United States District Court, S.D. New York
August 25, 2005.
MARTHA BLACKMON, aka, MARTHA DICKERSON BLACKMON, Plaintiff,
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
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
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.
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, Florida, and then to
the North Carolina area, where she is currently working. Id.
c. Collective Bargaining Agreement. As a Field Organizer,
Blackmon is among the employees covered by the collective
bargaining agreement ("CBA") entered into between Unite and the
Federation of Union Representatives ("the Union"). Def. 56.1 ¶¶
9, 12. The CBA provides that all disputes concerning any alleged
breaches of the CBA must be resolved in the grievance and
arbitration procedure contained therein. Id. ¶ 13. The CBA
grievance and arbitration procedure provides for a grievance
process under which the Union and Unite attempt to resolve the
dispute. Id. ¶ 14. If a dispute cannot be resolved, either
party could submit the dispute to final and binding arbitration.
Id. Blackmon has not asked the Union to submit to arbitration
any dispute concerning any alleged violation of her rights under
the CBA. Id. ¶ 15.
d. Business Agents, Lead Organizers and Training. A person
employed in the position of Business Agent is "responsible for
servicing a bargaining unit of employees once their employer and
[Unite] have entered into an initial collective bargaining
agreement." Bennett Decl. ¶ 22. The majority of persons employed
in the position of Business Agent are not employed by Unite, but
rather by Unite's local and regional subordinate entities. Id.
A move from a Field Organizer position to a Business Agent
position is a lateral transfer, not a promotion. Def. 56.1 ¶ 34.
Field Organizers are transferred to Business Agent positions only
when the Field Organizer has developed a relationship with a
group of workers on a campaign that resulted in union
representation and a collective bargaining agreement. Id. ¶ 35.
Although Blackmon worked on some campaigns that resulted in
Business Agents being hired, she did not obtain such a position.
See Blackmon Dep. at 193-195. On some campaigns one or more Field Organizers are informally
assigned to be "leads" and are given some additional
responsibilities with respect to the campaign. Def. 56.1 ¶ 40
(internal quotation marks omitted). A Lead Organizer position "is
not a separate job title and an organizer's assignment to a lead
role is not accompanied by any additional compensation." Bennett
Decl. ¶ 14. When a Field Organizer is designated as a Lead
Organizer, that designation "lasts only as long as the particular
campaign; there is no continuation of the lead designation when
the campaign is completed." Id. The supervisor or director of
the campaign would make decisions concerning "lead designations."
Id. ¶ 15.
With respect to training, all new Field Organizers "attend a
two-day new hire training which is more in the nature of
orientation as to procedures and the like." Id. ¶ 16. In
February 2004, Unite offered "a four-day advanced organizer
training" course. See Declaration of Julie Kelly in Support of
Defendant's Motion for Summary Judgment, filed March 25, 2005
(Docket #13) ("Kelly Decl."), ¶ 17. Field Organizers who were
interested in the training were asked to apply during the months
of November and December 2003. Id. ¶ 18. All Field Organizers
who applied were permitted to attend the training. Id. Blackmon
did not apply inasmuch as the application process occurred while
she was out on leave. Id. Had Blackmon asked permission, she
would have been allowed to attend. Id. ¶ 19. In June 2004,
Unite offered an "advanced organizer training" course which was
"geared towards more experienced organizers, particularly those
who had already run their own campaign." Id. ¶ 20. Blackmon did
not apply for this training and, in any event, she would not have
been eligible because she did not have sufficient organizing
experience. Id. Blackmon did not file a grievance regarding
Unite's failure to provide her with training or educational
opportunities. Def. 56.1 ¶ 46. 3. Blackmon's Evidence
Blackmon submitted a declaration in support of her claims of
discrimination, see Declaration ot [sic] Martha
Dickerson-Blackmon, dated May 24, 2005 (annexed as Ex. 2 to Pl.
Mem.) ("Blackmon Decl."), which was never referenced in her Rule
56.1 counter-statement. See Pl. 56.1. In her declaration,
Blackmon avers that "Unite has done nothing but discriminate
against African Americans and older ones in particular." Blackmon
Decl. ¶ 18. Blackmon claims that she and other African-Americans
"have been discriminated against by Unite," and that "[a]t least
five such employees have been terminated and two of those have
lawsuits going." Id. ¶ 6. Blackmon avers that, "[o]f all the
African-Americans working around the country and in Canada,"
Unite named only one African-American for a promotion, Wilma
Neal. Id. ¶ 19. According to Blackmon, this occurred even
though "several African-Americans" requested either a promotion
or to be designated as Lead Organizers, including Trinette
Savage, Bishard Clark and Dancy Burgess. Id. ¶ 20. Blackmon
avers that Clark "was actually terminated by Unite but then hired
back when they realized there were no grounds for termination."
Id. ¶ 21. In addition, Blackmon avers that Unite has "started a
program to address such concerns as discrimination." Id. ¶ 29.
