MACK v. OTIS ELEVATOR COMPANY

LORETTA A. PRESKA, United States District Judge.

Plaintiff Yasharay Mack ("Mack") brings this action against defendants Otis Elevator Company ("Otis") and Local 1 International Union of Elevator Constructors ("Local 1") pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("NYSHRL"), and the New York City Human Rights Law § 8-107 et seq. ("NYCHRL"). Mack alleges that she was subjected to a racially and sexually hostile work environment and also asserts claims for retaliation and constructive discharge. Further, Mack appears to allege breach of duty of fair representation against Local 1 for its failure to protect her from harassment. Defendants move for: (1) summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; (2) preclusion of evidence not properly disclosed during discovery; and (3) a protective order and attorneys fees. For the reasons set forth below, the motions for summary judgment are granted.

BACKGROUND

Mack, an African-American female, applied through Local 1 for employment as an elevator mechanic "helper" in or about May or June 1999. (Defendants' Rule 56.1 Statement ("Defts. Rule 56.1 Stmt.") ¶ 9; Plaintiff's Rule 56.1 Counterstatement ("Pltfs. Rule 56.1 Stmt.") ¶ 9). She was referred to and hired by Otis on or about July 19, 1999. (Id.; Am. Compl. ¶ 13).

At all times relevant to the amended complaint, Otis had a policy in place prohibiting discrimination and all forms of racial or sexual harassment, including both quid pro quo and hostile work environment. (Defts. Rule 56.1 Stmt. ¶ 1; Pltfs. Rule 56.1 Stmt. ¶ 1). The policy describes how employees may bring discrimination or harassment issues to the attention of management. (Id.). The policy is distributed to all new Otis employees, who are also trained with respect to the policy. (Defts. Rule 56.1 Stmt. ¶¶ 2-3; Pltfs. Rule 56.1 Stmt. ¶¶ 2-3). Further, Otis employees receive annual sexual harassment prevention training, which provides information on the various procedures available to Otis employees who wish to assert complaints of harassment or discrimination. (Defts. Rule 56.1 Stmt. ¶¶ 3-4; Pltfs. Rule 56.1 Stmt. ¶¶ 3-4). Under these procedures, Otis employees may raise complaints of discrimination or harassment with: (1) their supervisors; (2) the Human Resources Department, headed in the New York City area by Paul Barrett ("Barrett"); (3) a system known as DIALOG; or (4) the corporate ombudsperson. (Defts. Rule 56.1 Stmt. ¶ 5; Pltfs. Rule 56.1 Stmt. ¶ 5).

Local 1 also had mechanisms in place to receive and investigate complaints of harassment or discrimination, set forth in the Collective Bargaining Agreement between Local 1 and Otis ("CBA") and in Local 1's By-laws. (Defts. Rule 56.1 Stmt. ¶ 6; Pltfs. Rule 56.1 Stmt. ¶ 6). The CBA states in pertinent part:

"SECTION I — Recognition of the Union and of the Company's Responsibility * * *

(A) Employment Practices

The Company and the Union mutually agree that they will comply and cooperate with all Federal, State and/or Local laws, codes, rules and ordinances prohibiting discrimination based on race, creed, color, sex, national origin, age, sexual orientation, marital status or disability. . . .

SECTION VIII — Arbitration

A. Step 1. If an Employee has a complaint about the application of any portion of this Agreement, the Employee shall first discuss the issue with his/her supervisor and/or business agent within ten (10) days after the cause of the grievance is known or should reasonably have been known. The Employee's supervisor shall respond, either verbally or in writing, to the grievant no later than three (3) business days after this discussion."

(Defts. Rule 56.1 Stmt. ¶ 7; Pltfs. Rule 56.1 Stmt. ¶ 7). Local 1's By-laws state in pertinent part:

While the parties purport to agree that the "Arbitration" clause of the CBA is located in Section VII on pages 38-39, it is actually located in Section VIII on page 35.

"Article XXIV — Charges, Trials and Appeals

When a member of this Local desires to charge a fellow member with having violated any of the provisions of this Constitution and By-Laws, a written charge stating the nature of the violation, including time, place and date, the name of the person making the complaint, and the names of all the witnesses, shall be filed with the Executive Board and read off at the next meeting. Charges must be filed within two weeks of the commission of an offense, or if the offense is of a secret nature, within two weeks of the commission of an offense, or if the offense is of a secret nature, within two weeks from the time the charging party first obtained knowledge of the offense. The member against whom a charge is filed shall be served with a copy of the charge by registered mail . . . and given at least fifteen (15) days written notice by the Recording Secretary of the Local Union to appear before the Executive Board. The trial shall proceed on the date set unless adjourned for good cause.

The Executive Board shall sit as a trial jury . . . ."

(Defts. Rule 56.1 Stmt. ¶ 8; Pltfs. Rule 56.1 Stmt. ¶ 8).

As with all new employees, Mack was informed upon her arrival at Otis of its policy on discrimination and harassment. (Defts. Rule 56.1 Stmt. ¶ 10; Pltfs. Rule 56.1 Stmt. ¶ 10). Barrett specifically instructed Mack to contact him if she experienced any difficulties at the work site. (Id.). Further, Mack was provided with copies of the "rules and regulations" of Local 1 and the CBA, which outlined the procedures for bringing complaints to the attention of Local 1. (Defts. Rule 56.1 Stmt. ¶ 11; Pltfs. Rule 56.1 Stmt. ¶ 11). Local 1 instructed Mack to contact Union officials if she had any questions about the materials that were provided to her. (Id.).

