The opinion of the court was delivered by: Chin, D.J.
In this employment discrimination case, plaintiff Darren Lewis, proceeding pro se, sues his former employer, defendant North General Hospital (the "Hospital"), and his former union, defendant 1199SEIU United Health Care Workers East (the "Union"). Lewis contends that the Hospital discriminated and retaliated against him, breached contracts with him, and defamed him. He contends that the Union breached its duty of fair representation by failing to represent him in grievance proceedings and by declining to arbitrate his grievance.
Defendants move for summary judgment. For the reasons that follow, the motion is granted and the complaint is dismissed in all respects.
For purposes of these motions, the facts are construed in the light most favorable to plaintiff as the party opposing summary judgment, and conflicts in the evidence have been resolved in his favor.
Lewis is a gay African American man. (Pl. 4/10/07 Decl. ¶ 31; see Pl. H56.1 at 4, 5).*fn1 He is not Muslim. (Pl. H56.1 at 25). He has been diagnosed in the past with post traumatic stress disorder, obsessive compulsive disorder, and major depression. (Id. at 2). He received a Masters in Social Work from Columbia. (Id. at 4). He was employed as a social worker by the Hospital from November 29, 2004 until January 18, 2006. (Union 56.1 ¶ 1; Pl. U56.1 ¶ 1; Pl. Dep. 7). During the period immediately preceding and during his employment at the Hospital, Lewis's legal name was Serh Talmadge Farid Efe. (Union 56.1 ¶ 2; Pl. U56.1 ¶ 2; see UXs 1, 2, 3; Pl. Dep. 5). On January 20, 2006, Lewis legally reverted to his birth name, Darren Lewis. (Union 56.1 ¶ 3; Pl. U56.1 ¶ 3; UXs 4, 5).
While employed at the Hospital, Lewis was a member of the Union. (Union 56.1 ¶ 4; Pl. U56.1 ¶ 4). The Union is a labor organization within the meaning of § 2(5) of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 152(5), and it is the certified collective bargaining representative of certain employees of the Hospital, which is an employer covered by the LMRA. (Union 56.1 ¶¶ 5, 6; Pl. 56.1 ¶¶ 5, 6). The Hospital is a member of the League of Voluntary Hospitals (the "League"), a multi-employer association, and the Hospital was bound by a collective bargaining agreement (the "CBA") between the League and the Union covering the period of Lewis's employment at the Hospital. (Union 56.1 ¶¶ 7-10; Pl. 56.1 ¶¶ 7-10). The CBA permitted the Hospital to discharge employees for cause. (Union 56.1 ¶ 11; Pl. 56.1 ¶ 11).
2. Lewis Is Hired By The Hospital
On November 16, 2004, the Hospital extended Lewis a written offer of employment as a "Social Worker" in its HIV/AIDS Special Services Department effective November 29, 2004. (UX 1; see Pl. Dep. 16, 18 (Lewis acknowledging he was hired as a "social worker")). The offer letter, which was signed by Lewis (under his then-name of "Serh Efe"), stated that the offer was "contingent" upon, inter alia, "professional credentialing." (UX 1). The Hospital's job description for the Social Worker position described the qualifications as "[a] Master's in Social Work from an accredited graduate school of social work with NYS licensure required within one year from date of hire." (UX 28; see Pl. Dep. 21). The Hospital's posting for the job vacancy that Lewis filled also noted that "NYS Licensure [was] required within one year from date of hire." (HX 6 at 2; see Pl. Dep. 38-40).
On November 22, 2004, approximately eight days before he commenced his employment with the Hospital, Lewis signed a form entitled "Outstanding New Hire Documentation," in which he stated:
I understand that my employment can be terminated for cause if the following document(s) CSW/LMSW is not furnished by 11-30-05 . (UX 10). The reference to "CSW/LMSW" was to the titles "Certified Social Worker" and "Licensed Master Social Worker,"*fn2 and it was understood that Lewis would have to obtain his license either as a certified social worker or licensed master social worker by November 30, 2005 or his employment would be terminated. (See Pl. Dep. 13, 30-32, 33 (acknowledging that he was required to obtain his state license within one year from date of hire)).
Lewis admitted at his deposition that he signed the document on November 22, 2004. He testified, however, that the original form had the date "11-30-04" written in and that, at his request, the date was changed to "11-30-05" after he signed the document so that he could have more time to obtain the required license. In other words, when he signed the document it stated "11-30-04" but, at his request, the "04" was "whited out" and changed to "05." (See id. at 10-11). Lewis acknowledged at his deposition that once this change was made, he agreed and understood that his employment could be terminated if he did not provide the documentation by "11-30-05." (Id. at 13).*fn3
3. Lewis's Inability To Obtain A License
Before commencing employment with the Hospital, Lewis had taken the examination to be licensed as a social worker three times -- in January 2002, June 2002, and August 2004 -- and failed each time. (Id. at 249-51; UX 12). While employed at the Hospital, he took a review course to prepare to take the social worker licensing examination again, but he withdrew from the course in May 2005 before completing it. (Pl. Dep. 35, 121-22, 254-55). He did not take the social worker exam again and made no other efforts after the summer of 2005 to take the exam. (Id. at 255). Lewis waited until September 2005 even to inquire of the Hospital what he should do to "fulfill" his obligation to obtain a license. (Id. at 112-13).*fn4 Lewis did not obtain his social worker license by the deadline of November 30, 2005. (Id. at 13; see also id. 31-32).