Blackmon also points out that "there are no African American
directors or supervisors at Unite." Id.
Blackmon refers to several incidents that occurred during her
tenure at Unite that she contends support her claims for relief.
Blackmon avers that "workers and . . . other staff members
complained constantly about Ms. Neal's attitude towards them,"
and that Neal "even told one person of white and Jamaican descent
. . . that she . . . did not know who she was, [and] that she had
a problem with her identity." Id. ¶ 15. Blackmon also points to an incident involving an apartment in
New York that Unite arranged for her to occupy while she was
assigned to an organizing campaign there. See id. ¶¶ 22-23.
According to Blackmon, she left New York for a weekend in August
2004 and, when she returned, "the key to [her] apartment would
not work and as [she] was standing there trying to figure things
out, a man walks right up to the apartment door, inserts a key
and begins to enter the apartment." Id. ¶ 22. Blackmon "later
found out that Unite had allowed the owner of the building to
move [her] out and rent to someone else" and that her things "had
been carelessly packed up and thrown into the basement." Id.
Thereafter, Blackmon had to call a co-worker and find her own
accommodations. Id. According to Blackmon, "[n]o other Unite
employee had ever been evicted from that building or any other
building in which Unite arranged for the renting of apartments to
its employees." Id. ¶ 23.
Blackmon also describes an incident involving Grogan when she
was working on the Richmond probe. See id. ¶ 16. Blackmon
avers that, while she was working on the Richmond probe, she
obtained a "worker list" and "set up two . . . meetings" with
workers, which she asked Grogan to attend. Id. Grogan, however,
"failed to show for both meetings." Id. According to Blackmon,
"[t]hree senior organizers with much more experience than
[herself] were unable to generate anything promising for
organizing purposes" during the course of the Richmond probe.
Id. Blackmon "believe[s]" that Grogan "did not want [her] to
succeed . . . where three senior organizers had already failed."
Id. In addition, Blackmon states that Grogan "was not truthful
about [her] volume of house calls" in the disciplinary action
taken against her that was "partially rescinded." See id. ¶
17. Blackmon also claims that she was "discriminated against by
being the only organizer assigned to the Duane Reade campaign."
Id. ¶ 24. According to Blackmon, "[i]t was left up to [her]
alone to try to run a campaign involving over 100 Duane Reade
[s]tores," whereas the other nine organizers "had assignments to
organize a total of just eight stores." Id. Blackmon avers
that, as a result of this assignment, she "felt discriminated
against and subject to a hostile environment." Id.
Blackmon asserts that she "never received any training even
though [she] asked for training" in accordance with the
provisions of her "contract." Id. ¶ 12. Blackmon "could not ask
to be included in th[e] . . . training" since she "did not know
when the class was going to be conducted" because there was "no
posting or other publication" of that information. Id. ¶ 27.
Blackmon claims that the directors "merely pick and chose who
they want to send to . . . training." Id.
Blackmon also claims in her declaration that she "was denied a
company vehicle" when other organizers had such vehicles. Id. ¶
25. Blackmon alleges that the denial of the vehicle violated
Title VII and the terms of her "contract." Id.
C. Procedural History
On or about October 24, 2003, Blackmon filed a complaint with
the New York State Division of Human Rights ("NYSDHR") alleging
that Unite engaged in unlawful discrimination. See Complaint,
dated October 24, 2003 (reproduced as Ex. P to Belovin Aff.)
("Oct. 24 Compl.").*fn2 By order dated June 17, 2004, the
NYSDHR ordered the complaint dismissed, stating that there was "no probable cause to believe that [Unite] has
engaged in or is engaging in the unlawful discriminatory practice
complained of." Determination and Order After Investigation,
dated June 17, 2004 (reproduced as Ex. Q to Belovin Aff.) ("June
17 Order"), at 1, 3.
D. The Instant Proceedings
The complaint in this matter was filed on November 19, 2003,
see Complaint, filed November 19, 2003 (Docket #1), and an
amended complaint was filed on April 29, 2004. See Am. Compl.
On March 25, 2005, Unite moved for summary judgment pursuant to
Fed.R.Civ.P. 56 and filed papers in support of the motion.
See Notice of Motion, filed March 25, 2005 (Docket #11);
Defendant's Memorandum of Law in Support of its Motion for
Summary Judgment, filed March 25, 2005 (Docket #12) ("Def.
Mem."); Kelly Decl.; Neal Decl.; Bennett Decl.; Belovin Aff.;
Def. 56.1. Blackmon submitted papers in opposition to the motion
for summary judgment. See Pl. Mem.; Blackmon Decl. Unite
submitted reply papers on June 10, 2005. Defendant's Reply to
Plaintiff's Opposition to Defendant's Motion for Summary
Judgment, filed June 10, 2005 (Docket #23); Supplemental
Declaration of Julie Kelly in Support of Defendant's Motion for
Summary Judgment, filed June 10, 2005 (Docket #24).
