The opinion of the court was delivered by: Sifton, Senior Judge.
Plaintiffs Derrick Grant ("Grant"), Gustavo Done ("Gustavo Done"), Jose A. Done ("Jose Done"), Armando Tirado ("Tirado"), Horatio Wagstaffe ("Wagstaffe"), and Francisco Felix ("Felix") commenced two separate actions, later consolidated, against The Brooklyn Hospital Center ("Hospital"), the International Brotherhood of Electrical Workers, Local Union No. 3 (the "Union"), Propoco, Inc., Tom Grosso, Kenneth Ducalo, Kevin Dirk, Harvey Frumkin, Jack Delaporte, John Cruz, and the City of New York. Plaintiffs have settled with or withdrawn their complaints against all defendants other than defendant Union ("defendant"). Plaintiffs brought the following claims against defendant: breach of the duty of fair representation, in violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a)*fn1; racial discrimination in violation of 42 U.S.C. § 1981; discrimination on the basis of race, color, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 41 U.S.C. § 2000e et seq. ("Title VII"); violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq.; violation of the NYSHLS, N.Y. Exec. L. § 8-107; conspiracy to deprive plaintiffs of their rights in violation of 42 U.S.C. § 1985(3); and failure to prevent the deprivation of plaintiffs rights, in violation of 42 U.S.C. § 1986. Plaintiffs seek punitive and compensatory damages. Now before the Court is defendant's motion for partial summary judgment on two of plaintiffs' claims. For the reasons stated below, the motion is granted in part and denied in part.
The following facts are taken from the parties' submissions in connection with this motion. Disputes are noted. The Parties
Plaintiffs Tirado and Wagstaffe are Stationary Engineers, and plaintiffs Done and Felix are Firemen, who were simultaneously employed by Hospital in the Engineering Department ("Department") and by the City of New York, Department of Citywide Administrative Services. Done, Tirado, and Felix are Hispanic males. Complaint filed by plaintiffs Jose Done, Tirado, Wagstaffe, and Felix at ¶¶ 3, 4, 6 ("Jose Compl."). Wagstaffe is a black male. Id. at ¶ 5. Felix began employment with the Hospital in 1984, Jose Done began employment in 1992, Tirado began employment in 1968, and Wagstaffe began employment in 1988. Exs. 22-25.
Plaintiffs Gustavo Done and Grant are Stationary Engineers and Firemen who were employed at the same time by Hospital and by the New York City Transit Authority. Gustavo Done and Grant are both black males. Complaint filed by Gustavo Done and Derrick Grant at ¶¶ 3, 4 ("Gustavo Compl.")
Defendant Union is a labor organization representing employees in an industry affecting commerce. Union is the bargaining representative for defendant Hospital, and entered into a collective bargaining agreement ("CBA") with Hospital concerning the terms and conditions of employment of plaintiffs and other employees of the Hospital. Gustavo Compl. at ¶ 9.
At least as far back as 1965, engineers employed by the Hospital to operate the boiler and respond to emergencies have worked full time jobs for the City of New York while moonlighting at the hospital. Deposition of Charles Tatum at 19 ("Tatum Dep."). Most employees had such "dual employment." Id. at 20. In order to accommodate overlapping shifts between different employers, employees covered each others shifts. For example, a person working the morning shift at the Hospital, which started at 7:30 a.m., would come to work at 6 a.m., to permit the overnight shift person to leave the Hospital and report for duty at the City's offices on Centre street by 7:00 a.m. Id. at 19-20. Employees referred to shifts or parts of shifts that were swapped as "mutuals." Id. at 24. The specific practice of covering the end of a shift was called "Early Relief." If an employee took over part of another employee's shift, that other employee would do the same for him. Id.
