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finding complaints to an employer unaware of the racial undertones of term used by employee's supervisor were not protected activity
Summary of this case from Parinello v. Bausch & LombOpinion
No. 00 Civ. 8641 (RLC), 01 Civ. 1796 (RLC)
January 21, 2003
Robert J. Barsch, Esq., Attorney for Plaintiff, New York, N.Y.
Harvey S. Mars, LEIBOWITZ MARS, Attorneys for Defendants District Council, 1707, Cox, and Stokely, New York, N.Y.
OPINION
Plaintiff, LaVien Sales, commenced this action against the YM YWHA of Washington Heights and Inwood ("Y"); District Council 1707, Community and Social Security Agency Employees Union AFSCME, AFL-CIO; Casandra Cox, as President of District Council 1707, Community and Social Security Agency Employees Union, AFSCME, AFL-CIO; Local 215, District Council 1707, Community and Social Security Agency Employees Union, AFSCME, AFL-CIO; and Brenda Stokely ("Stokely"), as President of Local 215, District Council 1707, Community and Social Security Agency Employees Union, AFSCME, AFL-CIO ("Union").
Plaintiff sues the Y claiming racial discrimination, hostile work environment due to sex and race-based harassment, and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and employment discrimination under the New York State Human Rights Law and the New York City Human Rights Law. Plaintiff also brings a hybrid § 301 and duty of fair representation ("DFR") suit pursuant to 29 U.S.C. § 185, alleging breach of the collective bargaining agreement ("CBA") by the Y and breach of the Union's duty of fair representation to plaintiff.
The Union and Y move for summary judgment pursuant to Rule 56, F.R.Civ.P., on plaintiff's § 301/DFR claim and the Y seeks summary judgment on plaintiff's claims under Title VII and the New York City Human Rights Law. The Union also seeks attorney's fees and costs pursuant Rule 54(d), F.R.Civ.P.
BACKGROUND
A. Facts
The relevant facts construed in the light most favorable to plaintiff are as follows. Plaintiff, a black male, was hired by the Y as a porter/driver in October 1998. (Pl.'s Aff. ¶ 2.) He was a member of the Union and covered by the CBA. (Joint Pre-Trial Order, § VII, ¶ 6.) Plaintiff's responsibilities were to clean the first floor of the Y's facility and drive the Y's vans and buses. (Joint Pre-Trial Order, § VII, ¶ 7, 11.) Plaintiff was supervised by Pedro Hernandez, Director of Facilities, although David Crespo, Assistant Superintendent, stepped in if Hernandez was unavailable. (Pl.'s Dep. at 20; Englisher Aff. ¶ 7.)
See Englisher Aff. Ex. A.
Plaintiff endured a steady stream of ridicule and insult due to his race while working at the Y. For example, Hernandez, Crespo, and his coworkers repeatedly referred to plaintiff as the racial epithet "Bolunga." (Pl.'s Dep. at 64-5.) Crespo would state "fuck the black guy" in plaintiff's presence and frequently express his desire that plaintiff be fired. (Pl.'s Aff. ¶ 5.) On one occasion, Hernandez and a coworker insinuated that plaintiff used to be a slave in Alabama. (Pl.'s Aff. ¶ 5.) Hernandez and plaintiff's coworkers also found it amusing to place plaintiff's uniforms on a gorilla. (Pl.'s Aff. ¶ 6.)
Plaintiff claims "Bolunga" was given to him because of his race (Pl.'s Aff. ¶ 4) and supports it with a sworn statement by an excoworker, Elvis Liriano. (Barsch Aff. Ex. D.)
Plaintiff states in his deposition that a person named Carolina told him cadets at the Y were making racist comments. (Pl.'s Dep. at 62.) These statements, however, cannot be considered in opposition to defendant's summary judgment motion as they are hearsay not within any exception. Evans v. Port Authority of N.Y. N.J., 192 F. Supp.2d 247, 264 (S.D.N.Y. 2002) (Kaplan, J.).
