United States District Court, E.D. New York
September 28, 2005.
SHARON FLEMING PERRY, Plaintiff,
METROPOLITAN SUBURBAN BUS AUTHORITY a.k.a. MTA LONG ISLAND BUS and TRANSPORT WORKERS UNION, LOCAL 252, AFL-CIO, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
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
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
II. THE ADMINISTRATIVE PROCEEDINGS
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
(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
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
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 and ultimately on the issue of the termination of her
employment, all in violation of Section 1985."
The complaint does not specify which subdivision of Section
1985 she claims were violated by the defendants. Section 1985(1)
does not apply to the facts in this case. This section prohibits
two or more persons from conspiring to prevent, by force or
intimidation, a person from accepting or holding office in the
United States, or to induce any officer of the United States to
leave the place where his duties are required to be performed.
Section 1985(2) also does not apply. Section 1985(2) prohibits
two or more persons from conspiring to obstruct justice by
intimidating a party, witness, or juror in any court of the
Therefore, by process of elimination, Section 1985(3) must be
the law referred to in the first cause of action.
With respect to Section 1985(3), a plaintiff must allege (1) a
conspiracy; (2) for the purpose of depriving a person or class of
persons of the equal protection of the laws, or the equal
privileges and immunities under the laws; (3) an overt act in
furtherance of the conspiracy; and (4) an injury to the
plaintiff's person or property, or a deprivation of a right or
privilege of a citizen of the United States. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). Significantly, the
conspiracy must also be motivated by "`some racial or perhaps
otherwise class-based, invidious discriminatory animus behind the
conspirators' action'" Thomas, 165 F.3d at 146 (quoting Mian
v. Donaldson, Lufkin & Jenrette Secs., Corp., 7 F.3d 1088 (2d
Cir. 1993)). In addition, the plaintiff must allege that the
conspiracy was "`aimed at interfering with rights' that are
`protected against private, as well as official, encroachment.'"
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268,
122 L. Ed. 2d 34, 113 S. Ct. 753, 758 (1993) (quotation omitted).
With respect to this subsection of Section 1985, Perry failed
to allege a conspiracy motivated by any racial or class-based
animus. See Temple of the Lost Sheep, Inc. V. Abrams,
930 F.2d 178, 185 (2d Cir. 1991) (claim under 42 U.S.C. § 1985(3)
dismissed as the complaint was "couched in terms of conclusory
allegations and failed to demonstrate `some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind
the conspirators' action' as required by § 1985"); see also
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999).
However, even overlooking the pleading deficiency, the
plaintiff failed to present any evidence of a conspiracy of any
kind between the Union and LI Bus. To the contrary, the actions
of the Union were properly protective of the plaintiff's rights
and were adversarial in nature to LI Bus. (See, for example, the
Step Hearings and the Arbitration). Perry herself offered no
testimony even vaguely inferring a conspiracy. There is no
evidence before this jury that there was any "agreement" expressed, implied or tacit, between the Union and LI Bus to
terminate the plaintiff's employment. On the contrary, the Union
fought to preserve her job. There is no evidence of any
communication, oral or written, between LI Bus and the Union
regarding any event leading to the plaintiff's termination,
specifically including the road test. There was no conspiracy
Further, there is no evidence before the jury of any violation
of equal protection, or any racial or class-based discrimination.
The only evidence in that regard is that about a year prior to
the plaintiff's termination, one individual named Calabrese, a
white bus operator was permitted to return to the job after being
out on sick leave for a heart condition. However, the evidence is
clear that Calabrese was sent for an IME evaluation which
determined that he was able to return to work In addition, he
passed the road test. This is a different factual situation and
dramatically different than the IME determination and the road
test in Perry's case. The Court finds that there was no different
treatment of similar situations between Calabrese and the
plaintiff and no violation of equal protection.
Accordingly, the defendants' motion to dismiss the first cause
of action against both defendants based on a Section 1985(3)
conspiracy is granted.
