Redfern-Wallace v. News

• Decision Date: 09 March 2016
• Docket Number: 12-CV-00471V(F)
• Parties: DORIS REDFERN-WALLACE, Plaintiff, v. BUFFALO NEWS, and CWA LOCAL 81, Defendants.
• Court: U.S. District Court — Western District of New York

DORIS REDFERN-WALLACE, Plaintiff, v. BUFFALO NEWS, and CWA LOCAL 81, Defendants.

12-CV-00471V(F)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 9, 2016

REPORT and RECOMMENDATION

APPEARANCES:

DORIS REDFERN-WALLACE, Pro Se

796 West Avenue

Buffalo, New York 14213

BOND, SCHOENECK & KING, PLLC

Attorneys for Defendant Buffalo News

SCOTT PATRICK HORTON, and

MICHAEL E. HICKEY, of Counsel

Avant Building

200 Delaware Avenue

Suite 900

Buffalo, New York 14075

ROSENBLATT & GOSCH PLLC

Attorneys for Defendant CWA Local 81

RICHARD ROSENBLATT, of Counsel

8085 East Prentice Avenue

Greenwood Village, CO 80111

REDEN & O'DONNELL, LLP

Attorneys for Defendant CWA Local 81

ROBERT J. REDEN, of Counsel

135 Delaware Avenue

Suite 410

Buffalo, New York 14202

JURISDICTION

This action was referred to the undersigned by Honorable Richard J. Arcara on October 29, 2014, for all pretrial matters including preparation of a report and recommendation on dispositive motions.¹ The matter is presently before the court on motions for summary judgment filed on October 31, 2014 by Defendants Buffalo News (Doc. No. 99), and CWA Local 81 (Doc. No. 100).

BACKGROUND

Plaintiff Doris Redfern-Wallace ("Plaintiff"), commenced this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. al ("Title VII"), on May 22, 2012, against Defendants including her former employer The Buffalo News ("The News"), and her former labor bargaining unit Defendant Buffalo Mailers Union No. 81, CWA ("the Union"). On October 18, 2012, Plaintiff filed a Supplemental Complaint (Doc. No. 8). Both The News and the Union moved to dismiss for failure to state a claim by motions filed, respectively, February 7, 2013 (Doc. No. 11), and February 20, 2013 (Doc. No. 19). By Decision and Order filed July 17, 2013 (Doc. No. 40) ("July 17, 2013 D&O"), the motions to dismiss were granted in part and denied in part, with Plaintiff directed to file an amended complaint in which the only claims for relief which could be pleaded included (1) an unfair labor practice claim against The New pertaining to the termination of Plaintiff's employment on January 9, 2012; (2) a specific Title VII claim against The New for events occurring on or after December 10, 2010; and (3) a breach of the duty of fair representation claim against the Union for events occurring on or after September 20, 2011, related to the termination of Plaintiff's employment and the Union's investigation of the same. July 17, 2013 D&O at 10. Plaintiff was further instructed that for each of the three claims she was permitted to plead Plaintiff was to present "an organized, chronological and clear"list or description of the asserted violations and relevant facts. Id. In her Amended Complaint filed July 26, 2013 (Doc. No. 41) ("Amended Complaint"), although Plaintiff does specify her Title VII claim against The New is based on race, Amended Complaint ¶ 1, the Amended Complaint otherwise does not allege with the desired clarity the claims Plaintiff was permitted to replead.

On October 31, 2014, the instant motions for summary judgment were filed by The News (Doc. No. 99) ("The News' Motion"), and the Union (Doc. No. 100) ("the Union's Motion") (together, "the Motions"). The News' Motion is supported by the attached Statement of Material Facts Pursuant to Local Rule 56.1 (Doc. No. 99-1) ("The News' Statement of Facts"), the Attorney Affidavit of Scott P. Horton, Esq. (Doc. No. 99-2) ("Horton Affidavit"), attaching exhibits A through E (Docs. Nos. 99-3 through 99-7) ("Horton Affidavit Exh(s). ___"), the Affidavit of Lawrence Bayerl (Doc. No. 99-8) ("Bayerl Affidavit"), attaching exhibits A and B (Doc. No. 99-9) ("Bayerl Affidavit Exh(s). ___"), the Affidavit of Aaron Gallivan (Doc. No. 99-10) ("Gallivan Affidavit"), attaching exhibits A through C (Doc. No. 99-11) ("Gallivan Affidavit Exh(s). ___"), the Memorandum of Law in Support of Defendant The Buffalo News, Inc.'s Motion for Summary Judgment (Doc. No. 99-12) ("The News' Memorandum"), and the Notice to Pro Se Litigants (Doc. No. 99-13), advising Plaintiff that her failure to respond in opposition to The News' Motion may result in judgment be granted in favor of The News. The Union's Motion is supported by the attached CWA Local 81's Statement of Material Facts (Doc. No. 100-1) ("Union's Statement of Fact"), the Union's Appendix to Local Rule 56 Statement of Material Facts - Declarations (Doc. No. 100-2) ("Union's Declarations"), the Union's Appendix to Local Rule 56 Statement of Material Facts - Depositions (Doc. No. 100-3)("Union's Depositions"), the Union's Appendix to Local Rule 56 Statement of Material Facts - Deposition Exhibits Part 1 (Doc. No. 100-4) ("Union's Deposition Exhibits Pt. 1"), the Union's Appendix to Local Rule 56 Statement of Material Facts - Deposition Exhibits Part 2 (Doc. No. 100-5) ("Union's Deposition Exhibits Pt. 2"), the Union's Compendium of Unpublished Cases (Doc. No. 100-6) ("Union's Compendium of Unpublished Cases"), the Memorandum in Support of CWA Local 81's Motion for Summary Judgment (Doc. No. 100-7) ("Union's Memorandum"), and the Notice to Pro Se Litigants (Doc. No. 99-13), advising Plaintiff that her failure to respond in opposition to the Union's Motion may result in judgment granted in favor of the Union.