The ridicule and insult followed plaintiff on his off-hours when plaintiff and his coworkers would play basketball together. Crespo repeatedly mocked plaintiff as the "only black person who could not play basketball." (Pl.'s Aff. ¶ 5; Pl.'s Dep. at 147-8.) After one game, a police academy cadet stationed at the Y, Teddy Lopez, told plaintiff he played "like an animal." (Pl.'s Dep. at 59.)
Plaintiff's cleaning duties in the kitchen brought him into contact with Jacob Murray, the Y's Executive Chef, on a daily basis. (Joint Pre-Trial Order, § VII, ¶ 10; Pl.'s Dep. at 102.) Plaintiff initially found Murray's compliments about plaintiff's good looks innocuous, a comment Murray made about three times. (Pl.'s Dep. at 113.) Plaintiff, however, did not know how to react or what to think when Murray attempted to embrace him on an elevator. (Pl.'s Dep. at 107.) Soon after this incident, when plaintiff mentioned to Murray that he wanted to get engaged and Murray responded by saying, "I can cook for you and you could be my husband," plaintiff openly questioned Murray about his intentions toward him and began to reconsider Murray's conduct. (Pl.'s Dep. 113-14.) Murray, however, continued to make plaintiff uncomfortable by repeating the husband comment once (Pl.'s Dep. at 115) and telling plaintiff he had a dream about him. (Pl.'s Aff. ¶ 18; Pl.'s Dep. at 119.)
Plaintiff first said this took place in the summer or fall of 1999. Later, when asked to order the events involving Murray, plaintiff said it happened before the (continued on next page . . .) January 1999 husband comment. (Pl.'s Dep. at 110, 123.) Since plaintiff started work in October 1998 (Pl.'s Aff. ¶ 2), the court will construe the inferences in plaintiff's favor and presume the event occurred in the fall of 1998 after plaintiff began working.
Plaintiff is unaware of the content of the dream. (Pl.'s Dep. at 119.)
Murray's attentions towards plaintiff included treating him preferentially. Murray would prepare breakfast only for plaintiff and no other staff member and while he did prepare food for other employees to take home, Murray gave plaintiff especially abundant quantities. (Pl.'s Aff. ¶ 18; Pl.'s Dep. at 118.) When Murray offered to buy him an air conditioner in the summer of 1999, plaintiff began to think that Murray was homosexual and interested sexually in plaintiff. (Pl.'s Dep. at 121.)
Plaintiff's rejection of Murray's advances led to increasing tension between the two coworkers. Plaintiff alleges that on one occasion, Murray, out of frustration with plaintiff's (Englisher Aff. Ex. D.)
Following this suspension, plaintiff wrote a letter addressed to Englisher informing him about the hostile treatment that plaintiff endured at the hands of Hernandez, Crespo, the police academy cadets stationed at the Y, and Murray. (Pl.'s Aff. Ex. A.) Plaintiff wrote that he found the lack of respect shown to him by his coworkers upsetting and indicated that on a couple of occasions Murray's conduct drove him to be verbally insubordinate and abandon his responsibilities. (Pl.'s Aff. Ex. A.) Prior to sending the letter, plaintiff requested that Chase review it for him. (Pl.'s Dep. at 170.) Chase obliged and after reviewing the letter, recommended to plaintiff that he should soften its tone. (Pl.'s Dep. at 167-68.) Plaintiff initially disagreed with Chase but later concluded that sending the letter would do more harm than good and did not send the letter. (Pl.'s Dep. at 170.)
In his affidavit, plaintiff attempts to show the Union breached its duty of fair representation by telling plaintiff not to send his letter and thus preventing the information about his claims from reaching Englisher. (Pl.'s Aff. ¶ 11.) In his earlier deposition, however, plaintiff said Chase advised him, "just send [the letter] if you really feel like that." (Pl.'s Dep. at 128.) The court then must refer to plaintiff's deposition since it is well settled that when statements in an affidavit contradict a prior deposition, the prior statements are controlling. See Brown v. Henderson, 257 F.3d 246, 252 (2d cir. 2001).
