Smith v. AFSCME Council 4 et al
RULING and ORDER granting 224 Motion for Summary Judgment; granting 228 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 8/17/12. (Goldsticker, M)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WANDA A. SMITH,
AFSCME COUNCIL 4;
Case No. 3:08-CV-1735 (RNC)
RULING AND ORDER
Plaintiff brings this suit against AFSCME International
("International") and AFSCME Council 4 ("Council 4"),
claiming that she was removed from her position as president
of AFSCME Local 538 ("Local 538") because of her race and in
retaliation for her protected activity on behalf of minority
members of the Local.
Plaintiff alleges that she was a
longtime advocate for minority union members, who received
inadequate representation from Council 4 at grievance
In retaliation for her advocacy, plaintiff
alleges, Council 4 Executive Director Sal Luciano conspired
to have International audit Local 538 and fabricate the
results of the audit in order to provide a pretext for
removing plaintiff and her treasurer, Nelson Leon.
Plaintiff further alleges that she and Leon were removed
without an adequate opportunity to be heard.
claims defendants' alleged actions violate 42 U.S.C. §§
1981, 1985, 1986 and 2000e, et seq., as well as state law.
In 2009, defendants moved to dismiss plaintiff's
complaint (docs. 46 & 61), on the ground that she was
properly removed for misappropriating union funds.
motions were denied in order to give plaintiff an
opportunity to conduct discovery and gather evidence
demonstrating that defendants' actions were motivated by her
race or taken in retaliation for her protected activity.
Defendants now move for summary judgment pointing out that,
although plaintiff has been given ample opportunity to
engage in discovery, she lacks competent evidence to support
After careful review, I conclude that the
defendants are correct and, accordingly,
the motions for
summary judgment are granted in full.
Summary Judgment Standard
A court will grant summary judgment if “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
Fed. R. Civ. P. 56(a).
To avoid summary judgment, a
plaintiff must point to evidence that would permit a jury to
return a verdict in her favor.
Inc., 477 U.S. 242, 252 (1986).
Anderson v. Liberty Lobby,
In the absence of such
evidence, summary judgment will be granted.
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
determining whether summary judgment is proper, the record
must be viewed in the light most favorable to the plaintiff.
See Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003).
However, in opposing summary judgment, the plaintiff must
not “replace conclusory allegations of the complaint . . .
with conclusory allegations of an affidavit” but instead
must offer “significant probative evidence tending to
support the complaint.”
Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888 (1990) (internal quotations omitted).
The summary judgment record, viewed most favorably to
the plaintiff, shows the following.
Plaintiff Wanda Smith, an African-American woman, has
been employed by the State of Connecticut Department of
Social Services ("DSS") since 1982, and she has been a
member of Local 538 since approximately 1987.
served as president of Local 538 for approximately 18 years,
beginning in 1989 and ending with her removal in 2006.
Nelson Leon served as treasurer of Local 538 during
plaintiff's tenure as president.
AFSCME is a large labor union representing
approximately 1.4 million employees in state and local
government and the healthcare industry.
AFSCME is a tri-
level organization: International is the parent
organization, which issues charters to Councils and Locals.
Fifty Regional Councils, including Council 4, operate below
International, and approximately 3,500 Locals form the basic
units of the union.
Council 4 represents about 35,000
workers divided among approximately 100 Locals.
Councils are autonomous entities, independent from
International may exercise control over
Councils only through an administratorship.
Locals are each
affiliated with a Council, but they also are legally
AFSCME's constitution requires each
Local to remit a "per capita tax," a portion of its member
dues, to its Council and International.
AFSCME provides an informal three-step grievance
process for union members who have been subject to an
adverse employment action.
At Step I, the Local files a
grievance with the employer agency.
The grievant and local
union representative speak with the grievant's supervisor.
At Step II, they meet with a representative of the employer
agency's human resources department.
If the issue remains
unresolved, the Local can file an appeal, which results in
At that point, a copy of the grievance is sent to
a Council service representative, who advises the grievant
of a date for a hearing regarding the appeal.
hearing, the Council representative, the local union
president (or steward) and the grievant appear before a
three-person panel, comprised of two individuals from state
agencies and one union representative.
History of Protected Activity
Plaintiff alleges that Council 4 repeatedly provided
inadequate representation to minority union members at Stage
III of this grievance process – the point at which she, as
president of Local 538, no longer had direct control over
the representation of the grievant.
She claims that she
regularly fought for these minority grievants, insisting
that they be represented by competent advocates and that
those advocates present evidence that she believed would aid
the grievants' claims.
Plaintiff recites a number of
examples of allegedly inadequate representation.
examples are supported by her affidavit or Leon's affidavit
almost exclusively, and are therefore admissible only to the
extent that she and Leon have personal knowledge of the
See Fed. R. Civ. P. 56(c)(4).
In 1985, plaintiff herself was threatened with
termination, and Carol Dimmock, then-president of Local 704,
assigned a novice union steward to plaintiff's Loudermill
When plaintiff complained to Council 4, they
simply referred her back to Dimmock.
was transferred to a different agency, not terminated.
The state laid off Leon, a Hispanic man, in 1997, while
he was a Local 704 union steward.
Plaintiff claims that
this was a violation of the labor bargaining agreement but
provides no evidence of that beyond Leon's own statement.
Council 4 refused to challenge the layoff, which Leon says
was "unheard of."
