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September 28, 2005.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


This action arises out of claims by Sharon Fleming Perry (the "plaintiff" or "Perry") that her former employer, the Metropolitan Suburban Bus Authority a.k.a. MTA Long Island Bus ("LI Bus") wrongfully terminated her employment as a bus operator in violation of the equal protection and due process clauses of the Fourteenth Amendment in violation of 42 U.S.C. § 1983 ("Section 1983"); and that it conspired with the Transport Workers Union, Local 252, AFL-CIO ("Local 252" or the "Union") to deny the plaintiff her constitutional rights on the basis of her race in violation of 42 U.S.C. § 1985 ("Section 1985"). The plaintiff also alleges a cause of action under Section 1983 in that Local 252 violated the plaintiff's due process and equal protection rights. In addition, the plaintiff has alleged a cause of action against LI Bus based on racial discrimination under the New York State Human Rights Law.


  The facts in this case are somewhat complicated by various hearings, steps, an arbitration, a PERB Hearing and multiple causes of action against the two defendants.

  From October 1993 until her termination on August 6, 2003, the plaintiff was employed by LI Bus as a full time bus operator. During this period of time, the plaintiff was a member of Local 252, which is recognized by LI Bus as the exclusive representative of certain employees, including the plaintiff, for the purpose of collective bargaining negotiations and the settlement of grievances. A collective bargaining agreement between LI Bus and Local 252 was in force from December, 1999 through December, 2002 (the "CBA"). On August 16, 2002, the plaintiff became ill and was unable to work as a bus operator. She never returned to this position. During the time the plaintiff was out of work, she was diagnosed with various ailments including cardiomyopathy, congestive heart disease, hypertension and asthma causing her to be absent from work on sick leave.

  During the period from August 16, 2002, when she was first unable to work, until January 31, 2003, when she took a Vehicle & Traffic Law ("VTL") Article 19A bus driver's road test, the plaintiff was examined by at least four physicians. On her part, she was examined and treated by Dr. Scott Brown and Dr. Aubrey Lewis. In addition, she was periodically examined by Dr. Burton Miller, the LI Bus Medical Director and, on two occasions, by an Impartial Medical Evaluator ("IME"), Dr. Martin Stern. These various doctors made many diagnoses, but apparently, all agreed that she was suffering from hypertension, cardiomyopathy and congestive heart disease.

  During this period, the plaintiff was hospitalized twice for heart-related and other illnesses.

  In December 2002, Dr. Stern cleared the plaintiff to return to work and, on January 31, 2003, she took the Article 19A road test. The plaintiff testified that upon arriving at the test site, she told the bus inspector that she had a cold and didn't feel well. However, the inspector said she had to do the test that day. The road test was short-lived. After the plaintiff pulled away from headquarters, she made two right turns. At that point, she told the inspector that she was dizzy, light-headed and felt a cramp in her left arm. She then told him that she could not complete the road test, pulled into the garage and parked. Altogether, she was on the bus about ten minutes.

  The plaintiff was then referred to Dr. Stern for a second medical examination. Dr. Stern reported that the plaintiff had medical problems that could never be corrected; and that she would never be able to be a 19A certified bus operator.

  Conversely, the plaintiff's physician Dr. Lewis, in a March 17, 2003 letter, said that she was "presently stable" and, as of March 10, 2003, she may return to full duty as a bus operator. Ultimately, the plaintiff's employment as a bus operator was terminated as of August 6, 2003 because of her permanent medical conditions involving her heart and hypertension and her alleged inability to pass the Article 19A road test and to safely operate a bus.


  The plaintiff was involved in a number of administrative proceedings and hearings.

  A. The Contractual Arbitration Proceeding

  Upon receipt of IME Dr. Stern's recommendation that the plaintiff was permanently disabled by her heart problems, LI Bus moved in April 2003 to terminate Perry for not having the required certification under VTL Article 19A. The initial disciplinary grievance Step I was scheduled for April 23, 2003 before her Location Chief, John Freeman, where she would be represented by her Local 252 Shop Steward, Grover Howell ("Howell"). At this time Howell ascertained for the first time that Perry had already been sent to an IME and was deemed medically disqualified by Dr. Stern.

