The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
Plaintiffs Desiree Wilson, Sherre Wilson, Olivia Wilson and Jerome Watson (collectively, "Plaintiffs") bring this employment discrimination action against N.Y.P. Holdings, Inc., d/b/a The New York Post ("Defendant" or the "Post"), which employed each of the plaintiffs during various times from 1999 to the present. Plaintiffs assert that the Post violated Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), by subjecting them to a hostile work environment and discriminating against them on account of their race and/or gender with respect to the terms and conditions of their employment. The three female plaintiffs (Desiree Wilson, Sherre Wilson and Olivia Wilson) also assert gender discrimination claims pursuant to New York State Executive Law § 296 et seq. and New York City Administrative Code § 8-107. The Court has jurisdiction of Plaintiffs' federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.
Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court has considered carefully all of the parties' submissions. For the following reasons, Defendant's motion for summary judgment is granted in its entirety.
Unless otherwise noted, the following material facts are undisputed. The Post is the owner and publisher of the New York Post, a daily newspaper in New York. Plaintiffs Desiree Wilson, Sherre Wilson, Olivia Wilson and Jerome Watson have been or continue to be employed as permanent pressman at the Post. Desiree, Sherre and Olivia are sisters, and all four plaintiffs are black. During the time period relevant to this action, 2002 to the present, all four Plaintiffs worked at the Post's Port Morris facility in the Bronx, New York.
The Post's pressroom workforce is staffed primarily by the New York Newspaper Pressman's Union Local No. 2 (the "Union"). However, when there is a shortage of Union workers available, the workforce is supplemented with non-union, shift-by-shift workers, known as "Casuals." (Vincent Aff. ¶¶ 4, 19-20.) Upon the completion of 110 shifts as a Casual, an employee can be elevated to unionized, permanent press-worker status and become a "Junior." As long as the Union controlled the hiring and elevation of Casuals, the Casuals who were elevated to permanent status were exclusively white males. (Raymond Walsh Aff. ("R. Walsh Aff.") ¶ 11.) In February 1998, the Post took over the responsibility for hiring Casuals and created a "Casual List," on which individuals are ranked in an order that corresponds to how often they have worked as a Casual, and the Casual List drives elevation determinations. As a consequence, non-white and female Casuals have been promoted to permanent status. (R. Walsh Aff. ¶¶ 21-26.)
When a Casual becomes a permanent press-worker, he is added to the bottom of the Post's Junior Priority List in the same order that he had been listed on the Casual List. (R. Walsh Aff. ¶ 31.) The new Junior is then assigned to one of the Post's two work shifts, either the "dayside" or the "nightside." (Id. ¶ 28.) Post personnel decide how many new Juniors are needed for each shift, and the new Juniors with the highest priority are assigned to the night shift and the remaining, lower-priority Juniors are assigned to the day shift. (Id. ¶¶ 32-33.)
The newspaper is printed during the night shift and thus the majority of the Post's pressmen work during the night. (Id.) During the day, a smaller group of workers "perform[s] maintenance on the printing presses and prepare[s] for the evening press-run." (Id. ¶ 29.) Occasionally, the Post prints "circulars and other inserts" during the day, so one press might be running as many as two days a week during the day shift. (Id.) Plaintiffs proffer that the night shift is more desirable than the day shift, because it provides greater opportunities for skill development as it is during the night shift that the bulk of the production work is done. (D. Wilson Aff. ¶ 6.)
Each pressman is assigned a classification within the Union. A pressman is initially classified as a "Junior Pressman" and may subsequently become a "Journeyman Pressman."*fn1 (R. Walsh Aff. ¶ 5.) Journeymen and Juniors "enjoy different pay grades and levels of responsibility." (R. Walsh Aff. ¶ 5.) To become a Journeyman, an employee must work at least four years as a Junior and pass a written exam administered by the Union; it is the Union, not the Post, that serves as the gatekeeper to journeyman status. In practice, it can take many more than four years for a Junior to become a Journeyman. (R. Walsh Reply Decl. ¶¶ 4-5.)
Various positions during the shifts must be filled by employees with Journeyman status. In shifts in which there are insufficient Journeymen, the Post will assign Juniors to be "Temporary Journeymen," an assignment which allows them to earn a higher rate of pay for that shift. (D. Wilson Aff. ¶ 6.) Temporary Journeyman assignments are made according to the Junior priority list. (Def.'s Ex. A.) One of the positions that must be filled by a Journeyman is that of "Pressman in Charge" ("PIC"), which also entails a higher rate of pay. (D. Wilson Aff. ¶ 10.) A PIC is selected from the pool of Journeymen on a particular shift, which includes Juniors serving as Temporary Journeymen. (R. Walsh Aff. ¶ 59.)
