Bacchus v. N.Y.C. Dep't of Educ.

• Citation: 137 F.Supp.3d 214
• Decision Date: 30 September 2015
• Docket Number: Case No. 12 CV 1663(PKC).
• Parties: Merlene BACCHUS, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; District Council 37, AFSCME, AFL–CIO; Board of Education Employees Local 372; and Renee Pepper, Defendants.
• Court: U.S. District Court — Eastern District of New York

137 F.Supp.3d 214

Merlene BACCHUS, Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION; District Council 37, AFSCME, AFL–CIO; Board of Education Employees Local 372; and Renee Pepper, Defendants.¹

Case No. 12 CV 1663(PKC).

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

Signed Sept. 30, 2015.

Vincent I. Eke–Nweke, Law Office of Vincent I. Eke–Nweke, P.C., Brooklyn, NY, for Plaintiff.

Jeremy Laurence Jorgensen, Kathryn E. Martin, Yuval Rubinstein, New York City Law Department, Jesse Douglass Gribben, Ximena Castro, New York, NY, for Defendants.

MEMORANDUM & OPINION

PAMELA K. CHEN, District Judge:

Plaintiff Merlene Bacchus, a former school aide in the New York City public school system, brings this action against the New York City Department of Education ("DOE"), District Council 37 and its affiliate, the Board of Education Employees Local 372 (collectively "Union Defendants" or "Union"), and Renee Pepper ("Pepper"), assistant principal at Public School 259 ("PS 259"). Bacchus alleges that the DOE and Pepper violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL") by embarking on a disciplinary campaign against Bacchus that resulted in her termination, subjecting her to a hostile work environment, and retaliating against her after she complained to the DOE and the New York State Division of Human Rights. Bacchus also alleges that the Union Defendants breached their duty of fair representation to her.

There are three motions currently pending before the Court. The DOE and Pepper (collectively, "the City Defendants" or "the City") move for summary judgment on Bacchus's discrimination and retaliation claims. The Union and Bacchus each cross-move for summary judgment with respect to Bacchus's State and City law claims for breach of the duty of fair representation.

For the reasons set forth below, the Court grants the City Defendants' motion for summary judgment in part and denies it in part. Specifically, the Court grants summary judgment to the City Defendants on Bacchus's Title VII and NYSHRL retaliation and retaliatory hostile work environment claims; and NYCHRL retaliation and retaliatory hostile work environment claims. The Court denies summary judgment to the City Defendants on the remainder of Bacchus's Title VII, NYSHRL, and NYCHRL claims. The Court denies summary judgment to the Union and Bacchus on her State law claim for breach of the duty of fair representation. The Court dismisses Bacchus's 42 U.S.C. § 1981 claims, her breach of contract claim against the DOE, and her City law claim for breach of the duty of fair representation. Finally, with respect to the claims remaining in this case, the Court dismisses Pepper from Bacchus's Title VII claims, and the DOE from Bacchus's NYSHRL and NYCHRL discrimination claims.

I. BACKGROUND AND FACTS

A. The Union's Failure To Oppose Bacchus's 56.1 Statement

Pursuant to Local Rule 56.1(c), "[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Civ. R. 56.1(c). The Union submitted a Rule 56.1 statement in support of its summary judgment motion (Dkt. 66, Union Defendants' Local Rule 56.1 Statement ("Union 56.1")), but failed to submit an opposing statement to Bacchus's 56.1 Statement supporting her cross-motion for summary judgment. Bacchus therefore asks the Court to deem all facts in her 56.1 Statement as uncontested. (Dkt. 77, Bacchus Reply Memorandum ("Bacchus DFR Reply"), at ECF 1–2.)²

"Where the party opposing a motion for summary judgment fails to submit a proper counterstatement of material facts, the court may choose to accept all factual allegations of the opposing part[y] as true for the purposes of deciding the motion." Mt. Hawley Ins. Co. v. Abraham Little Neck Dev. Grp., Inc., No. 09 CV 3463, 2015 WL 867010, at *5 (E.D.N.Y. Feb. 27, 2015) (internal quotations and citations omitted) (emphasis in original). Alternatively, the Court may opt to conduct an assiduous review of the record. Id. Given the nature of the case, and the competing 56.1 statements filed on the Union's motion for summary judgment, the Court has elected to conduct such a review of the record rather than accept all factual allegations in Bacchus's 56.1 statement as true.

B. Facts

The following facts are undisputed unless otherwise noted.³

1. Parties and Individuals Relevant to Bacchus's Claims

Merlene Bacchus, a black woman, is of Guyanese national origin. (DOE 56.1, ¶ 3; Pl. DFR 56.1, ¶ 1.) She worked for the DOE as a School Aide from approximately December 1994 through March 11, 2011. (Pl. DFR 56.1, ¶ 2.) From about September 4, 2007 through March 11, 2011, Bacchus was assigned to PS 259, located in Jamaica, Queens. (Pl. DFR 56.1, ¶ 3; DOE 56.1, ¶ 2). Her duties included answering phones, making copies, maintaining book inventory, delivering books to classrooms, supervising students, and performing related work for the principal and PS 259 office staff. (DOE 56.1, ¶ 6.)

