a meritless grievance. "There is no arbitrariness in failing to process a bad case." Wozniak v. UAW, Local 897, 842 F.2d 633, 636 (2d Cir. 1988) (finding the union's decision not to pursue plaintiff's grievance reasonable where plaintiff brought a loaded firearm to work) (citing Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1214-15 (9th Cir. 1980)); see also Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (holding that "the duty of fair representation is not breached where the union fails to process a meritless grievance"); Smith, 943 F. Supp. at 242 (holding that the union's decision not to arbitrate was not arbitrary where plaintiff had a poor work performance history, multiple warning notices and suspensions for the same type of infraction for which her employment was terminated).

  To survive summary judgment, plaintiff must show that the Union's decision to forgo arbitration was "so far outside a wide range of reasonableness" as to be irrational, in light of the factual and legal landscape at the time the Union chose its course of action. Marquez, 535 U.S. at 44. She has failed to do so. Plaintiff contends that the Union did not argue on her behalf at the second third-step grievance hearing. However, this contradicts plaintiff's deposition testimony that Nora Sellers, her union representative at that hearing, argued on plaintiff's behalf "to the best of [Seller's] abilities" at the hearing. (Blossomgame Dep. Part 2 at 301.) It is well-settled that statements that contradict a plaintiff's prior deposition testimony may be disregarded on a motion for summary judgment. See Mack v. U.S. 814 F.2d 120, 124 (2d Cir. 1987) (finding that plaintiff's affidavit did not present an outstanding material fact where it contradicted prior sworn deposition testimony) (citing Miller v. Int'l Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir. 1985)). I find plaintiff's statements regarding the second third-step grievance hearing to be without merit and will disregard them for purposes of this motion.

  Plaintiff further contends that the Union's decision not to arbitrate plaintiff's grievance was arbitrary because the Union improperly relied on outdated infractions committed by plaintiff, which physically remained in plaintiff's personnel file, in violation of the CBA. (Blossomgame Aff. ¶ 16.) William Kee, the Union delegate who presided over both of plaintiff's third-step grievance hearings, and a panel of Union delegates determined that arbitration would be unsuccessful in light of plaintiff's disciplinary record. Kee stated at his deposition that the Union determines the probability of success in presenting a case for arbitration "based on what may be presented at arbitration." (Kee Dep. at 228.) Kee testified that employers tend to present the employee's entire record and that arbitrators tend to take outdated infractions "under advisement," irregardless of Union objection. (Id. at 40.) Plaintiff argues that the Union's decision was based on this consideration and therefore constituted arbitrary conduct.

  While plaintiff may be correct that outdated disciplinary infractions remained in her personnel file, this does not give her a viable cause of action for breach of the Union's duty of fair representation. First, the Union's decision was not based on the outdated infractions, but rather on its determination of how arbitrators would consider plaintiff's disciplinary record, were it presented at arbitration. Second, plaintiff's extensive disciplinary record during her final two years at UPR, standing alone, is sufficient to sustain the Union's decision to forgo arbitration as reasonable. Plaintiff committed multiple disciplinary infractions during her last two years of employment with UPR, most of which were of a serious nature, such as administering the wrong medication to a patient, losing an IV dose of medication, and falsifying records. Such infractions could properly have been considered at arbitration. See Wozniak, 842 F.2d at 636; Smith, 943 F. Supp. at 242. Thus, the Union's decision not to pursue arbitration is best categorized as "strategic in nature and cannot support [plaintiff's] breach of the duty of fair representation claim." Kavowras, 2004 U.S. Dist. LEXIS 14266, at *25 (finding that the union did not breach its duty of fair representation where it chose to pursue arbitration in lieu of litigation with respect to plaintiff's claim).

  Plaintiff next alleges that the Union's conduct towards her was racially discriminatory. The Union delegates directly involved in representing plaintiff were also African-American. Plaintiff contends that "an African-American can still be prejudiced against another African-American." (Blossomgame Aff. ¶ 108.) To survive summary judgment, however, plaintiff must offer evidence of discrimination that was "intentional, severe and unrelated" to the Union's legitimate objectives. Lockridge, 403 U.S. at 301. Plaintiff has failed to do so. Aside from conclusory allegations, plaintiff has not adduced any factual support to substantiate her claim of racial discrimination on the Union's part. Moreover, plaintiff did not plead discrimination in her complaint. She raises this issue for the first time in her opposition to the defendants' summary judgment motion. As such, the court is not required to consider these allegations. See, e.g., Geicus v. Liz Claiborne, No. 00 Civ. 9518, 2002 U.S. Dist. LEXIS 2628, at *9-10 (S.D.N.Y. Feb. 14, 2002) ("Courts in this district regularly refuse to hear claims raised for the first time in opposition to a summary judgment motion. . . .") (citing cases).