(2) Second Cause of Action Section 1983 Equal Protection
Against LI Bus
In the second cause of action, the plaintiff alleges that
"Defendant employer has subjected plaintiff to differential
treatment than white employees who were permitted to return to work, on account of her race and in
violation of the equal protection clause pursuant to Section 1983
of the Civil Rights Act."
LI Bus is being sued as a quasi-municipality, and, as such, can
be liable under 42 U.S.C. § 1983. However, municipality liability
under Section 1983 cannot be based on a theory of respondeat
superior. See Board of the County Commissioners of Bryan County
v. Brown, 520 U.S. 397, 404-05, 137 L. Ed. 2d 626,
117 S. Ct. 1382 (1997); Monell v. New York City Dept. Of Social Servs.,
436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018, 2036 (1978);
Jeffes v. Barnes, 208 F.3d 49, 56-57 (2d Cir. 2000); DeCarlo,
141 F.3d at 61. Rather, the plaintiff must show that the
constitutional violation, if there is one, by a municipal
employee resulted from a custom, policy, or practice of the
municipality. See Monell, 436 U.S. at 694; DeCarlo v. Fry,
141 F.3d at 61; Vann v. City of New York, 72 F.3d 1040, 1049
(2d Cir. 1995). A plaintiff need not demonstrate that the
municipality had a formal rule or regulation that causes the
deprivation. See Vann 72 F.3d at 519; Ricciuti v. N.Y.C.
Transit Auth., 941 F.2d 199, 123 (2d Cir. 1991).
Also, a plaintiff can show a municipal custom, policy or
practice by establishing that an official who is a final
policymaker directly committed or commanded the constitutional
violation, or by showing that a policymaker indirectly caused the
misconduct of a subordinate municipal employee. See Monell,
436 U.S. at 690; Jeffes, 208 F.3d at 61. Liability based on
indirect causation can be established by showing "`acquiescence
in a longstanding practice or custom which constitutes the `standard operating procedure' of the local
government entity.'" Jeffes, 208 F.3d at 61 (citation omitted).
A municipal policy or practice can also be inferred from a
failure by policymakers to train their subordinates amounting to
"deliberate indifference" to the rights of those who come in
contact with the municipal employees. See City of Canton v.
Harris, 489 U.S. 378, 388, 103 Ld. E. 2d 412, 109 S. Ct. 1197
(1989); DeCarlo, 141 F.3d at 61; Ricciuti, 941 F.2d at 123.
A plaintiff can also prove such deliberate indifference by
showing "that the municipality had notice of but repeatedly
failed to make any meaningful investigation into charges that its
agents were violating citizens' constitutional rights."
DeCarlo, 141 F.3d at 61; Vann, 72 F.3d at 1049 (holding that
a plaintiff "may establish the pertinent custom or policy by
showing that the municipality, alerted to the possible use of
excessive force by its police officers, exhibited deliberate
indifference"). Ricciuti, 941 F.2d at 123; Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("[M]unicipal
inaction such as the persistent failure to discipline
subordinates who violated civil rights could give rise to an
inference of an unlawful municipal policy of ratification of
unconstitutional conduct within the meaning of Monell.")
"The mere assertion, however, that a municipality has such a
custom or policy is insufficient in the absence of allegations of
fact tending to support, at least circumstantially, such an
inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993); see also Batista, 702 F.2d at 397. In addition,
an official policy practice or custom cannot be inferred from a
single incident alleged in a complaint against a municipal
employee not vested with policy-making authority. City of
Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985); Dwares,
985 F.2d at 100; Ricciuti, 941 F.2d at 123.
Here, the plaintiff failed to establish any Monell liability
against LI Bus. There was no proof of any custom, policy or
practice to treat the plaintiff differently from white bus
operators; nor were there any discriminatory actions by any
policymaker of LI Bus. On the contrary, the LI Bus policies in
evidence demonstrate strong and viable anti-discrimination and
affirmative action rules in effect. As stated above, the one
incident involving the white bus operator is not similar to the
plaintiff's situation and failed to establish any constitutional
violation or discriminatory conduct.
However, to complete the record, the Court will address the
Section 1983 equal protection claim asserted by the plaintiff in
her second cause of action.