In September 1999, Mack was assigned as a helper in the maintenance department at 200 Park Avenue in New York ("200 Park"). (Defts. Rule 56.1 Stmt. ¶ 9; Pltfs. Rule 56.1 Stmt. ¶ 9). At various times during the course of Mack's employment, Otis management at 200 Park included Michael Donohue, Gerald Mazur and Phillip Gallina ("Gallina"). (Defts. Rule 56.1 Stmt. ¶ 12; Pltfs. Rule 56.1 Stmt. ¶ 12). Gallina was assigned to the maintenance department. (Id.). Mack worked as a helper to a number of Otis mechanics: Richard Morrison ("Morrison"), Gerald Lombardo ("Lombardo"), James Macias, Edward Caban ("Caban"), Chris Moore and James Connolly ("Connolly"). (Defts. Rule 56.1 Stmt. ¶ 13; Pltfs. Rule 56.1 Stmt. ¶ 13). When plaintiff arrived at 200 Park, Steven Hook ("Hook") was also a mechanic helper who became a temporary mechanic soon thereafter. (Id.). All of these individuals were hourly employees and represented by Local 1. (Id.).

The parties vigorously dispute the roles and responsibilities of the mechanics employed at the maintenance department of 200 Park. Connolly was designated the "mechanic in charge." (Defts. Rule 56.1 Stmt. ¶ 14; Pltfs. Rule 56.1 Stmt. ¶ 14). The parties agree that under the CBA, when five or more employees are assigned to a service job, one of them must be designated the "mechanic in charge" who has at least three responsibilities: "(1) to allocate the work assigned by management among the mechanics and helpers, including himself; (2) to check the quality of the work; and (3) to monitor safety in the workplace." (Defts. Rule 56.1 Stmt. ¶ 14; Pltfs. Rule 56.1 Stmt. ¶ 14). Otis and Local 1 assert that the "mechanic in charge" distributes work assignments as received from the customer or Otis management but lacks the ability to: (1) "hire, discharge, promote, demote, discipline or otherwise affect the terms and conditions of other employees' employment with Otis"; (2) "evaluate other employees' performance for purposes of increasing or decreasing wages their wages"; or (3) "affect in any way the terms and conditions of other employees' employment with [Otis]." (Defts. Rule 56.1 Stmt. ¶ 15). Mack disputes that the "mechanic in charge" lacked the ability to carry out those tasks. (Pltfs. Rule 56.1 Stmt. ¶ 15). Further, Mack disputes Otis' and Local 1's assertions that: (1) management assigned overtime work in the maintenance department at 200 Park; and (2) the "mechanic in charge" was simply assigned the "clerical responsibility for maintaining the overtime list." (Defts. Rule 56.1 Stmt. ¶ 16; Pltfs. Rule 56.1 Stmt. ¶ 16).

Mack alleges that, from the point she began her employment at Otis, she was subject to "numerous derogatory, unwelcome and offensive sexual and gender related" incidents: (1) she was told that she "had a `fantastic ass', luscious lips and beautiful eyes"; (2) Connolly, her alleged supervisor, refused to train her because she was female and told her to "just stand there and look pretty"; (3) she was subject to "repeated comments that `women should not be in the business'"; (4) Connolly undressed in front of her at work and touched his private parts; and (5) Connolly told Mack about his "sexual exploits on the job," including showing Mack a calender "marked with the times he allegedly had sexual relations while on the job." (Affidavit of Yasharay Mack sworn to on July 19, 2001 ("Mack Aff.") ¶ 5). Mack alleges that, in September 1999, she was "subject to an unwanted sexual physical attack" by Connolly, where he pulled Mack onto his lap and touched her buttocks in the presence of Morrison, Hook, Moore and Lombardo. (Id. ¶ 6).

Mack further claims that she was "subject to a pattern and practice of derogatory and offensive comments and slurs used to intentionally discriminate against [her] because of her race." (Am. Compl. ¶ 20). Specifically, she states that Connolly made repeated comments about her being "colored" and that Lombardo referred to her as a "little nigger" and told her that "[s]pooks should not be in the business." (Id.). Mack asserts that Connolly refused to give her overtime when "others not similarly situated to [her] in terms of race and/or gender were regularly offered overtime." (Id. ¶ 22). Mack alleges that, after she complained to Otis and Local 1, Connolly threatened her that "if she crossed him he would use his connections with [Otis and Local 1] to interfere with the terms of her employment" and would "not be offered the option of overtime that other employees were regularly offered." (Id. ¶¶ 23-24).

Between July 1999 and May 17, 2000, Mack alleges that she "made repeated complaints regarding the harassment and abuse to Supervisors and Management of [Otis] and with [Local 1] which were summarily dismissed and/or never investigated." (Id. ¶ 21). Mack alleges that she complained about the alleged discriminatory conduct to Local 1 shop steward Craig Reiff ("Reiff"), Local 1 Business Manager John Green ("Green"), Caban, mechanic Vincent DeCaro ("DeCaro") and Connolly himself. (Pltfs. Rule 56.1 Stmt. ¶¶ 18, 19, 30, 32). In contrast, Otis and Local 1 assert that in this time period Mack had "absolutely no contact with [Local 1] or any of its officers regarding her employment with [Otis]," "made no complaints to Mr. Barrett concerning her employment or her treatment by fellow employees" and "with the exception of one or two alleged vague conversations with Mr. Gallina in November 1999, she never made any complaints to any Otis managers or supervisors concerning her treatment in the workplace." (Defts. Rule 56.1 Stmt. ¶ 18).

