OPINION
Dеfendants Union Food and Commercial Workers International Union (the “International”) and United Foods and Commercial Workers Union Local 888 (“Local 888”) (collectively, the “Unions”) have moved for dismissal of plaintiff Magdalene Nweke’s (“Nweke”) complaint as to the claims against them pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, pursuant to Rule 12(b)(6) for failure to state a cause of action, and for summary judgment pursuant to Rule 56. Specifically, (1) the Unions have moved to
For the reasons set forth below, the Unions’ individual motions are granted in part and denied in part. Ultimately, however, the Unions’ motion for summary judgment is granted and the complaint is dismissed.
Parties
Nweke, an individual residing in New York, New York, was previously employed by The Prudential Insurance Company of America (“Prudential”), a Delaware corporation authorized to do business in the State of New York.
The International is a labor organization representing employees in an industry affecting commerce. It maintains its principal offices in Washington, D.C.
Local 888 is a labor organization represеnting employees in an industry affecting commerce and maintains its principal offices in Mount Vernon, New York. It was at all relevant times to this action the International’s collective bargaining agent or representative with respect to the International’s collective bargaining units located in the State of New York. Local 888 was at all relevant times affiliated with, controlled, and managed by the International. The International and Local 888 were at all relevant times the recognized exclusive collective bargaining representatives of the bargaining unit consisting of all district agents employed by Prudential within the State of New York.
Prior Proceedings
Nweke filed her complaint against Prudential and the Unions on December 10, 1996 (the “Complaint”), alleging race, sex, and disability discrimination pursuant to Title VII, 42 U.S.C. § 1981, the ADA, the New York State Human Rights Law (the “NYHRL”), Executive Law § 296 et seq., and the New York City Civil Rights Law (the “NYCCRL”). A stipulation and order of dismissal as to Prudential was entered into on January 21, 1998. The Unions filed the instant motion on March 16, 1998, and it was deemed fully submitted, without oral argument, on July 29, 1998.
Facts
Nweke is a black female who was employed by Prudential as an insurance agent from March 1989 through March 24, 1995, when she was discharged. Nweke worked at the Sheepshead Bay district throughout her employment with Prudential. During Nweke’s employment, the International was her exclusive collective bargaining representative and a party to successive collective bargaining agreements (“CBA”) with Prudential. The CBAs governed many of the terms and conditions of employment of the insurance agents. Nweke was a member of Local 888, an affiliated local union of the International which represents employees in New York. Local 888 administered the CBA at the local level for the International.
The constitution of the International, which also governs Local 888, the bylaws of Local 888, and the CBAs require the Unions not to discriminate against its members on the grounds of disability, sex, and race.
In May 1993, Nweke notified her sales manager, John Zaia (“Zaia”), and the district manager, Raymond Martinez (“Martinez”), that she was pregnant. On July 23, 1993, Nweke was placed on short-term disability leave (“STD”) or maternity leave from work. According to Nweke, prior to the time she notified Zaia and Martinez that she was pregnant, she had a cordial relationship with them. Nonetheless, asserts Nweke, Zaia and Martinez became hostile toward her upon
Prudential’s disability unit required Nweke to work in January 1994 because additional benefits had not been approved to enable her to continue her leave. Nweke returned to work for three days on January 21 through January 24, 1994, and then resumed her disability leave. Nweke contends that she went back on disability leave because she was unable to concentrate, think clearly, make telephone calls, read, or talk to anyone in the office. She states that Prudential treated her absence as an unauthorized leave of absence and punished her by generating payroll checks with negative balances for her, instead of cheeks for disability benefits, and refused to release her wage and income statement.
In May 1993, prior to taking her initial leave of absence, Nweke began seeing a psychiatrist. She did not disclose to Prudential or the Unions that she was seeing a doctor. On July 26, 1993, shortly after her leave began, Nweke wrote a letter to Zaia that her pregnancy was neither a mental illness nor a state of ill health. In the same letter, Nweke wrote that she was not incapable of functioning due tо her health. In a letter to Zaia dated July 31, 1993, Nweke stated, “this is just maternity leave.” While on leave, Nweke gave birth to a child on October 1, 1993.
Following the delivery of her baby, Nweke was diagnosed with acute bilateral arthralgia of both hands and wrists by Dr. Y.A. Paignajen. During the same period, she was also diagnosed with neurotic depression and postpartum depression by Dr. Ewa, a psychiatrist who treated her with individual psychotherapy. Additionally, Nweke was treated by Dr. Lawrence C. Miller, a psychiatrist, who diagnosed her with major depression on December 24, 1994, and placed her on Prozac.
Nweke’s leave ended March 1, 1994, and following her doctors’ recommendations, she returned to work March 2, 1994. In a March 3, 1994 letter to Martinez, Nweke principally complained about her failure to get proper disability compensation and returned four checks which she stated were for incorrect amounts. She also wrote that she was not at liberty to discuss her medical condition because of her privacy concerns. According to Nweke, on her return to work, her job condition changed for the worse. She was forced to work under Madelyn Harte (“Harte”). Nweke describes Harte as an inexperienced agent who was promoted over Nweke from the position of an agent to sales manager in the same week that Nweke returned to work. When Nweke questioned why Harte was promoted before she was and why she had to work under Harte, Martinez stated that Harte would not leave him to go and have a child since Harte had passed the child-bearing age. Nweke submits that Martinez stated to her that she chose a baby over her career.
According to Nweke, she telephoned John Provenzano (“Provenzano”), then Director of Insurancе for Local 888, in December 1993, January and March 1994, and left messages regarding the problems she was having at Prudential, but that Provenzano did not return her calls. Three weeks following her return to work, by letter dated March 23, 1994, Nweke wrote to Provenzano, stating that “I had a baby. The pregnancy was difficult and I was sick. After the baby, she was sick and I was sick.” She enclosed with the March 23 letter “copies of my doctors statements for the period of absence in question.” A January 31, 1994, doctor’s statement signed by Dr. Ewa recommended that Nweke return to work on short hours. A February 15, 1994, doctor’s statement signed by Dr. Miller released Nweke to return to full-time duty effective March 2, 1994. Nweke complained in the letter that her working conditions were intolerable because of increased oversight by Harte and because she had not received any paychecks as of that time, Nweke did not provide Provenzano or any other representative of the Unions with medical documentation of her condition following her return to work. Nweke admits that from April 1994 to the end of the year, she did not have any doctors’ statements or other records in her possession indicating that she was continuing to see a psychiatrist during that period. Nweke asserts that following the sending of the return to work
During a telephone conversation Nweke had had with Provenzano prior to sending the letter of March 23, Nweke informed him that she had not been paid her disability bеnefits for the period January 25, 1994, through March 2, 1994; that she was not paid readjustment salary for a period of six weeks from March 2, 1994; that her agency was vandalized while she was on maternity leave; and that some policies and commission credits existing therein were given to other agents.