The Fourteenth Amendment of the United States Constitution
guarantees that no state shall "deny to any person within its
jurisdiction the equal protection of the laws." This is
"essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313
(1985). The plaintiff in this case claims that she was treated
differently than "white employees who were permitted to return to
work, on account of her race . . ."
Discriminatory treatment by government officials is sufficient
to trigger assessment under the Equal Protection Clause. See
Lewis v. Thompson, 252 F.3d 567, 590 (2d Cir. 2001). If
government action interferes with a "fundamental right" or
discriminates against a "suspect class," it must be reviewed
using the strict scrutiny analysis. Absent these circumstances,
government action will ordinarily survive an equal protection
challenge so long as the action is rationally related to a
legitimate governmental purpose. Plyler v. Doe, 457 U.S. 202,
216-17, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1981). When government
action discriminates against an individual for reasons other than
an association with a class, the plaintiff is commonly referred
to as a "class of one," rather than a "suspect class."
The Equal Protection Clause bars the government from selective
adverse treatment of individuals compared with other similarly
situated individuals if "such selective treatment was based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person." LeClair,
627 F.2d at 609-10.
In this case, as stated previously, there is no evidence of
racial discrimination by LI Bus, and, there is no dissimilar
treatment by similarly situated bus operators regarding the only
white worker who was permitted to return to work. Accordingly, on
the merits, in addition to the Monell insufficiency, the
plaintiff's second cause of action sounding in Section 1983 Equal
Protection is dismissed for failure of proof. (3) Fourth Cause of Action Section 1983 Due Process and
Equal Protection Against the Union
In the fourth cause of action, the plaintiff alleged that the
"Defendant Union violated plaintiff's due process and equal
protection rights on account of her race, pursuant to Section
1983." The plaintiff asserted that the Union did this as follows:
[I]n that it failed to advocate for plaintiff as it
did for white employees with respect to plaintiff's
right to return to her employment following medical
clearance; and further failed to challenge or contest
defendant employer's discriminatory treatment of
plaintiff with respect to her terms and conditions of
employment and right to return to work; and it
further failed to exhaust all grievance and
arbitration proceedings as it did for white employees
with respect to plaintiff's right to return to work.
The Union contends that dismissal of the Section 1983 claim
against the Union is warranted because it is neither a state
actor nor acting under color of state law. The Court agrees.
Section 1983 provides in pertinent part:
"Every person who, under color of . . . [state law]
subjects, or causes to be subjected, any . . . person
within the jurisdiction [of the United States] to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law [or a] suit
[in] equity. . . ."
42 U.S.C. § 1983. A violation is proven when "a person or persons
acting under color of state law deprived a plaintiff of rights,
privileges or immunities secured by the Constitution or laws of
the United States." McDarby v. Dinkins 907 F.2d 1334
, 1336 (2d
Cir. 1990) (citation omitted). Thus, a Section 1983 claim has two
essential elements: (1) the defendant acted under color of state
law; and (2) as a result of the defendant's actions, the plaintiff suffered a deprivation of his
rights or privileges secured by the Constitution or federal laws.
Annis v. County of Westchester, 136 F.3d 239
, 245 (2d Cir.
The plaintiff is unable to establish the first element because
the Union was not a state actor and did not act under color of
The Supreme Court has recognized that a party acts under color
of state law when exercising power "`possessed by virtue of state
law and made possible only because the wrongdoer is clothed with
the authority of state law.'" Polk County v. Dodson,
454 U.S. 312, 317-18 (1981) (quoting United States v. Classic,
313 U.S. 299, 326 (1941); see also West v. Arkins, 487 U.S. 42, 49
(1988). For purposes of a Section 1983 action, a defendant
necessarily "acts under color of state law when he abuses the
position given to him by the State." West, 487 U.S. at 50; see
also Christian v. Belcher, 888 F.2d 410, 414 (6th Cir. 1989)
("[B]efore a defendant may be held liable under Section 1983,
that defendant must first possess power by virtue of state law,
then misuse that power in a way that violates federal
With regard to a non-governmental entity, such as the Transport
Workers Union, Local 252, in Loce v. Time Warner Entertainment
Advance/Newhouse Partnership, 191 F.3d 256, 266 (2d Cir. 1999),
the Second Circuit explained that:
The First Amendment applies only to state actors. In
order to establish a First Amendment claim against a
private entity based on the entity's relationship to
the state, a plaintiff must demonstrate, inter alia, a sufficiently close nexus between the State
and the challenged action of the regulated entity so
that the action of the latter may be fairly treated
as that of the State itself. Such a nexus may be
found, for example, where a private actor has
operated as a willful participant in joint activity
with the State or its agents. In the absence of such
a nexus, a finding of state action may not be
premised on the private entity's creation, funding
licensing, or regulation by the government. Nor is a
private entity a state actor merely because its
conduct is authorized by a state law, where its
conduct is not compelled by the state.