On May 17, 2000, Local 1 Secretary Treasurer Anthony J. Orrigo ("Orrigo") received a telephone call from an individual representing himself to be Mack's father who indicated that he wished to file a complaint based upon the alleged incident where Connolly attempted to pull Mack onto his lap. (Defts. Rule 56.1 Stmt. ¶ 21; Pltfs. Rule 56.1 Stmt. ¶ 21). Orrigo responded that he would refer the matter immediately to the area Business Agent, who was subsequently notified. (Defts. Rule 56.1 Stmt. ¶ 22; Pltfs. Rule 56.1 Stmt. ¶ 22). Orrigo later spoke with Mack, who told him for the first time that she had been subject to racial and sexual harassment in the workplace. (Defts. Rule 56.1 Stmt. ¶ 25; Pltfs. Rule 56.1 Stmt. ¶ 25). Mack's father also called the Otis branch manager responsible for 200 Park, Steven Sheppke ("Sheppke"), to notify him that Mack was having difficulties with one of the mechanics on the site. (Defts. Rule 56.1 Stmt. ¶ 27; Pltfs. Rule 56.1 Stmt. ¶ 27). Prior to that time, neither Sheppke nor Barrett had ever received any complaints from Mack or her father concerning problems on the worksite. (Id.) Sheppke immediately contacted Barrett and relayed the allegations raised by Mack's father. (Defts. Rule 56.1 Stmt. ¶ 28; Pltfs. Rule 56.1 Stmt. ¶ 28). Barrett contacted Mr. Mack shortly thereafter. (Defts. Rule 56.1 Stmt. ¶ 29; Pltfs. Rule 56.1 Stmt. ¶ 29).

In paragraph 18 of her Rule 56.1 counterstatement, Mack asserts that she had complained to Orrigo about the alleged discriminatory conduct prior to their conversation on May 17. In paragraph 25, however, she admits that this conversation was "the first time" that she told him about her "difficulties in the workplace."

The next day, Mack, her father and representatives from Local 1 and Otis held a meeting, where Mack elaborated on her allegations. (Defts. Rule 56.1 Stmt. ¶¶ 30-31; Pltfs. Rule 56.1 Stmt. ¶¶ 30-31). Barrett explained that "an investigation of [Mack's] allegations was underway and that under no circumstances would any discriminatory conduct be tolerated," and Orrigo agreed on behalf of Local 1. (Defts. Rule 56.1 Stmt. ¶ 33; Pltfs. Rule 56.1 Stmt. ¶ 33). Barrett also offered to transfer Mack to a different location, but she refused. (Id.) It is undisputed that after the meeting, Mack did not return to work with Otis, failed to accept a transfer to another work location, failed to request an assignment to another Local 1 employer and failed to cooperate in Local 1's investigation of her claims. (Defts. Rule 56.1 Stmt. ¶ 34; Pltfs. Rule 56.1 Stmt. ¶ 34).

DISCUSSION I. Summary Judgment Standard

Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.

The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

II. Title VII Claims

Under Title VII, it is unlawful "for an employer . . . to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2a. The Court of Appeals continues to adhere to the allocation of the burden of production articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998). To establish a prima facie Title VII claim, plaintiff must show (1) membership in a protected class; (2) that she was qualified for her position and was performing her job duties at the reasonable expectations of the employer; (3) that she suffered an adverse employment action; and (4) that other unprotected workers were retained or were not otherwise affected by the policy. McDonnell Douglas, 411 U.S. at 802; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Once plaintiff has established a prima facie case, the burden shifts to the defendant to offer a "legitimate, non-discriminatory reason" for the adverse employment action it has taken." Burdine, 450 U.S. at 254. Once the defendant has articulated a legitimate reason, the presumption of discrimination is no longer operative, and the burden shifts back to the plaintiff to "point to sufficient evidence to reasonably support a finding that she was harmed by the employer's illegal discrimination." Fisher, 114 F.3d at 1337.

The standards under Title VII apply equally to Mack's claims under Section 1981, NYSHRL and NYCHRL. Tappe v. Alliance Capital Mgt. L.P., No. 01 Civ. 2068 (SAS), 2001 WL 1297799, at *2 (S.D.N.Y. Oct. 25, 2001) (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000)); Nweke v. Prudential Ins. Co., 25 F. Supp.2d 203, 225 (S.D.N.Y. 1998).

In her complaint, Mack appears to assert four types of claims: hostile work environment, constructive discharge, retaliation and breach of duty of fair representation by Local 1. I address each in turn.

A. Hostile Work Environment

To survive summary judgment on her Title VII claim of hostile work environment harassment, Mack must plead a prima facie case by establishing two elements: "(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (citation omitted); Robles v. Cox Co., 154 F. Supp.2d 795, 803-04 (S.D.N.Y. 2001). I find that, even if a hostile work environment existed at Otis, there is no basis for imputing the conduct that created the hostile work environment to Otis.

Liability may be imputed to an employer for the existence of a hostile work environment whether the alleged harasser is the plaintiff's supervisor or merely her co-worker. The standard of liability for each of these situations, however, is different.

1. Harassment by Supervisors

When a plaintiff accuses a supervisor of harassment, the employer's liability is presumed and can be avoided only by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any sexual harassment by such supervisor; and (2) the employee unreasonably failed to avail herself of any corrective or preventative opportunities provided by the employer. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir. 1998) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).

If the supervisor's harassment culminated with a "tangible employment action," the employer may not invoke this affirmative defense. Ellerth, 524 U.S. at 765. Constructive discharge, however, is not considered a "tangible" employment action for these purposes. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999).

