United States District Court, E.D. New York
June 23, 2005.
ROBERT MARTINEZ, Plaintiff,
AMALGAMATED TRANSIT UNION, LOCAL 1056 AND NEW YORK CITY TRANSIT AUTHORITY, Defendants.
The opinion of the court was delivered by: DAVID TRAGER, District Judge
MEMORANDUM AND ORDER
Plaintiff Robert Martinez ("Martinez" or "plaintiff"), acting
pro se, brings this employment discrimination action against his
former employer, the New York City Transit Authority ("Transit
Authority") and his former union, Amalgamated Transit Union,
Local 1056 (the "Union") (collectively, "defendants"), alleging
that he suffered unlawful discrimination in violation of Title
VII of the Civil Rights Act of 1964 ("Title VII"). Defendants
move for summary judgment to dismiss the action pursuant to Rule
56 of the Federal Rules of Civil Procedure.
Martinez began working for the Transit Authority as a Bus
Operator in 1985 and became a member of the Union around that time.*fn1 See Defendant Transit Authority's Statement of
Material Facts Pursuant to Rule 56.1 ("T.A. 56.1 Statement") ¶ 2;
id. at Ex. 13 at 49 (deposition of Robert Martinez).*fn2
His nearly eighteen-year tenure was marred by an extensive
disciplinary record that included several run-ins with
supervisors. See T.A. 56.1 Statement ¶ 2. A transcript of his
work history shows numerous warnings and reprimands, including at
least nineteen separate suspensions. See T.A. 56.1 Statement ¶
2; id. at Ex. 2. He was eventually dismissed in 2003.
The incident that led to plaintiff's dismissal took place on
February 20, 2003, while he was working the overnight shift. At
approximately 12 a.m., plaintiff's supervisor, General
Superintendent Joseph King ("King"), who was conducting an
inspection of the depot, noticed that plaintiff was not wearing a
mandatory safety vest and called out to him from a distance of
about 30 feet, telling him to put it on. See T.A. 56.1
Statement ¶ 11; id. at Ex. 12 at 3 (arbitration decision and
award, dated March 7, 2003).
According to King, Martinez was holding a newspaper and
responded that he was "too busy" to change into the appropriate
gear. See Affidavit of Joseph King in Support of the Transit
Authority's Motion for Summary Judgment ("King Aff.") ¶ 3. King
issued a second request, but Martinez refused. After a third
request, when Martinez continued to indicate that he was not
going to comply, King took Martinez out of service and told him
to leave the property. See King Aff. ¶ 3.
Martinez presents a different account of this encounter. He
contends that he was carrying the newspaper to the nearest
dumpster when the first request was made. When the request was
issued a second time, at closer range, Martinez claims he began
walking toward the locker room to comply. See Plaintiff's
Amended Complaint ("Am. Cplt.") at 9.
After Martinez was told to leave the property, he went to the
locker room to put on his safety vest. King, in the presence of
several co-workers, told Martinez again to leave the premises and
report to King's office the next morning. See T.A. 56.1
Statement ¶ 12; Am. Cplt. at 5. Martinez followed King to the
office of the Line Supervisor, asking why he was being sent home.
He also requested a "to/from" form in order to report his version
of the incident. See Am. Cplt. at 5; T.A. 56.1 Statement Ex. 12
at 5-6. The Line Supervisor refused to give Martinez a "to/from" form, and King told Martinez that the police would be contacted
if he refused to leave the premises. See T.A. 56.1 Statement ¶
12. Martinez again refused, and King called the police. After the
police arrived and threatened to arrest Martinez, he agreed to
leave the Transit Authority property. See T.A. 56.1 Statement ¶
After this incident, the Transit Authority issued a
disciplinary action notice ("DAN") seeking Martinez's dismissal.
T.A. 56.1 Statement Ex. 11. Later, the Transit Authority issued a
second DAN, which charged plaintiff with a "failure to obey a
direct order and surrender [his] transit pass on 2/21 and on
2/25/03." T.A. 56.1 Statement Ex. 12 at 2.