Id. (internal quotation marks and citations omitted). Recently,
the Supreme Court identified a "host of facts" that can bear on
whether an activity may be attributable to the state: (1) when
the state exercises its coercive power or signifcant
encouragement; (2) when a private actor is a willful participant
in joint activity with the state; (3) when an entity is
controlled by the state or an agency thereof; (4) when an entity
has been delegated a public function by the state; (5) when an
actor is entwined with governmental policies; or (6) when the
government is entwined in the entity's management or control.
See Brentwood Acad. V. Tennessee Secondary Sch. Athletic Ass'n,
531 U.S. 288
, 121 S. Ct. 924
, 930 (2001).
So that, although the Union is not a state actor, it may
nevertheless be liable in an action under Section 1983 if it
"jointly engaged with state officials in the challenged action . . .
Private parties conspiring with [a state officer are] acting
under color of state law . . ." Dennis v. Sparks, 449 U.S. 24,
27-28 (1980); see also Rounseville v. Zahl, 13 F.3d 625, 633
(2d Cir. 1994) (The involvement of a state actor in a conspiracy
may ground a Section 1983 claim against the other conspirators).
"Characterizing a private party as a `state actor' is a
fact-specific inquiry, and courts considering the issue typically
look to such factors as the public function of the party's
conduct, whether the private party acted under state compulsion,
and the nexus between the party's conduct that was jointly
undertaken with the state." See Id. at 939.
Relevant to the facts here, the cases show that a union
generally is not a state actor. See Ciambriello v. County of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002) in which the
plaintiff's Section 1983 claim against the Union was dismissed
due to its status as a private party. In Ciambriello, it was
also held by the Second Circuit that conclusory allegations that
the union intentionally participated in state activity, without
details as to times and places, are insufficient to defeat a
motion to dismiss a Section 1983 claim where the defendant is a
private actor. Also, interestingly, where the union and the state
are in adversarial positions, as in an arbitration hearing,
allegations that the union and the state conspired to commit a
Section 1983 violation "ring especially hollow." Equally
relevant, See, Ciambriello, 292 F.3d at 324 (concluding that a
union's failure to notify the grievant of upcoming grievance and
arbitration hearings is insufficient to claim that a union acted
under color of state law).
In this case, there is no evidence from which a reasonable jury
could infer that the Union was a state actor. There is no
evidence that the Union's conduct was jointly undertaken with the State, namely, LI Bus. To the
contrary, the Union contested the right of LI Bus to refer this
matter to Dr. Stern for an IME and went to arbitration to protect
the plaintiff's rights. Also, the Union represented Perry in
opposition to LI Bus at the Step I and Step II Hearings.
However, to complete the record, on the merits, the Court finds
that there were no violations of the plaintiff's due process or
equal protection rights by the Union. Nor was there any evidence
adduced of racial discrimination on the part of the Union. In any
event, because no individual was named on behalf of the Union, to
impose liability under Section 1983, there must be proof of an
official policy or custom in support of the alleged
discriminatory or unconstitutional actions. There was no such
proof in this case.
Accordingly, the motion of the defendant Union pursuant to Rule
50, to dismiss the fourth cause of action, is granted.