During both the dayside and the nightside shifts, pressmen work either on a "roller crew" or a "maintenance crew." Pressmen working on the roller crew receive a higher wage than those on the maintenance crew. (B. Walsh Aff. ¶ 6.) During the dayside shift, typically one junior works on roller crew and seven on the maintenance crew, while four journeymen work on the roller crew and eight work on the maintenance crew. (Id.) The parties disagree as to whether it is necessary for a Junior to work on the roller crew to develop the skills necessary to advance to Journeyman status.
The Post and the Union entered into a Collective Bargaining Agreement ("CBA") on August 20, 2000, which will remain in effect until October 31, 2015. The Post asserts that, during the time of Plaintiffs' employment with the Post, the terms and conditions of their employment were governed by the CBA. Plaintiffs maintain that, while their employment was "in part" governed by the CBA, it was also governed by "past practice." (Pls.' 56.1 Stmt. ¶ 4.)*fn2
Plaintiffs broadly allege that the Postdiscriminates against female and black employees, yet they concede that during the discovery period they have not gathered any statistical information or other evidence with respect to Defendants' disparate treatment of female or black employees generally. (Pls.' Rule 56.1 Stmt., ¶¶ 11, 20.) Rather, the general averments in Plaintiffs' affidavits constitute the only proffered evidentiary support for their allegation of widespread discrimination. Evidence proffered by the Post indicates that it has made considerable efforts to improve diversity in its workplace and to remedy discriminatory practices previously practiced by the Union that affected Post employees, and that such efforts have produced measurable gains in race and gender diversity throughout the pressroom. (Vincent Aff. ¶¶ 27-38, R. Walsh Aff. ¶¶ 21-26, Ex. OO; see generally, William Bogan Aff.)
Allegations Regarding Individual Plaintiffs
Plaintiff Desiree Wilson began working at the Post as a Casual in late 1999. In January 2002, Desiree joined the Union and became a Junior. In January 2005, she filed charges with the New York State Division of Human Rights ("SDHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging employment discrimination by the Post.*fn3 On an unspecified date, she also filed charges with the National Labor Relations Board ("NLRB"), alleging harassment and unfair discipline by the Post. The NLRB charges were dismissed in March 2005. In February 2006, Desiree Wilson took a leave of absence from which she has not returned.
In this lawsuit, Desiree Wilson claims that she was subjected to disparate treatment with regard to the terms and conditions of her employment. Her disparate treatment claims are based on alleged discrimination in (1) shift assignments; (2) temporary position assignments; (3) task assignments; and (4) severity of discipline. Additionally, Desiree Wilson claims that she was subjected to a hostile work environment at the Post.
a. Discrimination in Shift Assignments
Desiree Wilson claims that, despite her "seniority," she was "reassigned" to work on the day shift, which caused her to "lose pay and the opportunity to acquire journeyman skills." (Compl. ¶ 37.) The Post does not dispute that, upon promotion to permanent employee status in January 2002, Desiree Wilson was immediately assigned to the day shift. (R. Walsh Aff. ¶ 33; Christine M. Wilson Decl. Ex. ("Def.'s Ex.") MM.) However, the Post proffers that, as a matter of policy, at every semi-annual elevation of Casuals to Juniors, the Post determines how many Juniors are needed in the night shift and the day shift, and then assigns those with the highest priority rankings to the night shift and the remainder to the day shift. (R. Walsh Aff. ¶¶ 32-33.) Of the thirteen employees elevated from Casual to Junior in January 2002, Desiree Wilson was ranked lowest on the Junior Priority List. The nine highest-priority new Juniors were assigned to work the night shift and the four lower-ranked new Juniors were assigned to the day shift. (Id.) Among the four employees assigned to the day shift, three were white males, and the fourth was Desiree Wilson. Among the nine new night employees, one was a black male, one was a white female, one was an Asian male and the rest were white males. (Id.)
b. Discrimination in Temporary Position Assignments
In addition to her assignment to the day shift, Desiree Wilson claims that the Post discriminated against her with respect to assignments to temporary Journeyman status and the PIC position. Desiree Wilson alleges that on September 20, 2002, Gary Sanderson, the night foreman, disregarded her position as a temporary Journeyman and "instructed [her] to perform the task of a [Junior]" and he sent her "to pick up rags and papers." (Roosevelt Seymour Decl. Ex. ("Pls.' Ex.") 2.) Additionally, Desiree Wilson asserts that she was repeatedly passed over for the PIC position, which provides an opportunity to earn a higher rate of pay. Desiree Wilson identifies three lower-priority Juniors who were consistently appointed PIC ahead of her from 2002 to 2004. (D. Wilson Interrog. No. 2.) In 2002 and 2003, Desiree worked zero shifts as PIC; in 2004, she worked nine shifts as PIC; in 2005, 71 shifts as PIC. Desiree Wilson alleges that she was generally not permitted to work as PIC until she filed her SDHR complaint.