An individual who has met all the requirements to be a licensed master social worker except for passing the examination may obtain a "limited permit" by meeting certain requirements. (HX 7 at 9-10). See also N.Y. Education Law § 7705 (McKinney 2004) (requirements for limited permits). Lewis applied for such a limited permit, and he was advised by the State Education Department on October 19, 2005 that his application was "incomplete" because he had not provided "[p]roof of child abuse training from an approved provider." (UX 13; see Pl. Dep. 115-16). In fact, Lewis did not have child abuse training from an approved provider at that time, and he did not obtain that training until March 30, 2006, two months after his employment at the Hospital was terminated. (Pl. Dep. 116, 119-20; UX 14). Lewis never obtained a temporary permit. (Pl. Dep. 7, 40, 116).
On December 7, 2005, Lewis filed a verified complaint against the Hospital with the New York State Division of Human Rights (the "State Division"). (HX 11). Lewis complained that he was "perceived to be a Muslim" and was subjected to discrimination because of this. (Id. ¶ 1). He complained that he was "rumored" in his department to be a "child molester" and that his co-workers thought he was "not an American" and believed that he was "homophobic" and "racist." (Id. ¶ 3). He stated that the Administrative Director thought he was "Muslim, racist, homophobic and a child molester." (Id. ¶ 4). He stated that his supervisor, Valerie Holly, was harassing him by not allowing him to keep doctor's appointments and requiring him to obtain a doctor's note each time he saw his doctor. (Id. ¶ 5). He also claimed that he was "denied supervision from Ms. Holly for three weeks." (Id.). He made no other mention of Holly.
In his verified complaint, Lewis did not mention any issue of sexual harassment, but alleged only that: "Based on the foregoing, I charge respondent with an unlawful discriminatory practice relating to employment because of creed, in violation of the New York State Human Rights Law (Executive Law, Article 15), Section 296." (Id. at 2 (emphasis added)).
Lewis also charged a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., without alleging any additional purportedly wrongful conduct. (Id.). Lewis authorized the State Division to accept the complaint on behalf of the United States Equal Employment Opportunity Commission (the "EEOC") as well. (Id.).
On December 27, 2005, Lewis discussed a number of work issues with his supervisor, Valerie Holly. (UX 15). In an e-mail written the same day to Holly, Lewis acknowledged that Holly had noted that there were issues that would have to be addressed in his "upcoming evaluation." (Id.). Lewis made no mention of any sexual harassment issues. (Id.).
On January 9, 2006, Lewis sent Holly an e-mail, copying Union delegate Carole O'Connor and the Hospital's Director of Social Work, Linda Torres, stating:
We discussed the four occurances [sic] of your person getting close to me where parts of your body was [sic] touching mine. This occurred from October 2005 to December 2005.
We have agreed in order to resolve this matter and not let it continue you and I will NEVER be in a closed door meeting again because I feel violated. (UX 16; see Carter Decl. ¶ 20). This January 9, 2006 e-mail was the first time Lewis had raised the issue of sexual harassment with anyone. (Pl. Dep. 198-99, 202).
5. Lewis's Employment Is Terminated
By letter dated January 17, 2006, the Hospital advised Lewis that his employment was being terminated "effective immediately" because he had failed to obtain the required New York State social worker certification within one year of employment. (HX 10). The letter noted that Lewis had recently accused his supervisor of sexual harassment, but concluded that, following an investigation, his allegations were "unfounded and frivolous" and were made "as pretext to maintain [his] position with the Hospital despite [his] lack of certification." (Id.).
6. Lewis Amends His State Division Charges
In February 2006, approximately a month after his employment with the Hospital was terminated, Lewis asked the State Division to amend his complaint to include a claim of sexual harassment, based on the four alleged occurrences with his supervisor. (Pl. Dep. 67-71, 85-86, 217-21). He also raised the issue of retaliation. (Id. at 86).
By letter dated January 18, 2006, the Hospital advised the Union that Lewis's employment had been terminated. (UX 17). By letter dated January 20, 2006, the Union advised the Hospital that it would be grieving the termination of Lewis's employment. (Carter Decl. ¶ 13; UX 20). The same day, the Union wrote to Lewis advising him that if he believed he had grounds to grieve the termination and wanted to do so, he was to advise the Union in writing. (Carter Decl. ¶ 13; UX 18). By letter dated January 27, 2006, Lewis advised the Union that he believed his dismissal was improper and asked to meet with the Union. (Carter Decl. ¶ 15; UX 19).