On March 7, 2003, pursuant to the collective bargaining
agreement between the Union and the Transit Authority, the
parties appeared before an arbitrator to determine whether there
was just cause for Martinez's suspension and discharge. T.A. 56.1
Statement ¶ 10. The arbitrator found just cause for the dismissal
and denied the Union's grievance in its entirety. See T.A. 56.1
Statement Ex. 12 at 10. The arbitrator concluded that on February
20, 2003, Martinez refused his supervisor's repeated direct
orders to put on a safety vest and refused subsequent, repeated
orders to leave Transit Authority property. See T.A. 56.1
Statement Ex. 12 at 7-8. The arbitrator also concluded that on February 21, 2003, Martinez refused an order to turn in his
Transit Authority pass. See T.A. 56.1 Statement Ex. 12 at 7-8.
According to the arbitrator, the facts of the case showed a
"clear and flagrant case of insubordination." T.A. 56.1 Statement
Ex. 12 at 7. The arbitrator concluded that Martinez had "proven
himself to be incorrigible, and the Authority need not keep such
person in its employ." T.A. 56.1 Statement Ex. 12 at 10.
Martinez claims that racial and religious animus, in addition
to retaliation for his past complaints against
supervisors,*fn3 motivated the Transit Authority to
terminate his employment. Martinez further claims that the Union
breached its duty of fair representation at the subsequent
arbitration hearing because of a similar racial and religious
animus. With respect to this latter claim, Martinez claims that
he was prejudiced because only his prior reprimands and
infractions,*fn4 and not his commendations, were brought up at the hearing. Affidavit of
Robert Martinez in Opposition to Defendants' Motion for Summary
Judgment ("Martinez Aff.") at 6 (Dkt. No. 26). He further
complains that none of the witnesses to the exchange in the
locker room were called to testify on his behalf, see Martinez
Aff. at 6, and that the arbitrator never considered complaints by
other employees against King. Finally, Martinez claims that
Antoine Breaux ("Breaux"), the Union representative who attended
the hearing as Martinez's representative,*fn5 gave him poor
advice during the arbitration because he does not like him
personally. See T.A. 56.1 Statement Ex. 13 at 62.
On June 10, 2003, Martinez filed complaints against both the Transit Authority and the Union with the New York State Division
of Human Rights ("SDHR"). See T.A. 56.1 Statement Ex. 14; Union
56.1 Statement Ex. G. Martinez also authorized the SDHR to accept
his charge on behalf of the U.S. Equal Employment Opportunity
Commission ("EEOC"). See Memorandum in Support of Defendant
Amalgamated Transit Union, Local 1056's Motion for Summary
Judgement ("Union Mem.") at 4. The SDHR dismissed the complaints
after it found "no probable cause" in support of Martinez's
claims. See Union 56.1 Statement Ex. 15. The EEOC adopted the
findings of the SDHR and also dismissed the charges but issued a
"right to sue" letter to Martinez on February 19, 2004 allowing
Martinez to file a federal claim under Title VII. See T.A. 56.1
Statement Ex. 16.*fn6
Defendants have moved for summary judgment to dismiss
Martinez's complaint. The Transit Authority contends that
Martinez was terminated because of repeated incidents of
insubordination, not racial animus. See TA. 56.1 Statement ¶ 9.
Similarly, the Union contends that it did not discriminate
against Martinez, but represented him diligently and in good
Summary judgment is appropriate when there is "no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary
judgment is inappropriate where (1) the evidence presents a
factual dispute that a reasonable jury could decide in favor of
the nonmoving party, and (2) the fact in dispute will have a
material affect on the outcome of the case. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All inferences
must be drawn from the underlying facts in a "light most
favorable to the party opposing the motion." United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962). Nevertheless, the party
opposing summary judgment must put forth "specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In cases such as the one at bar, bare allegations of
discrimination "devoid of specifics, but replete with
conclusions" are not enough. Bickerstaff v. Vassar Coll.,
196 F.3d 435, 451 (2d Cir. 1999). See also Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985).
Claims against the Transit Authority
Martinez claims that his termination was the result of unlawful
racial and religious discrimination. He further contends he was
subjected to unlawful retaliation for past complaints against supervisors.
a. Race/Religion Discrimination
Martinez's employment discrimination claims are governed by the
burden shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and its progeny. In order to
successfully bring a claim under Title VII, a plaintiff must
first establish a prima facie case of discrimination. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If the
plaintiff can meet this initial burden, the burden then shifts to
the defendant to articulate a legitimate, nondiscriminatory
reason for the employment decision in question. Id. at 506-07.