Leon had been a vocal advocate for
minorities and a vocal critic of Dimmock.
Leon states that
Dimmock engaged in financial mismanagement but the record
contains little admissible evidence to support his
Leon also states that Dimmock arranged for him
Leon states that he led inquiries into allegations of
financial mismanagement by Dimmock with regard to personal
vehicle purchases. He avers that Dimmock failed to disclose
vehicle purchases and put at least one vehicle up for sale. Leon
claims that he saw at least one advertisement for a car.
to be laid off but the record does not show that he has
personal knowledge of facts to support this statement.
Also in 1997, plaintiff represented Nigel Morris, an
African-American man, in his termination grievance.
III, she was replaced by Council 4 representative John
Plaintiff complained about Little's representation
to Council 4's then-executive director, and Little was
replaced by Kelly Cashman.
Morris eventually signed a
settlement agreement that relabeled his termination a
He was rehired by the Department of Social
Services in 2006 and became a member of a labor union
unaffiliated with AFSCME.
Morris later wrote a letter to
Council 4 Executive Director Salvatore Luciano, and sent a
copy of the letter to the plaintiff, stating that the terms
of the settlement were not being honored.
that Luciano contacted DSS as a result of this letter,
although she does not explain why she is competent to
testify to this fact.
DSS then accused Morris of lying on a
job application by failing to state that he was terminated
from his earlier position, and the ensuing investigation
resulted in his termination.
His union represented him
successfully in his grievance proceeding, and he was
reinstated with backpay.
Beginning in 2000, plaintiff sought reclassification
from her position of "Secretary II" to "Administrative
Assistant" and later to "Pre-Professional Trainee."
Plaintiff had previously complained about the quality of
Cashman's representation, but Council 4 assigned Cashman to
her grievance anyway.
The grievance process took several
years, even though, according to plaintiff, it usually takes
only about one year.
Plaintiff does not offer admissible
evidence for the usual grievance timeline.
In May 2003,
when plaintiff was seeking to be reclassified as a PreProfessional Trainee, an email between DSS human resources
staff members stated that the reclassification hearing would
be for the Administrative Assistant position, not a PreProfessional Trainee position.
The author of the email
indicated that she had spoken with Cashman, who would talk
with plaintiff about the subject of the hearing.
also indicated that, if necessary, plaintiff's manager would
be called to testify that plaintiff was not performing the
duties of a Pre-Professional Trainee.
had in fact supported plaintiff's desired reclassification.
Plaintiff claims this email shows that Cashman was colluding
with DSS to deny her a Pre-Professional Trainee position.
Plaintiff was ultimately reassigned to a different unit
where she performed the duties of an Administrative
She complained about Cashman's alleged collusion
to Council 4 staff representative Gayle Hooker, who is
herself African-American, calling Cashman's behavior "racial
and biased" and "the same racial discriminatory practices
that I have complained to you repeatedly."
she does not know of any reclassification grievance where
Cashman represented a white grievant differently.
several Caucasian employees were reclassified favorably
without filing grievances.
Their employers, not Council 4,
decided to reclassify them.
Plaintiff and Leon represented Norma Parmalee, an
African-American woman terminated from her position after
taking a medical leave in 2001.
Council 4 service
representative Marie King took over at Step III.
found evidence that Caucasian employees had not been fired
when they took more time off than Parmalee, but King refused
to introduce this evidence at Parmalee's hearing.
complained about King's representation to Hooker and
requested a different representative.
At this point,
plaintiff had complained about all of Council 4's service
representatives, so she insisted that Hooker herself
In 2002, plaintiff represented Richard Parmalee, an
African-American man who was terminated from his position.
When she learned that representative Little was assigned to
Parmalee's case at Step III, plaintiff demanded that Hooker
take over the representation.
As a result of Hooker's
representation, Parmalee's termination was rescinded.
he was again terminated, Hooker again represented him, and
again, he was reinstated.
In 2003, Leon represented Vicky Ward, an AfricanAmerican woman who had been terminated for downloading a
non-business related brochure on a state-issued computer.
When Cashman assumed the representation at Step III, she
failed to introduce evidence that Ward's white co-workers
had misused work computers – including by viewing
pornography – and had not been terminated.
At a meeting of
Local 538's Executive Board, Cashman stated that she
withheld this evidence at Hooker's direction.
confronted her, saying her conduct was discriminatory, the
two argued, and the Board voted not to pay Cashman for the
Ward was upset when she found out what Cashman
Plaintiff sent Ward an email advising her to file
a complaint with her agency's affirmative action unit.
sent a copy of the email to Luciano, Hooker and Cashman.
Cashman was later arrested on drug charges and removed from
In 2005, plaintiff and Leon represented William Barron,
an African-American man who had been terminated after a
hitchhiker he picked up stole a pack of cigarettes resulting
in Barron's arrest.
Service representative Sellas took over
at Step III of the grievance process.
The grievance was
dismissed, but Sellas failed to introduce evidence that the
charges against Barron had been dismissed.
Leon addressed Sellas about this failure at an Executive
Board meeting, and Leon accused him of race discrimination.
Plaintiff's co-worker Wanda Bush was terminated in June
2006 for attendance problems.
Plaintiff and Kim Thomson
represented Bush during the first two Steps, and Sellas took
over at Step III.