As to these assertions, during the time that Nweke was on STD, Prudential’s policy regarding disability leave was that when an agent is on STD the agent’s agency is “frozen.” The sales manager of the agent becomes responsible for the day-to-day management or control of the agency. When Nweke was on STD, Zaia was responsible for the day-to-day management of her agency, including but not limited to the servicing and conservation of all the business in the agency. Also, in accordance with the CBA, Prudential is required to preserve the agency intact for the agent and to reinstate the agent to that agency upon his or her return to work. At Prudential, an insurance policy is considered lapsed if premium for the policy is not received by Prudential after thirty-one days from the date such premium is due. Pursuant to the CBA, an agent who produced or wrote an insurance policy continues to retain his or her commission interest in the policy if the policy lapses in the first policy year and an application for reinstatement of the policy is made within three months from the date premiums were last paid on the policy. The CBA provides that if Prudential does not receive premiums for the first four months of an insurance policy, all annualized commission previously credited to the producing agent are charged back or withdrawn.
According to Nweke, less than ten weeks after she went on STD, more than fifteen policies in her agency were transferred or reinstated to other Prudential agents for servicing. Those agents were also credited with the commissions from the policies. Also, within the same period, claims Nweke, Prudential charged back or withdrew all annualized commission previously credited to Nweke for those policies that were transferred or reinstated to other agents.
Regarding the conversation with Provenza-no, Nweke asserts that she informed him that she was sick from depression and acute bilateral arthralgia on both wrists and was undergoing continuing psychotherapy and taking Prozac for depression, and that one of her doctors had recommended working short hours and that she requested an accommodation for his disability by performing only fifty percent of her usual agency duties. Nweke also told Provenzano that Martinez was putting pressure on her and harassing her, destabilizing and punishing her for having a baby by making her work under the constant supervision of a junior agent, by asking if she has made arrangement for babysitting, by telling her that she chose to have a baby in preference to her career, and by asking her not to make a deposit unless it is countersigned by Harte. Nweke describes the hostile environment in 1994 upon her return to work as having to go to meetings to get assistance and approval for applications even though she was a veteran agent with more experience than Harte who replaced Zaia as her sales manager.
Nweke represents that she also told Pro-venzano that three magazines with black women on the covers were placed on her desk. Nweke did not see who put the magazines on her desk. She claims that other than the magazines, she has no basis for her allegations of race discrimination. Nweke asserts that she did not tell Provenzano or any оther Union representative any other information that would put the Unions on notice that Prudential was trying to terminate her on the basis of her race.
During that telephone conversation, Nweke contends that Provenzano told her that the CBA between the International and Prudential covers specific matters which do not include discrimination; that he will help Nweke file a grievance regarding her disability benefits, readjustment salary, and the policies and commission credits that were taken from her agency. There is dispute as to whether Nweke indeed informed Proven-zano of the comments Martinez made regarding Nweke’s pregnancy or choice to have a baby. Nweke urges that her complaints of sex and disability discrimination and harassment by Martinez were not included in her 1994 grievance because the Unions did not want to confront or antagonize management and because Provenzano told her that the CBA covers labor matters and not issues of discrimination.
On March 21, 1994, Nweke received a letter from Prudential Vice President, Regional Marketing, Gary Russo (“Russo”), placing her on low production probation (“LPP”) as a result of her 1993 first year commission credits production. Agents having the lowest 20% production in their district are eligible for placement on LPP. While on probation, the agents have to meet the prior year’s average production each quarter of the probation year in order to remain employed. The letter notified Nweke that she was on a one-year probation beginning the week of April 4, 1994. Fоr each quarter of the probation, Nweke would have to equal or exceed 25% of Sheepshead Bay’s district average of first year commission credits in order to proceed to the next quarter of probation. By letter dated March 29, 1994, Nweke wrote Russo that his letter placing her on LPP was an error and that LPP did not apply to her. The reason she gave for the inapplicability of LPP was her disability leave of absence. Nweke was aware of Prudential’s LPP policy dated January 1992 and saw part of the manual on the bulletin board. Nweke did not advise Provenzano that the LPP policy had an adverse impact on women or that she was discriminatorily placed on LPP.
In a March 24, 1994 letter to Martinez, Nweke complained that her checks were being withheld, that during her absence the policies in her agency were vandalized and cases reinstated to other agents, and that she was experiencing unwanted oversight by her new sales manager.
By letter dated March 24, 1994, Nweke notified Provenzano that she was in the process of filing a grievance with the assistance of the office shop steward. Under the procedure for filing a grievance, a grievant prepares the grievance with the assistance of the shop steward, called a district office chairman, for submission to the grievant’s district manager. The district office chairman is also an insurance agent. The grievance served on Prudential on May 3, 1994 (“1994 grievance”) alleges the denial of final disability leave payments, failure to receive pay since returning to work on March 2, 1994, trans-ferral of her policies to other agents while she was on disability, and failure to receive commissions which she alleges should have been credited to her. The 1994 grievance also referred to readjustment pay, which can mean any payment for compensation that an individual should have received for one reason or another but did not receive. An agent on disability leave receives disability benefit payments and does not receive any supplemental payments. The commissions the agent earns from policies during disability leave are credited and stored for the agent in a product commission account until the agent returns from disability leave, at which time the agent begins to receive income from the account. Nweke did not mention any other concerns in her 1994 grievance.
Prudential requested and Local 888 agreed to an extension of time for responding to the 1994 grievance. Shortly after the grievance was filed, Nweke received her final disability payments. Provenzano, who has no authority to examine Prudential records, contacted Prudential manager Donald Carter about Nweke’s disability leave checks and Dana Lombardi about Nweke’s allegation that her policies had been purposely lapsed while she
According to Nweke, the 1994 grievance was never resolved or referred to arbitration. She states that Provenzano was hostile and antagonistic towards her, that he called her “mental” once, and that he hung-up the phone on her many times and requested her to consult a physician if she was sick.
Nweke received a letter dated July 29, 1994, from Russo indicating that she met the requirements of the first three months of her probation and that it was being continued into the second quarter. Nweke acknowledges that she was successful at her job at that time. She states that as of July 29, 1994, she had not told Provenzano that she was unable to satisfy the LPP requirements. She did not even mention LPP requirements to Provenzano. Nweke also received a letter dated October 31, 1994, from Russo indicating that she met the requirements of the second quarter of her probation and that the probation was being continued into the third quarter. Nweke contends that at the time she “did not work extraordinary hard,” but rather was “just working normally.” Again, she admits that she made no mention to Provenzano regarding LPP or her ability to satisfy the required quota. In a September 2, 1994 letter, Nweke wrote to Martinez that she was being productive and improving herself by taking courses. She also said that she was promoting Prudential by performing community volunteer services. She listed two organizations and her church as volunteer activities.