The Post characterizes the PIC position as "the most responsible position on the press for a pressman to have," because the PIC operates very expensive and important equipment and directs the work of other pressman. (R. Walsh Aff. ¶¶ 56-57.) The Post proffers that, under the CBA and long-standing practices at the paper, PIC assignments are not made on the basis of the priority list, but at the foreman's discretion, taking into account the foreman's assessment of qualifications. (B. Walsh Aff. ¶ 32; Def.'s Ex. A at 5.) The CBA provides, "The right of the Publisher, through the foremen, to designate and direct the work of employees on presses or in the pressroom on all editions and at all times, is acknowledged by the Union." (Id., Ex. A at 5.) Additionally, the CBA provides that "[t]he office may select any journeyman as pressmanin-charge provided that on the basis of priority in the pressroom they would be eligible to work that particular day or night." (Id. at 8.)
The Post proffers that Desiree Wilson was regularly appointed as PIC ahead of higher-priority employees. (B. Walsh Aff. ¶ 32.) In 2004 and 2005, Desiree Wilson worked as PIC ahead of higher-priority white male employees on numerous occasions. (Id.) Additionally, the Post alleges that it was the growth of Desiree Wilson's pressroom experience, rather than her initiation of the SDHR action, which prompted the increase in the number of her PIC shifts.
c. Discrimination in Task Assignments
Desiree Wilson further alleges that the Post discriminated against her by "customarily" assigning her to the "most menial and onerous work" in the pressroom and thereby denying her the opportunity to learn skills that would allow her to be promoted to a Journeyman. (Compl. ¶ 28.) She alleges that she and other black employees were "generally" assigned to "clean press units with the maintenance crew," as opposed to working on the roller crew or production crew. (D. Wilson Interrog. No. 11.) Desiree Wilson identifies five lower-priority white employees who allegedly were regularly placed on the roller crew ahead of her. (Id. at 8; D. Wilson Dep. at 109.) She asserts that she was not given the opportunity to acquire Journeyman skills until she filed charges with the SDHR and EEOC. (D. Wilson Interrog. No. 3.)
Desiree Wilson alleges that, when she began her employment at the Post, the priority of pressmen was respected for job assignments. She states that, in the early years of her employment, there were several white males who always worked on the roller crew and whose priority was respected. (D. Wilson Dep. at 111.) She further alleges that there was an "unwritten rule" about respecting priority for desirable job assignments. (Id. at 112.) She claims, however, that "when blacks began coming into the industry and moving up on the shop priority list we [were] told that our priority no longer matters." (D. Wilson Aff. ¶ 7.)
In response to Desiree Wilson's allegations, the Post alleges that the assignment of tasks is based on foreman discretion and that, from the time Desiree Wilson began her employment at the Post in 1999, there was no custom, practice or policy to make roller crew assignments, production assignments, or PIC assignments, based on priority. The Post has submitted an affidavit from Brian Walsh, a day foreman, who alleges that he gave Desiree Wilson a few opportunities to work on the roller crew, but concluded that "she lacked the mechanical ability for the task, was unwilling to take direction and could not perform well as a team with other members of the roller crew." (B. Walsh Aff. ¶ 20.) Therefore, he no longer assigned her to the task.*fn4 (Id.) In a further affidavit, the Post proffers that, for an eight-month period in 2004-05, when the day shift was doing production, Desiree Wilson was regularly assigned to the production crew. (B. Walsh Reply Decl. ¶¶ 4-5.) The Post also proffers that at least two black pressman were regularly assigned to the roller crew during the relevant time period. Desiree Wilson's deposition corroborates that factual proffer and also reveals that at least one woman was assigned to the roller crew. (B. Walsh Aff. ¶ 22; D. Wilson Dep. at 109, 141.)