Sellas failed to present evidence that
Bush was on a modified work schedule for leave under the
Family Medical Leave Act.
Plaintiff and Thomson complained
to Council 4 Staff Representative Jeff Scanlon that Sellas's
allegedly inadequate representation was due to Bush's race.
Plaintiff and Thomson also represented Isabel Freitas,
a Hispanic woman allegedly fired from DSS for attendance
problems in June 2006.
Sellas took over at Step III.
Freitas's hearing, plaintiff, Thomson and the grievant
pressured Sellas to introduce certain medical records.
Sellas tried to convince plaintiff to persuade Freitas to
withdraw the grievance, asserting that Freitas was having an
affair with DSS's Fiscal Director.
Plaintiff refused, and
Sellas loudly told DSS officers not to worry about
plaintiff, because she was about to be removed.
Thomson, a Caucasian woman and avid advocate for
minority rights, collaborated with plaintiff and Leon after
In September 2006, she sent a letter to
International President Gerard McEntee protesting plaintiff
and Leon's removal.
AFSCME International official Pat Glynn
removed Thomson from her position as a union steward in June
Thomson filed a retaliation complaint with the
Commission on Human Rights and Opportunities.
Plaintiff compares these instances of minority
grievants receiving allegedly inadequate representation to
the case of Rosemary Cusano, a white woman who was
terminated in 1995 for poor attendance.
While a terminated
employee is required to file a grievance within 30 days of
her dismissal, Council 4 Service Representative Little did
not file Cusano's grievance until June 1996, over a year
after she was terminated.
Instead of dismissing the
grievance, Local 704 and Council 4 processed the grievance
with the cooperation of State of Connecticut management.
The union and the state negotiated with AFSCME leading to
reinstatement of Cusano's employment.
that this type of cooperation between the union and the
state did not occur when grievants were African-American.
In 2005, Cusano was again terminated for attendance and poor
The hearing officer at Step III acknowledged
that Cusano's grievance was untimely as to the performance
review that precipitated her dismissal.
Even so, the case
settled in Cusano's favor.
In addition to advocating on behalf of minority members
with regard to representation at Step III of the grievance
process, plaintiff advocated on behalf of her Local at the
2004 AFSCME International convention in Anaheim, California.
At the convention, she addressed her fellow delegates
concerning a proposal to increase member dues.
spoke in opposition to the proposed dues increase stating
that it would pose a hardship to the members of her Local,
85 percent of whom were members of minority racial groups.
Members of Council 4 were present at the time.
Events Leading to the Audit of Local 538
On September 10, 2005, International President McEntee
received a letter from "Concerned Members of AFSCME Local
The letter stated that plaintiff and Leon had
misspent Local 538 funds for their own benefit, that
plaintiff had made illegal entries in Local 538 Executive
Board minutes in order to hide improper expenditures, and
that plaintiff and Leon had threatened members with violence
if they pursued an inquiry.
charges were false.
Plaintiff alleges that these
The letter to McEntee was referred to
International's auditing department.3
In March 2006, Luciano exchanged emails with members of
International cites to McEntee's declaration for this
proposition. In fact, the declaration says the letter was
received in 2006 and was anonymous. However, plaintiff has
admitted International's assertion regarding the letter, so I
accept it for purposes of this motion.
Plaintiff's brief implies that charges filed by Bethy
Guiles-Smith, discussed infra, spurred the investigation into
Local 538's finances. See Pl.'s Br. 57. The evidence shows that
Guiles-Smith filed her charges in October 2006, and that Luciano
discussed investigating Local 538 with International's auditing
department in March 2006. Therefore, the audit preceded GuilesSmith's charges.
International's auditing department.
When members of the
department questioned whether they should conduct an audit,
Luciano indicated that they should, stating that the letter
from the Local 538 members provided good cause for an
When members of the department asked, "What's your
pleasure?", Luciano replied, "Not my pleasure, but the
pleasure of the original members who complained might be to
address the concerns they expressed in the original letter."
When asked if he was requesting an audit, he wrote, "When
[Local] 704 members requested an audit of their local, you
Is there some reason why the decision to move
forward on 538 is dependent on me?"
The auditing department
elected to conduct an investigation of Local 538.5
In May 2006, the auditing department sent Owen Martin
When Martin looked at Local 538's per
capita tax reports, he noted that 538 had reported exactly
453 dues-paying members every month from February 2004 to
This raised questions about the accuracy of
Luciano's email refers to a letter signed by 20 members.
It is unclear whether this is the September 10, 2005 letter or a
different one, but neither party discusses a second letter and
the letter itself is not in the record.
Plaintiff alleges that Luciano threatened the audit
department into investigating, but the record contains no
evidence of threats.
Local 538's reporting because the number of members in a
local usually varies month to month.
thought this provided good cause to continue the audit,
plaintiff asserts it was just a pretext.6
Martin arranged for an on-site review of Local 538's
During the review, he found that Local 538 had not
kept cancelled checks, as required.
He also found that
Local 538 had too few "QuickBooks" records, and the records
they did have were incomplete.
He found no records of paid
bills to support payments made by Local 538, nor were there
minutes from meetings, financial reports, or 990 or 990EZ
Martin received no explanation for much of the
inadequate record-keeping, although plaintiff and Leon did
tell him that former Local 538 Officer Linda Franco had
wrongfully taken a number of financial records when she
Martin also compared Local 538's membership dues
income with its per capita tax remittance reports.