Nweke received a termination letter from Prudential, dated March 13, 1995, on March 24, 1995, stating that she .had failed to meet the requirements for the third quarter of her probation. Nweke contacted Provenzano by telephone the day she received the letter. That same day, Provenzano sent Nweke a grievance form with a short written grievance alleging unjust termination. He told her that the grievance had to be filed with the district manager within fourteen days. In a letter dated March 27, 1995, Nweke acknowledged receiving the grievance form within three days after it was mailed. She also concluded that Local 888 had failed to help her with her 1994 grievance. Provenza-no contacted district office chairman Goren Ljuljic (“Ljuljic”) to stress the fourteen-day deadline for filing the grievance. Ljuljic told Provenzano that Nweke missed appointments for having him sign the grievance and getting it filed with Prudential. Nweke did not sign an authorization to file the grievance until April 20, 1995. She stated that the termination grievance should be amended to conform with the grievance stated in a letter she wrote to Provenzano dated April 19, 1995.
By letter dated May 9, 1995, Provenzano wrote Nweke that he had not yet received her completed grievance which first had to be presented to the district manager and then forwarded to him. On May 4, 1995, he wrote to Thomas A. Campbell (“Campbell”) of Prudential regarding Nweke’s termination even though he did not have a copy of the grievance. By letter dated June 13, 1995, Prudential responded that Nweke had not filed her grievance in the Sheepshead Bay district as required. On July 10, 1995, Pro-venzano wrote to Prudential explaining the problems with the filing of Nweke’s discharge grievance.
On July 31, 1995, Prudential agreed with the International to waive the contractual time limit on Nweke’s discharge grievance in order to allow for its prоcessing. The Inter
Following the meeting, Prudential sustained its discharge decision. On December 4, 1995, the International sent Prudential a form letter stating that it wanted to refer Nweke’s grievance to arbitration in order to provide time for making a final decision regarding arbitration. On May 6, 1996, the International wrote Nweke that it did not have sufficient evidence to process her discharge claim any further.
On June 21, 1995, Nweke filed an EEOC charge against Prudential, alleging race, sex, and disability discrimination. She filed an EEOC charge against Local 888 on June 23, 1995, alleging race, sex, and disability discrimination as well (“1995 EEOC charge”). Nweke’s 1995 EEOC charge against Local 888 alleged that she was discriminatorily discharged, that the union said it did not receive her termination grievance, and that she was denied union representation regarding her termination grievance. Nweke also filed an unfair labor practice charge against Local 888 with the National Labor Relations Board on June 16,1995.
On June 15, 1996, Nweke filed a discrimination charge against Local 888 with the EEOC, alleging retaliation for having filed the 1995 EEOC charge against the union (“1996 EEOC charge”). The 1996 EEOC charge alleged that she had filed a grievance in 1994, the union and Prudential agreed to discuss her 1995 termination grievance, that she filed charges against Local 888 in June 1995, and that in retaliation for the 1995 charges, the Unions and Prudential failed to discuss her grievance as requirеd by the CBA. On the same day she filed an identical retaliation EEOC charge against Prudential. On September 12, 1996, the EEOC issued dismissals and notices of right to sue with regard to Nweke’s two discrimination charges against Local 888. The EEOC charges against Prudential were also dismissed.
Discussion
I. Legal Standards
A. Rule 12(b)(6)
On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs favor and against the defendants.
See Scheuer v. Rhodes,
Rule 12(b)(6) imposes a substantial burden of proof on the moving party. A court may not dismiss a complaint unless the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
H.J., Inc. v. Northwestern Bell Tel. Co.,
B. Rule 56
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when “there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law.” The Second Circuit has repeatedly noted that “as a general-rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.”
Tomka v. Seiler,
In addition to the foregoing standards, the Second Circuit has held that additional considerations must be taken into account when deciding whether summary judgment should issue in an employment discrimination action.
Gallo v. Prudential Residential Servs.,
II. Subject Matter Jurisdiction Is Lacking Over Certain Allegations in the Complaint That Were Not Raised in the EEOC Charges Against Local 888
The Unions assert that pursuant to Rule 12(b)(1), the court lacks jurisdiction over the subject matter of certain allegations of Title VII and ADA violations that were not included in the charges Nweke filed with the EEOC, including allegations that the LPP policy is an intentionally discriminatory policy, that the LPP policy discriminated against female employees as a class, that the LPP policy has a disparate impact on female and disabled employees, that Nweke requested an accommodation, and that the Unions failed to negotiate or diseriminatorily negotiated the functions of the insurance agent job in violation of the ADA.
Filing a charge with the EEOC is a jurisdictional prerequisite to a private civil action under Title VII.
See
42 U.S.C. § 2000e-5(e);
McDonnell Douglas Corp. v. Green,
This jurisdictional prerequisite requires dismissal of various allegations in the
In her 1995 EEOC charge against Local 888, Nweke simply alleged that she was dis-criminatorily discharged by Prudential and denied union representation because her grievance was not processеd properly. Specifically, she states that Local 888 failed to take any action regarding the grievance filed with respect to her termination and that if she had been a white male without a disability, she would have been afforded union representation. In her 1996 charge, she alleged that Local 888 refused to take her grievance to arbitration because she filed the 1995 charge against it.
This Court, in
Gilliard v. New York Public Library System,
Even if [the plaintiff] is given the benefit of a broad reading of the EEOC complaint, the allegations as to a general pattern of discrimination by the [defendant] fall outside of the scope of the charge. [The plaintiffs] EEOC charge was limited to a claim of discriminatory discharge. Because the EEOC charge did not give the [defendant] sufficient notice of [the plaintiffs] intention to raise these allegations pertaining to discrimination in wages, benefits and training, [his] Title YII claim as to these allegations must be dismissed.
Id. at 1079.
For the same reasons, Nweke’s claims concerning the LPP policy — that the production quotas have a disparate impact on females and the disabled or that they adversely affect female agents returning from maternity leave — are not reasonably related to the charge against Local 888 that it would not process her termination grievance or that it retaliated against her for filing the original charge against it. It therefore must be dismissed.
According to the Unions, the disability allegations likewise fail becausе Nweke did not allege in here EEOC charge that she requested or was refused an accommodation for her disability. The Unions submit that the EEOC September 12, 1996 dismissal of both EEOC charges against Local 888 did not address any accommodation theory of discrimination and that the fact that the EEOC did not investigate the issue of accommodation prevents the court from hearing Nweke’s accommodation claim.
See Chatoff,
It is not clear that the charge against Local 888 did incorporate the Prudential charge. Nonetheless, reading the EEOC charge in a light most favorable to Nweke, the accommodation claim falls within the reasonable scope of investigation of Nweke’s contention that her termination was based upon a disability. Thus this claim will not be dismissed for lack of subject matter jurisdiction.