The Supreme Court has not specifically defined the term "supervisor" for purposes of determining an employer's liability for a hostile work environment but described the power to supervise as "to hire and fire, and to set work schedules and pay rates." Faragher, 524 U.S. at 803. Numerous lower courts, however, have since elaborated upon the scope of the term, recognizing that one must possess a significant amount of authority over others to be construed legally as a "supervisor." For example, in Parkins v. Civil Constructors, Inc., 163 F.3d 1027, 1033 (7th Cir. 1998), the court noted the long-standing distinction "between low-level supervisors who were the equivalent of co-workers and supervisors whose authority and power was sufficient to make consequential employment decisions affecting the subordinate, such that the supervisor was effectively acting on the employer's behalf." The court observed that post-Faragher and Ellerth cases "indicate that whether an individual is `a supervisor with immediate (or successively higher) authority' is dependent upon whether his authority was of a substantial magnitude." Id. at 1034 (citing Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 592 (5th Cir. 1998); Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir. 1998)). The court concluded that the alleged harassers could not be considered "supervisors":

See, e.g., Blackman, Note, The Faragher and Ellerth Problem: Lower Courts' Confusion Regarding the Definition of "Supervisor", 54 Vand. L. Rev. 123, 124 (2001) ("Although [Faragher and Ellerth] revised and clarified the proper standard of employer liability in hostile environment claims, they also have been a source of confusion for lower courts attempting to decide exactly which employees qualify as supervisors.").

"[I]t is manifest that the essence of supervisory status is the authority to affect the terms and conditions of the victim's employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes imputing liability to the employer.

Applying this standard to the present case, it is clear that neither [of the alleged harassers] was a supervisor for purposes of imposing strict liability on the employer under Title VII. Both [of them] were laborers who were required to account for their time on a time card, were paid an hourly wage, and received overtime pay."

Id. at 1034; see also, e.g., Trigg v. New York City Transit Auth., No. 99 CV 4730 (ILG), 2001 WL 868336, at *7 (E.D.N.Y. July 26, 2001) (describing as a "sound statement" the Seventh Circuit's assertion in Parkins that supervisory status should consist of "the power to hire, fire, demote, promote, transfer, or discipline an employee"); Jackson v. T N Van Service, 86 F. Supp.2d 497, 501 (E.D.Pa. 2000) ("Defendants are correct in that `the limited ability of employees to direct the work of crews or other small groups of workers does not equate to a supervisory position' for purposes of imputing liability to the employer."); Mikels v. City of Durham, 183 F.3d 323, 334 (4th Cir. 1999) ("[I]t is evident that any authority possessed by Acker over Mikels was at best minimal. . . . Acker's authority assuredly did not include the power to take tangible employment actions against Mikels and her rank-peers. At most it would involve the occasional authority to direct her operational conduct while on duty.").

As noted in Trigg, the Second Circuit "has not voiced an opinion on the criteria used to identify a supervisor versus a co-employee." 2001 WL 868336, at *7.

But see Grozdanich v. Leisure Hills Health Center, Inc., 25 F. Supp.2d 953, 972 (D.Minn. 1998) ("[I]t is evident that the Supreme Court views the term `supervisor' as more expansive than as merely including those employees whose opinions are dispositive on hiring, firing, and promotion.").

In the instant case, Mack fails to present any genuine issue of material fact as to whether Connolly can be construed as her "supervisor." The parties agree that Connolly was an hourly employee and a member of Local 1. (Defts. Rule 56.1 Stmt. ¶ 13; Pltfs. Rule 56.1 Stmt. ¶ 13). In her Rule 56.1 counterstatement, Mack disputes, inter alia, Otis' and Local 1's assertion that Connolly "does not have the power to hire, discharge, promote, demote, discipline or otherwise affect the terms and conditions of other employees' employment with Otis." (Defts. Rule 56.1 Stmt. ¶ 15; Pltfs. Rule 56.1 Stmt. ¶ 15). Mack, however, offers no evidence to support her contrary position. She refers to certain portions of Connolly's deposition testimony, but this testimony does not establish that Connolly had a sufficient level of authority over Mack to be construed legally as a "supervisor." Connolly testified that a mechanic-in-charge has "[m]ore responsibilities" than a mechanic. (Connolly Dep. at 6). He was required to: (1) "interact with building management to make sure their needs are being addressed promptly and courteously, make sure the maintenance and repairs are done in a timely fashion" (id.); (2) "make out the time tickets for just the maintenance department" (id. at 7); (3) tell the other mechanics "what had to be done" for a particular job (id. at 19); (4) make statements "on what had to be done and who would be available to do it" with respect to overtime (id. at 21); (5) "advise mechanic helpers of certain work assignments" (id. at 20); and (6) "educate" helpers assigned to work with him, including assignments that he had with Mack. (Id. at 47). Connolly testified that no mechanic has ever refused an assignment from him — but if that were to happen, he would have to "talk to the shop steward or someone in-house to address the problem," rather than directly taking action himself. (Id. at 20). Thus, there is no evidence from which a jury could determine that Connolly had the requisite power to be construed as a "supervisor" — he could not hire, fire, promote, demote or discipline Mack. At most, he had "occasional authority to direct her operational conduct." Mikels, 183 F.3d at 334.

Connolly described this responsibility as follows: "If there was [sic] five elevators shut down, it would be you take that and you take this and you would take that and you would take that." (Id.).

In her opposition brief, Mack cites to Karibian v. Columbia University, 14 F.3d 773, 775, 777-78 (2d Cir. 1994), and Talada v. International Service System, Inc., 899 F. Supp. 936, 948 (N.D.N.Y. 1995) to support the proposition that "supervisory authority, actual or apparent, include [sic] the ability to determine the employee's day-to-day activities, the authority to alter the employees [sic] work schedule, assignments, give promotions and raises or to terminate an employee." (Pl. Br. at 10). Contrary to Mack's assertion, however, neither of those cases actually held that supervisory authority includes "the ability to determine the employee's day-to-day activities." Further, unlike here, there was no dispute in those cases the alleged harassers were, in fact, considered to be "supervisors." Finally, and in any event, both Karibian and Talada were decided before the Supreme Court decisions in Faragher and Ellreth and their progeny, which substantially define and narrow the definition of the term "supervisor" in a Title VII context.

