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

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 ...


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