II. LAW GOVERNING SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure states that
summary judgment is appropriate when "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) (quoting
Fed.R.Civ.P. 56(c)). A genuine issue of material fact "may
reasonably be resolved in favor of either party" and thus should
be left to the finder of fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
In determining whether a genuine issue of material fact exists,
the evidence of the non-movant "is to be believed" and the court
must draw "all justifiable inferences" in favor of the non-moving
party. Id. at 255 (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has
shown that there is no genuine issue as to any material fact and
that it is entitled to a judgment as a matter of law, "the
nonmoving party must come forward with `specific facts showing
that there is a genuine issue for trial,'" Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (quoting Fed.R.Civ.P. 56(e)) (alteration in original),
and "may not rely on conclusory allegations or unsubstantiated
speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.
1998) (citing cases). In other words, the nonmovant must offer
"concrete evidence from which a reasonable juror could return a
verdict in his favor." Anderson, 477 U.S. at 256. Where "the
nonmoving party bears the burden of proof at trial, summary
judgment is warranted if the nonmovant fails to make a showing
sufficient to establish the existence of an element essential to
[its] case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993)
(quoting Celotex, 477 U.S. at 322) (internal quotation marks
omitted) (alteration in original). Thus, "[a] defendant moving
for summary judgment must prevail if the plaintiff fails to come
forward with enough evidence to create a genuine factual issue to
be tried with respect to an element essential to its case."
Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing
Anderson, 477 U.S. at 247-48). Although the Second Circuit has noted that "an extra measure of
caution" is needed in granting summary judgment in discrimination
cases because direct evidence of discriminatory intent is rare, a
finding of summary judgment is nonetheless appropriate for
discrimination claims lacking a genuine issue of material fact.
Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir.
2001) (citations omitted); accord Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir.) ("It is now beyond
cavil that summary judgment may be appropriate even in the
fact-intensive context of discrimination cases."), cert.
denied, 534 U.S. 993 (2001).
Unite's motion for summary judgment is based on the following
grounds: (1) Blackmon has not demonstrated an issue of fact
concerning her failure to promote, hostile work environment, or
retaliation claims; (2) Blackmon is precluded from asserting
claims under the NYSHRL and NYCHRL; and (3) Blackmon cannot
prevail as a matter of law on her breach of contract claim. See
Def. Mem. at 16-25.
A. Framework for Analyzing Blackmon's Discrimination and
As noted, Blackmon alleges that she has been discriminated
against on the basis of both her age and race. See Am. Compl.
¶¶ 1, 6, 9-12, 15, 19, 23, 32. Specifically, Blackmon contends
that she was subjected to race and age discrimination through
Unite's creation of a hostile work environment and its failure to
promote her to various positions. See Pl. Mem. at 5-11.
Blackmon alleges that this discriminatory conduct violated,
inter alia, Title VII and § 1981. Am. Compl. ¶¶ 1, 15, 32. In
addition, Unite concedes that Blackmon has asserted a claim under
the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. §§ 621-34. See Def. Mem. at 16 n. 9. ADEA, Title VII, and section 1981 claims are analyzed "`under
the same framework,'" Schnabel v. Abramson, 232 F.3d 83, 87 (2d
Cir. 2000) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 108
(2d Cir. 1994)); see Hudson v. Int'l Bus. Machines Corp.,
620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066 (1980),
which was established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Moreover, Blackmon's claim
that Unite discriminated against her in retaliation for her
having complained of discrimination, see Am. Compl. ¶ 27, is
also analyzed under the McDonnell Douglas test. See, e.g.,
Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).
Under the McDonnell Douglas framework, the plaintiff carries
the initial burden of establishing a prima facie case of
discrimination. See 411 U.S. at 802; accord St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The elements of
a prima facie case are discussed further in the next section.
If the plaintiff establishes a prima facie case, a presumption
of discrimination is created and the burden shifts to the
employer to articulate a "legitimate, nondiscriminatory reason"
for the adverse employment action. McDonnell Douglas,
411 U.S. at 802; St. Mary's, 509 U.S. at 506-07; Burdine,
450 U.S. at 254. If the employer articulates a non-discriminatory reason for
its action, the presumption of discrimination is eliminated and
"the employer will be entitled to summary judgment . . . unless
the plaintiff can point to evidence that reasonably supports a
finding of prohibited discrimination." James v. N.Y. Racing
Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (citing cases); see
also Burdine, 450 U.S. at 255 (if the employer articulates a
non-discriminatory reason for the action, plaintiff "must have
the opportunity to demonstrate that the proffered reason was not
the true reason for the employment decision"). This is because
"`[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.'" St. Mary's,
509 U.S. at 507 (quoting Burdine, 450 U.S. at 253) (alteration in
original). Thus, the plaintiff "must always prove that the
conduct at issue . . . actually constituted discrimination."
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998) (internal quotation marks omitted) (emphasis and
Granting summary judgment in favor of a defendant in a
discrimination case is appropriate where there is no genuine
issue of material fact. See, e.g., Holtz, 258 F.3d at 69. A
court must make a "determination of whether the proffered
admissible evidence shows circumstances that would be sufficient
to permit a rational finder of fact to infer a discriminatory
motive." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.