Mack also fails to present any genuine issue of material fact as to whether Lombardo — to whom Mack attributes certain racial remarks — was her "supervisor." Lombardo was simply a mechanic at 200 Park assigned to work with Mack. (Lombardo Dep. at 16). Like Connolly, Lombardo was an hourly employee and had no ability to hire, fire, promote, demote or discipline Mack.

2. Harassment by Non-Supervisors

When a non-supervisor is alleged to have created the hostile or abusive environment, the employer will generally not be liable under federal law "unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it," Quinn, 159 F.3d at 766 (internal quotation marks omitted), or under state and city law if the plaintiff can prove that the employer "became a party to the [discriminatory act] by encouraging, condoning, or approving it," DeWitt v. Lieberman, 48 F. Supp.2d 280, 293 (S.D.N.Y. 1999) (citation omitted).

With respect to the issue of whether Mack had a reasonable avenue of complaint available to her, it is undisputed that Otis has a written policy against sex discrimination and sexual harassment. (Pltfs. 56.1 Stmt. ¶ 1; Defts. 56.1 Stmt. ¶ 1). Mack has admitted that she was aware of such policy and has made no argument that this policy is inherently unreasonable. Therefore, liability for the alleged harassment cannot be imputed to Otis on this ground. With respect to the issue of whether Otis knew of the harassment but did nothing about it, Mack cites Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998), a post-Ellerth and Faragher case. In Distasio, plaintiff claimed that she was subjected to a hostile work environment because she was sexually harassed by a co-worker for four years. Id. at 59. She reported the conduct on numerous occasions to her supervisor who failed to relay plaintiff's complaints to the Human Resources Department. Id. at 59, 61. The Court of Appeals observed that for liability to attach under Title VII, "an employer need not have actual knowledge of the harassment; an employer is considered to have notice of sexual harassment if the employer — or any of its agents or supervisory employees — knew or should have known about the conduct." Id. at 63 (citing Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995)). The court noted that "agency principles" determine whether an official's knowledge can be imputed to the employer, i.e., when:

"(A) the official is at a sufficiently high level in the company's management hierarchy to qualify as a proxy for the company; or (B) the official is charged with a duty to act on the knowledge and stop the harassment; or (C) the official is charged with a duty to inform the company of the harassment."

Id. at 64 (citing Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir. 1997)). The court imputed liability to the company, Perkin Elmer, on this basis due to the fact that Perkin Elmer's own sexual harassment policy "specifically states that `an employer is considered to have direct knowledge when an employee has complained directly to a supervisor, or Human Resources or has used any established complaint mechanism.'" Id.

Distasio also imputed the supervisor's knowledge of the sexual harassment to Perkin Elmer on an independent ground: the supervisor had "a responsibility to relay sexual harassment complaints to the company under the express policy promulgated by the company." Id. The court held that "[a]n employer will be liable based on the knowledge of an employee, who may or may not have management authority, if that employee `has an official or strong de facto duty to act as a conduit to management for complaints about work conditions, or is responsible for relaying harassment complaints to the corporate hierarchy.'" Id. (citations omitted). The court found that such a duty existed because Perkin Elmer's policy instructed supervisors — once they have received a harassment complaint — to inform the Human Resources Department about the allegations within 24 hours of the reporting of the incident and to assist in any investigations. Id.

Mack asserts that Distasio is directly applicable to the instant case. She refers to Otis' harassment policy, which states:

"If you believe that you are being harassed by an Otis employee, vendor, consultant or contractor, or if you observe harassment as defined in the policy, you should immediately notify Otis by taking one or more of the following actions; (1) inform your supervisor (unless he/she is the alleged harasser); (2) inform your Human Resources Representative; (3) contact the Workforce Diversity Manager, who handles harassment issues . . .; (4) contact the "DIALOG" Administrator . . .; (5) contact the Otis Ombudsman in the UK; or (6) contact the UTC Ombudsman."

(Pl. Br. at 12 (citing Def. Ex. 15)). Mack asserts she complained about the harassment to mechanics Caban, Lombardo and DeCaro and that at least two of them actually witnessed her being harassed. (Id. at 13-14). Mack describes all three men as her "supervisors." (Id.). Mack appears to be asserting, based upon Otis' harassment policy, two independent bases upon which liability could be imputed to Otis: (1) Caban, Lombardo and DeCaro, as Mack's purported supervisors, knew about the alleged harassment but failed to act; and (2) Caban, Lombardo and DeCaro — regardless of their alleged supervisory status — had "an official or strong de facto duty to act as a conduit to management for complaints about work conditions" or were "responsible for relaying harassment complaints to the corporate hierarchy."