The Post admits that, although the CBA provides foremen with the discretionary authority to assign pressmen to pressroom jobs, for a period of time an exception obtained with respect to the roller crew. (Vincent Aff. ¶ 39.) Prior to May 2002, "five [high priority] males would continually assign themselves, or 'bid,' to work on the roller crew." (Id. ¶ 40.) In May 2002, Joseph Vincent, the Senior Vice President of Operations, found out about this practice of bidding based on priority. (Id. ¶ 41.) Vincent ended the practice immediately and notified the Union that assignments to the roller crew would be based on foremen's discretion, like all the other pressroom tasks. (Id. ¶ 42.) The Post claims that since this incident, no tasks are assigned on the basis of a press-worker's priority, (id. ¶ 43), and Plaintiffs do not contest the fact that foreman discretion, rather priority, determines the assignment of tasks. (Pls.' 56.1 Stmt. ¶ 8).
d. Discrimination in Severity of Discipline
Desiree Wilson alleges that the Post discriminated against her by disciplining her more harshly than white employees. She asserts that a three day suspension she received on October 3, 2003, for "sharpshooting," was improper and objects to two suspensions she received in 2004 for "carelessness" and "neglect of duty."
The Post's Office Rules ("Rules"), issued in or about 2003, provide that "Sharpshooting of shifts is not allowed, and will result in discipline." (Def.'s Ex. G.) The Rules do not further elucidate the meaning of the term "sharpshooting." The parties agree that "sharpshooting" refers to the practice of an employee taking an unscheduled day off of work and then working on a scheduled day off, such as a holiday. Desiree Wilson alleges that taking an unscheduled day off and then working on a vacation day does not constitute "sharpshooting," whereas the Post proffers that there is no such exception for working on an unscheduled vacation day as opposed to any other scheduled day off.*fn5 (D. Wilson Dep. at 133, B. Walsh Aff. ¶¶ 34, 36.)
Desiree Wilson considers her sanction for sharpshooting to be improper because she worked on a "vacation" day, not an "off" day. (D. Wilson Dep. at 133.) She states, "A lot of people work on their vacation. This isn't anything unusual that occurs at the New York Post . . . People have been working on their vacation for years." (Id.) However, the Post claims that the rule is not so narrowly tailored and that Desiree Wilson's interpretation of the rule is not supported by the managers who interpret it. (B. Walsh Aff. ¶ 36.) Additionally, the Post identifies two white male employees who each received three day suspensions for sharpshooting.
In addition to the sharpshooting sanction, Desiree Wilson objects to two suspensions that she received in 2004. On October 21, 2004, Desiree Wilson was issued a one day suspension for "neglect of duty." On December 29, 2004, she received a five day suspension for "carelessness." Desiree Wilson identifies six white male employees who violated the "neglect of duty" rule, the "carelessness" rule, or both, and allegedly only received verbal or written warnings. The number of infractions for each of these men varied from three to eight. (Pls.' Exs. 6-12.) Additionally, Desiree Wilson alleges that the subsequent reduction of her total suspension from six to three days signifies that the original sanctions were incorrect.
In response to Desiree Wilson's assertions, Brian Walsh, the day foreman, states, During 2004, Desiree had been orally warned many times. I had warned Desiree that she was working too slowly and needed to work faster, or at least at the speed of her co-workers. . . Desiree, did not, however, heed these warnings. Sometimes she even seemed to me to be 'doggin it,' which is the term we use for someone who works deliberately at a slow pace.
(B. Walsh Aff. ¶¶ 39-40.) Brian Walsh's affidavit also enumerates the interactions he had with Desiree Wilson about her work performance in 2004. (Id. ¶ 42.) He gave her a final written warning in April 2004, met with her and her Union representative on November 19, 2004, wrote a caution letter to her on November 23, 2004, and spoke to her on December 10 and 15, 2004, regarding her careless work. (Def.'s Ex. CC.)
Additionally, the Post notes that three of the six employees whom Desiree Wilson alleges received less severe sanctions actually received harsher sanctions subsequent to their verbal and written warnings, including suspensions and, in some cases, termination. (R. Walsh Reply Decl. ¶¶ 19-25, Def.'s Exs. ZZ-GGG.) The Post also identifies two black pressmen who received five and six warnings each, for the same infractions Desiree Wilson committed, without being suspended for those infractions.*fn6 (Def.'s Exs. HHH, III.) Additionally, the Post proffers that the Joint Conference Committee frequently elects to reduce imposed sanctions for a variety of reasons, including its desire to avoid arbitration costs, and that its decision to reduce Desiree Wilson's six days of suspension does not indicate that the original sanctions were erroneous. (Vincent Aff. ¶¶ 91-92.) Lastly, Vincent states that, "[a]t the time Desiree Wilson was disciplined and throughout the Joint Committee meeting, I never heard the Union suggest that the Post had imposed this discipline on Desiree because of her race or gender, or that she thought this was so." (Vincent Aff. ¶ 94.)