1997) (citations omitted).
The ADEA and Title VII also create a claim based upon a hostile
work environment, which is analyzed somewhat differently. The
analysis of a hostile work environment theory of discrimination
is the same under the ADEA as it is under Title VII. Brennan v.
Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999)
(citation omitted). A hostile work environment claim is shown
"[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult . . . that is sufficiently
severe or pervasive to alter the conditions of . . . employment
and create an abusive working environment." Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and
citations omitted). To prevail on a hostile work environment
claim, the plaintiff must "demonstrate that she was subjected to
the hostility because of her membership in a protected class."
Brennan, 192 F.3d at 318 (emphasis added); accord Olle v.
Columbia Univ., 332 F. Supp. 2d 599, 611 (S.D.N.Y. 2004) (in
order to prove a hostile work environment claim plaintiff must show not only that
the conduct at issue was "offensive," but also that the conduct
"constituted discrimination" on the basis of a "protected
category") (quoting Oncale, 523 U.S. at 80-81) (internal
quotation marks omitted) (bracketing and emphasis omitted),
aff'd, 2005 WL 1317020, at *2 (2d Cir. June 1, 2005); Dimps v.
Human Res. Admin. of City of New York, 2001 WL 1360235, at *11
(S.D.N.Y. Nov. 5, 2001) ("[N]ot every hostile working environment
is actionable under Title VII; the hostile environment must be
the result of discrimination or retaliation.").
B. Discrimination Claims
We next consider whether Blackmon has made a prima facie case
of discrimination based upon either the alleged failure to
promote or alleged retaliation. Because we conclude that she has
not established a prima facie case with respect to these claims,
it is not necessary to proceed to the remaining steps of the
three-part framework and summary judgment must be entered in
favor of Unite. We treat her hostile work environment claim
separately and conclude that she has not met the standard for
that claim either.
To make out a prima facie case of discriminatory failure to
promote a plaintiff must show "(1) she is a member of a protected
class; (2) she applied and was qualified for a job for which the
employer was seeking applicants; (3) she suffered an adverse
employment action; and (4) the circumstances surrounding that
action permit an inference of discrimination." Williams v. R.H.
Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004) (citing
cases); see also Vernon v. Port Auth. of N.Y. & N.J.,
154 F. Supp. 2d 844, 856 (S.D.N.Y. 2001) (applying same test under
ADEA and Title VII for determining whether plaintiff proved a
prima facie case of discriminatory failure to promote). The
fourth element of a prima facie case can be shown in a number of
ways. For example, a plaintiff could point to actions or remarks made by
decision makers that reflect a discriminatory animus. Chertkova
v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)
(citing Ostrowski v. Atl. Mut. Ins. Companies, 968 F.2d 171,
182 (2d Cir. 1992)). A plaintiff could also provide evidence of
preferential treatment given to employees outside the protected
class. Id. (citing Washington v. Garrett, 10 F.3d 1421, 1434
(9th Cir. 1993)).
1. Failure to Promote Claim
Blackmon has not produced admissible evidence establishing all
of the elements of a prima facie case for discriminatory failure
to promote. As an initial matter, the parties' statements of
material facts do not reflect that Blackmon ever applied for a
promotion or any position at all within Unite. See Pl. 56.1;
Def. 56.1. Nor does Blackmon even aver this in her declaration.
See Blackmon Decl. The failure to make this showing means that
Blackmon has not made out a prima facie case. See Petrosino v.
Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004) (second element of a
prima facie case requires showing that a "specific application"
for a promotion was made); Victory v. Hewlett-Packard Co.,
34 F. Supp. 2d 809, 819 (E.D.N.Y. 1999) (plaintiff did not
"establish a required prima facie element of her claim" where she
did not "specify a particular promotional position for which she
applied"); Chojar v. Levitt, 773 F. Supp. 645, 652 (S.D.N.Y.
1991) (plaintiff failed to establish prima facie case where he
"adduced no documentary evidence of either the alleged
application or the alleged rejections that would establish that
the alleged incidents ever took place").
Moreover, Blackmon has presented no admissible evidence to
establish the fourth element of the prima facie case:
circumstances giving rise to an inference of discrimination.
Blackmon makes the conclusory statement in her declaration that
"Unite has done nothing but discriminate against African Americans and older ones in
particular." Blackmon Decl. ¶ 18. Blackmon also claims that she
as well as other African-Americans "have been discriminated
against by Unite," and that "[a]t least five" Unite employees
"have been terminated and two of those have lawsuits going."