Finally, the Unions represent that Nweke failed to mention in the EEOC charge that Local 888 engaged in discriminatory negotiations or failed to negotiate essential and mar
III. Nweke’s Claims of Discriminatory Placement on LPP Are Time-Barred, Under Title VII and the ADA
Both Title VII and the ADA require that claims be based on events that occurred within a limited period prior to the filing of an administrative complaint.
See
42 U.S.C. § 2000e—5(e)(1); 42 U.S.C. § 12117(a). Generally, Title VII and ADA discrimination claims must be filed with the EEOC within 180 days of the date when the alleged unlawful employment practice occurred.
See
42 U.S.C. § 2000e—5(e)(1);
Dixit v. City of New York Dep’t of Gen. Servs.,
In the instant case, Nweke filed a charge of discrimination against the Unions with the EEOC on June 23, 1995, well within 300 days of her termination on March 24, 1995, by Prudential. However, as the Unions point out, Nweke’s allegation that she was discriminatorily placed on LPP is time-barred because the placement occurred on March 21, 1994, prior to August 28, 1994, which by Nweke’s calculation is 300 days before the filing date. 1 Accordingly, the Unions urge that the allegations that the Unions discriminatorily failed to represent her regarding her placement on LPP must be dismissed as untimely.
In response, Nweke contends that filing charges with the EEOC tolled the limitation time for her ADA and Title VII claims, and alternatively, that the claims based on acts occurring prior to August 28, 1994, are preserved pursuant to the “continuing violation” doctrine.
As to Nweke’s first assertion, Nweke relies on
Zipes v. Trans World Airlines, Inc.,
Indeed, Nweke has not asserted that she was “actively misled by [the Unions], ... was prevented in some extraordinary way from exercising [her] rights, or ... asserted [her] rights in the wrong forum, in which event tolling of the time bar might be permitted as a matter of fairness.”
Miller v. International Telephone and Telegraph Corp.,
As to Nweke’s alternate contention, the continuing violation doctrine fails to save the allegation of discriminatory placement on LPP.
Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.
Lambert v. Genesee Hosp.,
The Court in
Johnson v. Nyack Hosp.,
As the Unions contend, Nweke’s allegation of discriminatory placement on LPP does not qualify as a continuing violation because it was a completed, discrete act about which Nweke knew or had reason to know had accrued immediately after her placement. She therefore had a duty to assert her rights at that time.
See Dixit,
By contrast, Nweke urges that she was terminated pursuant to the LPP policy which had been in effect for nearly ten years prior to her discharge and that the LPP policy itself has a discriminatory effect against child-bearing females and persons with disability. Nweke continues that the Complaint alleges this discriminatory effect and that Prudential has a policy and practice of discriminating against women and persons with disability. Finally, she notes that the act of placing her on probation in April 1994 and the termination of her employment in March 1995 resulted from a discriminatory policy or mechanism sufficient to establish a continuing violation.
Granted, Nweke’s placement on LPP had a continuing impact in that she had to satisfy the LPP production requirements. However, the violation was the allegedly discriminatory placement which Nweke believed was
The Unions submit that Nweke was terminated not because of any discriminatory practice, but because she failed to satisfy the requirements of her probation. Nweke has provided no evidence to indicate that Prudential knew that if it discriminated against her by placing her on probation because she was a woman with an alleged disability that she would not meet the quota required so as to provide it a reason to terminate her. The link between the discriminatory placement on LPP and the allegations that the LPP policy has a discriminatory effect has not been established. Because the placement does not constitute a continuing violation, it is barred as untimely.
Clarification is required as to Nweke’s allegation that the Unions’ handling of her 1994 grievance was improper. While the discriminatory placement claim is time-barred, the Unions’ handling of the grievance Nweke filed in 1994 will not be dismissed on statute of limitations grounds. These are two separate issues. Indeed, the 1994 grievance makes no mention of the LPP policy or Nweke’s placement on probation.
The record reflects that Nweke’s despair in the handling of the 1994 grievance was voiced in a March 27, 1995 letter she wrote to Provenzano, in which she stated, “It is with deepest regret that I have come to the conclusion that the Union has failed to help me.” This is well within the limitations period. Assuming
arguendo
that Nweke knew or had reason to know that the Unions’ alleged breach occurred prior to the limitations deadline, Nweke’s mishandling claim is not isolated, but rather resembles the claim concerning the handling by the Unions of the 1995 grievance. Nweke alleges a pattern of how the Unions handled her grievances that were predicated upon discrimination carried out by Prudential. The handling of the 1994 grievance is another incident of alleged discrimination carried out in the same manner alleged in the EEOC charge regarding the termination grievance.
See Burrell v. City Univ. of N.Y.,
IV. Nweke’s Claims Pursuant to Title VII, the ADA, and § 1981 Involving the Unions’ Duty of Fair Representation Are Not Time-Barred
The Unions contend that although Nweke claims to have been discriminated against in violation of Title VII, § 1981, and the ADA, her claim is actually one for breach of duty of fair representation. According to the Unions, the Complaint’s allegations against Prudential were based on the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 301, because Nweke alleges a breach of the CBA, and the allegations against the Unions all concern breaches of the Unions’ duty of fair representation.
Essentially, the Complaint states four broad claims against the Unions: (1) that the Unions discriminated against Nweke on the basis of her disability, sex, and race by failing to investigate or prevent Prudential’s discriminatory conduct, as they condoned or ratified such conduct; (2) that the Unions did not fairly represent Nweke because they failed to process her grievances further than the final step before arbitration and failed to make a demand for arbitration; (3) that the Unions retaliated against her for filing a charge against Local 888 with the EEOC by failing to process or discuss her termination grievance properly; and (4) that the Unions breached their duty of fair representation by
The Unions assert that because a hybrid LMRA § 185/duty of fair representation claim is governed by a six-month statute of limitations, dismissal is warranted on all claims against the Unions. The Unions’ contention, however, is unpersuasive. Although the United States Supreme Court has held that the statute of limitations for breach of duty of fail' representation claims is six months,
see DelCostello v. International Bhd. of Teamsters,
As discussed more fully below, a union may also face liability under Title VII, § 1981, and the ADA if it breaches its duty of fair representation. As to such claims, the statute of limitations under Title VII, § 1981, and the ADA — not the six-month statute of limitations for breach of duty of fair representation—controls.
See Blaizin v. Caldor Store #38,
No. 97 Civ. 1604,
V. The Conspiracy Allegation Is Dismissed
Nweke’s allegation that the Unions discriminated against her on the basis of disability, sex, and race by conspiring with Prudential to permit her discharge to stand is dismissed because it is vague and concluso-ry. Allegations of conspiracy must be pleaded with particularity or they will not survive a motion to dismiss. Conclusory allegations are insufficient to meet “ ‘the somewhat stringent pleading requirements of this Circuit’ ” when conspiracy is alleged.
