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November 21, 2005.

LEON DUGGAN, Plaintiff,

The opinion of the court was delivered by: HAROLD BAER JR., District Judge


Plaintiff, Leon Duggan ("Duggan") brought this action against his union, Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine, Air Conditioning and General Pipefitters ("Local 638" or "the union"). Duggan alleges that Local 638 discriminated against him because of his race by failing to refer him for work assignments. Duggan claims that Local 638's conduct violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), as well as 42 U.S.C. § 1981, Section 296 of the New York Human Rights Law, Section 43 of the New York Civil Rights Law, and Section 8-107 of the New York City Administrative Code. Local 638 has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Oral argument was held before this Court on September 27, 2005. Following the argument, I ordered plaintiff to provide the Court with "a statistical analysis demonstrating as precisely as possible the hours of work performed by minority and non-minority union members from January 1, 2000 through December 31, 2004." (Order dated September 30, 2005). In compliance with that Order, plaintiff submitted additional exhibits and a supplemental memorandum of law on October 28, 2005. Defendant responded on November 4, 2005. Having reviewed the parties' supplemental submissions, for the reasons set forth below, the motion for summary judgment is GRANTED. I. BACKGROUND

A. Factual Background

  Duggan is an African-American male with 30 years experience as a professional welder. (Affirmation of Richard S. Brook, Esq., dated July 28, 2005 ("Brook Aff."), Ex. 22; Affidavit of Leon Duggan, dated August 10, 2005 ("Duggan Aff.") ¶ 9). Local 638 consists of construction and service steamfitters who perform work within New York City and on Long Island. (Affidavit of William R. Abbate, dated July 14, 2005 ("Abbate Aff.") ¶¶ 5-7). Duggan first applied for membership in Local 638 in May 2000, but his application was rejected. (Duggan Aff. ¶ 3). Duggan applied unsuccessfully again in October 2000. (Id. ¶ 4). Finally, after letters to Local 638 were written on Duggan's behalf by a staff attorney at the NAACP, by the Executive Director of "Fight Back," an organization dedicated to combating racism in employment, and by counsel to Mr. Duggan, Duggan was admitted into the union on January 8, 2002. (Id. ¶¶ 2, 5-7).*fn1

  Plaintiff asserts that Local 638 exerts considerable influence over the work assignments of its members by referring contractors to individual members and by informing members of contractors who are hiring.*fn2 (Id. ¶ 8). Plaintiff claims that, after joining Local 638, he "actively sought . . . referrals" for full-time work but "received virtually none." (Id. ¶ 10). Specifically, during the three year period beginning in January 2002 and ending February 1, 2005, Duggan worked a total of 997 hours. (Id. ¶ 11). Duggan earned approximately $40,000 from his union work. (Id. ¶ 12). However, Duggan contends that he was available for work 40 hours per week for 150 weeks during this period. (Id. ¶ 11).*fn3

  On February 24, 2003 Duggan filed a complaint against Local 638 with the United States Equal Employment Opportunities Commission ("EEOC"). (Affirmation of Sheldon Karasik, Esq., dated August 16, 2005 ("Karasik Aff."), Ex. G). On February 27, 2004 the EEOC terminated its investigation of Duggan's complaint and issued him a "Notice of Right to Sue." (Karasik Aff., Ex. J). Plaintiff filed the instant action on April 26, 2004.

  B. The 1973 Injunction

  Local 638's past discriminatory practices have been the subject of litigation in this District. It is helpful to briefly review the history of that litigation. On June 21, 1973, in a consolidated action brought against Local 638 by the United States and by a class of non-white steamfitters, then District Judge Dudley Bonsal found that Local 638 had violated Title VII by, inter alia, discriminating against non-whites in its admission of new members, and by discriminating against non-whites in its work referral practices. See United States v. Local 638, 360 F. Supp. 979 (S.D.N.Y. 1973). In so finding, Judge Bonsal held that the union did not "maintain a formal hiring hall" and that there was "no formal method of referring workers for employment. . . . Information concerning available employment is circulated informally by word of mouth and other means." Id. at 986. Judge Bonsal also found that "there [was no] evidence that . . . Local 638 . . . engaged in purposeful discrimination" with regard to work referral. Nonetheless, the court held that common work referral practices "in combination with the history of discrimination" in admissions to the union gave "whites advantages in obtaining employment." Id. at 990. Therefore, the court ruled that the steamfitting industry's work referral practices should be "modified if past discriminatory patterns are to be corrected." Id. To remedy the situation, the court mandated that Local 638 maintain a list of available jobs and of steamfitters seeking work, and that this list be accessible to union members and to contractors. Id. at 991. The court also appointed a special Administrator to recommend the adoption of additional measures. Id.

  In the ensuing litigation over the damages due individual class members as a result of Judge Bonsal's findings, the Second Circuit held that "any nonwhite steamfitter . . . who claims that he was discriminated against by work referral practices is entitled to prove the discrimination against him and any resulting damages." EEOC v. Enterprise Assoc. Steamfitters Local No. 638, 542 F.2d 579, 587 (2d Cir. 1976). II. APPLICABLE STANDARD

  A. Summary Judgment

  A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not the court's role to resolve issues of fact; rather, the court may only determine whether there are issues of fact to be tried. Donohue, 834 F.2d at 58 (citations omitted). However, a disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

  A discriminatory intent or animus is essential to the ultimate determination of employment discrimination claims and therefore a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Serv., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); accord Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (holding that "in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary."). Essentially, the question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).

  B. Title VII

  Pursuant to Title VII, an employer may not "discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" 42 U.S.C. § 2000e-2(a)(1). The Supreme Court articulated a three-step framework for reviewing cases brought under Title VII in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). First, under McDonnell Douglas and its progeny, the plaintiff-employee "must establish a prima facie case of discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000). Second, if the plaintiff-employee satisfies this burden, the defendant-employer has the opportunity to "articulate a legitimate, clear, specific and non-discriminatory reason" for its adverse employment action. Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998) (internal quotation omitted). Third, where necessary and appropriate, plaintiff-employee may demonstrate that the defendant-employer's ...

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