Id. ¶ 6. Blackmon also avers that there are no African-American
directors or supervisors at Unite and that Neal was the only
African-American to be promoted even though "several
African-Americans at Unite" requested promotions or to be
designated as Lead Organizers. Id. ¶¶ 19-20, 29. However,
Blackmon does not provide evidence that persons who were not
members of the protected class received a promotion that she
sought or that such persons were designated as Lead Organizers in
those instances where she sought to become such an organizer. Nor
does the declaration indicate the age of the person or persons
who were ultimately placed in the positions allegedly sought by
Blackmon. Most significantly, Blackmon's declaration does not
provide evidence on the qualifications of the individuals who
applied for or ultimately received the promotions. Thus, because
Blackmon has not submitted any admissible evidence on these
points, she cannot establish that the alleged failure to promote
occurred under circumstances giving rise to an inference of race
or age-based discrimination. See Williams v. NYC Dep't of
Sanitation, 2001 WL 1154627, at *17 (S.D.N.Y. Sept. 28, 2001)
(plaintiff did not establish prima facie case of discrimination
where he failed to set forth allegations establishing that
"employees outside the Title VII protected class were treated
differently than those within the protected class") (citations
and footnote omitted); Blanke v. Rochester Tel. Corp.,
36 F. Supp. 2d 589, 593 (W.D.N.Y. 1999) (plaintiff did not establish
prima facie case of age discrimination where he "submitted no
evidence that younger, less qualified employees were in fact
chosen over him for any particular positions" and failed to
identify either "the positions in question" or "the successful candidates") (citing Brown v. Coach
Stores, Inc., 163 F.3d 706, 708 (2d Cir. 1998)).
In her memorandum of law, Blackmon points to some facts that
allegedly prove "the denial of a promotion . . . occurred under
circumstances that give rise to an inference of discrimination,"
see Pl. Mem. at 6, though none of the facts are set forth in
her declaration or otherwise presented in admissible form. These
facts include: (1) Unite's inability to decide "whether [her]
probationary period should be extended"; (2) "the sudden falling
off in [her] performance" as reflected in her evaluations; and
(3) her transfer from an assignment after a "white co-worker"
complained about her to management. See id. at 6-10 (citation
omitted). These unsworn assertions will not be considered by the
Court since they are inadmissible "to controvert a summary
judgment motion." Dukes v. City of New York, 879 F. Supp. 335,
343 (S.D.N.Y. 1995) (citing cases); see also Dusanenko v.
Maloney, 726 F.2d 82, 84 (2d Cir. 1984) (statements in
memorandum of law insufficient to defeat summary judgment
motion). Thus, these assertions cannot be relied on to support
any of Blackmon's claims. Nor would they be sufficient to give
rise to an inference of discrimination even if they were in
proper form.*fn3 In any event, even were we to accept that Blackmon had made out
a prima facie case of discrimination, she still could not prevail
in this matter because Unite has given a "legitimate,
nondiscriminatory reason" for its treatment of Blackmon.
McDonnell Douglas, 411 U.S. at 802; see, e.g., Bennett
Decl. ¶¶ 27-31 (detailing Blackmon's history of being disciplined
for her work performance); Def. Mem. at 20 (arguing that
Blackmon's "consistent poor performance is a legitimate business
reason for not promoting [her] or giving her additional
responsibility"). Nor has Blackmon provided any evidence at all
that her treatment was the result of intentional discrimination.
Instead, she has "done little more than cite to [her alleged]
mistreatment and ask the court to conclude that it must have been
related to [her] race. This is not sufficient." Lizardo v.
Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (citing Norton
v. Sam's Club, 145 F.3d 114, 120 (2d Cir.), cert. denied,
525 U.S. 1001 (1998)).
2. Hostile Work Environment Claim
A hostile work environment claim "is to be measured by the
totality of the circumstances, including the frequency and
severity of the discriminatory conduct, whether such conduct is
physically threatening or humiliating, and whether the conduct
unreasonably interferes with the plaintiff's work performance."
Williams v. County of Westchester, 171 F.3d 98, 100 (2d Cir. 1999) (per curiam) (citing Harris, 510 U.S. at 23). "A work
environment will be considered hostile if a reasonable person
would have found it to be so and if the plaintiff subjectively so
perceived it." Brennan, 192 F.3d at 318 (citing Gallagher v.
Delaney, 139 F.3d 338, 347 (2d Cir. 1998)). In order to satisfy
this standard, "a `plaintiff must demonstrate either that a
single incident was extraordinarily severe, or that a series of
incidents were sufficiently continuous and concerted to have
altered the conditions of [plaintiff's] working environment.'"
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69
(2d Cir. 2000) (quoting Cruz v. Coach Stores, Inc.,
202 F.3d 560, 570 (2d Cir. 2000)).
In her declaration, Blackmon points to a number of incidents
that occurred during her tenure at Unite in support of her
hostile work environment claim. The events pointed to by Blackmon
include her being "evicted" from her apartment, see Blackmon
Decl. ¶ 22-23, her assignment as the only organizer working on
the Duane Reade campaign, see id. ¶ 24, and the denial of
training and a vehicle in violation of the terms of her
"contract," see id. ¶¶ 12, 25. Blackmon's declaration also
points to Grogan's failure to show up for meetings she had
scheduled with prospective union members when she was working on
the Richmond probe and Grogan's not being "truthful" in pursuing
a disciplinary action against her on the issue of the volume of
her house calls. See id. ¶¶ 16-17. Blackmon asserts that,
because of the "stress" she has "endured from the discrimination"
at Unite, she is now "under psychiatric treatment and care."