I reject both arguments. First, Caban, Lombardo and DeCaro had no strong or de facto duty to act as a conduit to Otis for complaints about work conditions. Unlike in Distasio, Otis' harassment policy contains no provision stating that "an employer is considered to have direct knowledge when an employee has complained directly to a supervisor, or Human Resources or has used any established complaint mechanism." Second, it was undisputed in Distasio that the party which failed to report the harassment was plaintiff's supervisor. In this case, however, neither Caban nor DeCaro was Mack's supervisor for the same reasons described above as to why Lombardo was not her supervisor — i.e., they were hourly employees represented by Local 1 and had no ability to hire, fire, promote, demote or discipline Mack. (Defts. Rule 56.1 Stmt. ¶ 13; Pltfs. Rule 56.1 Stmt. ¶ 13; Mack Dep. at 125-27). Third, the fact that Otis' harassment policy encourages all employees, including non-supervisors, to report any observed harassment does not mean that the purported failure of Caban, Lombardo and DeCaro to do so allows the harassment to be imputed to Otis. As Otis points out in its reply brief, "[i]t would be anomalous if under Ellerth a [p]laintiff's failure to take advantage of multiple complaint procedures relieved the employer of liability, but her co-worker's failure to follow such procedures on her behalf imposed liability on the employer." (Otis Reply Br. at 8) (emphasis in original).

In addition to Caban, Lombardo and DeCaro, Mack also alleges that she complained to Gallina — a member of Otis management at 200 Park — about the harassment by Connolly, but he refused to take any corrective action on her behalf. (Mack Dep. at 85-86, 91, 94, 205; Mack Aff. ¶ 8). Specifically, she testified that when she met with Gallina, she told him:

"I was plagued with a lot of sexist issues with [Connolly]. I didn't go into very much detail. The way he wanted me to break Union rules. I didn't like the way he talked to me in a sexual manner and he just pretty much stared at me."

(Mack Depo. at 86). Later in the deposition, she testified further about the alleged conversation:

"Q: When you went to Mr. Gallina, did you say, `I want you to conduct an investigation'?

A: Those weren't my exact words. It was more like a plea, like, it went to the form of, `This guy is very abusive.' He had basically rustled his hair and stared at me and said, `What do you mean?' I said, `Phil, this guy is always making rude and sexist comments to me and can that help the decision for me to at least go to mod, so I could be out under his care.' He was my mechanic in charge, I have to do what he says."

(Id. at 205).

Mack cannot properly rely upon her alleged conversation with Gallina to impute liability to Otis. A plaintiff "cannot withstand summary judgment without presenting evidence that she gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed." Schiraldi v. AMPCO System Parking, ABM, F. Supp. 2d 213, 221 (W.D.N.Y. 1998) (quoting Zimmerman v. Cook County Sheriff's Dept., 96 F.3d 1017, 1019 (7th Cir. 1996)). For example, in Hawkins v. Maximus, Inc., No. 99 C 0954, 2000 WL 1898494 (N.D.Ill. Dec. 21, 2000), plaintiff Yvette Hawkins ("Hawkins") brought suit against her former employer, Maximus Inc. ("Maximus"), for refusal to take preventive action against her co-worker, Timothy Bannister ("Bannister"), prior to Bannister's raping Hawkins. Hawkins alleged that Maximus was on notice because she had told her project manager that: (1) Bannister "was following her home and that she was `spooked' by it"; (2) she thought Bannister was a "pervert"; and (3) Bannister "was complementing her, telling her she owed him for the job and telling her he liked black girls, not white girls." Id. at *2. The court held that Maximus could not be held liable to Hawkins:

When asked specifically about the Union rules that Connolly wanted Mack to break, she testified:

"There were certain Union rules that they came out with at the Union meetings, a helper could not be left alone with the tools. If the helper was found left alone using a tool, without a mechanic, the helper would be fired immediately. He had a bad reputation of always breaking that rule, so he can go do whatever." (Mack Dep. at 86).

"The complaints Hawkins made to [her project manager] are sufficient to put the employer on notice that Bannister was a boor, but are not sufficient to inform Maximus that a severe alteration of the terms and conditions of Hawkins's employment was imminent. I do not mean to suggest that Maximus would be liable only if it knew that the rape was about to happen; it must have been on notice of sexual harassment in general — severe gender-based conduct that subjectively and objectively alters the terms and conditions of employment. Here, Maximus knew only that Bannister was making Hawkins work late, and making suggestive comments to her."

Id. at *3; see also, e.g., Taylor v. CR Chicago Rawhide, No. 98-C-2493, 1999 WL 41380, at *4 (N.D.Ill. June 9, 1999) (plaintiff discussed name-calling but failed to mention touching or other bullying and therefore failed to give sufficient notice of the harassment to the employer).

Here, no reasonable juror could conclude that Gallina was on notice of the alleged harassment. While Mack alleges that she was subject to harassment by numerous individuals, she concedes that her only complaint to Gallina was about Connolly. Mack does not dispute that she never told Gallina, inter alia, that Connolly ever touched her, that he undressed in her presence or that he bragged about his sexual exploits to her. Indeed, Mack admits that she "didn't go into very much detail" with Gallina about her allegations. (Mack Dep. at 85). Her alleged complaints to Gallina about harassment also appear to focus on Connolly's desire for her to break Union rules — i.e., complaints having nothing to do with harassment.9 In May 2000, when she did provide additional details to Otis and Local 1 about the alleged harassment — including specific information about her allegation that Connolly improperly touched her approximately nine months earlier — Otis responded immediately to her complaint. (Defts. Rule 56.1 Stmt. ¶¶ 30-31, 33; Pltfs. Rule 56.1 Stmt. ¶¶ 30-31, 33). Finally, and in any event, Mack has apparently abandoned any argument that the alleged conversations with Gallina could impute knowledge of the harassment to Otis because she fails to refer to those conversations in her memorandum of law in opposition to defendants' motions for summary judgment.