Gilliard,
Nweke fails to establish any facts from which a conspiracy might be inferred. The conspiracy claim is therefore dismissed. 2
VI. The Unions’ Motion for Summary Judgment As to the Claims Against Them Brought Pursuant to Title VII, § 1981, and the ADA Is Granted
Nweke’s Complaint against the Unions stripped to its essentials concerns their alleged failure to represent her properly in the grievances that she initiated against Prudential, their ratification of Prudential’s discriminatory conduct, and their retaliation against Nweke by failing to discuss her grievance or take it to arbitration. This conduct, claims Nweke, violated Title VII, § 1981, and the ADA.
Title VII provides that a labor organization shall not discriminate against any individual because of his race, color, religion, sex, or national origin, or cause or attempt to cause an employer to so discriminate against an individual.
See
42 U.S.C. § 2000e-2(c). Racial discrimination in employment is also prohibited by 42 U.S.C. § 1981.
See Johnson v. Railway Express Agency, Inc.,
certain private entities such as labor unions, which beаr explicit responsibilities to process grievances, press claims, and represent members in disputes over the terms of binding obligations that run from the employer to the employee, are subject to liability under § 1981 for racial discrimination in the enforcement of labor contracts.
Patterson v. McLean Credit Union,
A union’s breach of its duty of fair representation may render it liable under Title VII, § 1981, or the ADA.
See, e.g., Blaizin,
A. Allegations That the Unions Breached Their Duty of Fair Representation in Violation of Title VII, § 1981, and the ADA
It has been held that in order to establish a Title VII claim concerning representation by a union of its members’ interests, “it is axiomatic that ... there must first be a finding that the [union] breached its duty of fair representation.”
Martin v. Local 1513 and District 118 of the Int’l Ass’n of Machinists and Aerospace Workers,
The Fifth Circuit Court of Appeals explained in
Causey v. Ford Motor Co.,
The union’s duty of fair representation as to the processing of grievances arises within the сontext of the [LMRA] and must be distinguished from the union’s duty to employees covered by Title VII[, 42 U.S.C. § 2000e-2(c)(1)J not “otherwise to discriminate” against members in processing grievances. The fair representation duty under the LMRA, as enumerated in Vaca, overlaps the Title VII protection, and the Vaca standards (proscribing arbitrary, discriminatory, and bad faith conduct) apply in Title VII cases.
Id.
(citations omitted);
see also Doolittle v. Ruffo,
88-CV-1175,
The Seventh Circuit Court of Appeals has enunciated a test for evaluating Title VII claims based upon a breach of the duty of fair representation. In
Bugg v. International Union of Allied Indus. Workers, Local 507,
To establish a claim against the Union, the plaintiff was required to show: (1) that the company committed a violation of the collective bargaining agreement with respect to the plaintiff; (2) that the Union permitted the breach to go unrepaired, thus breaching its own duty of fair representation; [and] (3) that there was some indication that the Union’s actions were motivated by racial animus.
Id.
at 598 n. 5;
see Ross,
Recently, the court in Morris adopted a two-part test applicable to Title VII duty of fair representation cases that was enunciated in Doolittle:
[T]his court concludes that in this circuit the first prong of the Bugg test is not necessary to plaintiffs’ establishment of a prima facie case that the Union Defendants breached ti’eir duty of fair representation and thus violatеd Title VII. Instead, plaintiffs must satisfy a two-prong test. They must demonstrate (1) that the Union Defendants breached their duty of fair representation by allowing an alleged breach to go unrepaired and (2) that the Unions Defendants’ actions were motivated by gender animus.
Morris,
1. Permitting an Alleged Breach to Go Unrepaired
Nweke contends that the Unions permitted the taking away of her policies and commission credits by Prudential, as well as her discharge, to go unrepaired when they failed to submit her grievances to arbitration. The Complaint alleges that the “grievances were allegedly processed to the ‘Presidents’ Committee’ state — the final step before arbitration — without settlement, however, INTERNATIONAL and LOCAL 888 failed to process the grievances further or make demand for arbitration.” (Comply 26.)
a. The 1994 Grievance
There is no material issue of fact concerning whether the Unions allowed a breach to go unrepaired with respect to their handling of the 1994 grievance. The 1994 grievance Local 888 filed on Nweke’s behalf addressed all of the issues she raised with it following her March 2, 1994 return to work. Nweke’s letters provide the most reliable evidence of her concerns at that time. For the most part, she complained of not receiving the remainder of her disability payments, and the Unions considered the grievance to principally concern disability pay. Nweke also complained about excessive oversight by her new sales manager Harte. Further, Nweke complained that her persistency rate suffered in her absence. She complained as well of vandalism of her agency and referred to fifteen policies. Nweke complained that Martinez gave orders that payroll checks be generated while she was on disability leave, and about not getting March 2 to April 22, 1994 pay, which she described as readjustment pay.
The Unions assert that before and after the filing of the 1994 grievance, Local 888 representatives regularly communicated with Nweke and contacted Prudential district manager Martinez, employee disability unit claim manager Donald Carter, and field operations consultant Dana Lombardi regarding the concerns raised by Nweke. According to Nweke, Provenzano handled her May 1994 grievance in a grossly incompetent and inept manner. The record, however, indicates otherwise. For instance, although Provenzano did not have authority to review Prudential records, he spoke with Prudential’s managers to urge them to review Nweke’s concerns.
Indeed, all of the issues contained in the 1994 grievance were addressed and substantially resolved. First, on April 28, 1994, Nweke received an optional long-term disability benefit payment for her absence from January 25, 1994, through March 1, 1994.
Third, by its October 7 letter, Prudential notified the Unions that it had requested that cases reinstated to other agents during Nweke’s disability leave be returned to her credit, and Provenzano informed Nweke of Prudential’s response. Nweke herself acknowledged to Provenzano that certain policies were returned to her.
Fourth, in its October 7 letter, Prudential denied instructing anyone to withhold Nweke’s cheeks, explaining that payroll checks were generated for Nweke since her STD ended on January 24,1994, and that she refused to accept the checks. Nweke admitted that she refused six weeks of checks handed to her upon her return to work on March 2, 1994. Finally, Prudential denied the grievance allegation that Martinez requested leave of absence for Nweke without consultation with her.
Examination of the types of complaints Nweke made to the Unions in 1994 before and during the pendency of the 1994 grievance, the Unions’ communication with her and Prudential regarding the grievance allegations, and Prudential’s resolution of the grievance, as reported in the October 7, 1994 letter to Provenzano, demonstrates that the Unions fulfilled the duty of fair representation owed Nweke in processing the grievance.
It bears noting that the 1994 grievance did not challenge Nweke’s placement on the LPP. Regardless, the claim of discriminatory placement, as found above, is time-barred.