Id. ¶ 5.
As an initial matter, these incidents do not amount to the sort
of "discriminatory intimidation, ridicule, and insult . . . that
is sufficiently severe or pervasive to alter the conditions of . . .
employment and create an abusive working environment."
Harris, 510 U.S. at 21. Rather, the "minor and infrequent" incidents referred to by
Blackmon in her declaration are insufficient to sustain a hostile
work environment claim. See, e.g., Deters v. Lafuente,
368 F.3d 185, 189 (2d Cir. 2004) (per curiam) (plaintiff's
allegations of a hostile environment insufficient where plaintiff
alleged "a string of isolated actions occurring over a multi-year
period" that involved neither a "pattern of nearly constant
harassment" nor "any one incident that [was] particularly
severe") (internal quotation marks and citations omitted).
Second, the record presented by Blackmon is devoid of evidence
establishing that these incidents occurred "because of" her race
or age. Brennan, 192 F.3d at 318. A plaintiff opposing summary
judgment must offer "concrete evidence from which a reasonable
juror could return a verdict in his favor." Anderson,
477 U.S. at 256. Blackmon's declaration discusses certain adverse actions
that she asserts occurred, see Blackmon Decl. ¶¶ 12, 16-17,
22-23, 25, 27, but provides no basis that would allow a
reasonable jury to find that these actions were taken against her
because of her race or age.
Blackmon also avers in her declaration that "workers and . . .
other staff members complained constantly about Ms. Neal's
attitude towards them," and that Neal "even told one person of
white and Jamaican descent . . . that she . . . did not know who
she was, [and] that she had a problem with her identity."
Blackmon Decl. ¶ 15. Courts have held that "`[r]acially
derogatory language in the workplace can be evidence of a
discriminatory atmosphere, and is certainly not to be condoned.'"
Lawson v. Getty Terminals Corp., 866 F. Supp. 793, 802
(S.D.N.Y. 1994) (quoting Powell v. Missouri State Highway &
Transp. Dep't, 822 F.2d 798, 801 (8th Cir. 1987)). Nonetheless,
"[i]solated, minor acts or occasional episodes do not warrant
relief." Brennan, 192 F.3d at 318 (citing Kotcher v. Rosa &
Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992)). In order to establish a hostile work
environment claim, "the plaintiff must show more than a few
isolated incidents of racial enmity[;] there must be a steady
barrage of opprobrious racial comments." Williams,
171 F.3d at 100-01 (citations and internal quotation marks omitted). Thus,
the Second Circuit has held that "evidence solely of `sporadic
racial slurs'" are insufficient to satisfy the plaintiff's
burden. Id. at 101 (quoting Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997)); see also Lawson,
866 F. Supp. at 802 ("[I]solated racial remarks do not satisfy plaintiff's burden
of establishing a prima facie case of discrimination.")
(citing cases). Consequently, Blackmon's averment concerning a
single racially motivated comment in the workplace does not show
that the adverse conditions she points to created a hostile
environment based upon racial animus. Cf. Delgado v. Puerto
Rican Family Inst., Inc., 2001 WL 964000, at *7 (S.D.N.Y. Aug.
23, 2001) ("As only one isolated and ambiguous comment could be
interpreted as reflecting a discriminatory intent, Plaintiff has
not sufficiently supported her claim that she was subject to a
hostile environment permeated with discriminatory animus.")
Nor is it sufficient that Blackmon has made generalized
assertions that she "felt discriminated against and subject to a
hostile environment" after being assigned to the Duane Reade
campaign, id. ¶ 24, or that discrimination at Unite has caused
her "stress" and to seek out "psychiatric treatment and care,"
id. ¶ 5. See Forsyth v. Fed'n Employment and Guidance
Serv., 409 F.3d 565, 573-74 (2d Cir. 2005) ("On a motion for
summary judgment in a discrimination case the plaintiff must
provide the trial court with more than his own conclusory
allegations declaring discrimination was present.") (citing
cases); Cameron v. Cmty. Aid for Retarded Children, Inc.,
335 F.3d 60, 63 (2d Cir. 2003) ("conclusory allegations of
discrimination, absent any concrete particulars, are insufficient" to establish a
genuine issue of material fact) (citation and internal quotation
Finally, Blackmon's hostile work environment claim must fail
because her declaration points to "no resulting disadvantage or
adverse effect on her job performance" caused by the incidents
she describes. See Alfano v. Costello, 294 F.3d 365, 376 (2d
Cir. 2002); accord Wilson v. Consol. Edison Co. of N.Y.,
Inc., 2000 WL 335733, at *6 (S.D.N.Y. Mar. 30, 2000) (summary
judgment for defendant where plaintiff failed to describe "how he
was harmed or how his alleged hostile work environment interfered
with his work performance"); Brown v. Middaugh,
41 F. Supp. 2d 172, 188 (N.D.N.Y. 1999) (summary judgment as to plaintiff's
hostile work environment claim where plaintiff failed to allege
that the discriminatory conduct "unreasonably interfered with his
job performance") (citing cases).