Soon after his suspension, plaintiff was involved in an incident with Lopez. (Pl.'s Dep. at 56.) While playing basketball at the Y with Lopez and Harry Mendez, plaintiff passed the basketball towards Lopez and it hit him in the face, breaking his glasses. (Pl.'s Dep. at 57.) Instead of resolving the issue between themselves, Lopez found Hernandez and told Hernandez plaintiff intentionally threw the basketball at his face. (Pl.'s Dep. at 57.) Two days later, Hernandez told Englisher about Lopez's complaint and the incident was seemingly forgotten. (Hernandez Dep. at 41.)
Two more incidents involving plaintiff occurred during the winter. On December 16, 1999, plaintiff was given a formal written warning for inappropriate use of the Y's two way radios to reach his supervisors and for disobeying his supervisors. (Pl.'s Dep. at 31-40; Englisher Aff. Ex. E.) Then, on February 15, 2000, plaintiff was suspended two days without pay because the day before he ran out of gas while driving a bus for the Y. (Pl.'s Dep. at 44-8; Englisher Aff. Ex. F.)
Two weeks later on March 1, 2000, in a meeting with Englisher and Hernandez, Englisher confronted plaintiff with allegations of more workplace infractions. (Pl.'s Dep. at 80; Englisher Aff. ¶ 20.) These infractions were: (1) the route plaintiff was taking to return to the Y on his bus routes was unnecessarily long (Pl.'s Dep. at 82); (2) plaintiff was starting the bus before its occupants could sit down (Englisher Aff. ¶ 20); (3) plaintiff was doing personal errands while on the job and making his coworkers wait for him (Pl.'s Aff. ¶ 17); and (4) plaintiff broke Lopez's glasses. (Pl.'s Dep. at 80.)
Plaintiff admitted the allegations were true but argued that the first three were not as serious as Englisher claimed and that he did not intentionally break Lopez's glasses. Plaintiff contended that he was not trained to take a specific route (Pl.'s Dep. at 82), was not aware that the occupants of the bus might fall and hurt themselves if he started the bus before they sat down (Englisher Aff. ¶ 22), and that while he did do a personal errand while delivering food for the Y, his coworker was aware of plaintiff's need to see an apartment and waited only a very short period of time for plaintiff to return. (Pl.'s Aff. ¶ 17.) Plaintiff also alleged Hernandez kicked him on several occasions and attempted to extort money from him. (Pl.'s Dep. at 83.) Englisher subsequently suspended plaintiff for two days with pay pending consideration of the latest allegations against and by plaintiff. (Joint Pre-Trial Order, § VII, ¶ 15.) On March 3, 2000, plaintiff was terminated for gross misconduct. (Englisher Aff. Ex. G.)
Plaintiff's examples of kicking are Hernandez "just tapp[ing]" a chair plaintiff was in and two episodes described as horseplay. (Pl.'s Dep. at 96, 71-2.) Plaintiff's extortion claim is that Hernandez asked him for money but plaintiff never gave him any and Hernandez never demanded the money. (Pl.'s Dep. at 96.)
On March 6, 2000, Chase filed a grievance with the Y according to the terms of the CBA. (Chase Aff. ¶ 9.) Plaintiff's grievance was denied in the first two steps. (Pl.'s Dep. at 194, 198.) On May 11, 2000, plaintiff's request for arbitration was denied by the Grievance Committee of the Executive Board of the Union ("Board"). The Board based its decision on the lack of material differences between plaintiff's and the Y's versions of events, concluding an arbitrator would be unlikely to find in plaintiff's favor. (Stokely Dep. at 22; Santiago Aff. ¶ 8, 9.)
