502 F.Supp.2d 390 (S.D.N.Y. 2007), 06 Civ. 4909, Lewis v. North General Hosp.

• Date: 23 August 2007
• Citation: 502 F.Supp.2d 390
• Docket Number: 06 Civ. 4909(DC).
• Parties: Darren LEWIS, Plaintiff, v. NORTH GENERAL HOSPITAL and 1199SEIU United Health Care Workers East, Defendants.
• Court: U.S. District Court — Southern District of New York

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502 F.Supp.2d 390 (S.D.N.Y. 2007)

Darren LEWIS, Plaintiff,

v.

NORTH GENERAL HOSPITAL and 1199SEIU United Health Care Workers East, Defendants.

No. 06 Civ. 4909(DC).

United States District Court, S.D. New York.

Aug. 23, 2007

Page 391

[Copyrighted Material Omitted]

Page 392

Darren Lewis, Bronx, NY, pro se.

Rosenbluth & Rosenbluth by Thomas S. Rosenthal, Esq., New York, NY, for Defendant North General Hospital.

Levy Ratner, P.C. by Allyson L. Belovin, Esq., New York, NY, for Defendant 1199SEIU United Health Care Workers East.

OPINION

CHIN, District Judge.

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.

STATEMENT OF THE CASE

A. The Facts

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.

1. The Parties

Lewis is a gay African American man. (Pl. 4/10/07 Decl. ¶ 31; see Pl. H56.1 at 4, 5). ¹ He is not Muslim. (Pl. H56.1 at 25).

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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," ² and it was understood that Lewis would have to obtain his license either as a certified social worker or licensed master social

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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). ³

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). ⁴ 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).

4. Lewis's Complaints

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

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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 occurrences [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...