(4) Sixth Cause of Action Section 1981 Racial
Discrimination Against the Union
The Union argues that the PERB decision collaterally estops a
cause of action based on racial discrimination. The Court will
now review the relevant facts.
On September 29, 2003, Perry filed an improper practice charge
alleging, as amended, that Local 252 breached its duty of fair
representation in violation of Section 209-a.2(c) of the Public
Employees' Fair Employment Act (the "Act") in its handling of two
grievances and an arbitration on her behalf. On October 27, 2004, a hearing was held before Administrative
Law Judge Elena Cacavas (the "ALJ") at which both parties were
present and represented by counsel. At the hearing, Perry
testified and was cross-examined regarding many of the same facts
as are involved in this trial including: (1) her sick leave and
her attempt to return to work; (2) the January 31, 2003 road
test; (3) the grievances filed by Howell challenging her
termination and the failure by LI Bus to comply with the joint
selection requirement; (4) the alleged lack of notice regarding
the April 29, 2003 arbitration and the July 21, 2003 Step 1
Hearing; (5) the entry of a plea of guilty on the Step 1 Form
without her consent; and (6) Howell's failure to file an appeal.
Howell testified on behalf of Local 252 and was also
cross-examined. The subject matter of Howell's testimony
included: (1) his preparation, including his meeting with Perry,
for the Step 1 Hearing; (2) his reasons for not attending the
April 29, 2003 arbitration; (3) his attempts to reach Perry by
telephone regarding the Step 1 Hearing; (4) the circumstances
surrounding his failure to appeal the Step 2 decision.
The final witness at the October 27, 2004 hearing was MTA Labor
Relations Senior Manager Carl Macchio who testified that Perry
was not entitled to a retest on the road or a second medical
examination once the arbitrator decided that the IME selection
was harmless error, and that the Step 1 and Step 2 Hearings were
a mere technical right that Perry had.
At the close of the plaintiff's case, Local 252 filed a motion
to dismiss the charge. On March 7, 2005, the ALJ issued a decision with regard to
Local 252's motion to dismiss. The ALJ granted that part of the
motion relating to the union's failure to notify her of the
arbitration and the July 21 grievance on the basis that there was
no evidence that Local 252's conduct was motivated by bad faith,
or that it discriminated against her or acted in an arbitrary
manner. The ALJ also denied that portion of the motion to dismiss
relating to Howell's representation that he would appeal the Step
2 Hearing while knowing that no appeal process was available to
Both parties appealed from the March 7, 2005 decision. By
decision dated June 8, 2005, PERB upheld that aspect of the ALJ's
decision that concluded that Local 252's failure to notify Perry
of the arbitration and the July 21, 2003 hearing was not a
violation of the Act. However, PERB reversed the ALJ's finding
regarding Howell, finding that "the conduct of Howell in this
case, without independent evidence of arbitrariness,
discrimination, or improper motivation toward Perry, does not
violate the Act."
Perry's sixth cause of action, only asserted against Local 252,
alleges that the union violated her due process and equal
protection rights on the basis of her race in violation of
The Union moves to dismiss this cause of action on the basis
that it is barred pursuant to the doctrine of collateral
estoppel. In particular, the Union claims that the determination
made by the PERB, after a hearing in which both Perry and Local 252 were represented by counsel and had the opportunity to
examine and cross-examine witnesses, that "[Local 252's] decision
to proceed with the [Step 1] arbitration without Perry was not
arbitrary and did not violate the Act . . . [or] was
discriminatory or taken in bad faith," and that "the conduct of
Howell in this case, without independent evidence of
arbitrariness, discrimination or improper motivation toward
Perry, does not violate the Act" precludes relitigation of these
issues. The Court agrees.