The grievance-arbitration procedure is found in Article XVII of the CBA. Step one is a meeting between the director of the Y and the Union's staff representative. The second step involves a meeting with the Personnel Committee of the Y's Board of Directors and the parties. If still unresolved, the Union may request binding arbitration although the Grievance Committee of the Executive Board of the Union must first hear and approve arbitration of the grievance. (Chase Aff. ¶ 9.)
DISCUSSION
I. Summary Judgment Standard
Summary judgment may not be granted unless "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." Rule 56, F.R.Civ.P. In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Nevertheless, the moving party will be entitled to judgment as a matter of law where the nonmoving party fails to make a significant showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing summary judgment "may not rest upon mere allegations," rather he must "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), F.R.Civ.P.
II. Title VII claims
Plaintiff alleges he was the victim of racial discrimination, a hostile work environment due to sex and race-based harassment, and unlawful retaliation in violation of Title VII. Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin," 42 U.S.C. § 2000e-2(a)(1), and prohibits an employer from "discriminating against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by" Title VII. 42 U.S.C. § 2000e-3(a).
A. Racial Discrimination
A prima facie case of racial discrimination consists of: (1) membership in a protected class, (2) satisfactory job performance, (3) an adverse employment action, and (4) that the circumstances of the discharge give rise to an inference of discrimination on the basis of plaintiff's membership in the protected class. Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001). The burden of establishing a prima facie case is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
If plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Provided defendant satisfies this burden, plaintiff must present evidence that a reasonable jury would believe defendant's reason is invalid and show that plaintiff's evidence reasonably supports an inference that the employer discriminated against plaintiff. James v. N.Y. Racing Ass'n, 233 F.3d 149, 156-7 (2d Cir. 2000).
Plaintiff is a black man who suffered an adverse employment action when he was terminated on March 3, 2000, satisfying the first and third elements of his prima facie claim. Although plaintiff was suspended for two driving infractions, the record shows that running out of gas was not an uncommon occurrence at the Y (see Pl.'s Dep. at 52), and plaintiff's assertion that drivers were not given particular routes is supported by the sworn statement of a former coworker. ( See Barsch Aff. Ex. D.) Furthermore, even though there is evidence suggesting Murray complained about plaintiff's cleaning (Sales Aff. ¶ 19; Murray Dep. at 7), plaintiff was never cited or suspended due to his cleaning responsibilities. Based on this evidence, plaintiff establishes the second element by showing his job performance satisfied the Y's expectations. See Thornley v. Penton Pub., Inc., 104 F.3d 26, 30 (2d Cir. 1997).
With regard to the fourth element, plaintiff was subjected to a continuous stream of racial epithets and jokes by his coworkers and supervisors, Hernandez and Crespo. of the individuals expressing racial bias, there is evidence Hernandez played a role in Englisher's decision to terminate plaintiff. The record shows Englisher consulted him on at least two of plaintiff's disciplinary infractions: the first incident with Crespo (Englisher Aff. Ex. D) and the formal warning letter. (Englisher Aff. Ex. E.) The record also establishes that Hernandez was present in the March 1, 2000 meeting which resulted in plaintiff's termination, informed Englisher about the incident involving Lopez, and was questioned by Englisher about the kicking and extortion allegations made by plaintiff on March 1, 2000. (Hernandez Dep. at 41; Pl.'s Dep. at 95; Englisher Aff. ¶ 27.) Even though Englisher did not express any bias, Hernandez's bias and participation in the events leading to plaintiff's termination are sufficient to taint the process and give rise to an inference of discrimination. See Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir. 1999); Romain v. Cigna Life Ins. Co., No. 01 Civ. 7228, 2002 WL 31385816, at *4 (S.D.N.Y. Oct. 22, 2002) (Cote, J.).
See Pl.'s Dep. at 42.