  Because Howell considered Dr. Stern's unilateral selection by LI Bus to be a breach of the CBA, Howell adjourned the April 23, 2003 Step I disciplinary grievance. He filed a contractual grievance on behalf of Perry and the Union the same day. On April 29, 2003, an arbitration hearing was held on the contractual grievance filed by Howell on behalf of the Union. The issue at the contractual arbitration between LI Bus and the Union was whether the unilateral selection of the IME by LI Bus was in violation of the CBA. The question of the plaintiff's medical evaluation or termination was not an issue in this contractual arbitration. By an award dated May 28, 2003, the Impartial Arbitrator, Shelly Friedman, ruled that although LI Bus violated the CBA by unilaterally selecting the IME, this was harmless error, in any event, because both parties would have selected Dr. Stern in that the Union and LI Bus had both used Dr. Stern in the past as an IME.

  B. The Step I Disciplinary Grievance Proceeding

  This rescheduled Step I disciplinary grievance proceeding to terminate the plaintiff's employment was conducted on July 21, 2003. Apparently, Howell, the Union representative, was given very short notice, less than one day, and he tried very diligently, without success, to contact the plaintiff, who was not present at the Step I Hearing. On July 21, 2003, at the Step I Hearing, Howell requested an adjournment because Perry was not present. Freeman, the LI Bus representative, denied Howell's adjournment request and the hearing proceeded against Perry without her presence. Freeman sustained Perry's termination for failure to meet VTL Article 19A's requirements for certification. Freeman inserted "GUILTY" on the Step I disciplinary grievance form

  The Union appealed from the Step I decision. By letter dated July 24, 2003, Perry was notified by the defendant's Senior Manager for Labor Relations, Carl Macchio of the Step I decision and the Step II proceeding. Macchio's letter requested that she bring forth any medical documentation supporting her position and in opposition to Dr. Stern's conclusion.

  C. The Step II Proceeding and Hearing

  Prior to the hearing the plaintiff contacted Howell who asked the plaintiff to bring any medical documentation supporting her position to the Step II grievance hearing. Perry met with Howell prior to the Step II hearing and reviewed her testimony.

  On July 31, 2003, the Step II proceeding was held with Howell, Perry and Macchio present. The plaintiff did not produce any additional medical documentation to dispute Dr. Stern's determination that she could no longer work as a bus operator. The decision to terminate her was sustained based on the reports of Dr. Stern and the arbitration award permitting his unilateral selection by LI Bus. D. The New York State Public Employment Relations Board (PERB") Proceeding and Hearing

  On or about September 29, 2003, the plaintiff filed an improper practice charge against the Union with PERB alleging a violation of the New York Public Employees' Fair Employment Act § 209-a.2(c). The plaintiff, represented by her present counsel, Harriet A. Gilliam, Esq., accused the Union of breaching its duty of fair representation by participating in the contractual arbitration and the disciplinary grievance Step I and Step II proceedings in an arbitrary, discriminatory or bad faith manner. LI Bus was named as a statutory party. There was a hearing before an ALJ on October 27, 2004. The Court finds that the issues that arose at the PERB Hearing and the evidence in support of those issues are the same as some of the issues in this federal action.

  At that hearing, the parties agreed to three stipulations as follows:

  (1) Dr. Stern, the person designated by the employer to perform the assessment of Perry's fitness, found her to not be fit for duty under VTL Article 19-A;

  (2) The person designed to perform the fitness assessments of Perry in December of 2002 and February of 2003 was not jointly selected by the employer and the Union;