In opposition to the Motions, Plaintiff electronically filed on November 12, 2014, her "Response to Defendants [sic] Motion for Summary Judgement [sic]" (Doc. No. 101) ("Plaintiff's Response"), and manually filed a box of exhibits (Doc. No. 102) ("Plaintiff's Exh(s). ___"). On December 1, 2014, The News filed the Reply Memorandum of Law in Further Support of Defendant The Buffalo News, Inc.'s Motion for Summary Judgment (Doc. No. 104) ("The News' Reply"), attaching the Attorney Reply Affidavit of Scott P. Horton, Esq. (Doc. No. 104-1) ("Horton Reply Affidavit"). Also filed on December 1, 2014, was CWA Local 81's Reply Memorandum of Law in Support of Its Motion for Summary Judgment (Doc. No. 105) ("Union's Reply"). On December 4, 2014, Plaintiff, without seeking permission from the court, filed a single page document entitled "Motion to Ask Court to Comply with Rule 56 of Civil Procedure (Affidavit) Notarization" (Doc. No. 106) ("Plaintiff's Sur-Reply"), requesting that Plaintiff's failure to strictly comply with certain requirements of Fed.R.Civ.P. 56 ("Rule 56"), such as the requirement thatPlaintiff file a notarized affidavit opposing summary judgment, be excused in light of Plaintiff's pro se status. Oral argument was deemed unnecessary.

Based on the following, the Motions seeking summary judgment should be GRANTED.

FACTS²

On August 28, 1993, Plaintiff Doris Redfern-Wallace ("Plaintiff" or "Redfern-Wallace"), who is African-American, commenced employment with Defendant The Buffalo News ("The News"), working in the mailroom as an apprentice, advancing to a helper and then in 2004 to journeyperson, a position for which the job responsibilities included working on the assembly line, stacking waste paper, and wrapping bundles of newspapers. For the duration of her employment as a mailroom employee, Plaintiff was a member of Defendant Buffalo Mailers Union No. 81 CWA ("the Union" or "Local M-81"). The News has a collective bargaining agreement ("CBA")³ with the Union which governs the terms and conditions of the Union members' employment. All mailroom employees are required to abide by workplace rules ("Mailroom Rules"),⁴ established by The News requiring, inter alia, "[e]mployees shall not engage in horseplay or any other distracting/disruptive behavior. It is not acceptable to yell, curse or facilitate a confrontation." Mailroom Rule 5. Additionally, the Mailroom Rules require that "[e]mployees must avoid all types of harassment of others including verbal and/or physical threats and abuse, and sexual or racist harassment/remarks." Mailroom Rule 10. Further, "[t]he use of CELL PHONES (talking, texting, time etc), BLUETOOTHS,headphones, or any other device that may impede or distract an employees' [sic] ability to do his/her job is prohibited. NO ONE, including lead people, should be using these devices." Mailroom Rule 6 (capitalization and underlining in original). At all times relevant to this action, other mailroom employees of The News included Mailroom Manager Aaron Gallivan ("Gallivan"), and Assistant Mailroom Manager Chad Johnson ("Johnson"). Plaintiff, as a mailroom journey person was supervised by and received direction from Gallivan and Johnson, as well as from two categories of lower-level supervisors, i.e., "blue shirts" and "lead persons." As Mailroom Manager, Gallivan supervised all mailroom employees, disciplining them when necessary. At all times relevant to this action, Lawrence Bayerl ("Bayerl") was General Counsel and Director of Human Resources for The News. The News maintains a written Equal Employment Opportunity and Anti-Harassment Policy ("Anti-Harassment Policy"),⁵ with which Plaintiff had been provided. As relevant, the Anti-Harassment Policy defines prohibited forms of harassment to include

conduct which denigrates or shows hostility or aversion to an individual because of . . . her . . . race, . . . color, . . . gender, . . . age, . . . marital status, or predisposing genetic characteristics, . . and which

a) Has the purpose or effect of creating an intimidating, hostile, or offensive work environment; or

b) Has the purpose or effect of unreasonably interfering with an individual's work performance; or

c) Otherwise adversely affects an individual's employment opportunities.

Anti-Harassment Policy § B (capital letters in original).

On Plaintiff's birthday on September 20, 2011, Plaintiff began her shift at 9:00 p.m., and later ate lunch with her co-workers, including Plaintiff's friend Karen Greiner ("Greiner"). While at lunch, Plaintiff perceived that some of her other co-workers werecalling Plaintiff names including "chicken head" and "chia pet." Amended Complaint ¶ 2. Plaintiff...