The opinion of the court was delivered by: John Gleeson, United States District Judge
Joyce Collier, a female African-American journey-level plumber, brings this antidiscrimination action against Plumbers Union Local No. 1 of the United Association of Journeymen and Apprentices of the Plumbing and Fitting Industry of the United States and Canada ("Local No. 1"), her labor organization; George Reilly, Business Manager of Local No. 1; and Donald Doherty, Business-Agent-at-Large of Local No. 1.*fn1 Collier claims that defendants withheld jobs from her and referred her to fewer and less-skilled work assignments than they referred white male union members to, because of her race, color and gender and in retaliation for engaging in statutorily protected activity. Collier contends that this conduct violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law; and 42 U.S.C. § 1981.*fn2 Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. As explained below, the motion is granted.
In September 1999, Collier graduated from her apprenticeship to become a Class A journey-level plumber. She was working upon her graduation, but soon left that job. After her departure, the cause of which the parties dispute, Collier obtained a number of short-term jobs through January 2006. She received temporary heat work -- installing and operating temporary systems to heat construction projects in winter -- through assignments by Local No. 1 business agents at least seven times. Collier also obtained several other types of short-term jobs from 2000 to 2006. Nevertheless, she worked well below the union average of 1,680 hours each year: the parties seem to agree that she reported working fewer than 1,000 hours yearly every year from 2001 to 2005. The question presented by this litigation is whether discrimination on the part of defendants caused that hourly shortfall.
Pursuant to Local No. 1's collective bargaining agreement, business agents assign temporary heating work to journey-level union members. The work commands full wages and benefits, but, according to Collier, it is considered substandard, relatively menial labor. See Collier Decl. ¶¶ 28-29. Whether Local No. 1 also assigns or refers other types of jobs is a point of dispute. Collier asserts that Local No. 1 business agents regularly "hire and refer" union members to jobs other than temporary heating jobs. Id. ¶ 30. I take the claim to be true for the purposes of this motion. The parties do appear to agree that (1) self-solicitation (including so-called "shaping" a job, which entails visiting a job site to inquire whether positions are available) is a primary way union members obtain jobs, and (2) the union assists its members in obtaining non-temporary-heat jobs to at least some extent. For example, Collier obtained a non-temporary-heat job in April 2002 by "shaping" it after reviewing a listing of available jobs (so-called "green card" lists) posted in the union's office. Collier also got at least some non-temporary-heat work through union business agents. In September 2000, for example, she received a job installing sewer lines with F&G Mechanical Corp. Collier also received jobs with Reliable Fire Protection, Inc. and Kagan Custom Kitchens through business agents, but her testimony implied this work was relatively menial. See Collier Dep. 138, 144.
On February 26, 2004, Collier filed a charge with the Equal Employment Opportunity Commission ("EEOC") against Local No. 1.*fn4 Having received a right to sue letter from the EEOC, Collier commenced this action on July 11, 2005.
Defendants move for summary judgment on Collier's discrimination claims, arguing that Collier has not established a prima facie case of discrimination by Local No. 1.*fn5
Collier argues that the record contains sufficient evidence to support a jury's conclusion that (1) Local No. 1 withheld work assignments from female and African-American union members who sought the work, including Collier; and (2) Local No. 1 referred more and better-quality assignments to white male union members than to female and African-American union members, including Collier. Collier seeks to recover under theories of disparate treatment and disparate impact. I conclude that she has failed to establish a prima facie case against Local. No. 1 under either theory.*fn6
A. Standard of Review on Summary Judgment
A moving party is entitled to summary judgment "if 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). The moving party must demonstrate that no genuine issue exists as to any material fact. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). For summary judgment purposes, a fact is "material" when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Accordingly, the test for whether an issue is genuine requires "the inferences to be drawn from the underlying facts [to] be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks and citation omitted).
Once the moving party has met her burden of production, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)) (emphasis omitted). Critically, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.
Gallo, 22 F.3d at 1223-24 (citations omitted). The nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by ...