The principal of PS 259, Angela Thompson, hired Bacchus. (DOE 56.1, ¶ 2.) Thompson also identified as black. She died in January 2012 and is not a named defendant in this suit. (DOE 56.1, ¶ 4.) Defendant Renee Pepper was an Assistant Principal at PS 259. (DOE 56.1, ¶ 13.) Barbara Levy began working Thompson's secretary in August 2007. (DOE 56.1, ¶ 14.) Colleen O'Connell was a guidance counselor at PS 259; her duties included taking student statements regarding student problems or conflicts. (DOE 56.1, ¶¶ 15–16.) Jennifer LaBella was a teacher at PS 259. (Dkt. 79–6 at ECF 3.) Levy, O'Connell, and LaBella are not named as defendants in this suit.

Other school aides who worked at PS 259 during the relevant time frame included: Trina Mixon, who is black and non-West Indian; Katarzyna Lopez, who is white and of Polish national origin; Donna Arjoon, who is West Indian;⁴ and Shawn Horton, who is black and non-West Indian. (DOE 56.1, ¶¶ 7–9; Dkt. 70, Affidavit of Donna Arjoon.) In November 2009, PS 259 laid off Lopez and Horton due to budget cuts. (DOE 56.1, ¶ 9.) Lopez and Horton occasionally worked as substitute aides and Lopez returned to PS 259 full-time in January 2011. (DOE 56.1, ¶¶ 11–12.)

During her DOE employment, Bacchus belonged to the American Federation of State, County, Municipal Employees, District Council 37 ("District Council 37") and its affiliate, Local 372, and was a member in good standing. (Pl. DFR 56.1, ¶¶ 4, 7.) The Union officials relevant to this action are Robin Roach, General Counsel for District Council 37 (Pl. DFR 56.1, ¶ 5); Myrna Cabranes, Assistant Director of District Council 37 (Pl. DFR 56.1, ¶ 6); Phyllis Wambser, Union representative for all School Aides (Pl. DFR 56.1, ¶ 8); and Craig Dickerson, who replaced Wambser as representative upon Wambser's retirement, (Pl. DFR 56.1, ¶ 10).

A collective bargaining agreement ("CBA") between the DOE and the Union covered Bacchus's employment. (Pl. DFR 56.1, ¶¶ 13.a–13.e.) The CBA set forth a four-step grievance procedure. (Union 56.1, ¶ 5.) In cases of suspensions and terminations, the Union could initiate a grievance at the second level ("Step 2"). (Union 56.1, ¶ 6.) If denied at Step 2, the Union could take the grievance to a third level ("Step 3"). (Dkt. 80–5 at ECF 59.) If denied at step 3, the Union could appeal the denial and request that the grievance be arbitrated before a grievance panel. (Union 56.1, ¶ 7.) The CBA provided that "[u]pon request to the head of the school, a Union staff representative shall be permitted to meet with the employees in the unit during their non-working time, within the school, for the purpose of investigating complaints and grievances[.]" It also provided that a Union representative "shall be permitted to investigate grievances and complaints during working time provided such grievances require inspection of working conditions at the work location." (Pl. DFR 56.1, ¶ 13.b (quoting CBA, Article XX).)

The Union maintains that it has established procedures that are initiated upon the filing of a grievance by a union member. (Union 56.1, ¶ 8.) With respect to a denial of a grievance at the Step 3 level, the grievance representative submits an internal request for arbitration to one of the Union's Assistant Directors. (Union 56.1, ¶ 9.) The Assistant Director reviews the request and then forwards the case to the Union's Legal Department. (Union 56.1, ¶ 9; Pl./Union 56.1 Opp., ¶ 9.) The Associate General Counsel of the Union⁵ conducts a merit review of arbitration requests sought by Union members. (Union 56.1, ¶¶ 13–15.)

2. Bacchus's Affidavit in Opposition to the City Defendants' Motion

Before recounting the events relevant to Bacchus's claims, the Court addresses the City's objection to the July 29, 2014 affidavit Bacchus submitted in opposition to the City's motion. (DOE Reply Memo at ECF 2–4.) The City contends that the affidavit makes certain allegations that appear for the first time in the affidavit; Bacchus apparently did not raise these allegations in her rebuttal statements to the DOE, her complaints to the DOE's Office of Equal Employment ("OEO"), her complaints to the NYSDHR, or her deposition. (Id. at ECF 3.)

"[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) ). "[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial." Id. Thus, "statements in an affidavit filed in response...