  Plaintiff similarly fails to demonstrate that the Union's decision was in bad faith, in light of its history of successfully advocating on her behalf since 1977. To defeat defendants' summary judgment motion, plaintiff must demonstrate that the Union's conduct was "fraudulent, deceitful or dishonest." Sim, 166 F.3d at 472. Plaintiff contends that Union representatives misled her into believing that her case would be arbitrated. (Blossomgame Aff. ¶¶ 94-95.) However, plaintiff provides no factual support indicating how any Union delegates misled her. The only basis that plaintiff offers is her deposition testimony that Union delegates informed her of her right to seek arbitration, which she exercised. (Blossomgame Dep. at 500: 15-24.) Such testimony does not support a finding that the Union's decision not to pursue arbitration was made in bad faith.

  Plaintiff also asserts that the grievance appeals process was a sham. She contends that there were serious procedural irregularities, such as an alleged incident in which Kee searched for and found a person from the corridor outside the Chapter Hearings and Appeals Board meeting to satisfy the number of delegates required by the CBA to hold a hearing. (Blossomgame Aff. ¶ 72.) Plaintiff alleges that Kee coerced this "unauthorized person" into voting against her request to pursue arbitration. (Id.) She also claims there was a conflict of interest because Kee's mother, Laura Kee, was a voting member of the Chapter Hearings and Appeals Board meeting. (Id.) However, aside from conclusory allegations, such as the ones outlined above, plaintiff offers no factual support for her claim that the Union acted in bad faith — none to show how Laura Kee's presence as a legitimate delegate was untoward and none to show that the addition of an individual from the corridor materially affected the unanimous vote not to pursue arbitration with respect to plaintiff's demotion. Accordingly, I find the Union's decision to forgo arbitration to be neither arbitrary, discriminatory nor in bad faith. Plaintiff has failed to demonstrate any genuine issues of material fact with respect to her claim that the Union breached its duty of fair representation.

  d. The Union's Conduct is not Causally Connected to Plaintiff's Injuries

  Assuming arguendo that plaintiff could sufficiently establish that the Union's conduct was either arbitrary, discriminatory or in bad faith, she still fails to demonstrate a causal connection between the Union's actions and her alleged injuries. Plaintiff's demotion from charge nurse to staff nurse is not causally connected to the Union's conduct. Rather, it was a result of plaintiff's poor job performance. Moreover, plaintiff ultimately abandoned her position at UPR by refusing to return to work as a staff nurse after two consecutive leaves of absence, which spanned the two years following the Union's decision not to arbitrate. Plaintiff admitted at her deposition that she was physically capable of returning to work but that she refused to do so because she objected to the demotion she received prior to her leaves of absence. (Blossomgame Dep. at 220.) Accordingly, I find that plaintiff has failed to demonstrate a link between the Union's conduct and her alleged injuries.

  Based on the foregoing, the Union's motion for summary judgment is granted.

  2. UPR's Alleged Breach of the CBA

  Since plaintiff has failed to make the requisite threshold showing that the Union breached its duty of fair representation necessary to sustain her hybrid § 301/fair representation claim, the court need not go any further in its analysis. See White, 237 F.3d at 183 n. 13 (holding that since plaintiffs failed to establish their duty of fair representation claim, there was no need to reach the merits of their § 301 claim). Even assuming arguendo that plaintiff were to succeed on her fair representation claim, she still fails to demonstrate that UPR breached the CBA. Plaintiff's two central contentions are that: (1) the severity of her disciplines were motivated by discrimination on the basis of race and age; and (2) similar to her claim against the Union, that UPR violated its own policy and the CBA by relying on outdated infractions in reaching its decision to demote her. Both claims fail as a matter of law, as explained below.

  a. Plaintiff's Allegations of Discrimination

  At the outset, I note that, as with the claim of discrimination against the Union, plaintiff has not alleged any violations by UPR pursuant to Title VII in her complaint. Nor has she filed a charge with any state or federal administrative agency. See Joseph v. Manhattan and Bronx Surface Transit Operating Auth., No. 96 Civ 9015, 2004 U.S. Dist. LEXIS 17021, at *15-16 (S.D.N.Y. Aug. 24, 2004) ("Before initiating a Title VII action in federal court, a complainant must have filed an EEOC complaint and received from the EEOC a "Right to Sue" letter.") (citing Butts v. City of New York Dep't of Housing Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in, Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998); see also 42 U.S.C. § 2000e-5 (requiring a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed a charge with a local or state agency, within 300 days of the alleged discriminatory action). As stated supra, the court is free to disregard these allegations since they have only been raised for the first time in opposition to the defendants' motions for summary judgment. Nonetheless, for purposes of completion, I will address them.