Nweke’s claim that the Unions breached their duty of fair representation by not submitting the grievance to arbitration fails as the issues were substantially resolved. Moreover, the record is devоid of evidence indicating that the Unions acted with hostility, discriminatorily, or arbitrarily, and in so doing, permitted a breach to go unrepaired.
See generally Vaca,
b. The 1995 Grievance
The Unions also fulfilled their duty of fan-representation to Nweke in processing her 1995 termination grievance. Provenzano mailed Nweke a termination grievance the very day she was discharged. He instructed her to meet with the district office chairman or shop steward to sign and present the grievance to her district manager. Nweke admitted receipt of the grievance but refused to sign it because she considered it insufficiently detailed. According to Nweke, although she itemized her grievances in her letter dated April 19, 1995 to Provenzano, in his letter to Prudential dated June 22, 1995, and July 10, 1995, Provenzano maintained that only the main issues are listed on a grievance form.
The grievance was untimely due to Nweke’s refusal to sign and file the grievance within the fourteen-day filing period set forth in the CBA. Yet, although he had not received a copy of the grievance indicating its submission to Prudential, Provenzano wrote Prudential so as to explain the problems with getting Nweke’s grievance filed and pressed the merits of the grievance. Thereafter, once it was established that the grievance was untimely, the International reached an agreement with Prudential to treat it as timely.
The International then pursued Nweke’s grievance to the President’s Committee, the top step of the grievance procedure. At that meeting, the International questioned Prudential about the claim that first year commission credits due Nweke were given to other agents. In response, Prudential reexamined Nweke’s first year commission credits to ensure that her 1993 production was
Given that the Unions promptly initiated Nweke’s termination grievance and began its processing even while she failed to file it properly, that they made various contentions to Prudential during the grievance process, including the correctness of the net first year commission credit figure which was the basis of her placement on probation, that Nweke’s probation was proper, given her bottom 20% prorated 1993 production, and that she failed to meet the production requirements of her probation, the Unions fulfilled the duty of fair representation owed Nweke with respect to her discharge grievance.
Nweke persists that the Unions should be liable for failing to submit the grievance to arbitration. However, Nweke has not established that the Unions “arbitrarily ignore[d] a meritorious grievance or process[ed] it in perfunctory fashion.”
Gold v. Local Union No. 888, United Food and Commercial Workers Int’l Union,
It has been held that:
[E]very union decision which may in some way result in overriding the wishes or disappointing the expectation of an individual employee, or even an appreciable number of employees, does not in and of itself constitute a breach of fiduciary duty of fair representation.... Thus, where the union, after a good faith investigation of the merits of a grievance, concludes that the claim is unsubstantial and refuses to encumber further its grievance channels by continuing to process the unmeritorious claim, its duty of fair representation may well be satisfied.
Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of Am. v. NLRB,
Furthermore, a union member does not have an absolute right to have her grievance taken to arbitration. Rather, a union maintains discretion over its grievance machinery and the decision of whether to invoke arbitration.
See Vaca,
In light of the circumstances, the Unions’s decision not to further process the grievance because they did not believe that they would prevail in arbitration was not a breach of their duty.
Having found that Nweke has failed to create a factual dispute as to whether the Unions, in handling the 1994 and 1995 grievances, breached their duty of fair representation by allowing a breach by Prudential to go unrepaired, the discriminatory animus prong of the test need not be reached. In any event, it is briefly discussed below.
2. Discriminatory Animus
Although Nweke alleges that the improper processing of her grievances was motivated by disability, gender, and racial animus, the record fails to support the notion that her grievances were handled differently from those made by female employees who were not pregnant, male employees who return from disability leaves of absence, or white or other non-black employees. Nweke has submitted no statistical data concerning the Unions’ handling of grievances from which it could be inferred that the Unions have breached their duty of fair representation in a discriminatory manner.
See Campbell,
Additionally, there is no probative evidence that the Unions exhibited hostility toward Nweke based on her race, sex, or alleged disability. The only evidence regarding race involving the Unions and Nweke was her informing Provenzano of her charge that Martinez left magazines featuring cover photographs of successful black women on her desk and that she was offended by it. In response to Provenzano’s questioning, Nweke admitted that no one saw Martinez leave the magazines on her desk. There is a similar absence of record evidence of any hostility against Nweke based on her sex or choice to become pregnant and have an child.
Moreover, the record contains no material evidence of disability-based hostility by the Unions against Nweke. Nweke alleges in her deposition testimony, without the benefit of evidence of context or date, that she told Provenzano that she was sick and he responded that she should see a doctor if she was sick. Nweke also points to Provenzano’s comment in a letter to the International that “the D.O.C. advises me her problems are mental” in discussing his frustration at Nweke for refusing to meet with the union representative to sign and present her termination grievance to Prudential.
Even assuming Provenzano made thesе comments, Nweke’s allegations do not preclude the entry of summary judgment in the Unions’ favor. These two remarks are insufficient to create a genuine factual dispute with respect to disability-based hostility toward Nweke by the Unions. First, the comments are isolated. Second, the Unions urge that Provenzano was sympathetic to Nweke’s grievance and remained so even after she filed NLRB and EEOC charges against Local 888. Third, Nweke has not shown any link between the remarks and any action or inaction on the part of the Unions.
See Ross,
Finally, no animus can be reasonably inferred from the Unions’ refusal to arbitrate Nweke’s discharge grievance, as the right to arbitration is not absolute. Accordingly, there is no genuine issue of fact that the manner in which the Unions processed Nweke’s grievances was discriminatorily motivated.
B. Allegations That the Unions Condoned or Ratified Prudential’s Discriminatory Practices
The Complaint states that the Unions “intentionally discriminated against [Nweke] on the basis of [her] disability, sex and race, by failing to investigate or prevent PRUDENTIAL’S discriminatory conduct ... by condoning, inducing, authorizing or ratifying said discriminatory conduct.” (Comply 25.) According to Nweke, for the purpose of not antagonizing management, the Unions refused to challenge or put a stop to the race, sex, and disability discrimination she was subjected to by Prudential. Such behavior could suffice in finding union liability.
See James,
1. The Title VII and § 1981 Claims
Under Title VII, Nweke alleges both race and sex discrimination. To establish a
prima facie
claim of wrongful termination under Title VII, Nweke must show that (1) she is a member of a рrotected class; (2) she was qualified for the employment position; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of race or sex discrimination.
See Viola
Under Title VII, Nweke can demonstrate discrimination through evidence of either “disparate treatment” or “disparate impact.” Disparate treatment requires purposeful discrimination. Disparate impact, on the other hand,
is based upon the premise “that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” The evidence in “disparate impact” cases “usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities.”
Cosgrove,
The elements of a § 1981 claim mimic those of a Title VII disparate treatment claim. This means that a plaintiff may not create a
prima facie
claim of discrimination via evidence of disparate impact. Discriminatory intent or motive is required.