It is well-settled that "when a state agency `acting in a
judicial capacity . . . resolves disputed issues of fact properly
before it which the parties have had an adequate opportunity to
litigate,' federal courts must give the agency's factfinding the
same preclusive effect to which it would be entitled in the
State's courts." University of Tennessee v. Elliott,
478 U.S. 788, 799, 106 S. Ct. 3220, 3226, 92 L. Ed. 2d 635 (1986) (quoting
United States v. Utah Construction & Mining Co., 384 U.S. 394,
422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642 (1966)); see also
DeCintio v. Westchester County Medical Ctr., 821 F. 2d 111, 116
(2d Cir.), cert. denied. 484 U.S. 965, 108 S. Ct. 455,
98 L. Ed. 2d 395 (1987). In that regard, to determine what effect, if any,
the PERB decision has in this case, the Court must determine
(1) whether the agency acted in a judicial capacity,
(2) whether the disputed issue was properly before
PERB and the parties had an adequate opportunity to
litigate it, and (3) the preclusive effect that would
be given to a PERB decision by New York State courts.
Scott v. Goodman, 961 F. Supp. 424
, 434 (E.D.N.Y. 1996)
(internal quotations omitted) (citing Kirkland v. City of Peekskill,
651 F. Supp. 1225, 1228 (S.D.N.Y.), aff'd, 828 F.2d 104
(2d Cir. 1987)); see
also Schwartz v. Public Adm'r, 24 N.Y.2d 65, 71,
298 N.Y.S.2d 955, 960, 246 N.E.2d 725, 729 (1969) (In order for issue
preclusion to bar subsequent litigation, "`[t]here must be an
identity of issue which has necessarily been decided in the prior
action and is decisive of the present action, and, second, there
must have been a full and fair opportunity to contest the
decision now said to be controlling.'").
In a case such as this, where the prior proceeding was before
an administrative agency rather than a court, "New York courts
additionally require that the agency's determination be
`quasi-judicial' in character. . . ." Scott,
961 F. Supp. at 432 (quoting Long Island Lighting Co. v. Imo Industries, Inc.,
6 F.3d 876, 885 (2d Cir. 1993)); Taylor v. New York City Transit
Authority, 309 F. Supp. 785, 791 (E.D.N.Y. 1970) ("In New York
State the determination of administrative agencies acting in a
judicial or quasi-judicial capacity are not open to collateral
As to the first factor, there is no doubt that PERB acted in a
quasi-judicial capacity as section 205(5)(k) of the Public
Employees' Fair Employment Act authorizes PERB to "conduct
hearings in which it has the power to administer oaths. . . .,
examine witnesses and documents, take testimony and receive
evidence, [and] compel the attendance of witnesses and the
production of documents by the issuance of subpoenas. . . .
"See, for example, Scott, 961 F. Supp. at 432 ("PERB acts in a
quasi-judicial capacity."). The Court now turns to the second factor, namely, whether the
disputed issue was properly before PERB and whether the parties
had an adequate opportunity to litigate it. At the outset, the
Court find that both the plaintiff and the union had an adequate
opportunity to litigate before PERB as each party was represented
by counsel and there is no claim that any of the above mentioned
procedural rights were denied to either party. Rather, the
plaintiff contends that the second factor was not met because
"there was no issue raised about a constitutional violation [at
the PERB hearing] and such an issue would not have been
necessarily for the ALJ to determine that Howell acted in bad
faith by signing the request to appeal when he knew there could
be no appeal." Plf. Mem. in Opp. at 28. The Court disagrees and
finds that the plaintiff did not meet her burden of proving that
she was denied the "full and fair opportunity to litigate the
issue in [the] prior action. . . ." Scott, 961 F. Supp. at 434
(internal quotation omitted).
Even though the constitutionality of Local 252 and Howell's
conduct was not before PERB, the preclusive effect of PERB's
decision is not limited to its finding that the union and Howell
did not violate the Public Employees' Fair Employment Act (the
"Act"). According to the June 8, 2005 written decision,
Perry's allegations are two-fold: that [Local 252]
violated the [Public Employees' Fair Employment Act
("Act")] by failing to inform her of the step 1
termination grievance hearing and the contractual
grievance arbitration and that [Local 252] violated
the ACT when Howell led her to believe that [Local
252]would appeal the step 2 termination decision,
then failed to do so, and failed to inform her that
it did not file an appeal. Perry introduced no
evidence of discrimination or improper motivation toward her on the part of [Local
252], generally, or Howell, specifically. [Local
252'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.
PERB decision dated June 8, 2005 at 6.