B. Constructive Discharge

Mack alleges that she was forced to resign because "[d]efendants intentionally created an atmosphere where [she] was continually subjected to egregious harassment." (Pl. Br. at 20). To prevail on a claim for constructive discharge, Mack must show that Otis intentionally created an intolerable work atmosphere that forced her to resign. Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in [the] employee's shoes would have felt compelled to resign." Id. (citation omitted). "[C]onstructive discharge also requires deliberate action on the part of the employer." Whidbee v. Gazarelli Food Specialties Inc., 223 F.3d 62, 74 (2d Cir. 2000). "While the meaning of `deliberate' in this context is unsettled, case law suggests it is something beyond mere negligence." Id. (citations omitted); see also, e.g., Kader v. Paper Software, Inc., 11 F.3d 337, 341 (2d Cir. 1997) ("Plaintiff demonstrated that an uneasy and stressful environment existed, but adduced no evidence to support an inference that the employer intentionally created an intolerable workplace."). Mack has failed to provide evidence of either intentional or deliberate actions by Otis that forced her to resign. The day after Mack's father contacted Local 1 Secretary Treasurer Orrigo and Otis branch manager Sheppke to notify them about Mack's alleged difficulties at the work site, a meeting was arranged among Mack, her father, and representatives from Local 1 and Otis to discuss her allegations. (Defts. Rule 56.1 Stmt. ¶¶ 30-31; Pltfs. Rule 56.1 Stmt. ¶¶ 30-31). Barrett explained to Mack that an investigation had already begun and that discriminatory conduct would not be tolerated at Otis under any circumstances. (Defts. Rule 56.1 Stmt. ¶ 33; Pltfs. Rule 56.1 Stmt. ¶ 33). Barrett also offered to transfer Mack to a different location. She refused. (Id.) After the meeting, she failed to return to work with Otis, did not accept a transfer to another work location, declined to request an assignment to another Local 1 employer and did not cooperate in Local 1's investigation of her claims. (Defts. Rule 56.1 Stmt. ¶ 34; Pltfs. Rule 56.1 Stmt. ¶ 34). On these facts, a reasonable jury could not conclude that Mack's working conditions were so intolerable that a reasonable person in her shoes would have felt compelled to resign. See Whidbee, 223 F.3d at 74. Accordingly, Otis' and Local 1's motions for summary judgment on the constructive discharge claim are granted.

While Mack appears to be asserting this claim against both Otis and Local 1, it is obviously inapplicable to Local 1. See, e.g., Cooper v. Wyeth Ayerst Lederle, 106 F. Supp. 479, 501 (S.D.N.Y. 2000).

C. Retaliation

Mack argues that Otis and Local 1 unlawfully retaliated against her because she reported and objected to racial and gender discrimination. (Am. Compl. ¶¶ 63-77). Mack alleges that the retaliatory actions taken by Otis and Local 1 include "the escalation of the hostile work environment, threats of a transfer, her constructive discharge and the Local 1's refusal to file a formal grievance on behalf of plaintiff." (Pl. Br. at 23-24).

To establish a prima facie case of retaliation, the plaintiff must show: (1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the person engaged in the protected activity; and (3) a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Badlam v. Reynolds Metals Co., 46 F. Supp.2d 187, 204 (N.D.N.Y. 1999). A causal connection can be established by showing that the protected activity was followed by discriminatory conduct or that similarly situated employees were treated differently. Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990). A plaintiff merely needs to establish facts adequate to permit an inference of retaliatory motive to make out his or her prima facie case and shift the burden to the defendant to present non-retaliatory reasons for the employment action. Ostrowski v. Atlantic Mutual Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992).

Mack has failed to demonstrate retaliation by Otis or Local 1 because there is no evidence that she was subject to any adverse employment actions. As discussed above, Mack was not constructively discharged. Nor is there any evidence that, even if a hostile work environment did exist, it "escalated" as a direct result of Mack's voicing her complaints. Further, Mack's assertion that Otis responded to her complaints with "threats to move her out of the Met Life Building to a building where she would not have been able to receive overtime," (Pl. Br. at 25 (citing Mack Dep. at 108-09)), is belied by her own deposition testimony:

"Q: You told me before [Barrett] did offer you a transfer to another job site?

A: Yes, I did. I don't recall if he made — you asked me if it was at [the May 18, 2000] meeting and that, I don't recall.

Q: What job site did he offer to transfer you to?

A: Rockefeller Center.

. . .

Q: Did you go to Rockefeller Center?

A: No, I did not.

Q: Why not?

A: I didn't feel it was safe. I didn't feel safe with Otis anymore at that point. I felt my trust was betrayed.

Q: You thought what?

A: I just felt betrayed by the whole company, the Union itself."

(Mack Dep. at 106-08).

Mack testified that there were no overtime opportunities available to her at Rockefeller Center — one of the facts upon which her retaliation claim is based. (Mack Dep. at 108). But no reasonable jury could conclude that Barrett's offer to transfer Mack to a work site that did not offer overtime, in response to Mack's harassment complaint that he had just learned of, was to "retaliate" against her for grieving that complaint. In any event, Otis' offer to transfer Mack was a reasonable response to her allegations arising from the May 18, 2000 meeting. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998) (reasonable responses include "scheduling changes and transfers").

Finally, there is no evidence that Local 1 refused to file a formal grievance on Mack's behalf. To the contrary, Mack admits that after the May 18, 2000 meeting, she failed to return to work with Otis and failed to cooperate in the Union's investigation into her claims. (Defts. Rule 56.1 Stmt. ¶ 34; Pltfs. Rule 56.1 Stmt. ¶ 34). Therefore, Mack cannot properly oppose summary judgment on this ground. See, e.g., Lambert v. New York State Office of Mental Health, No. 97-CV-1347 (JG), 2000 WL 574193, at *13 (E.D.N.Y. Apr. 24, 2000) (granting summary judgment on plaintiff's retaliation claim because of, inter alia, plaintiff's "failure to show up for work" and "her refusal to cooperate in the investigation against her").

