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August 25, 2005.

UNITE!, Defendant.

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 granted.


  A. The Amended Complaint

  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).

  2. Unite's Evidence

  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. ¶ 18.

  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. See id.

  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, ...

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