After finishing the review, Martin drafted a
preliminary report, which found that between 2002 and 2006,
In addition, International had not received Local
538's monthly financial reports, but the records had been
submitted by the Local as required.
Local 538 had under-reported its membership and underpaid
its per capita taxes.
The report concluded that there was
no reasonable explanation for this other than defalcation.
Plaintiff acknowledges that Martin's report contained these
findings but claims they were false and pretextual.
Although Local 538 had under-reported its membership in
certain years, she states, those years did not include 2002,
and the under-reporting stemmed from a good faith
In fact, Local 538 had over-reported its
membership for a number of prior years.
The 2006 International Constitution provides that if
the International president finds a subordinate body has
deliberately filed false financial reports, and the
president believes an emergency situation exists, he may
place the body under administratorship pending notice and a
The hearing must occur within 21 days of the
An administrator has the authority to
take possession of all the subordinate body's property and
suspend its officers from office.
After receiving a final report incorporating Martin's
findings, McEntee wrote a letter to International's Judicial
Chairperson stating that he believed an emergency situation
existed and he was appointing Patricia Glynn as
administrator over Local 538.7
In July 2006, Glynn advised
plaintiff and Leon of the administratorship, told them they
were suspended immediately, and directed them to turn over
all Local 538 property.
Karen Tyler, an African-American
woman, took over for Martin, who had fallen ill and was
unable to continue the audit.
Tyler completed her audit and filed her findings on
July 20, 2006.
Tyler found that a number of reimbursement
checks had been issued to Tyler and Leon for round sums –
first $100, later $1000 – and expense reports did not
support these checks.
She found that plaintiff's
reimbursement reports contained both receipts and a claim
for mileage, and the mileage appeared to be calculated so as
to make the total request for reimbursement equal $1000.
Tyler also found pre-signed checks; reimbursements for
repairs to Leon's personal car, Stop & Shop purchases,
expenses for holiday party raffle items, including for a
holiday party that was never held; and meals for one or two
Plaintiff alleges the real motivation for the
administratorship was an agreement with Luciano to deprive
plaintiff and Leon of their rights. Plaintiff does not cite to
admissible evidence supporting this claim.
that included alcoholic beverages or kids' meals.
expenses had reportedly been approved by the Executive
Board, although Tyler found that minutes from Executive
Board meetings did not reflect approval.
After the audit,
International obtained financial statements from the credit
union that corroborated Tyler's findings.
Removal of Plaintiff and Leon from Office
International's Judicial Chairperson, John Seferian,
held a hearing on the administratorship on July 24, 2006.
Plaintiff and Leon both testified at length and offered
explanations for the audit findings.
"mistakes were made."
They admitted that
Leon explained that the reason he
under-reported the per capita tax owed was because he had
found out Local 538 was being charged for people who were
not actually members of the Local.
Therefore, he went
through the roster of taxable members and only paid the tax
for those members who were actually in his Local.8
the hearing, plaintiff cross-examined Tyler.
It appears that the Comptroller had disbursed money to
Local 538 for all the members on its roster; therefore, Leon was
taking in money for more members than he was paying for in per
capita taxes. In his affidavit, Leon notes that when he became
Treasurer in 1999, he found out Local 538 had been overpaying per
capita tax since 1992. When he brought this to Council 4's
attention, the Council instructed him on how to recoup the lost
funds over a period of 6 months.
claims that she was not given a fair opportunity to be heard
and to present witnesses and evidence.
In a decision issued on August 22, 2006, Seferian
upheld the administratorship, recounting the testimony of
Tyler, plaintiff and others.
testimony in full.
He did not recount Leon's
Seferian found that there was a threat
Local 538 funds would be lost, that Local 538 had filed
false returns, and that Local 538 had violated the Code.
Plaintiff appealed this decision to the International board,
but the decision was upheld.
In October 2006, approximately 70 members of Local 538
led by Bethy Guiles-Smith filed formal charges against
plaintiff and Leon.
According to plaintiff, Council 4
Executive Director Sal Luciano and International official
Pat Glynn wrote the letter and ordered Bethy Guiles-Smith to
sign and send it.
Plaintiff claims that Guiles-Smith did as
she was told, although the charges in the letter were false,
because Luciano and Glynn promised her a promotion and the
Local 538 presidency in exchange for signing and sending the
Luciano chose Guiles-Smith, plaintiff insists,
because she is African-American and the letter would
therefore not appear racially motivated.
that Guiles-Smith was later deemed a "trouble maker,"
however, and was denied the presidency in favor of a more
"docile" black union member.
After being passed over for
the position, plaintiff claims, Guiles-Smith revealed the
story behind the letter.
Plaintiff has not presented admissible evidence to
support these allegations.
She relies on two of her
First, plaintiff cites an affidavit from Kim
Thomson, in which Thomson declares that Guiles-Smith told
her (Thomson) about being recruited to file charges.
hearsay is not admissible evidence.
Further, this affidavit
does not mention Glynn in connection with the charges.
Second, plaintiff relies on an email sent by Guiles-Smith
after she was denied the presidency.
To the extent this
email is submitted for the truth of the matter asserted, it
too is hearsay.