Mack argues that Local 1's refusal to file a formal grievance on her behalf in response to her filing an EEOC complaint is "per se retaliation in violation of Title VII." (Pl. Br. at 25). But Mack did not even file her EEOC charge until December 20, 2000 — i.e., two months after she filed the initial complaint in this action and seven months after her last day of employment at Otis. See Charge of Discrimination dated December 20, 2000 attached to the Affidavit of Richard H. Markowitz sworn to on November 19, 2001.

D. Duty of Fair Representation

"It is well established that a union's breach of its duty of fair representation may subject it to liability under Title VII." Agosto v. Correctional Officers Benevolent Ass'n, 107 F. Supp.2d 294, 303 (S.D.N.Y. 2000) (citations omitted). To state a claim against Local 1 for breach of duty of fair representation, Mack must demonstrate: "(1) that the company committed a violation of the collective bargaining agreement with respect to the plaintiff; (2) that the Union permitted that breach to go unrepaired, thus breaching its own duty of fair representation; (3) that there was some indication that the Union's actions were motivated by racial animus." Ross v. Communications Workers of America, No. 91 Civ. 6367 (LAP), 1995 WL 351462, at *6 (S.D.N Y June 9, 1995), aff'd, 100 F.3d 944 (2d Cir. 1996).

Mack cannot demonstrate that Otis committed a violation of the CBA. Under the CBA, Otis and Local 1 agree that they intend to "comply and cooperate with all Federal, State and/or Local laws, codes, rules and ordinances prohibiting discrimination based on race, creed, color, sex, national origin, age, sexual orientation, marital status or disability." (Defts. Rule 56.1 Stmt. ¶ 7; Pltfs. Rule 56.1 Stmt. ¶ 7). As discussed above, even assuming that Mack was harassed by fellow Otis employees, liability for that harassment cannot be imputed to Otis: (1) none of the alleged harassers, including Connolly, can be construed legally as Mack's "supervisor"; and (2) there is no evidence that Otis "either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it."

Even if Otis did breach the CBA, Mack cannot show that Local 1 permitted that breach to go unrepaired. Mack failed to invoke properly the grievance and arbitration procedures available to her pursuant to the CBA and Local 1's By-laws until at least May 2000 — procedures that she admits she was made aware of upon her arrival at Otis. (Defts. Rule 56.1 Stmt. ¶ 11; Pltfs. Rule 56.1 Stmt. ¶ 11). Specifically, she did not "discuss the issue with [her] supervisor and/or business agent within ten (10) days after the cause of the grievance [was] known or should reasonably have been known," as mandated by the CBA. (Defts. Rule 56.1 Stmt. ¶ 7; Pltfs. Rule 56.1 Stmt. ¶ 7). Nor did she comply with Local 1's by-laws which state that "[w]hen a member of this Local desires to charge a fellow member with having violated any of the provisions of this Constitution and By-Laws, a written charge stating the nature of the violation . . . shall be filed with the Executive Board." (Defts. Rule 56.1 Stmt. ¶ 8; Pltfs. Rule 56.1 Stmt. ¶ 8).

Mack testified that she complained to three people within Local 1 about the alleged harassment: Reiff, Orrigo and Green. (Mack Depo. at 173). She stated that her complaints to Green and Orrigo were in May 2000, but her complaints to Reiff may have occurred as early as April 2000. (Id. at 174). She admitted, however, that she never made any written complaint to anyone within Otis or Local 1, including Reiff. (Id. at 174, 462-63, 469-70). Further, there is no evidence that those individuals were either Mack's supervisors or business agents, as required by the CBA.

Mack's argument that Local 1 breached its duty of fair representation by failing to file a grievance with Otis on her behalf is unpersuasive. Even if Local 1's failure to file a grievance on Mack's behalf were negligent — a dubious position given Mack's own failures to follow the applicable grievance and arbitration procedures — no breach of duty could result. Negligence or "tactical errors" on the part of the union do not show a breach of the duty of fair representation. Cruz v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1153-54 (2d Cir. 1994). Mack's argument is further undermined by her failure to cooperate with Local 1's investigation of her complaints following the May 18, 2000 meeting. See, e.g., Pegump v. Rockwell Int'l Corp., 109 F.3d 442 (8th Cir. 1997) (finding that Union did not breach its duty of fair representation where, after employee was suspended, Union ceased its efforts to process grievance after employee refused to cooperate in investigation of her conduct).

Even if it could somehow be construed that Mack did properly file a timely grievance, Local 1's failure to arbitrate that grievance does not create a breach of their duty. It is well-established that a union member does not have an absolute right to have her grievance taken to arbitration. See Vaca v. Sipes, 386 U.S. 171, 191 (1967); Kings County Hospital Center, No. 99-CV-3927 (ILG), 2000 WL 1868088, at *3 (E.D.N.Y. Oct. 25, 2000); De Gennaro v. New York City Housing Auth., No. 92 Civ. 5985 (MBM), 1995 WL 37850, at *6 (S.D.N.Y. Jan. 31, 1995) ("Even if the Union made an erroneous determination regarding the merit of plaintiff's claim, so long as the decision not to arbitrate was made in good faith, as it was here, the Union cannot be held liable for unfair representation."), aff'd, 71 F.3d 405 (2d Cir. 1995).

III. Attorneys Fees

In light of the ruling on defendants' motions for summary judgment, defendants' motion for a protective order is moot. Counsel shall inform the Court whether defendants wish to pursue their motion for attorneys fees in connection with making the motion for a protective order.

CONCLUSION

Defendants' motions for summary judgment are granted. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.

SO ORDERED.