In response to plaintiff's prima facie case, the Y presents several legitimate, nondiscriminatory reasons for plaintiff's discharge by presenting evidence that plaintiff could not get along with his coworkers, was careless checking the gas gauge on the bus, disobeyed his supervisors, attended to personal errands while working, and exposed the Y's members to danger. See Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985) (citing inability to get along with coworkers as a legitimate nondiscriminatory reason for discharge); Kalsi v. N.Y. City Transit Auth., 62 F. Supp.2d 745, 756 (E.D.N.Y. 1998) (Gleeson, J.) (violation of safety procedures was itself alone a legitimate nondiscriminatory reason for discharge); Williams v. McCausland, No. 90 Civ. 7563, 1995 WL 548862, at *13 (S.D.N.Y. Sept. 15, 1995) (Katz, M.J.) (evidence of failure to fulfill responsibilities and obey superiors is sufficient to rebut prima facie case).
While the Y's reasons for plaintiff's discharge are consistent, see Greene v. Coach, Inc., 218 F. Supp.2d 404, 410 (S.D.N.Y. 2002) (Buchwald, J.) (inconsistent reasons for discharge considered evidence of pretext), its use of the incident where plaintiff broke Lopez's glasses is inconsistent. Englisher now claims that he was informed of this incident only in February of 2000, but there is evidence that he knew of this incident in November two days after it happened, and he presents no reason for his failure to act on information the Y now claims was adequate justification for plaintiff's discharge. This inconsistency damages the Y's credibility regarding its other reasons for discharging plaintiff, see Ramos v. Marriot Int'l, 134 F. Supp.2d 328, 343 (S.D.N.Y. 2001) (Conner, J.) (pretext can be inferred from defendant's inconsistent statements regarding discharge) and combined with Hernandez's potential bias and participation in the employment process is sufficient to establish the Y's reasons for discharge as pretextual for purposes of this motion.
B. Hostile work environment
In order to establish a sex or race-based hostile work environment, plaintiff must show [1] that the harassment was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and [2] that a specific basis exists for imputing the objectionable conduct to the employer. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997); Richardson v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426, 436 n. 2 (2d Cir. 1999).
Murray's comments about plaintiff's appearance and especially his desirability as a husband create a reasonable inference that Murray is homosexual and desired plaintiff sexually. See Moran v. Fashion Inst. of Tech., No. 00 Civ. 1275, 2002 WL 31288272, at *5 (S.D.N.Y. Oct. 7, 2002) (Wood, J.). Viewed objectively however, Murray's conduct towards plaintiff cannot support a finding of a hostile work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (conduct must be objectively severe or pervasive as well as subjectively so). Considering that Murray never touched plaintiff in any inappropriate way or subjected plaintiff to a practice of verbal abuse, the eight incidents that plaintiff alleges over a year and a half are neither pervasive nor severe in the way meant to sustain a Title VII claim. See O'Dell v. Trans World Entm't Corp., 153 F. Supp.2d 378, 386 (S.D.N.Y. 2001) (Scheindlin, J.) (summary judgment granted to defendant where plaintiff's evidence consisted of repeated requests to date, several written declarations of love, gifts, and compliments on plaintiff's appearance by coworker without a "pattern of verbal abuse" or any "inappropriate touching"); Feliciano v. Alpha Sector, No. 00 Civ. 9309, 2002 WL 1492139, at *8 (S.D.N.Y. July 12, 2002) (Schwartz, J.) (summary judgment granted to defendant where plaintiff presented evidence of compliments, requests to date, an attempt to hug, a kiss on the mouth, phone calls, and stated desire to "lay with" plaintiff by coworker); Gonzalez v. Kahan, No. 88 Civ. 922, 1996 WL 705320, at *3.4 (E.D.N.Y. Nov. 25, 1996) (Dearie, J.) (summary judgment granted to defendant where plaintiff's evidence consisted of a bear hug, requests to date, a marriage proposal, and an obscene phone call).