See Scelsa v. City Univ. of N.Y.,
In the instant case, Nweke has provided no evidence of intentional discrimination or disparate impact discrimination by Prudential based on sex. The record does not contain any probative evidence — only unsupported allegations — that Nweke was treated less favorably than male agents who were on or returned from disability leaves of similar duration, that she was treated less favorably than males with respect to the maintenance of the agencies during the leaves, that she was treated less favorably than males with respect to the calculation of production for purposes of determining placement on LPP, that she was treated less favorably than males with respect to the requirements imposed during the probation year following LPP, or that a male employee in her shoes would not have been discharged.
Granted, Nweke alleges that Prudential managers Martinez and Zaia made remarks based on sexual stereotypes. Yet Nweke has failed to produce evidence that Prudential relied on gender with regard to the maintenance of her agency, the calculation of her production for the purpose of determining placement on LPP, the imposition of requirements during her probation, or its decision to terminate her employment.
Additionally, as to the racial discrimination claim, Nweke herself confirms that her racial discrimination claim against Prudential is premised on the placement on her desk of magazines with black females pictured on the covers. This is insufficient to establish racial discrimination upon which her termination was based, or the existence of a racially hostile work environment.
2. The ADA Claims
Nweke submits that the Unions and Prudential violated the ADA by refusing to accommodate her disability and by subjecting her to intentional discrimination because of her disability. The Unions counter by contending that upon Nweke’s return to work in March 1994 until the time of her discharge, Nweke was not a qualified individual with a disability within the meaning of the ADA and that the Unions had no information that Nweke was disabled following her return to work.
To meet her burden, Nweke must show that (1) she is an individual with a “disability” as defined by the ADA, (2) she is otherwise qualified to perform the basic functions of her job, and (3) she was discriminated against because of her disability.
See Reeves v. Johnson Controls World Servs., Inc.,
Although the papers submitted by both parties focus on the first definition of disability, Nweke appears to base her claim on all three definitions. The Complaint states that “she has a record of or is regarded as having a physical and mental impairment that substantially limits one or more of her major life activities, in that [Nweke] suffered a physical and mental disability, to wit: acute bilateral arthralgia and neurotic depression.” (Compl. ¶ 12.)
According to Nweke, she began to receive treatment for depression in May 1993, and was diagnosed with neurotic depression and postpartum depression in October 1993 and major depression in December 1993. Nweke proposes that in March 1994 and in 1995, when she was discharged by Prudential, the depression was severe and substantially limited her ability to work, take care of herself, concentrate, or think clearly. Since the evidence provided by both parties fail to consider Nweke’s bilateral arthralgia, her depression will be the focus in analyzing Nweke’s claim under the ADA.
Assuming depression is a mental impairment, Nweke has failed to carry her burden in establishing that this impairment substantially limited a major life activity. The ADA does not define “major life activities” or “substantial limit[ation].” However, the regulations promulgated by the EEOC under the ADA provide an explanation of these terms. As the Second Circuit has indicated, “[w]hile these regulations are not binding, they provide us with guidance in interpreting the ADA.”
Ryan,
“Substantially limits” is defined as:
(i) Unable to perform a major life activity that the average person in the general population can perform;
(ii) Significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1). The regulations further counsel that:
[t]he following factors should be considered in determining whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long termimpact of or resulting from the impairment.
Id. § 1630.2(j)(2).
“The ADA’s requirement that, in order to constitute a disability under its terms, an impairment must substantially limit a major life activity underscores that ‘the impairment must be significant, and not merely trivial.’ ”
Reeves,
Nweke alleges—for the first time in her June 5, 1998, affidavit in response to summary judgment, according to the Unions—that from the date she rеturned to work on March 2, 1994, to March 24, 1995, when she was discharged, her depression substantially limited her major life activities of sleep, appetite, motivation (including focus and concentration), desire to socialize, and work. Yet her own words assessing her condition in 1994 contradict the assertions of substantial limitation she now makes in affidavit form. “The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior testimony.”
Trans-Orient Marine Corp. v. Star Trading & Marine, Inc.,
In fact, in 1994, Nweke failed to disclose any illness which substantially limits the major life activities of sleep, appetite, motivation, or desire to socialize during her final year of employment. In this regard, Nweke wrote three letters to Martinez during the first one-and-a-half weeks following her March 2, 1994, return to work. On March 3, 1994, she wrote that she was unable to work in January 1994 because she could not concentrate, focus, or make house calls, but she does not say that she remained in that condition when she returned to work in March 1994. In her March 11, 1994, letter to Martinez, Nweke states that she was sick in the last year and could not return to work, but does not say that she is still sick. In her March 8, 1994, letter to Martinez, Nweke confirms that “I have endured and overcome, especially in this past one year .”
Additionally, in her March 23, 1994 letter to Provenzano to which she attached two physician statements, Nweke spoke of her illness in the past tense, proclaiming that “the pregnancy was difficult and I was sick. After the baby, she was sick and I was sick.” She failed to mention any current illness. Nweke clutches onto the two physicians’ statements attached to the letter as support for her contention that she was receiving psychotherapy for depression and that she was on 20mg of Prozac daily. However, the two physicians’ statements were dated January 31, 1994, and February 15, 1994, respectively. Both statements certify Nweke to return to work on March 2, 1994, and the latter statement certified that she may return to work full-time. Accordingly, there is no issue of fact as to whether following her return to work on March 2, 1994, she was substantially limited in the major life activities of sleep, appetite, motivation, and desire to socialize with others.
See Ryan,
While courts recognize that depression and other emotional disabilities may in some circumstances qualify as an impairment under the ADA, merely indicating that [Nweke] was emotionally disturbed at some time in [her] life does not establish that [she] suffers from a mental impairment which substantially limits one or more of [her] major life activities.
Calvarese v. City of Oswego,
No. 96-CV-602,
Moreover, Nweke fails to offer any evidence that she was substantially limited in working from the time of her March 2, 1994
The letters Nweke wrote during the time between March 2,1994, and her discharge on March 24, 1995, and even following her discharge, do not demonstratе any substantial limitation regarding her ability to work. In the March 11, 1994 letter to Martinez, Nweke states, “I will continue to work hard, bring in new business and make my own deposits.” Thereafter, in a March 29, 1994 letter responding to her placement on LPP, Nweke affirms, “I do also fervently pray for the courage to turn in my resignation before I receive a Low Production letter if at any time I fall short because I cannot do the job.” Several months later, in a September 2, 1994 letter to Prudential, Nweke states:
I work and I produce every week at above average of production level. Although I only returned to work in March of 1994 this year, yet my current ranking of No. 19 in Sheepshead Bay Office of 59 agents is satisfactory. Besides both my persistency and renewal rates are steadily increasing more rapidly than 70% of this Agency force.