Further, the email does not say the letter
to McEntee was fabricated; it only refers generally to
"deceit, falsification of documents, and misleading
information from both Council 4 and Patricia Glynn" and
withdraws all charges against plaintiff and Leon.
affidavit from Ms. Guiles-Smith might have sufficed to
support plaintiff's allegations; the hearsay in the record
When a new president, Dawn Tyson, was elected in 2009,
the administratorship terminated.
Plaintiff alleges that
this election was illegitimate, as Luciano and Glynn placed
Tyson in office after rescinding their offer to Bethy
Again, there is no admissible evidence to
support this allegation.
Plaintiff filed complaints with the Connecticut
Commission on Human Rights and Opportunities and the Equal
Employment Opportunity Commission on December 14, 2006.
Comparators Who Received More Favorable Treatment
Plaintiff discusses several white union members and
officers who did not advocate on behalf of minority members
and whom defendants allegedly treated favorably.
that the treatment of these similarly situated Caucasians
shows that defendants discriminated against her by auditing
her Local and removing her from her position.
Carol Dimmock, a Caucasian woman, was the Local 704
President from 1978 to 2007.
Plaintiff's affidavit states,
"Dimmock’s plundering of L704 funds was legendary and
commonly known . . . by Defendant AFSCME Council IV and
Defendant AFSCME International"; however, plaintiff does not
indicate that she has personal knowledge of these facts.
Plaintiff filed complaints against Dimmock, as did Leon,
current Local 704 President Wilson Maestre-Soto, and current
Local 704 Treasurer April Hall.
remove Dimmock from office.
International did not
Maestre-Soto filed charges
against Dimmock, claiming that tens of thousands of dollars
were missing from Local 704's checking, CD and money market
accounts; several computers were missing; several years of
financial records were missing; and Local 704's credit card
had incurred tens of thousands of dollars of unaccounted-for
As a result, plaintiff states, an audit was
conducted and formal findings were made against Dimmock;
however, plaintiff does not support this statement with
Plaintiff further alleges, without support,
that Luciano refused to help Maestre-Soto's formulate his
charges and instead assisted Dimmock by failing to enforce
International's disciplinary recommendations.
allegedly ignored a finding that Dimmock owed nearly $20,000
Plaintiff states that Maestre-Soto discussed the charges
he filed with her and she made changes that he incorporated. If
she did not observe the charges for herself, this evidence is
hearsay and inadmissible.
Plaintiff's evidence supports a finding that
International conducted an audit of Local 704 at some point, but
it does not discuss the results of the audit.
in fraudulent claims, and neither he nor International
pursued Dimmock's removal from office; instead, Dimmock left
of her own accord several years after the audit.11
neither the allegations concerning findings and
recommendations against Dimmock nor the allegations that
defendants failed to act on those findings are supported by
In addition to her discussion of Dimmock, plaintiff
cites the case of her coworker Sandy Dearborn.
plaintiff filed a complaint alleging that Dearborn had not
been to work on a daily basis for nearly eight years.
Plaintiff was personally aware that Dearborn had been paid
for those eight years.
that after she
filed the complaint, state officials negotiated a deal in
which Dearborn was not disciplined but instead promoted.
Plaintiff does not say what part, if any, defendants
International and Council 4 played in this process.
Plaintiff also details misbehavior of Linda Franco, a
Caucasian woman who served as Local 538's Vice President
from 1988 to 2002.
Franco traveled to Las Vegas for an
The only evidence of these facts is plaintiff's own
affidavit, and plaintiff has not indicated how she would have
personal knowledge of Luciano's response to audit findings.
AFSCME convention in 2002.
Upon her arrival, she asked Leon
to lend her money for expenses, explaining that she had
gambled away the $875 he had already given her.
refused, and Franco returned to Connecticut without
participating in the convention.
The Executive Board issued
a letter to Franco ordering her to appear and explain her
Franco refused and used a racial slur against
Plaintiff claims that Luciano and Hooker had
told Franco she did not have to attend the meeting, but
plaintiff provides no non-hearsay evidence for that
Franco also fraudulently participated in union business
while out of work and on worker's compensation, and the
state Attorney General investigated this fraud.
alleges that Luciano and Hooker intervened on Franco's
behalf, reasoning that since they were the only ones who
could have requested that she be released from work to
attend the Las Vegas convention, they must have done so.
Plaintiff was subpoenaed to attend a deposition regarding
Franco's worker's compensation claim.
Hooker told plaintiff
that, per Luciano's instructions, she would not be provided
with Council 4 assistance at the deposition.
acknowledges that she has no evidence of white union members
receiving Council 4 assistance at depositions.
Franco resigned, stating that she was forwarding all
possessions she had removed to Council 4.
In fact, a number
of financial records were not sent to Council 4 nor to Local
In January 2007, Luciano stated that he had these
He had held onto them during the investigation of
plaintiff and Leon, even though he knew they were relevant
to the audit.
Plaintiff asserts seven claims: race discrimination and
retaliation in violation of 42 U.S.C. § 1981, race
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, conspiracy to deprive
plaintiff of equal protection under the law in violation of
42 U.S.C. § 1985, aiding a conspiracy or negligence in
preventing a conspiracy in violation of 42 U.S.C. § 1986,
and intentional infliction of emotional distress.
claims that Council 4 discriminated against her and other
minority members of her Local by failing to provide them
with adequate representation at Step III hearings and other
Plaintiff further claims that Council 4
Executive Director Sal Luciano conspired with Pat Glynn and
other International officials to audit Local 538 without
cause, fabricate results, and remove her and Leon without an
adequate hearing, all in retaliation for her longtime
advocacy on behalf of African-American and Latino members of
The defendants move for summary judgment urging
that on the record before the Court, no reasonable jury
could find in favor of the plaintiff.