e. Hostile Work Environment
Desiree Wilson also alleges that she was subjected to a hostile work environment during her tenure at the Post. She claims that two foremen made a number of derogatory comments to her or that were aimed at her. She alleges that Sanderson, the night foreman, said to her "a few years back" that "training females is like training a dog" and that he once told her that "women need to be horsewhipped." (D. Wilson Aff. ¶ 20.) On a separate occasion, Sanderson allegedly said, in front of a group of workers that included Desiree, "You would know my wife, because she is the one who has all the red ink all over her dress." (D. Wilson Dep. at 24, 29.) Foreman Kenny Eaton allegedly once said, while alluding to Desiree, "I smell something.
In addition to comments allegedly aimed at her or about her, Desiree Wilson alleges that Post foremen, including Kenny Eaton, referred to black female celebrities as "whores" and "sluts" in front of her, whereas such derogatory terms allegedly were not used in reference to white celebrities. (Id. at 50, 52.) Desiree Wilson also claims that foremen and co-workers referred to female employees as "girls." (Id. at 32.) Additionally, Desiree Wilson alleges that, in 2004, the word "nigger" was written on the locker of a black pressman and in a bathroom. (D. Wilson Aff. ¶ 22.) She heard from third parties about these two incidents, but never saw the offensive writings herself. Also, Desiree Wilson alleges that a fellow pressman told Nytricia Smith ("Smith"), a black female press-worker, that "blacks are only good for playing basketball." (D. Wilson Interrog. No. 4.) Desiree Wilson was not present when the comment was made, but alleges that Smith told her about it. (D. Wilson Dep. 41-42.) Lastly, Desiree Wilson alleges that two men, on two separate occasions, entered the female bathrooms at the Post. (Id. at 54-65, 75).
In response, the Post proffers that none of the Plaintiffs, nor anyone else, ever reported to Pressman Superintendent Raymond Walsh about discriminatory comments being made. (R. Walsh Aff. ¶ 87.) The Post's "Equal Employment Opportunity and Unlawful Harassment Policy" has been distributed to all Post employees since 1996, and it provides that employees who believe they are being harassed should contact the Human Resources Department or a manager. The Post proffers that neither Desiree Wilson, nor any of the other Plaintiffs, ever contacted the Human Resources Department to allege harassment or discrimination. (L. Babajko Aff. ¶¶ 4-6.) With respect to male employees entering the women's restroom, Vice President of Operations Vincent proffers that he addressed the complaint that male employees of a cleaning contractor employed by the Post had entered the women's restroom by promptly ordering the cleaning contractor never to use those individual employees at the Post again and by changing the locks on the women's restrooms to assure that only women could enter. (Vincent Aff. ¶¶ 96-98.) With respect to the racial slur written on the locker of a black pressman, the Post proffers that its "incident reports" from the relevant time period contain no record of the incident (although a similar incident, involving a slur written on the locker of a Jewish employee, was recorded) (R. Walsh Reply Decl. ¶¶ 16-18), and that Desiree Wilson's omission of this allegation in her responses to Defendant's interrogatories suggests that she may have withdrawn it. (Reply Aff. of M. Starr ¶¶ 2-3).
Plaintiff Sherre Wilson began working at the Post as a Casual in 1999. She became a member of the Union and was promoted to Junior status in July 2002. At the time she and her co-plaintiffs commenced this lawsuit, she remained employed at the Post. Sherre Wilson claims that she has been subjected to disparate treatment with regard to the terms and conditions of her employment. Her disparate treatment claims are based on alleged discrimination in (1) shift assignments; (2) temporary position assignments; (3) task assignments; and (4) severity of discipline. Sherre Wilson also claims that she was subjected to a hostile work environment at the Post.
a. Discrimination in Shift Assignments
Upon her elevation to Junior status, Sherre Wilson was assigned to the day shift along with the two other new Juniors. She remained on the day shift until June 2006, at which time she requested a transfer to the night shift, which was granted. (R. Walsh Aff. ¶ 49.) She alleges that white male co-workers with less "seniority" than her have been repeatedly assigned ahead of her to work on the night shift, which she claims provides employees with "greater opportunities to learn Journeyman skills and earn overtime pay." (Compl. ¶ 44.) Sherre Wilson names five men who were allegedly wrongfully assigned to the night shift ahead of her. (S. Wilson Interrog. No. 3.) Each of those men became a Junior in 2003. ...