In sum, Blackmon has presented no evidence upon which a
rational trier of fact could conclude that she was subjected to
race or age-based discrimination based upon either her failure to
promote or hostile work environment claims. See, e.g.,
McLee, 109 F.3d at 135.
To establish a prima facie case of retaliation, the plaintiff
must demonstrate "(1) that she `engaged in protected
participation or opposition under Title VII, (2) that the
employer was aware of this activity, (3) that the employer took
adverse action against the plaintiff, and (4) that a causal
connection exists between the protected activity and the adverse
action, i.e., that a retaliatory motive played a part in the
adverse employment action.'" Cifra v. G.E. Co., 252 F.3d 205,
216 (2d Cir. 2001) (quoting Sumner v. United States Postal
Serv., 899 F.2d 203, 208-09 (2d Cir. 1990)). Here, Unite has asserted in its brief that there is no
admissible evidence supporting a claim of retaliation. See Def.
Mem. at 2, 23. Under Celotex, where a nonmoving party bears the
burden of proof on an issue, it is sufficient for the party
moving for summary judgment to "point? out to the district court
. . . that there is an absence of evidence to support the
nonmoving party's case." 477 U.S. at 325. The moving party is
permitted to "use a memorandum or brief to point to the absence
of evidence and thereby shift to the nonmovant the obligation to
come forward with admissible evidence supporting its claim."
Feurtado v. City of New York, 337 F. Supp. 2d 593, 599
(S.D.N.Y. 2004) (citing cases) (internal quotation marks
omitted). Because Blackmon bears the burden of proving her
retaliation claim, see Slattery v. Swiss Reinsurance Am.
Corp., 248 F.3d 87, 94 (2d Cir.) (plaintiff must show elements
of retaliation claim by a preponderance of the evidence), cert.
denied, 534 U.S. 951 (2001), Unite's assertion in its brief
that there is no evidence in support of this claim required
Blackmon to make a showing sufficient to establish the elements
of her retaliation claim. See Celotex, 477 U.S. at 322-23;
see also Feurtado, 337 F. Supp. 2d at 599 (defendant's
"assertion in its brief that there is no evidence" supporting
plaintiff's claim required plaintiff "to furnish admissible
evidence in support of his claim") (citations omitted).
Blackmon's submissions to the Court, however, are devoid of
evidence establishing any of the prima facie elements of a
retaliation claim. Thus, summary judgment must be entered on this
claim in favor of Unite.
D. NYSHRL and NYCHRL Claims
Blackmon alleges in her amended complaint that Unite
discriminated against her in violation of the NYSHRL and NYCHRL.
See Am. Compl. ¶¶ 19, 23. The NYSHRL provides, in relevant
part, that Any person claiming to be aggrieved by an unlawful
discriminatory practice shall have a cause of action
in any court of appropriate jurisdiction for damages
. . . unless such person had filed a complaint
hereunder or with any local commission on human
rights . . . provided that, where the division has
dismissed such complaint on the grounds of
administrative convenience . . . such person shall
maintain all rights to bring suit as if no complaint
had been filed with the division.
N.Y. Exec. Law § 297(9) (emphasis added). The Second Circuit has
held that N.Y. Exec. Law § 297(9) "precludes a cause of action if
the [plaintiff] has filed a complaint with any local commission
on human rights." Whidbee, 223 F.3d at 75. The Second Circuit
has also stated that this prohibition applies to state law claims
filed in federal court. Id. (citing Wiesman v. Metro. Museum
of Art, 772 F. Supp. 817, 819 (S.D.N.Y. 1991)).
The NYCHRL similarly provides, in relevant part, that
Except as otherwise provided by law, any person
claiming to be aggrieved by an unlawful
discriminatory practice . . . shall have a cause of
action in any court of competent jurisdiction . . .
unless such person has filed a complaint with the
city commission on human rights or with the state
division of human rights with respect to such alleged
unlawful discriminatory practice.
New York City Administrative Code § 8-502(a).
Thus, the NYSHRL and NYCHRL "provide an election of forums,
either administrative or judicial, such that a plaintiff who
files a complaint with the State or City Human Rights Divisions
may not then bring suit in court." Hernandez v. New York City
Law Dep't Corp. Counsel, 1997 WL 27047, at *10 (S.D.N.Y. Jan.
23, 1997) (citations omitted); see also Clements v. St.