Plaintiff's race-based harassment claim, on the other hand, does create material issues of fact. Even though plaintiff acknowledges the meaning of "Bolunga" is ambiguous if not unknown (Pl.'s Dep. at 64), plaintiff's interpretation that it was an unambiguous racial epithet is reasonable as plaintiff and those who used the term considered it to be racially derogatory. (Barsch Aff. Ex. D.; Pl.'s Dep. at 64.) Similarly, while the court acknowledges Crespo's statement that plaintiff played basketball "like an animal" could have a race-neutral interpretation, nonetheless, it should be considered in the context of the repeated referrals to plaintiff as "Bolunga," see Richardson, 180 F.3d at 439 (use of unambiguous racial epithets will alter work environment), the statements comparing plaintiff to a slave, stereotyping of blacks as excellent basketball players, and plaintiff's uniforms being placed on a gorilla. See Richardson, 180 F.3d at 439. When viewed in this context of repeated racial slurs and extremely degrading racist jokes, a reasonable person could find their work environment altered by pervasive discriminatory insult and ridicule. See Richardson, 180 F.3d at 439.
The Y contends that plaintiff did not subjectively perceive his work environment to be hostile. In his deposition, plaintiff's reactions to the discriminatory actions ranged from on the one hand, "I didn't think it was a big deal" (Pl.'s Dep. at 150), his coworkers were "just playing with [him]" (Pl.'s Dep. at 64), and he "didn't pay no mind" (Pl.'s Dep. at 62), to, on the other he was "getting bothered by it" (Pl.'s Dep. at 67), and "it had an effect emotionally. . . I never had a good feeling." (Pl.'s Dep. at 149-50.) However, in light of plaintiff's remarks that he "wasn't trying to get nobody in trouble" (Pl.'s Dep. at 138), a reasonable inference from these statements is that due to his low status in the hierarchy, plaintiff felt he should just put up with the abusive behavior. That plaintiff endured and tolerated this pattern of conduct however does not eliminate as an issue of fact plaintiff's perception of a work environment fundamentally altered by pervasive racial insult and ridicule.
Furthermore, the Y is presumptively liable for the actions of its supervisors, Hernandez and Crespo, and since there is no evidence to suggest the Y made any efforts to prevent or correct the harassment nor has it shown what, if any, remedial opportunities were available to plaintiff, a jury could impute liability to the Y for Hernandez and Crespo's harassment. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 n. 8 (2d Cir. 2000).
C. Retaliation
In order to establish a prima facie case of retaliation under Title VII, "a plaintiff must show (1) that the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
Plaintiff complained to Crespo that Murray was sexually harassing him and plaintiff was terminated, satisfying the first and third elements of pLaintiff's prima facie case. Although Crespo was not plaintiff's official supervisor, the Y was aware and approved of Crespo's assumption of Hernandez's duties when Hernandez was absent. (Englisher Aff. ¶ 7.) This delegation of responsibility by the Y created an agency relationship between Crespo and the Y and as a consequence imputes Crespo's knowledge of plaintiff's protected activity to the Y. See Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir. 1997). There is, however, no direct evidence of any connection between plaintiff's protected activity, Crespo's knowledge, and plaintiff's termination. Furthermore, the six month gap between the complaint and termination also suggests there was no causal connection between plaintiff's termination and his protected activity. See Gordon v. N.Y.C. Bd. of Ed., 232 F.3d 111, 116 (2d Cir. 2001) (close temporal proximity between protected activity and adverse employment action is indirect evidence of retaliation).
Plaintiff complained to Englisher about Murray and requested a meeting between the three of them. Plaintiff, however, never told Englisher about the sexual harassment, and the meeting never took place. (Pl.'s Dep. at 111, 124; Pl.'s Aff. ¶ 19.) Plaintiff also asked Hernandez to transfer him from the kitchen but did not say this was because of Murray's sexual harassment. (Pl.'s Dep. at 116-17.) Accordingly, these actions by plaintiff did not make the Y aware of any protected activity.
