The opinion of the court was delivered by: Hon. Norman A. Mordue, D.J.
MEMORANDUM-DECISION AND ORDER
Presently before the Court is defendant Niagara Mohawk Power Corporation's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or, alternatively, for summary judgment pursuant to Rule 56. Plaintiff Jerome Reid, who proceeds pro se, has not responded to or otherwise opposed defendant's motion.*fn1 The complaint, filed June 22, 2001, through counsel, advances six causes of action based on defendant's alleged subjection of plaintiff to a racially hostile work environment (First, Second, and Third Causes of Action), and defendant's alleged failure to promote plaintiff on the basis of race (Fourth, Fifth, and Sixth Causes of Action), in violation of New York Executive Law § 296, 42 U.S.C. § 1981; and 42 U.S.C. § 2000e ("Title VII).
In the complaint, plaintiff alleges the following:
Plaintiff is an African American. Plaintiff has been employed by Defendant since 1985. Plaintiff has experienced a racially hostile environment as an employee of Defendant. The events complained of have continued unabated for the past ten (10) years. On February 2, 1988, Plaintiff filed a complaint with the Division of Human Rights. Plaintiff settled that complaint with Defendant by agreement. Defendant breached that settlement agreement with Plaintiff. On March 29, 1990, Plaintiff filed a complaint with the Division of Human Rights . . . . Defendant did not provide Plaintiff with overtime when other similarly situated employees were permitted overtime. Defendant removed significant job duties from Plaintiff. In April 1993,
Defendant demoted Plaintiff from a grade 18 to a grade 11 position. This demotion violated the settlement agreement between Plaintiff and Defendant. Defendant placed employees with less seniority than Plaintiff in available drafting positions. At the same time, Defendant demoted Plaintiff to an Accounts Payable clerk position. Plaintiff has suffered economically as a result of Defendant's actions. Plaintiff has suffered emotionally as a result of Defendant's racially discriminatory behavior. Complaint, ¶¶18-31 (paragraph numbers omitted). According to the complaint, prior to filing the instant lawsuit plaintiff separately filed two charges of discrimination with the New York State Division of Human Rights, which are cross-filed with the Equal Employment Opportunity Commission ("EEOC"), and received right to sue letters on March 23, 2001, and April 25, 2001.
In connection with its motion for judgment on the pleadings, or, alternatively, for summary judgment, defendant submitted an affidavit by Mary Kay Manns, who is employed by defendant as the Labor Relations Manager. Manns states:
Niagara Mohawk hired plaintiff Jerome Reid in May 1985. Except for an approximately three-year period between December 1985 and February 1989 when he worked at the Nine Mile Point Nuclear Station, Mr. Reid worked in Niagara Mohawk's office complex in Syracuse, New York. Mr. Reid worked in Niagara Mohawk's Engineering Property Records Department as a Drafting Technician C in
November 1993. Mr. Reid remained in that position until March 18, 2002, when he was discharged from employment after an extensive progressive discipline process. Throughout his Niagara Mohawk employment, Mr. Reid was a member of a bargaining unit represented by Local 97 of the International Brotherhood of Electrical Workers, AFL-CIO, or its predecessor local unions in the Company's Central Division ("IBEW Local 97" or the "Union"). Niagara Mohawk and the Union have been parties to a series of collective bargaining agreements over the years (the "Labor Agreement"). The terms and conditions of employment of bargaining unit employees as Mr. Reid are governed by the provisions of the Labor Agreement and other applicable Niagara Mohawk policies and procedures.
The Labor Agreement sets forth a post and bid procedure for filling vacant positions at Niagara Mohawk. All vacant positions within the bargaining unit are filled pursuant to this post and bid procedure absent a mutual agreement between the Company and the Union to fill a job through some other process or procedure. Since the mid-1990's, when there was a substantial workforce reduction, the Company and the Union have rarely entered into mutual agreements to bypass the post and bid procedure or other normal procedures for filling jobs at Niagara Mohawk.
Pursuant to the post and bid procedure, the Company posts a notice concerning a job vacancy and the necessary qualifications for the position. All bargaining unit members holding regular positions within the Company Division in which the vacancy exists are eligible to express an interest in the position by submitting a bid. After these bids are reviewed and an employee is selected for the job, the Company posts a notice concerning the job award so that the Union and other job bidders are aware of the results of the post and bid procedure.
Under the Labor Agreement, the Company is required to award positions to the senior bidder who possesses the necessary qualifications for the posted position. Any bidder who has greater Company seniority than the person awarded the job and who believes that he or she possesses the required qualifications for the position may file a grievance under the Labor Agreement concerning the job award.
In my position as Labor Relations Manager, I receive copies of all grievances filed relating to the Company's Central Division operations. I also am the person responsible for responding to all grievances that are not resolved at the initial step of the grievance process. Since I assumed my position as Labor Relations Manager for Niagara Mohawk's ...