If the defendant is able to do so, the presumption of
discrimination "completely drops out." James v. New York Racing
Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). The court must then
examine the complete record to determine if the plaintiff can
satisfy his ultimate burden of proving that the adverse
employment action was discriminatory and that the reason
proffered by the defendant is pretextual. See Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In order to carry the initial burden of establishing a prima
facie case of discrimination, Martinez must show that (1) he
belongs to a protected class, (2) he performed his job
satisfactorily, (3) he suffered an adverse employment action, and
(4) the action occurred under circumstances giving rise to an inference of discrimination. See McLee v. Chrysler Corp.,
109 F.3d 130, 134 (2d Cir. 1997). There is no question that Martinez
suffered an adverse employment action and that he is a member of
a protected class; however, as explained infra, there is
serious doubt as to his employer's knowledge of his professed
race and religion.
With respect to the second prong, Martinez is unable to
establish that he performed his job satisfactorily. Although he
asserts satisfactory job performance, he provides no evidence to
support that claim by way of a statement by a co-worker or
supervisor. See id. at 135 (affirming dismissal of Title VII
complaint of plaintiff who could not demonstrate triable issue of
fact of satisfactory performance). Nor does Martinez detail in
his statements any positive reviews by superiors; in fact, there
appears to be no extended period of time in which Martinez was
not disciplined. Finally, there is extensive documentation
detailing Martinez's unsatisfactory work history. See T.A 56.1
Statement Ex. 2. Therefore, Martinez cannot satisfy the second
With respect to the fourth prong, Martinez must offer evidence
to suggest that the circumstances surrounding his termination
give rise to an inference of discrimination. As an initial
matter, he provides no direct evidence of this, and although he
can attempt to raise an inference of discrimination through circumstantial evidence, he must do so by showing that
his employer "treated him less favorably than a similarly
situated employee outside his protected group." See Graham v.
Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000).
Potentially relevant to this inquiry, Martinez claims that the
day he was removed from duty for failing to wear proper gear,
William Coffey ("Coffey"), a Cleaner who was wearing
inappropriate work shoes, was not removed from duty. Apparently,
Coffey was asked to change his shoes after Assistant General
Manager John Casey ("Casey") asked him to change. Coffey complied
with the order immediately, and was, therefore, not taken out of
service like Martinez. See Affidavit of John Casey in Support
of the Transit Authority's Motion for Summary Judgment("Casey
Aff.") ¶ 5. However, Martinez alleges that the real difference
comes down to race. See Am. Cplt. at 10. As evidence of this,
Martinez claims that King himself did not instruct Coffey to
change his shoes even though King would have likely passed
through Coffey's work area before reaching Martinez's. See
Martinez Aff. at 4. However, this theory, in addition to being
highly speculative, does not ultimately change the fact that
Coffey, and not Martinez, changed into proper attire when asked.
This fact, far from supporting Martinez's allegation of
discrimination, actually suggests otherwise. Consequently,
Martinez fails the fourth prong as well. Indeed, there is additional doubt whether Martinez's employer
was even aware of Martinez's professed racial identity.
Martinez considers himself Native American, and it is on this
basis that he brings his race discrimination claim. See T.A.
56.1 Statement Ex. 13 at 28.*fn7 However, King and Casey
both profess ignorance of, not to mention lack of animus toward,
Martinez's Native American and Christian Apostolic (the basis of
his religion discrimination claim) identities. See King Aff. ¶
7; Casey Aff. ¶ 6. Martinez, for his part, admits that he has no
direct knowledge that any of his supervisors at the Transit
Authority or representatives at the Union knew that he was Native
American or a Christian Apostolic. Instead, he surmises they knew
of his race and his religion through word of mouth by co-workers
at the depot. See T.A. 56.1 Statement Ex. 13 at 60. However,
without a showing that an employer had knowledge that an employee
is a member of a particular group, there can be no showing of
discrimination. See Robinson v. Adams, 847 F.2d 1315, 1316
(9th Cir. 1987) ("An employer cannot intentionally discriminate
against a job applicant based upon race unless the employer knows
the applicant's race."); see also Woodman v. WWOR-TV, Inc.,
___ F.3d ___, 2005 WL 1384334, (2d Cir. 2005) (rejecting plaintiff's prima facie case of unlawful age discrimination
when employee could not demonstrate employer's awareness of
employee's age relative to her replacement). This is yet an
additional reason to reject Martinez's prima facie case.
