The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
Plaintiff Martha Blackmon brings this action pursuant to Title
VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. §§ 2000e to 2000e-17, 42 U.S.C. § 1981 ("§ 1981"), the New York
State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and the
New York City Human Rights Law ("NYCHRL"), New York City
Administrative Code § 8-101, alleging that her employer, UNITE!
("Unite"), discriminated against her on the basis of her race and
age and retaliated against her for complaining about the alleged
discrimination. Blackmon also alleges that Unite breached an
unspecified contract regarding her employment. The parties have
consented to the disposition of this matter by a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the
following reasons, Unite's motion for summary judgment is
Blackmon's amended complaint alleges that she "has been passed
over several times for promotion or to become a lead in the
union" while employed at Unite "because of her race, age and
because she complained about discrimination." Amended Complaint,
dated April 15, 2004 (annexed to Order, filed April 29, 2004 (Docket #5)) ("Am.
Compl."), ¶¶ 6, 11. Blackmon also alleges that discrimination at
Unite has caused her to be "passed over for education and
training programs designed to assist employees in getting
promotions." Id. ¶ 12.
Blackmon alleges Unite retaliated against her "on the basis of
her complaining about being discriminated against." Id. ¶ 27.
Blackmon also claims she "has suffered from a hostile work
environment" while employed at Unite that was "created by the
disparate and discriminatory treatment of blacks as compared to
whites." Id. ¶ 7. Blackmon alleges that Unite's "mistreatment"
of herself and "blacks in general . . . has created a hostile
work environment in which there exists a culture that serves to
exclude? blacks from positions of power within the union." Id.
¶ 12. Blackmon also asserts that Unite "breach[ed] its contract
with [her] by deviating from established policies and procedures
under which similarly situated employees performed." Id. ¶ 31.
In the amended complaint, Blackmon seeks relief under Title
VII, the NYSHRL, and the NYCHRL for discrimination on the basis
of her race and age, see id. ¶¶ 15, 19, 23, and because of
Unite's alleged retaliation against her. See id. ¶¶ 27-28. In
addition, Blackmon's amended complaint seeks relief under § 1981
for discrimination on the basis of her race. Id. ¶ 32. Blackmon
also asserts a claim for breach of contract. Id. ¶ 31.
B. Evidence Presented on the Summary Judgment Motion
1. Compliance with Local Civil Rule 56.1
Unite included in its summary judgment papers a statement of
undisputed facts as required by Local Civ. R. 56.1(a). See
Defendant's Rule 56.1 Statement of Undisputed Material Facts,
filed March 25, 2005 (Docket #17) ("Def. 56.1"). Virtually every
paragraph contains citations to admissible evidence in the record, including
documentary evidence, deposition testimony, and affidavits, as
required by Local Civ. R. 56.1. See Local Civ. R. 56.1(d).
While Blackmon submitted a Rule 56.1 counter-statement, that
counter-statement does not comply with Local Civ. R. 56.1(b)
because it does not "include a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the
moving party." See Plaintiff's Undisputed Material Facts, dated
May 23, 2005 (annexed to Memorandum in Opposition to Defendant's
Motion to Dismiss, dated May 24, 2005 ("Pl. Mem.")) ("Pl.
56.1").*fn1 More significantly, Blackmon's Rule 56.1
counter-statement is deficient because none of the assertions set
forth therein are "followed by citation to evidence which would
be admissible," as required by Local Civ. R. 56.1(d). See Pl.
56.1. Instead, Blackmon merely asserts that she "does not agree"
with certain of Unite's statements. See id. at 2. Thus, the
material facts set forth in Unite's Rule 56.1 statement "will be
deemed to be admitted for purposes of the motion" under Local
Civ. R. 56.1(c). See, e.g., Chimarev v. TD Waterhouse
Investor Servs., Inc., 280 F. Supp. 2d 208, 223 (S.D.N.Y. 2003)
(material facts set forth in defendant's Rule 56.1 statement "are
uncontested and may be accepted as true" where plaintiff's Rule
56.1 counter-statement was "deficient" because it consisted
solely of "blanket denials" and was "not supported by citation to
any evidence") (citations omitted), aff'd, 2004 WL 1013320, at
*1 (2d Cir. May 6, 2004).
a. Background on Unite. Unite, which has recently merged with
another organization and changed its name to "UNITE HERE," is an international labor
association representing low wage workers in the United States
and Canada. Def. 56.1 ¶¶ 1-2. Unite has numerous local and
regional subordinate entities. Id. ¶ 3. Unite is divided into
various departments, one of which is the Organizing Department.
Id. ¶ 4. The Organizing Department is responsible for planning
and implementing "organizing campaigns," the purpose of which is
to organize workers to join Unite. See id. (internal
quotation marks omitted). The Organizing Department is also
responsible for planning and implementing "first contract
campaigns," the purpose of which is to negotiate initial
collective bargaining agreements between Unite and the workers.