On March 1, 2000, after the initial meeting between Englisher, Hernandez, and plaintiff, plaintiff complained to Englisher that his coworkers called him "Bolunga." (Pl.'s Mem. of Law in Opp. at 17; Englisher Dep. at 32.) Plaintiff, however, does not contradict the Y's evidence that plaintiff failed to explain to Englisher the racially derogatory use of "Bolunga." Without an explanation of this ambiguous term, the Y cannot be found aware of plaintiff's protected activity. See Lapsley v. Columbia University-College of Physicians, 999 F. Supp. 506, 525 (S.D.N.Y. 1998) (Chin, J.) (summary judgment granted where plaintiff had one conversation in which she alleged a discriminatory promotion but failed to "explain the basis of her feeling" and "never articulated the basis for her belief of discrimination").
D. Plaintiff's New York City Human Rights Law claims
The Y asserts that plaintiff failed to satisfy a condition precedent to a successful New York City Human Rights Law claim by neglecting to serve a copy of his complaint on the New York City Commission on Human Rights and on the New York City Corporation Counsel according to N.Y.C. Administrative Code § 8-502(c). However, the majority of courts in this Circuit as well as the New York Appellate Division support plaintiff's position that failure to comply with § 8-502(c) is not fatal to a claim under the Human Rights Law. See Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999 WL 796172, at *15 (S.D.N.Y. Sept. 30, 1999) (Preska, J.); Cully v. Milliman Robertson, Inc., 20 F. Supp.2d 636, 643-44 (S.D.N.Y. 1998) (Motley, J.) (citing Bernstein v. 1995 Assocs., 217 A.D.2d 512, 515-16, 630 N.Y.S.2d 68, 71-2 (1st Dept. 1995)).
III. Hybrid § 301/DFR claim
A. Breach of Fair Representation
A successful hybrid § 301/DFR claim is predicated on plaintiff proving that the Union breached its duty of fair representation and that the Y breached the CBA. White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001). If plaintiff fails to establish a breach by the Union or the Y, the hybrid claim fails. See White, 237 F.3d at 183 n. 13.
¶ 301 of the Labor Management Relations Act governs the employer's duty to honor the collective bargaining agreement, and the duty of fair representation is implied from § 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a). See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
On the whole the Union was responsive to plaintiff's concerns. Plaintiff spoke to his Union representatives regularly (Pl.'s Dep. at 159), Chase and Santiago ensured that his grievances were timely filed and appealed (Pl.'s Dep. at 227-28), and plaintiff acknowledges that Chase and Santiago made a good faith effort in his grievances to defend him and get his job back. (Pl.'s Dep. at 194.) Although plaintiff was prevented from having an attorney represent him in his grievances, there is no evidence to suggest this was done in bad faith, that Chase and Santiago were less than competent advocates, or that as a matter of law plaintiff is entitled to an attorney. See Mullen v. Bevona, No. 95 Civ. 5838, 1999 WL 974023, at *3 (S.D.N.Y. Oct. 26, 1999) (Leisure, J.) (union's duty is discharged when in good faith it represents its members with a competent advocate); Henry v. Community Res. Ctr., Inc., No. 95 Civ. 5480, 1996 WL 251845, at *8 (S.D.N.Y. May 13, 1996) (Peck, M.J.) (rejecting as a matter of law that union members are entitled to an attorney in grievance proceedings).
Plaintiff claims that the Union breached its duty by discouraging plaintiff from sending his letter to the Y. The Union, however, was aware that following plaintiff's first suspension the Y was concerned about plaintiff's ability to control his temper at work. In light of these circumstances, it was rational for Chase to counsel plaintiff against sending a letter in which he admits to walking off the job because he was upset, admits to verbal insubordination towards Murray, and mentions getting "upset" or "very upset" on four different occasions, if only to protect plaintiff from more employer discipline. See White, 237 F.3d at 179 (a breach will be found if the union's conduct is so irrational as to be arbitrary).
It should be noted that the letter does not give any reason to believe plaintiff was a victim of Title VII violations.