Several plaintiffs testified that they performed mutuals while working two jobs at the Hospital and either the New York City Department of Citywide Administrative Services or the New York City Transit Authority. Felix Dep. at 38; Tirado Dep. at 122-23; Jose Done Dep. at 53-54; Wagstaffe Dep. at 80. Only Gustavo Done testified that he did not cause his time card to be punched when he was not present. Gustavo Done Dep. at 378. The engineer on duty was aware when an employee swapped a shift. Felix Dep. at 38; Wagstaffe Dep. at 80. Sometimes he entered it into the log book, and sometimes he did not. Tirado Dep. at 123. Employees considered it unnecessary to report mutuals to the Hospital. Jose Done Dep. at 60.
Mr. Tatum and various plaintiffs recalled that the following persons other than plaintiffs performed mutuals during the same times that plaintiffs were performing them: Jamie Limson, Vitale Genmenstein, Amin Quanongo, Razul Juma, Neville Beckford, Marvin Vabnais, Leo Fiore, a Mr. Schmidt, Sydney Jackson, Andrew Jackson, Ryan Henry, Leon Tracey, Tom Popsidarie, Mike Aramirez, Joe Chiequetti, for a total of 15 employees. Tatum Dep. at 27-28; Felix Dep. at 113-115; Tirado Dep. at 121-122; Jose Done Dep. at 61, 161-64. Of these employees, at least five were white, one was black, and one was Indian. Felix Dep. at 113-115; Tirado Dep. at 121; Jose Done Dep. at 161-164. Plaintiffs Felix and Wagstaffe both testified that they had learned that after firing the plaintiffs, the Hospital replaced them with five or six white employees. Felix Dep. at 116; Wagstaffe Dep. at 180. As of 2005, employees in the boiler room continued to work both for the Hospital and for the City and continued to perform mutuals for each other in order to cover shifts. Jose Done Dep. at 62.
Mr. Tatum's superiors were aware of the practice, as was the Hospital's Human Resources Department. Tatum Dep. at 23-25.
Thomas Grosso, the Hospital's former Senior Vice President for Human Resources and Labor Relations, stated that when he was employed at the Hospital, mutuals were being performed at the hospital, and he could not recall there being a written policy governing the practice. Grosso Dep. at 19. There was a specific policy permitting early relief. Id. at 23. Ms. Christine Carl, who was involved in the investigation of plaintiffs, stated that there was no written policy prohibiting the practice of mutuals, and that it had taken place for a long time. Carl Dep. at 58. In June of 1999, a new management company hired by the Hospital took over management of the Engineering Department, and the practice of performing mutuals continued. Grievance Letter filed by plaintiffs Jose Done, Felix, Tirado, and Wagstaffe on June 11, 2002, Ex. 16 ("Grievance Letter").
Hospital Administrator Grosso testified that authorization was required before performing mutuals, which were sanctioned by policy, whereas simply swapping shifts was not. Grosso Dep. at 20. However, an arbitrator who heard testimony regarding the reinstatement of one of the plaintiffs accused of shift swapping by the City of New York determined that, in fact, no prior authorization was required in practice. July 6, 2005 Arbitration Decision reinstating plaintiff Jose Done at 7 ("Arbitration Decision") (Ex. 18). Practically speaking, the terms "mutuals" and "swapping shifts" describe the same practices. See Tirado Dep. at 121; Grant Dep. at 155.
Mr. Tatum stated that during various meetings held between 1996 and 1999, he told the employees present that they could not punch each others' cards, or else they would be fired. Tatum Dep. at 167, 168. Mr. Tatum could not say whether plaintiffs had attended meetings when this policy was announced, though he was "sure that they were there at one point in time." Id. at 169:25-170:2. Plaintiffs dispute that they were warned by anyone, including Mr. Tatum, about punching each other's time cards, and state that at no time were they given notice that the longstanding practice of performing mutuals could no longer continue. Tirado Aff. at ¶ 4. Mr. Tatum testified before the arbitrator in the City of New York case that no advance approval for swapping shifts was needed and no record of the shift swapping was kept. Arbitration Decision at 8. The employees kept ...