I agree and therefore
grant the motions.
Section 1981: Race Discrimination
Under 42 U.S.C. § 1981, persons of all races have the
equal right to "make and enforce contracts," which includes
"the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges,
terms and conditions of the contractual relationship."
establish a claim under § 1981 against a defendant,
plaintiff must show that (1) she is a member of a racial
minority, (2) the defendant subjected her to intentional
discrimination based on her race, and (3) the discriminatory
conduct relates to one of the statute's enumerated
activities, including making and enforcing contracts.
v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000).
Plaintiff claims that the defendants committed at least
two violations of § 1981.
First, plaintiff claims that
Council 4 had a practice of unfairly representing minority
union members at grievance proceedings.
Council 4 service
representatives failed to introduce evidence of racial
discrimination against the grievants, and they refused to
allow plaintiff, Leon or Thomson to introduce this relevant
Through its inadequate representation, then,
Council 4 prevented these grievants from enforcing their
rights under their collective bargaining agreement
Second, plaintiff claims that she, like other
minority members, was denied access to the benefits of the
CBA when she was prevented from defending herself during the
Council 4's Practice of Unfair Representation
Plaintiff claims that Council 4 prevented minority
union members from enforcing their rights under the CBA, in
violation of § 1981, by failing to provide them with
adequate representation in grievance proceedings.
At oral argument, counsel indicated that these past
grievances were discussed only to show plaintiff's protected
activity. However, plaintiff's brief strongly suggests that she
understands inadequate representation at grievances to constitute
a separate violation. See, e.g., Pl.'s Br. 50. I therefore
address them separately.
record before the Court, a jury could not reasonably find
that Council 4 intentionally discriminated based on race.
Moreover, plaintiff's claim against Council 4 is largely
Council 4 argues that plaintiff cannot prove the second
element of her § 1981 race discrimination claim, which
requires her to prove that the defendant intentionally
discriminated based on race.
Council 4 contends that
plaintiff lacks evidence of intentional race discrimination
because she has failed to provide examples of similarly
situated Caucasian union members who were treated
See Johnson v. Artim Transp. Sys., Inc., 826
F.2d 538, 542-43 (7th Cir. 1987) (upholding a finding that
plaintiff failed to show some evidence of racial
discrimination when he failed to show that his union had
treated similarly situated white members in a different
The parties' briefs do not address whether plaintiff has
standing to bring this claim. I am doubtful that plaintiff can
recover for instances of discrimination against others. Standing
is generally decided before all other issues, as it determines
subject matter jurisdiction. See Nnebe v. Daus, 644 F.3d 147,
156 (2d Cir. 2011). However, as plaintiff indisputably has
standing to bring other claims, as defendants have not challenged
standing, and as I dismiss plaintiff's claim on alternate
grounds, I do not analyze whether plaintiff has standing here.
While plaintiff has averred that
certain pieces of evidence she deemed relevant were not
presented at grievance hearings involving minority
grievants, she has not shown that Council 4 service
representatives introduced all helpful evidence on behalf of
And the evidence in the record relating to
her two potentially relevant comparators does not support a
reasonable inference of disparate treatment based on race.
One potentially relevant comparator is Sandy Dearborn.
Plaintiff complained that Dearborn was being paid for work
even when she did not report for work, and Dearborn's case
terminated in Dearborn's favor.
Plaintiff does not allege
that Council 4 ever represented Dearborn in a grievance
proceeding, however, and it is undisputed that state
officials, not union officials, decided that Dearborn should
Given this record, Dearborn is not a valid
Plaintiff also points to Rosemary Cusano, who was
permitted to pursue an untimely Step III grievance.
record shows that state officials worked with Cusano's Local
and Council 4 to reinstate her employment.
not say what, if anything, service representative Little did
to cause this favorable outcome.
The only evidence of the
quality of Little's representation is that he filed an
untimely grievance and Cusano wound up getting a positive
The State's willingness to negotiate does not
permit an inference that Little provided superior
representation at a grievance hearing.
If anything, the
record shows that the State, not a defendant to this suit,
Statute of Limitations
International argues that a three-year statute of
limitations applies; therefore, when plaintiff filed suit in
November 2008, almost all the instances of inadequate
representation alleged in the complaint were time-barred,
including the two instances involving the plaintiff as a
International is correct that the statute of
limitations for a § 1981 claim is three years in
See Rivera v. Men's Wearhouse, Inc., No.
3:05-CV-1907 (WWE), 2006 WL 1801705, at *4 (D. Conn. June
27, 2006) (“As for plaintiff's claims pursuant to § 1981 and
the intentional infliction of emotional distress, they are
Since the § 1981 race discrimination claim fails on this
basis, I do not address whether inadequate representation may
constitute interference with the CBA for purposes of § 1981.
controlled by the Connecticut personal injury statute of
limitations: three years.”).
International further argues
that filing a CHRO complaint does not toll the limitations
See Johnson v. Ry. Express Agency, Inc., 421 U.S.
454, 465-66 (1975).