Under the circumstances, there is no need to consider the
Transit Authority's motivation for its action. Nevertheless, it
should be mentioned that the employer appears to have had
legitimate reasons for its actions, not least Martinez's acts of
insubordination, coupled with his long history of disrespectful
behavior toward supervisors.
The arbitrator's ruling against Martinez on the same issue is
noteworthy as well and "provides significant support for the
conclusion that there has been no discrimination." Vanhorne v.
New York City Trans. Auth., 273 F.Supp.2d 209, 214 (E.D.N.Y.
2003). See also Collins v. City of New York Trans. Auth.,
305 F.3d 113, 115 (2d Cir. 2002) ("Where an employee's ultimate
termination depends upon, and is allowed by, a decision of an
independent and unbiased arbitrator based on substantial evidence
after a fair hearing, the arbitration decision has probative
weight . . ."). The arbitrator appears to have made an unbiased
decision after being presented with all of the material evidence,
and, that decision, accordingly, is "entitled to great weight."
Vanhorne, 273 F.Supp.2d at 215. b. Retaliation
In order to make out a prima facie case of retaliation, a
plaintiff must show (1) he was engaged in a protected activity,
(2) he suffered an adverse employment action, and (3) an
inference of a causal connection between the protected activity
and the adverse action. Van Zant v. KLM Royal Dutch,
80 F.3d 708, 713 (2d Cir. 1996).
As an initial matter, the Transit Authority argues that the
retaliation claim cannot be considered because, having never been
part of plaintiff's complaint to the EEOC, the claim is
unexhausted. "To hear a Title VII claim, that claim must have
been included in the EEOC charge or be reasonabl[y] related to
the allegations in that charge." Bryant v. Begin Manage
Program, 281 F.Supp.2d 561, 573-74 (E.D.N.Y. 2003) (Trager, J.).
But even assuming, arguendo, that the "retaliation claim is
closely related to [the] discrimination claim," id. at 574, the
retaliation claim still fails to satisfy the three prongs of the
prima facie case.
Martinez cannot meet the first prong because he does not show
that his complaints against supervisors were protected
activities. Two activities are protected from retaliation under
Title VII: (1) opposing an act of discrimination made unlawful by
Title VII and (2) participating in an investigation under Title
VII. See Sumner v. U.S. Postal Service, 899 F.2d 203, 208 (2d Cir. 1990). Plaintiff's complaints against supervisors, by
contrast, were for harassment regarding the quality of his work.
Martinez makes no claim that this harassment was based on a
reason made unlawful by Title VII. Therefore, his complaints were
not protected activities. See Santucci v. Veneman, 2002 WL
31255115 (S.D.N.Y. Oct. 8, 2002) (complaints regarding
work-scheduling system were not protected activities).
Martinez also fails to satisfy the third prong requiring a
causal connection between the activity and the adverse employment
action. It does not appear that Martinez alleges any connection
other than the fact that his termination followed his filing of a
grievance. But even the "cases that accept mere temporal
proximity between an employer's knowledge of protected activity
and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that
the temporal proximity must be `very close.'" Clark County
School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation
omitted). The two-year time lapse between Martinez's latest
complaint and his termination certainly exceeds that requirement.
See Hughes v. Derwinski, 967 F.2d 1168 (7th Cir. 1992)
(four-month gap between filing of grievance and issuance of
disciplinary letter could not, standing alone, raise inference of
retaliation). Under the circumstances, Martinez does not raise a
genuine issue of fact that retaliation played any role in his
Claims against the Union
It is well established that a union may be subject to Title VII
liability for breaching its duty of fair representation. Carrion
v. Enterprise Assoc., Metal Trades Branch Local Union 638,
227 F.3d 29, 33 (2d Cir. 2000). To successfully bring such a claim, a
plaintiff must prove, by a preponderance of the evidence, that
the union breached its duty, and that the breach was caused by a
discriminatory intent made unlawful by Title VII. See
Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 866-67 (7th
Cir. 1997); Kozera v. International Broth. of Elec. Workers,
AFL-CIO, 230 F.Supp.2d 413, 421 (S.D.N.Y. 2002).