See id. (internal quotation marks omitted). There are
approximately 170 Field Organizers employed in the Organizing
Department. See Declaration of Ernest Bennett in Support of
Defendant's Motion for Summary Judgment, filed March 25, 2005
(Docket #15) ("Bennett Decl."), ¶ 5.
b. Blackmon's Employment with Unite. Blackmon is a 52
year-old African-American who has worked as a Field Organizer in
Unite's Organizing Department from February 2001 to the present
date. Def. 56.1 ¶¶ 6-8, 29. According to Ernest Bennett, the
International Co-Director of Organizing for Unite, Field
Organizers "are required to educate workers about the Union,
motivate workers to take action, identify and develop rank and
file leaders, assess worker support and plan accordingly, gather
and manage information, maintain records, identify and evaluate
possible campaigns, develop campaign messages and write
corresponding literature, know and understand relevant legal
principles and perform various other responsibilities relating to
the Union's organizing and first contract campaigns." Bennett
Decl. ¶¶ 1,10; see also Organizer Job Description (reproduced
as Ex. B to Affirmation of Allyson L. Belovin, filed March 25,
2005 (Docket #16) ("Belovin Aff.")) (describing responsibilities
and qualifications for organizer position). Field Organizers are dispatched to locations
throughout the United States and Canada to work on organizing
campaigns and first contract campaigns. Bennett Decl. ¶ 8. Field
Organizers are assigned to a particular campaign and report
directly to the Organizing Director or Organizing Coordinator in
charge of the campaign. Id. ¶ 9. Because "field staffing
assignments are fluid as new campaigns are initiated, old
campaigns are ended, and ongoing campaigns change," Field
Organizers "are regularly reassigned from one campaign to another
in response to the organization's needs." Id. ¶ 12.
After being hired as a Field Organizer, Blackmon attended the
new hire training on or about May 30, 2001. Id. ¶ 24.
Blackmon's first assignment was to a campaign in Mobile, Alabama,
where she reported to Organizing Directors Matthew Schum (also
referred to as "Shum") and Wilma Neal Garren ("Neal"), a 51 year
old African-American. Id.; Def. 56.1 ¶ 11. Blackmon's
responsibility on that campaign was to meet with community church
leaders and other civic organizations to garner support for
Unite's organizing efforts. See Deposition of Martha Blackmon
(reproduced as Ex. R to Belovin Aff.) ("Blackmon Dep."), at 37.
On or about July 11, 2001, Schum evaluated Blackmon's
performance. Def. 56.1 ¶ 17. Schum's evaluation included the
following criticisms of Blackmon's work: "misses some issues,"
"needs more work on assessing and developing leadership in
workers," needs to take "more initiative in keeping track of
activities and records," faces challenges in "worker and work
site assessment," and has weaknesses "mostly related to
identifying work goals and tasks independent of direction." Id.
At about this same time, Bennett was "inclined to extend"
Blackmon's initial probationary period, which is generally six
months, in light of "concerns with her work performance, including a concern that she had not performed some
of the traditional duties of a union organizer." Bennett Decl. ¶
25. Neal, however, "argued against extending" Blackmon's
probationary period because it was not Blackmon's fault that she
had not been "tested" in "many of the traditional union
organizing tasks" inasmuch as those tasks had not been needed on
the Mobile campaign. See Declaration of Wilma Neal Garren in
Support of Defendant's Motion for Summary Judgment, filed March
25, 2005 (Docket #14) ("Neal Decl."), ¶¶ 18-19. Following Neal's
recommendation, and after a discussion with Blackmon, Bennett
withdrew his request and Blackmon "passed probation" in August
2001. Id. ¶ 20.
In the late summer or early fall of 2001, Blackmon was assigned
to work under Neal's supervision on two first contract campaigns
in New York. Id. ¶ 22. Neal formally evaluated Blackmon's job
performance in October 2001. Def. 56.1 ¶ 19. Neal's October 2001
evaluation noted that Blackmon needed "improvement on taking
assignments" and ensuring an assignment's progression "with
little or no supervision." Id. ¶ 20. Neal also noted that
Blackmon had not "mastered" several of the areas of her job,
including NLRB procedures, word processing skills and the use of
a database. See id. The evaluation indicated that Blackmon
needed to "trust her judgement more and become more assertive
about the task assigned," "work on risk taking," work on seeing
"the larger picture when making . . . critical decisions," and
seeing the effect of her choices from the perspective of others.
Blackmon took a leave of absence from September 2002 through
October 2002. Bennett Decl. ¶ 24. Upon returning from leave,
Blackmon was assigned to several projects under the supervision
of Organizing Director James Grogan, including an organizing
campaign at a laundry facility in Washington, DC, a probe in Richmond, VA (the
"Richmond probe") and several probes in Cleveland, OH. Id.
A memorandum dated November 21, 2002 from Grogan confirmed that
Blackmon had received a verbal warning for poor work performance.
See Letter from Jim Grogan to Martha Blackmon, dated November
21, 2002 (reproduced as Ex. E to Belovin Aff.). The November 21,
2002 memorandum noted that Blackmon was disciplined for (1) a low
volume of house calls, (2) failure to follow directions, and (3)
an attitude of non-cooperation and non-participation. Def. 56.1 ¶
22. Blackmon filed a grievance and Unite rescinded the discipline
with respect to the low volume of house calls, but not with
respect to Blackmon's failure to follow directions and her
non-cooperative attitude. Id. ¶ 23.
On or about February 12, 2003, Blackmon received a written
discipline because of her unsatisfactory performance on the
Richmond probe. Id. ¶ 24; see Letter from Jim Grogan to
Martha Blackmon, dated February 12, 2003 (reproduced as Ex. H to
Belovin Aff.). Blackmon did not know whether a grievance was ever
filed with respect to this discipline. See Blackmon Dep. at 78.
Blackmon was issued a "final warning" on or about March 3, 2003
for failing to appear for an assignment and for submitting an
inadequate report. Def. 56.1 ¶ 27; see Letter from Jim Grogan
to Martha Blackmon, dated March 3, 2003 (reproduced as Ex. J to
Belovin Aff.). Blackmon grieved this discipline but Unite refused
to rescind any aspect of it. Def. 56.1 ¶ 28.
Blackmon was next assigned to an organizing campaign at a
children's facility in Queens, New York. Bennett Decl. ¶ 24.
Blackmon then took a disability leave of absence from May 2003 to
February 2004. Id. Upon returning from disability leave,
Blackmon was assigned to a Duane Reade organizing campaign, to Miami, ...