To succeed on her cause of action alleging a violation of her
due process rights, Perry must demonstrate that Local 252
violated her due process rights because its conduct was
"arbitrary" and "outrageous." See Natale v. Town of Ridgefield,
170 F.3d 258, 262 (2d Cir. 1999) ("For state action to be taken
in violation of the requirements of substantive due process, the
denial must have occurred under circumstances warranting the
labels `arbitrary' and `outrageous.'"). Similarly, Perry's equal
protection rights will only be "violated when the state
distinguishes between individuals based on unreasonable,
arbitrary, or capricious differences that are irrelevant to a
legitimate government objective." Bernheim v. Litt,
79 F.3d 318, 323 (2d. Cir. 1996).
Because a determination of Local 252 and Howell's motivation
and intent were necessary and crucial to PERB's conclusion that
the Act was not violated, and the same factual findings are
central to the Plaintiff's due process and equal protection
claims, collateral estoppel bars relitigation as to PERB's
conclusion that Local 252 and Howell did not act with
arbitrariness, bad faith or discrimination. See O'Connor v.
Mazzullo, 536 F. Supp. 641, 644 (S.D.N.Y. 1982) (The Court
applied the doctrine of collateral estoppel "[a]lthough
plaintiffs now style their causes of action in constitutional terms, the underlying and controlling
factual issues . . . are identical to those fully litigated in
the PERB proceeding."). It is of no consequence that the issue of
whether there was a constitutional violation was not before PERB.
See id., 536 F. Supp. at 643-44 ("In these circumstances,
collateral estoppel should prevent relitigation of the facts
determined in the PERB proceeding, even though this action
presents constitutional challenges and even though the state
tribunal is an administrative agency rather than a court.").
Accordingly, the Court finds that the second requirement of the
collateral estoppel doctrine is satisfied.
As to the third requirement, regarding the preclusive effect
given to PERB decisions by New York State Courts, the Court notes
that "[a] PERB determination cannot be collaterally attacked in
the New York courts, though it may be subject to limited judicial
review, and is treated as final by New York law." Id.
Accordingly, the Court gives preclusive effect to the PERB
determination that Local 252 and Howell did not act with
arbitrariness, discrimination or improper motivation toward
Perry. Because this finding negates the plaintiff's allegations
of an equal protection and due process violations, the sixth
cause of action against Local 252 is dismissed.
However, again on the merits, in the sixth cause of action, the
plaintiff alleges that the "Defendant union subjected plaintiff
to differential treatment in connection with its representation
of her in that she was denied equal treatment and representation
as afforded to white employees, in violation of Section 1981." This claim is based upon 42 U.S.C. § 1981. That statute
All persons within the jurisdiction of the
United States shall have the same right in every state and
territory to make and enforce contracts . . . as
is enjoyed by white citizens. . . . (emphasis added)
Section 1981 guarantees each person, regardless of race,
freedom from discrimination in making and enforcing of contracts.
If, because of race, a plaintiff is denied the right to contract
entirely, or is given less opportunity to contract, or is offered
less favorable contractual terms of unequal treatment she has a
claim under Section 1981.
To establish a claim under Section 1981, the plaintiff must
prove, by a preponderance of the evidence, that the conduct of
the Union's employees in the adverse employment decision the
plaintiff is complaining of were motivated by a discriminatory
purpose that is, the plaintiff must prove that the defendants'
employees intentionally and purposefully discriminated against
her because of her race. There is no such evidence in this case.
Therefore, on the merits, regardless of the PERB decision, the
motion by the Union to dismiss the sixth cause of action is
(5) The Seventh Cause of Action New York Human Rights Law
Against LI Bus
In the seventh cause of action, the plaintiff alleges that:
"Defendant employer violated plaintiff's rights under Section 296
of the New York State Human Rights Law in that they treated her differently than similarly situated
employees on account of her race and disability as indicated by
her unjust dismissal."
Claims brought under Section 296 of the New York Executive Law,
New York's Human Rights Law, can be analyzed, for purposes of
determining sufficiency of the evidence, in a manner virtually
identical to those under Title VII of Federal Law. See Reed v.