On February 21, 2006, a grievance meeting was held pursuant to the CBA's grievance procedure. (Carter Decl. ¶ 23). During the meeting, the Hospital presented documentary evidence to show that Lewis had never obtained the required social work licensing. (Id.). The Union representative attempted to convince the Hospital to reinstate Lewis despite his lack of proper licensing. (Id. ¶ 25). Lewis's claim of sexual harassment was raised but the discussion was not completed and the harassment issue was bifurcated from the licensing issue to be pursued at another time. (Id. ¶¶ 23, 24). During the course of the meeting, the Union's representative apparently interrupted Lewis while he was speaking in an effort to keep him focused on the issue being discussed, i.e., the licensing issue. (Id. ¶ 26).
By letter dated March 3, 2006, the Hospital advised that it would not reinstate Lewis because the licensing requirement was non-negotiable and had to be met "in accordance with recent changes in the law." (UX 22; see Carter Decl. ¶ 28). Therefore, the letter advised, the Hospital was adhering to its decision to terminate Lewis's employment. (UX 22).
The Union thereafter scheduled a meeting for April 4, 2006 to discuss the unresolved part of Lewis's grievance -- his sexual harassment claim. (Carter Decl. ¶ 29; UX 23). On March 9, 2006, however, Lewis advised his Union representative that he did not want to continue the second part of his grievance. He then asked that the grievance be canceled entirely. The Union asked Lewis to put his request in writing. (Carter Decl. ¶ 30). Lewis did not do so, and the Union representative called Lewis on April 3, 2006 to discuss the grievance and arbitration procedures. (Id. ¶ 31). The Union representative followed with a confirming letter. (UX 23).
The grievance meeting to address Lewis's sexual harassment claim was re-scheduled to May 18, 2006. The meeting was held. The Hospital stated that it had investigated the allegations and found them to be untrue; it stated that the allegations were a pretext created by Lewis to avoid discharge for failing to obtain a license. The Hospital denied the grievance in its entirety. (Carter Decl. ¶¶ 34-36).
The Union declined to arbitrate Lewis's grievance because "there was little likelihood of success." (Id. ¶ 38). Lewis was advised of the decision and his right to appeal the decision not to arbitrate. (Id. ¶ 39). Lewis did not file an appeal, but nonetheless the Union scheduled a meeting of its Health Systems Division Hearings and Appeals Board (the "Board") to consider whether the grievance should be arbitrated. (Id. ¶ 43). The Union advised Lewis by letter dated September 27, 2006 that his case would be heard on October 18, 2006 at 6 p.m. (UX 26). The hearing was held as scheduled, but Lewis did not appear nor did he give an explanation for his absence. The Board voted to uphold the Union's decision not to arbitrate the grievance and Lewis was so notified in writing. (Id. ¶¶ 44, 45; UX 24).
8. The State Division's Decision
On March 13, 2006, the State Division issued its Determination and Order after Investigation. (HX 15). The State Division determined that there was no probable cause to believe that Lewis had been discriminated against. (Id.). The State Division noted that the Hospital had terminated Lewis's employment when he had failed to obtain his social worker certification by January 17, 2006. (Id.). It concluded that there was "no evidence" to support Lewis's allegations of sexual harassment. (Id.). It concluded that the Hospital had shown legitimate, non-discriminatory reasons for its actions, which were not shown to be pretextual. (Id.). Accordingly, Lewis's complaint was dismissed. (Id.).
The State Division advised Lewis that he could appeal to the New York State Supreme Court within sixty days after service of its Determination. (Id.). It also advised Lewis that he could seek a review with the EEOC by making a written request for a review with the EEOC within fifteen days of his receipt of the Determination. (Id.).*fn5
9. Proceedings in the EEOC
Lewis apparently did seek review from the EEOC. (Pl. Resp. to Hosp. Mem. at 13). On May 1, 2006, the EEOC issued a decision dismissing Lewis's charge because it was adopting "the findings of the state or local fair employment practices agency that investigated this charge." (PX 5).
Lewis commenced this action against the Hospital and the Union by filing a summons and complaint pro se in the Supreme Court of the State of New York, New York County, on May 31, 2006. (HX 1). The complaint lays out Lewis's version of the facts and asserts claims for sexual harassment, wrongful termination, breach of contract, and defamation. (Id.). At his deposition, Lewis testified that his claims in this case are the same as those asserted in his State Division complaint. (Pl. Dep. 137).
On June 26, 2006, the Union removed the case to this Court on the basis that Lewis was essentially suing the Union for breach of its duty of fair representation under ...