Vincent's Hosp. & Med. Ctr. of N.Y., 919 F. Supp. 161, 164
(S.D.N.Y. 1996) ("[A] person claiming to be aggrieved by an
unlawful discriminatory practice may seek relief either from a
court of appropriate jurisdiction or from . . . any local
commission on human rights, but not both.") (citations omitted).
A plaintiff's election of an administrative remedy operates as a
jurisdictional bar to suit in federal court. See Moodie v.
Fed. Reserve Bank of N.Y., 58 F.3d 879, 882 (2d Cir. 1995); accord Lyman v. City of New York,
1997 WL 473976, at *4 (S.D.N.Y. Aug. 20, 1997) (citing cases).
The one "limited exception" to this rule arises "where the
administrative agency dismisses a claim for administrative
convenience, rather than making a finding of no probable cause:
in that case, a plaintiff is not barred from seeking judicial
review of the claim." Anatsui v. Food Emporium, 2000 WL
1239068, at *5 (S.D.N.Y. Sept. 1, 2000).
Because Blackmon filed an administrative complaint with the
NYSDHR before filing the instant action, see Oct. 24 Compl.,
her claims under the NYSHRL and NYCHRL are barred by the election
of remedies doctrine. The exception to the election of remedies
rule does not apply because Blackmon's administrative complaint
was dismissed following a finding of no probable cause by the
NYSDHR not because of "administrative convenience." See June
17 Order. Consequently, Blackmon's claims under the NYSHRL and
NYCHRL are dismissed for lack of subject matter jurisdiction.
E. Breach of Contract Claim
Blackmon states in her amended complaint that Unite "breach[ed]
its contract with [her] by deviating from established policies
and procedures under which similarly situated employees
performed." Am. Compl. ¶ 31. In her declaration, Blackmon avers
that the denial of both a company vehicle and "training" violated
the terms of "the contract." Blackmon Decl. ¶ 25. Unite assumes
this claim rests upon an alleged breach of the CBA and argues
that this claim must fail "as a matter of law" because, inter
alia, Blackmon "concede[s] she never asked [the Union] to
arbitrate her contractual claims" and because "she does not
allege that [the Union] breached its duty of fair representation
in her complaint." Def. Mem. at 24-25. Blackmon's papers nowhere point to what contract she is
referring to and thus her contractual claim must fail for this
reason alone. In any event, if it is assumed that reference is
being made to the CBA, that claim must fail as well. Section
301(a) of the Labor Management Relations Act of 1947 confers
federal jurisdiction over "[s]uits for violation of contracts
between an employer and a labor organization representing
employees in an industry affecting commerce." 29 U.S.C. § 185(a).
Under this scheme, an individual employee may bring suit against
his employer for breach of a collective bargaining agreement.
See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163
(1983) (citing Smith v. Evening News Ass'n, 371 U.S. 195
(1962)). However, an employee is ordinarily required "to attempt
to exhaust any grievance or arbitration remedies provided in the
collective bargaining agreement." Id. at 163-64 (citing cases);
accord Vera v. Saks & Co., 335 F.3d 109, 118 (2d Cir. 2003);
see also Dougherty v. Am. Tel. & Tel. Co., 902 F.2d 201,
203 (2d Cir. 1990) (before bringing an action under § 301, "the
employee must exhaust grievance procedures provided by the
relevant collective bargaining agreement") (citing Hines v.
Anchor Motor Freight, Inc., 424 U.S. 554, 563 (1976)). The
Supreme Court has recognized, however, that an employee need not
exhaust grievance or arbitration procedures "when the union
representing the employee in the grievance/arbitration procedure
. . . breach[es] its duty of fair representation." DelCostello,
462 U.S. at 164. "A union breaches its duty of fair
representation when its conduct toward an employee it represents
is `arbitrary, discriminatory, or in bad faith.'" Young v.
United States Postal Serv., 907 F.2d 305, 308 (2d Cir. 1990)
(quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).
Any disputes concerning an alleged breach of the CBA must be
resolved in the grievance and arbitration procedure contained in
the CBA. Def. 56.1 ¶ 13. Blackmon, however, did not grieve Unite's failure to provide her with training and
educational opportunities. Id. ¶ 46. Nor is there any evidence
that she grieved Unite's failure to provide her with a company
vehicle. Moreover, Blackmon has not even alleged that the Union
breached its duty of fair representation by engaging in
"arbitrary," "discriminatory," or "bad faith" conduct towards her
that might otherwise excuse the exhaustion requirement. Young,
907 F.2d at 308 (citation and internal quotation marks omitted).
Because Blackmon failed to exhaust her remedies under the CBA to
grieve and arbitrate her breach of contract claim, Unite is
entitled to summary judgment. See, e.g., Vera,
335 F.3d at 118-19 (district court properly granted summary judgment where
there was no dispute that the collective bargaining agreement
contained "clear grievance and arbitration procedures" and that
plaintiff "failed to file a grievance or to seek arbitration of
For the foregoing reasons, Unite's motion for summary judgment
(Docket #11) is granted. The Clerk is requested to enter judgment
in favor of Unite and to close this case.
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