  To establish a prima facie of discriminatory demotion, plaintiff must allege that: (1) she is a member of a protected class; (2) was qualified for the position from which she was removed; (3) was subject to an "adverse employment action;" and (4) either she was replaced by someone not a member of her protected class or the position remained open. de Silva v. New York City Transit Auth., No. 96-CV-2758, 1999 U.S. Dist. LEXIS 19998, at *26 (E.D.N.Y. Nov. 17, 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Plaintiff qualifies as a member of a protected class as a 54-year-old African-American woman. (Blossomgame Aff. in Opp'n to Summ. J. ¶ 1.) Moreover, she was qualified for the position of charge nurse because she is an RN and had been employed in that position for approximately twenty-five years. (Id. ¶ 2.) I will assume for purposes of this motion that the demotion was an adverse employment action. Although it did not involve wage loss, it stripped plaintiff of her supervisory post at UPR. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (finding that an adverse employment action is a flexible notion, not defined "solely in terms of job termination or reduced wages and benefits, and that less flagrant reprisals by employers may indeed be adverse"); de Silva, 1999 U.S. Dist. LEXIS 19998, at *27 (finding that a demotion that did not result in a salary reduction constituted an adverse employment action). Finally, although the status of plaintiff's former position is not clear from the record before me, I will assume for purposes of the summary judgment motion that the position either remained open or was filled by someone not a member of plaintiff's protected class. See Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993) (stating that for purposes of summary judgment, courts "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor").

  Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to "articulate some legitimate, non-discriminatory reason" for the adverse employment action. McDonald Douglas Corp., 411 U.S. at 802. The employer has only the burden of production and does not have to "persuade the court that it was actually motivated by the proffered reasons." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981) (citing Bd. of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978)). UPR points to plaintiff's long-standing disciplinary record for poor job performance as the reason for both her demotion and its refusal to reduce the discipline. (Grech Dep. at 52, 68; UPR's Mem. Supp Summ. J. at 21.)

  Once the defendant offers a non-discriminatory reason for its action, the presumption established by plaintiff's prima facie case "drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). The plaintiff must then demonstrate by a preponderance of the evidence that (1) the employer's proffered reason for the adverse employment action is false, and (2) more likely than not, discriminatory animus was the real reason. See id. Plaintiff must provide more than conclusory allegations to support her claims in order to survive summary judgment. See Nweke v. The Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 214 (S.D.N.Y. 1998) ("[W]hen the defendant [employer] provides convincing evidence to explain its conduct and the plaintiff's contention consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment in favor of the defendant.").

  Plaintiff does not dispute that she committed the infractions for which UPR disciplined her. Instead, she argues that the severity of the disciplines imposed upon her amounted to race and age discrimination because younger white nurses were not as harshly disciplined. However, none of the white employees who plaintiff claims were treated more favorably than she had a record of poor job performance even remotely similar to plaintiffs. (Kee Dep. at 239.) William Kee, who is also an African-American, investigated plaintiff's allegations of racial discrimination and found that the disciplinary action taken against plaintiff did not "have anything to do with racism." (Id.) Moreover, the employees claimed to have been treated more favorably, as well as the department head who approved her demotion, are all her contemporaries in age. (Grech Decl. ¶ 65.) Accordingly, this entitles UPR to an inference of no discriminatory animus. See Cooper v. Morgenthau, No. 99 Civ 11946, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) (finding that defendant was entitled to an inference of no discriminatory animus where plaintiff and co-worker whom plaintiff alleged was biased against her were members of the same protected class) (citing cases). Plaintiff offers nothing more than conclusory allegations to support her clams of racial and age-based animus on UPR's part. UPR had a legitimate reason for demoting plaintiff — her poor performance record. Plaintiff has presented no evidence to contradict this. Accordingly, I find that plaintiff fails to present any triable issues of fact with respect to her discrimination claims.

  b. UPR's Reliance on Outdated Infractions

  Article 30 of the CBA requires removal of disciplinary infractions of a serious nature after two years and those of a non-serious nature after one year from an employee's personnel file. (Sutton Decl., Ex. W, at 86.) UPR admits that it did not physically remove the infractions outside this time frame from plaintiff's personnel file, however, UPR asserts that it only considered those infractions from the preceding two years when imposing disciplinary action on an employee. (Grech Dep. at 14.) UPR contends that disciplinary infractions beyond two years physically remain in an employee's personnel file purely for record keeping purposes, pursuant to federal and state regulations. See, e.g., 42 C.F.R. § 483.65(a)(3) (requiring nursing homes to establish an infection control program under which they maintain "a record of incidents and corrective actions related to infections"); 10 N.Y.C.R.R. § 415.30(f) (obligating nursing homes to keep and produce, upon request, "an accident and incident record which shall include a clear description of every accident and any other incident involving behavior of a resident or staff member that poses a threat to a resident or staff member. . . ."); see also In re Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434, 440 (2003). UPR further maintains that it does not physically remove the infractions from employees' personnel files because they serve as "potential evidence for civil litigation involving patient care." (Grech Dep. at 14.)

  Even if retaining employees' disciplinary infractions beyond the two-year time frame does constitute a violation of the CBA, there has been no evidence presented that UPR relied on the outdated infractions when levying disciplinary action against plaintiff. Moreover, consideration of plaintiff's disciplinary record within the time frame set forth in the CBA, standing alone, was enough to warrant UPR's decision to demote her. Accordingly, I find there to be no outstanding issues of material fact as to this issue.

  Based on the foregoing, UPR's motion for summary judgment is granted.

  CONCLUSION

  For the foregoing reasons, the Union's motion for summary judgment is granted. UPR's motion for summary judgment is also granted. The Clerk of the Court is directed to close this case.

  SO ORDERED.


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