In the same letter, Nweke explains, “I continue to be productive. I have also sought to improve myself professionally by talking CLU courses.” Toward the end of the letter, Nweke informs, “I have sought to promote my company through community volunteer services for the Verrazzano Nursing Home (I give 2 hours 15 minutes a week), Meals on Wheels organization (I give 2 hours a week), as well as my local church, The United Methodist Church.” About six weeks later, in a handwritten note to Martinez, Nweke stated, “I am satisfied with my work. I still do volunteer work.” Despite Nweke’s assertion to the contrary, although Nweke’s letters contained complaints, they fail to express any inability to do Prudential agent’s work or any job either due to her depression or bilateral arthralgia.
Moreover, Nweke satisfied the production requirements of two quarters of her probation. Furthermore, in a letter to Nweke dated April 29, 1994, Prudential stated that Nweke’s doctors’ statements indicate that she was able to return to hеr duties as a Prudential representative on March 2, 1994. Nweke did not appeal that determination through the appeal procedure outlined in the same letter. Significantly, Dr. Miller’s attending physician’s statement dated February 15, 1994, the last physician statement received by Prudential before Nweke’s return to work, indicated that Nweke was able to return to work on a full-time basis as of March 2,1994. Dr. Miller stated that Nweke would have recovered sufficiently on that date to perform her duties at Prudential. The form used by Dr. Miller notified the physician about the short-hours program and provided a telephone number so that the physician could discuss the program with Prudential. There is no evidence that Dr. Miller contacted Prudential about such an accommodation. Furthermore, Dr. Miller indicated that the usual duration of Nweke’s condition was three to six months. This limited duration also weighs against the finding of a disability under the ADA. See generally 29 C.F.R. § 1630.2(j)(2). The signed statement submitted by Dr. Miller, as well as Nweke’s letters, demonstrate that Nweke was not substantially limited in her ability to perform a major life activity.
In light of Dr. Miller’s 1994 diagnosis, his November 17, 1997, and June 5, 1998, statements contradicting his previous diagnosis of Nweke’s 1994 impairment are insufficient to
The nature, severity, duration, as well as long-term impact, of Nweke’s depression weigh against the finding of a substantial limitation. Nweke has not demonstrated that she was significantly restricted in the ability to perform her job at Prudential. Nweke stated in her 1994 letters and in four days of deposition testimony that she was performing satisfactorily during her final year of employment. Nor has she shown that at the relevant times she was restricted from employment in general. Indeed,
the cases where depression has been held to substantially interfere with an individual’s ability to work involve factual situations far more serious than, the ease at hand. [They regard situations where] the individual plaintiffs were repeatedly hospitalized, took numerous or extended leaves of absence from work, and depression repeatedly interfered with the plaintiffs ability to get to work on time and perform effectively.
Johnson,
The facts above, especially the medical evidence, also support the proposition that Nweke did not have a record of an impairment. Turning to the third definition of disability, Nweke has not shown that she was “regarded as having such an impairment” pursuant to 42 U.S.C. § 12102(2)(C). The ADA defines a person as disabled when an employer “regard[s]” her as having an impairment “that substantially limits one or more ... major lifе activities.”
Id.
§ 12102(2)(A) & (C). Nweke has provided nothing to demonstrate that she was disabled because Prudential perceived her as being substantially limited in her ability to work, which again means a significant restriction in the “ability to perform either a class of jobs or a broad range of jobs.” 29 C.F.R. § 1630.2(j)(3)(I). “An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limited one.”
Heilweil,
Thus, to survive the instant motion, Nweke bears the burden “of presenting evidence that [Prudential] perceived her to be incapable of working a broad range of jobs suitable for a person of her age, experience, and training because of her disability.”
Ryan,
C. The Retaliation Claim
Title VII provides that “[i]t shall be an unlawful employment practice for ... a labor organization to discriminate against any member thereof ... because he has ... participated in any manner in [a] ... proceeding ... under this subchapter.” 42 U.S.C. § 2000e~3(a). In the context of retaliation claims, the statute forbids unions from taking retaliatory action because a member files a charge with a state agency or with the EEOC.
See Johnson,
According to Nweke, the Unions did just that. She contends that in retaliation for filing charges against Local 888 with the EEOC, the Unions failed to discuss her grievance or submit it for arbitration in violation of Title VII and the ADA.
To make out a
prima facie
ease of retaliation, Nweke must show that (1) she was engaged in an activity protected under Title VII and the ADA, (2) the Unions were aware of Nweke’s participation in the protected activity, (3) Nweke suffered adverse union decisions, and (4) there was a causal connection between the her protected activity and the adverse action taken by the Unions.
See Malarkey v. Texaco, Inc.,
Nweke bears the initial burden of proving a
prima facie
case of retaliation by a preponderance of the evidence. If she succeeds, the burden shifts to the Unions to articulate some legitimate, nondiscriminatory reason for their actions.
See Hicks,
Recently, the court in
Morris,
faced with a retaliation case against a union, applied a combination of the general retaliation standard and the two-pronged test adapted from
Bugg
which requires a showing that the union breached its duty of fair representation and that its actions were motivated by discriminatory animus.
See Morris,
Here, it is not disputed that Nweke participated in a protected activity when she filed the EEOC charge against Local 888 or that it was known to the union. However, the remaining elements of the
prima facie
case have not been established. Nweke has
Indeed, the essential adverse action alleged by Nweke is that the 1995 grievance was not subjected to arbitration. This action would only by “adverse” if the Unions refused to submit the claim to arbitration in violation of their duty of fair representation. As found above, they did not. Nweke has not shown that the Unions’ conduct was “arbitrary, discriminatory, or in bad faith.”
Vaca,
As the action taken by the Unions was not “adverse” in the sense required — in that they did not breach a duty of fair representation — Nweke has failed to carry her burden in establishing a triable retaliation claim. Thus summary judgment is granted in favor of the Unions.
VII. Nweke’s Pendent State Law Claims Are Dismissed
A district court may decline supplemental jurisdiction when it dismisses all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). Since the federal claims have been dismissed, leaving no independent basis of jurisdiction over the remaining state claims brought pursuant to the NYHRL and the NYCCRL, they will also be dismissed.
See Purgess v. Shamrock,
Conclusion
For the reasons set forth above, the Complaint is dismissed as to the Unions, and the pendent state law claims are dismissed for lack of supplemental jurisdiction.
Submit judgment on notice.
It is so ordered.
Notes
. It bears noting that the statute of limitations for claims brought under § 1981 is three years.
See Tadros v. Coleman,
Nonetheless, it is dismissed as to the Unions since Nweke has failed to show that the Unions knew about Nweke’s complaints of the LPP policy and her placement on LPP, that the policy is racially discriminatory, or that Nweke was placed on LPP because of her race.
. The conspiracy claim could also be dismissed under the analysis that follows.