  (3) The Union proceeded to arbitration on the issue of the doctor having not been jointly selected. Among the findings by the ALJ in this administrative proceeding is the following:
By her own admission she (the plaintiff) had no reason to believe that she was treated differently than other TWU members similarly situated, making a discrimination allegation not viable.
  All of the allegations against the Union were dismissed with the exception, not relevant in this action, that the Union should not have told her that the Step II disciplinary grievance opinion sustaining the termination would be appealed to arbitration when there was no contractual mechanism to do so.
  With regard to the plaintiff not being present at the Step I hearing and the arbitration, the ALJ made the following finding:
Based on the foregoing, I find that Perry's proof fails as to the TWU's failure to notify her of her arbitration and the July 21 grievance hearing and the motion to dismiss in those regards is properly granted.
  Both parties appealed to the Public Employment Relations Board. In its decision, dated June 8, 2005, the Board held:
Perry introduced no evidence of discrimination or improper motivation toward her on the part of TWU, generally, or Howell, specifically. TWU's conduct must, therefore, be examined to determine if the union was arbitrary in its handling of Perry's grievances. We find that it was not.
As the ALJ found with respect to notifying Perry of the scheduled arbitration on the contractual grievance, there was no other evidence of arbitrariness, bad faith or discrimination. The decision to proceed to arbitration and the manner in which the grievance would be processed were TWU's to make. We afford employee organizations a wide range of reasonableness in making evidentiary and tactical decisions in the investigation and processing of grievances. TWU's decision to proceed with the arbitration without Perry was not arbitrary and did not violate the Act.
Neither was TWU's failure to notify Perry about the scheduling of the Step 1 hearing on the termination grievance violative of the Act. Perry, in her direct case, did not prove arbitrary, discriminatory or bad faith behavior by TWU. Howell testified about his attempts to reach Perry in the short time allotted between his notification and the scheduled date of the hearing. Whether he could have done more to reach her is not the issue we must decide. There is no dispute that he tried to reach her, even though Perry testified that the telephone numbers Howell used were in working order. Howell appeared on Perry's behalf and represented her interests. He immediately appealed the adverse Step 1 decision. We, therefore, cannot find that TWU's conduct in this regard was arbitrary, discriminatory or taken in bad faith.
A. The Standard Rule 50 Motion for a Judgment as a Matter of Law
  In This Is Me Inc. v. Elizabeth Taylor, 157 F.3d 139 (2d Cir. 1998), the Second Circuit stated:
[T]he recent adoption of term `judgment as a matter of law' to replace both the term `directed verdict' and the term `judgment n.o.v.' was intended to call attention to the close relationship between Rules 50 and 56. A district court may not grant a motion for a judgment as a matter of law unless `the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.' Cruz v. Local Union No. 3, Int'l Bhd. Of Elec. Workers, 34 F.3d 118, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)) (internal quotation marks omitted). Weakness of the evidence does not justify judgment as a matter of law; as in the case of a grant of summary judgment, the evidence must be such that `a reasonable juror would have been compelled to accept the view of the moving party.'
Piesco, 12 F.3d at 343. Very recently, the Second Circuit reiterated the standard for a Rule 50 motion for a judgment as a matter of law. In Fairbrother v. Morrison, 412 F.3d 39 (2d Cir. 2005), on June 14, 2005, the Second Circuit stated:
Judgment as a matter of law in jury trials is provided for in Federal Rule of Civil Procedure 50. It may be granted against a party with respect to "a claim or defense that cannot . . . be maintained or defeated without a favorable finding" on an issue for which "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a)(1). This circuit has stated that judgment as a matter of law "may only be granted if there exists `such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture,' or the evidence in favor of the movant is so overwhelming `that reasonable and fair minded [persons] could not arrive at a verdict against [it].'" Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997) (quoting Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir. 1994)) (alterations in original). The motion should be granted "only if [the court] can conclude that, with credibility assessments made against the moving party and all inferences drawn against the moving party, a reasonable juror would have been compelled to accept the view of the moving party." Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993). The Court cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001) (quoting Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988)).
B. Analysis of the Plaintiff's Six Causes of Action

  With these standards in mind, the Court will now review the plaintiff's three causes of action against defendant LI Bus and three causes of action against the defendant Union.

  (1) First Cause of Action — Section 1985 Conspiracy Against Both Defendants In this first cause of action the plaintiff alleged in the complaint that the defendants "conspired to deny plaintiff her equal protection and due process rights under the U.S. Constitution by denying plaintiff the opportunity for a grievance and arbitration hearing on the issue of her ability to return to work ...

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