In order to establish that a union has breached its duty, the
plaintiff must show that the union's conduct: (1) was
"`arbitrary, discriminatory, or in bad faith,'" Barr v. United
Parcel Service, Inc., 868 F.2d 36, 43 (2d Cir. 1989) (quoting
Vaca v. Sipes, 385 U.S. 171, 190 (1967)), and (2) "`seriously
undermine[d] the arbitral process.'" Id. (quoting Hines v.
Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976)). Although
each case is highly fact-dependent, courts give unions
significant leeway in deciding how to best represent their
members. To establish conduct made in bad faith, a plaintiff must
show substantial evidence of the union's "fraud, deceitful action
or dishonest conduct." Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971).
Conduct amounting to negligence does not necessarily constitute a
breach. See United Steelworkers of America v. Rawson,
495 U.S. 362, 372-73 (1990). See also White v. White Rose Food,
62 F.Supp.2d 878, 884 (E.D.N.Y. 1999) ("Negligence or `tactical
errors' on the part of the union are insufficient to establish a
breach of the duty of fair representation.").
As evidence of the Union's breach of duty, Martinez contends:
(1) his prior disciplinary infractions, but not prior
commendations, were considered, (2) no witnesses were called on
his behalf and (3) King's past disciplinary record was not
introduced, making it harder for Martinez to discredit King's
testimony on the ultimate issue whether the order was disobeyed.
However, any prior commendations would unlikely insulate him
from adverse findings based on his extensive history of
infractions, and in any event, he offers no evidence of any
formal letters or notices of commendation. Moreover, Martinez
does not mention any possible witnesses who could have offered
material testimony in support of his account of the exchange with
King. With respect to the Union's decision not to attack King's
prior record, plaintiff offers no concrete evidence that such a
record exists. Such a decision to attack the credibility of an
opposing witness would in any event fall within an attorney's
discretion and would not run afoul of the duty of fair representation.
Even if the these decisions constituted tactical errors and
it is unclear that they do they still would not rise to the
level of a violation of the duty of fair representation. See
Commodari v. Long Island University, 89 F.Supp.2d. 353
(E.D.N.Y. 2000) (Trager, J.) (holding that it was within the
union's discretion whether or not to pursue a particular
grievance against a plaintiff's employer), aff'd,
62 Fed. Appx. 28, 2003 WL 1785893 (2nd Cir. Apr 02, 2003). Without deciding if
these decisions were tactical errors, they obviously do not
approach arbitrary or discriminatory conduct.
As it happens, the Union's representation of Martinez during
the arbitration, as noted by the arbitrator, appears to have been
quite good indeed. In his written report, the arbitrator
specifically commended the Union for its rigorous advocacy on
Martinez's behalf, commenting on the Union's efforts at
"muster[ing] all of the possible defenses that an advocate might
make in such a situation. Indeed, the Union, in an attempt fully
and competently to represent Grievant, has attempted to expand
the matters to be considered." See T.A. 56.1 Statement Ex. 12
at 8. As far as Breaux, the union representative, is concerned,
the advice he offered Martinez at the arbitration seems to be
completely adequate. See Breaux Decl. ¶ 6 (advising Martinez
"to keep his hands in front of him," "look at the arbitrator
while speaking" and answer "only the question asked" both "succinctly
and concisely"). Although a plaintiff in Martinez's situation is
not entitled to error-free representation, see Hines v. Anchor
Motor Freight, Inc., 424 U.S. 554, 567 (1976), the advocacy he
received by all Union representatives appears to have been
excellent, and certainly commensurate with the standards of fair
representation required under Title VII.
For the foregoing reasons, the defendants' motions for summary
judgment are granted, and plaintiff's claims are dismissed with
prejudice. The Clerk of the Court is directed to close the case.