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 Plaintiffs have settled with or withdrawn their complaints against all defendants other than defendant Union ("defendant").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 that 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. On February 12, 2009, I granted defendant's motion for partial summary judgment on the Title VII claim and denied defendant's motion for summary judgment on the duty of fair representation claim.*fn2
Now before the Court is plaintiff's motion pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) and Local Civil Rule 6.3 of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 6.3") for reconsideration of the portion of my February 12, 2009 order denying defendant's motion for summary judgment on the duty of fair representation claim. For the reasons stated below, the motion is denied.
Familiarity with the underlying facts and procedural history of this case, as set forth in this Court's prior decision, Done v. Brooklyn Hosp. Ctr., 2009 U.S. Dist. LEXIS 10676 (E.D.N.Y. February 12, 2009), is presumed. A brief recitation of facts relevant to this decision is provided below.
Plaintiffs Tirado and Wagstaffe are stationary engineers, and plaintiffs Gustavo Done and Felix are firemen, who were simultaneously employed by the Hospital in the Engineering Department ("Department") and by the City of New York, Department of Citywide Administrative Services. 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, Tirado, and Felix are Hispanic males, and Wagstaffe, Jose Done, and Grant are black males.
Defendant Union is the bargaining representative for plaintiffs in connection with their employment with the Hospital, with whom defendant entered into a collective bargaining agreement ("CBA").
Plaintiffs are among engineers employed by the Hospital to operate its boiler room, who worked night shifts at the Hospital and day shifts elsewhere. In order to accommodate overlapping shifts with different employers, employees covered parts of each others' shifts or switched shifts entirely. 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. The person whose shift was partially covered would later work extra time on behalf of the person covering his shift. Employees referred to shifts or parts of shifts that were swapped as "mutuals." When employees swapped shifts in this manner, they would punch each others' time cards. As a result, the log book did not reflect when an employee not assigned to work a certain shift had taken over that shift, although the engineer on duty was aware when an employee swapped a shift. Employees considered it unnecessary to report mutuals to the Hospital through the log book or any other means. Hospital officials and staff were aware of the practice, and no prior authorization was required before performing mutuals.
Plaintiffs have provided names of several individuals other than plaintiffs who performed mutuals and who have not been disciplined. Of these employees, at least five were white, one was black, and one was Indian. As of 2005, employees in the boiler room continued to work both for the Hospital and for other City agencies and continued to perform mutuals for each other in order to cover shifts.
Plaintiffs' Termination and Grievance Request
In May of 2002, plaintiffs were individually summoned to the Hospital's Human Resources Department and told that the Hospital was conducting an investigation into staffing practices of the Engineering Department. Plaintiffs met with James Robson, representative to the Hospital for defendant Union, and requested that a lawyer; none was appointed. On May 29, 2002, plaintiffs were discharged by Hospital. On May 31, 2002, plaintiffs filed a grievance with the National Labor Relations Board. See Ex. 15 (letter from NLRB to Mr. Robson). On June 11, 2002, plaintiffs filed a grievance under the CBA against the Hospital. See Ex. 16. The latter grievance letter described the unfair treatment claim, noting that, while plaintiffs were black and Hispanic, the workers hired to replace them were white, despite the fact that the Hospital was located in a non-white neighborhood. The letter also discussed a claim for payment for accrued vacation and sick days existing at the time plaintiffs' left their employment with the Hospital.
In June of 2002, the Union representative, a Mr. Robson, met with plaintiffs to discuss their discharges. Plaintiffs stated to Mr. Robson that they were being unfairly singled out for what was a general practice and gave Mr. Robson a copy of their Grievance Letter. Mr. Robson testified that plaintiffs admitted to him that they punched each others' timecards when performing mutuals. Mr. Robson performed no investigation into plaintiffs' case before the July 11 grievance meeting with Hospital officials, because plaintiffs "had no case." Mr. Robson did not investigate whether others were ...