A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cr. 1996);
Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995).
In order to establish a prima facie case of racial
discrimination under Executive Law § 296, a plaintiff must plead
and prove that (1) she is a member of a protected class, (2) she
was discharged, (3) she was qualified to hold the position from
which she was discharged, and (4) the discharge occurred under
circumstances giving rise to an inference of racial
discrimination (see Ferrante v. American Lung Assn,
90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308 (1997).
Once a prima facie case is established, the burden shifts to
the employer to rebut the presumption with evidence that the
plaintiff was discharged for a legitimate, nondiscriminatory
reason. If such evidence is produced, the presumption is rebutted
and the factfinder must determine whether the proffered reasons
are merely a pretext for discrimination or there is another
reason based on discrimination. A factfinder who concludes that
the proffered reasons are pretextual is permitted to infer the
ultimate fact of discrimination but is not required to do so. Here, there is very little evidence that the discharge occurred
under circumstances leading to an inference of racial
discrimination. However, that burden is a minimal one.
LI Bus offered the following statistics as to racial
Statistics: Summary of Bus Operator Gender and Race
Total Employees 1138 1148
Total Bus Operators 666 676
AfricanAm Operators 333 50.00% 341 50.44%
AfricanAM Female Operators 66 9.91% 67 9.91%
Total Female Operators 114 17.12% 116 17.16%
Dft's Ex. L10 in evidence.
Also, it is important to note important principles present in
every employment discrimination case.
Employers such as the defendant LI Bus are free to decide to
terminate employees or make other employment decision for any
reason other than unlawful discrimination. The defendant's
conduct can be found to be unlawful discrimination in this cause
of action only if this adverse employment decision was made
because of the plaintiff's race or motivated by her race. So that
the defendant LI Bus was entitled to make any business judgment
it chose however wise, however unfair or however misguided they
may appear so long as LI Bus was not basing its judgment, in
part at least, on the plaintiff's race. In order for the plaintiff to prevail, she must prove, by a
preponderance of the evidence, that this adverse employment
decision was made, at least in part, because of intentional
racial discrimination. However, even assuming that the prima
facie case has been established, there is overwhelming proof of
nondiscriminatory reasons for the plaintiff's discharge, namely:
(1) the IME report stating that her heart condition is permanent
and disabled her from working as a bus operator; and (2) her
failure to pass the road test.
It does not take a prophet or a wizard to determine that a
quasi-municipal bus company would reasonably believe that a bus
operator with permanent heart disease, such as cardiomyopathy and
congestive heart disease, could be a hazard to the passengers she
would carry on a daily basis and a potential liability to the
In the records of LI Bus, for all to review in the future, is
the letter of Dr. Stern, dated April 8, 2003. Moreover, there is
support for the decision by LI Bus to accept the determination of
Dr. Stern, the IME, in his April 8, 2003 letter to Dr. Miller
(Dft. Ex. F6) that states:
Sharon Fleming-Perry has had a cardiac evaluation,
including Stress Thallium Testing, echocardiogram,
and Holter monitor. The patient has a dilated
I believe that because she gets symptomatic when
driving a bus, it is not safe for her to drive a bus.
She should be disabled from this type of employment. Support for the decision of LI Bus to terminate the plaintiff
in this medical report is from the plaintiff's own cardiologist,
Dr. Aubrey Lewis, as follows:
In fact, on January 30, 2003, the plaintiff herself
signed a form in which she checked off the following
entrees: (1) heart disease and (2) current and/or
unstable heart disease.
Plf. Ex. E8.
LI Bus has advanced clear and unequivocal non-discriminatory
reasons to support the decision to terminate the plaintiff's
employment as a bus operator. Accordingly, the Rule 50 motion of
the defendant LI Bus to dismiss the seventh cause of action, is
Accordingly, based on these decisions, the motion by both
defendants, pursuant to Rule 50 to dismiss all the causes of
action in the complaint at the end of the entire case, is granted
and the complaint is dismissed in its entirety.
The Clerk of the Court is directed to close this case.
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