Plaintiff further alleges that the Union breached its duty by not investigating or presenting his Title VII claims as defenses in his grievance hearings and neglecting to inform him of witness statements. With regard to the race discrimination claim, this argument fails for several reasons. First, plaintiff cannot claim a breach based on a failure to present his Title VII claims because the record shows that he presented them himself to the Board in his final grievance hearing. (Pl.'s Aff. ¶ 22.) Second, the Union concluded plaintiff's claim lacked merit after interviewing two of plaintiff's immediate coworkers, both of whom did not support plaintiff's claim of racial discrimination. (Chase Aff. Ex. I.) See Taylor v. MCI, Intern., 215 F. Supp.2d 347, 350 (S.D.N.Y. 2002) (Sprizzo, J.) (union's conclusion that claim lacks merit is not a breach if made after a good faith investigation). Finally, though it is undisputed that the Union failed to inform plaintiff of witness statements, the Union's duty of fair representation extends only to informing its members of the responsibilities and obligations which are likely to affect their jobs and interests, and not all of the incidents of processing their member's grievances. See NLRB v. Local 282, Int'l Bhd. of Teamsters, Chauffeurs, 740 F.2d 141, 147 (2d Cir. 1984); Beckman v. U.S. Postal Service, 79 F. Supp.2d 394, 404 (S.D.N.Y. 2000) (Leisure, J.) (failure to inform grievant of the status of his grievance is not a breach).
Where the Union's actions could be classified as a breach of duty is in its failure to investigate plaintiff' s claim of sexual harassment. The record shows that the Union never interviewed Murray or investigated plaintiff's claim. (Murray Dep. at 12.) While the facts involving plaintiff's suspensions and termination were unrelated to Murray, the Union does have minimum standards of fairness to uphold and its failure to at least inquire into an alleged illegal employment practice may constitute a breach of its duty. See Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1153 (2d Cir. 1994) (union omissions are a breach of duty when they fall below minimum standards of fairness and are unrelated to legitimate union interests).
Even if a jury could find a breach of duty, plaintiff must establish that if Chase investigated his claim, the Union would have recommended plaintiff's grievance for arbitration and an arbitrator would have found in plaintiff's favor. See Spellacy v. Airline Pilots Ass'n—Int'l, 156 F.3d 120, 126 (2d Cir. 1998); Cunningham v. Local 30, Int'l Union of Operating Eng'r, No. 99 Civ. 10965, 2002 WL 31770825, at *15 (S.D.N.Y. Dec. 11, 2002) (Mukasey, J.). Plaintiff, however, is unable to show this because, as discussed earlier, his claim of sexual harassment fails as a matter of law and as such there is no reason to believe the Union or an arbitrator would have found plaintiff's claim meritorious.
IV. Fees and Costs
As the prevailing party in plaintiff's breach of fair representation suit, the Union does not present the clear evidence of bad faith required to impose attorney's fees on plaintiff's counsel under 28 U.S.C. § 1927 or through the exercise of the court's inherent equitable powers. See Revson v. Cinque Cinque, P.C., 221 F.3d 71, 78-9 (2d Cir. 2000). Plaintiff fails to meet his burden in opposing the Union's motion for costs pursuant to Rule 54(d), F.R.Civ.P., by alleging only that costs should not be awarded. See Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001). Since awards of costs are a matter of course to the prevailing party under Rule 54(d), F.R.Civ.P., the Union's motion for costs is granted. See Mercy v. County of Suffolk, 748 F.2d 52, 54 (2d Cir. 1984).
V. Conclusion
For the foregoing reasons, summary judgment is granted to the Union and Y on plaintiff's § 301/DFR claim and granted to the Y on plaintiff's claim of sex-based hostile work environment and retaliation. Summary judgment is denied to the Y on plaintiff's claim of unlawful racial discrimination, race-based hostile work environment, and plaintiff's New York City Human Rights Law claim.