Plaintiff responds that courts within
the Second Circuit are split on how to apply Johnson;
however, the cases plaintiff cites question whether filing
an administrative complaint tolls the statute of limitations
on state claims; they do not cast doubt on whether Johnson
continues to be good law with regard to § 1981 claims.
Duran v. Jamaica Hosp., 216 F. Supp. 2d 63, 67 (E.D.N.Y.
2002) ("Courts in the Second Circuit are split on whether
the statute of limitations with respect to a state law claim
is tolled when a state claim arises from the same set of
facts as a Title VII claim timely filed with the NYSHRL or
Johnson therefore applies.
Plaintiff argues that International's reliance on the
statute of limitations is misplaced because her allegations
satisfy the continuing violation doctrine.
“[I]f a plaintiff has experienced a continuous practice and
policy of discrimination, the commencement of the statute of
limitations period may be delayed until the last
discriminatory act in furtherance of it.”
Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal
Plaintiff herself has not experienced
a continuous practice of discrimination.
She was the
subject of only two hearings – her Loudermill hearing and
her reclassification hearing – both of which occurred more
than three years before the filing of this suit.
as discussed above, the evidence does not support a finding
that Council 4 had a practice of discriminating against
Therefore, plaintiff's claim is largely barred
by the statute of limitations.
In short, plaintiff's § 1981 race discrimination claim
based on past instances of inadequate representation fails
for at least two reasons: plaintiff cannot sustain her
burden of proving race discrimination, and the limitations
period for much of her claim, including the only two
instances that affected her personally, expired before this
suit was brought.
Inadequate Opportunity To Be Heard at the
International argues that plaintiff has failed to
present evidence that she was given an insufficient
opportunity to be heard at the administratorship hearing.
Plaintiff cites only the affidavit of Nelson Leon as
a basis for this claim, and Leon's affidavit does not
discuss procedural defects at the hearing.
she had an opportunity to testify and cross-examine Tyler.
And while Seferian's decision does not recount all of Leon's
testimony, it includes a sufficient portion to show that
Leon's statement was heard and considered.
plaintiff does not present evidence that Caucasians were
treated differently at similar hearings.
plaintiff fails to show that she was given an inadequate
opportunity to be heard, in violation of the CBA and as a
result of race discrimination.
Section 1981: Retaliation
Plaintiff argues that in retaliation for her and Leon's
advocacy on behalf of minority members in the union, Luciano
and Glynn conspired to have them removed from their
positions by conjuring a false picture of financial
Courts evaluate § 1981 retaliation claims
under a burden-shifting analysis: first, the plaintiff must
establish a prima facie case of retaliation; next, the
employer or, in this case, the union, must articulate a
legitimate, nonretaliatory reason for the adverse action
against the plaintiff; and the plaintiff must then show that
retaliation was a substantial motivating factor for the
Fincher v. Depository Trust & Clearing
Corp., 604 F.3d 712, 720 (2d Cir. 2010); see also Beachum v.
AWISCO N.Y. 785 F. Supp. 2d 84, 98, 98 n.8 (S.D.N.Y. 2011),
aff'd, 459 Fed. App'x. 58 (2d Cir. 2012).
I conclude that
plaintiff's claim fails at both the first and third steps.
She has not established a prima facie case and is unable to
show a causal connection between the adverse actions at
issue and her protected activity.
Prima Facie Case
To establish a prima facie case of retaliation,
plaintiff must show (1) participation in protected activity;
(2) the defendant knew of the protected activity; (3) an
adverse employment action; and (4) a causal connection
between the protected activity and the adverse employment
Fincher, 604 F.3d at 720.
Plaintiff presents sufficient evidence to establish
that she participated in protected activity.
activity" is "action taken to protest or oppose statutorily
Cruz v. Coach Stores, Inc., 202
F.3d 560, 566 (2d Cir. 2000).
Plaintiff need not show that
the conduct she opposed actually violated antidiscrimination law, only that she possessed a good-faith,
reasonable belief that it did.
Galdieri-Ambrosini v. Nat'l
Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).
Here, plaintiff states that on several occasions, she spoke
with Council 4 staff representative Gayle Hooker and
demanded that Council 4 provide effective representation to
minorities at grievance proceedings.
In the case of her own
reclassification proceeding, plaintiff told Hooker that
Cashman's allegedly inadequate representation was an
instance of "the same racial discriminatory practices that I
have complained to you [about] repeatedly."
She also states
that she told service representatives they should present
certain pieces of evidence she deemed relevant, and she
advised Vicky Ward to file a complaint about Cashman's
Based on plaintiff's affidavit, a
reasonable jury could find that service representatives
repeatedly failed to present evidence she believed to be
relevant on behalf of minority grievants, and she took steps
to oppose this practice, which she reasonably believed to be
A jury could also find that Council 4 officials,
including Gayle Hooker and Sal Luciano, knew about this
Plaintiff spoke with Hooker about a
number of her concerns, and she copied Luciano on her email
addressed to Vicky Ward.
However, plaintiff has not
presented evidence that International officials knew about
Therefore, she cannot maintain a retaliation
claim against International.
Plaintiff is unable to establish that defendant Council
4 took an adverse action against her; International, not
Council 4, put Local 538 under administratorship and removed
plaintiff from her position.
An action is materially
adverse when it would dissuade a reasonable person from
engaging in protected activity.
Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006).
that Luciano pressured the audit department to investigate
false allegations and produce false results, wrote a charge
accusing plaintiff of financial mismanagement, and coaxed
Plaintiff also contends that she engaged in protected
activity by publicly protesting the union's 2004 dues increase.
While plaintiff may have said that the dues increase would
disproportionately affect Local 538's many minority members, she
has not shown a good faith, reasonable belief that the dues
increase was discriminatory.
Bethy Guiles-Smith into signing it as her own.
the case, plaintiff would establish that Council 4 took
adverse action against her.
However, the only part of
plaintiff's version of events that is supported by
admissible evidence is her allegation that Luciano pressured
International to audit after it received a letter from Local
538 members accusing her of financial mismanagement.
Although a person of ordinary firmness might be discouraged
from engaging in protected activity by a Council official's
unprovoked insistence on an audit, here, his encouragement
was not unprovoked: a letter accused plaintiff and Leon of
financial mismanagement, and records showed that Local 538
had reported the exact same number of members for many
I do not think an ordinary Local official would be
dissuaded from engaging in protected activity by the
realization that if she were accused of mismanagement, her
Council would push for an audit.
Again, plaintiff cannot
show that the charging document was fabricated or that
Luciano directed the audit department to falsify its
The evidence may also permit a finding that
throughout the audit, Luciano kept the 2001-2002 financial
records Linda Franco had given him.
As those records were
of little importance in the scope of the audit, however,
Luciano's retantion of the records does not meet the White
The International union did take several adverse
actions against plaintiff and Leon.
It issued reports
stating that they had falsified financial information and
ultimately removed them from their positions.
Any one of
these actions could dissuade a person of ordinary firmness
from engaging in protected activity.
However, as noted
above, plaintiff has presented no evidence that
International knew of her protected activity.
she cannot establish a prima facie case against either
Further, plaintiff cannot show a causal connection
between her protected activity and the audit.
retaliatory activity took place in 2006.
Plaintiff had been
engaged in protected activity since at least 1997, when she
complained about Little's representation of Nigel Morris.
The most recent protected activity before Luciano encouraged
the audit department to investigate, in March 2006, was
Leon's advocacy on behalf of William Barron, who was
terminated in July 2005.16
Therefore, plaintiff cannot
establish a causal connection based on temporal proximity.
See, e.g., Stoddard v. Eastman Kodak Co., 309 Fed. App'x.
475, 480 (2d Cir. 2009) (gap of two months insufficient on
its own to establish causal connection); Dayes v. Pace
University, 2 Fed. App'x. 204, 208 (2d Cir. 2001) (seven
months insufficient); Hollander v. Am. Cyanamid Co., 895
F.2d 80, 85 (2d Cir. 1990) (three-and-a-half months
The intervening event of the letter also
weighs against a finding that plaintiff's protected activity
caused Luciano to encourage the audit.
Even with the facts
construed in her favor, plaintiff fails to establish a prima
facie case of retaliation.
Defendants' Legitimate, Non-Retaliatory Reasons
Defendants have provided legitimate, non-retaliatory
reasons for their actions.
Members sent a letter expressing
concern about Local 538's leadership, and the Local had
reported the same number of members every month for two
Therefore, Luciano had reason to suspect that
plaintiff and Leon were engaging in improper financial
activity, and he had reason to push for an audit of the
The complaint says this happened in 2004, but plaintiff's
affidavit claims Barron's grievance occurred in 2005.
The audit report concluded that plaintiff and Leon
had indeed engaged in financial mismanagement and were using
Local funds for their own benefit.
therefore, had a legitimate reason for putting the Local
under administratorship and removing plaintiff and Leon from
Viewing the evidence in the light most
favorable to plaintiff, all Local expenses were approved by
the Executive Board, and the Local's under-reporting was
accidental and somewhat smaller than the report indicated.
However, there is no competent evidence that the report was
written in bad faith, and International was under no
obligation to believe plaintiff and Leon over its auditors.
Retaliation as a Reason for Defendants' Actions
Plaintiff cannot establish that retaliation was a
substantial reason for the audit or her removal.
plaintiff cannot demonstrate that Luciano targeted her, nor
can she show that any targeting was related to her protected
She also fails to show a causal connection
between her protected activity and International's decision
to put her Local under an administratorship and remove her
and Leon from their positions.
Plaintiff cannot show that similarly situated persons
who did not engage in protected activity were treated
differently by Council 4 or International.
She fails to
present competent evidence that International conducted an
audit and made formal findings against former Local 704
president Carol Dimmock.
Therefore, she also fails to show
that Luciano refused to enforce International's disciplinary
While plaintiff's allegations, if
accepted, might permit a finding of bias, she has not
substantiated those allegations.
Plaintiff was not similarly situated to her other
There is no evidence that defendants were
involved in the decision to promote Sandy Dearborn.
plaintiff avers, Linda Franco resigned after being notified
that her removal was imminent.
She did not fare any better
Plaintiff, therefore, fails to support a
finding that defendants audited her Local and removed her
and Leon in retaliation for protected activity.
Title VII: Race Discrimination
Title VII provides, "[i]t shall be an unlawful
employment practice for a labor organization to exclude or
to expel from its membership, or otherwise to discriminate
against, any individual because of his race, color,
religion, sex, or national origin.” 42 U.S.C. §
Plaintiff claims that defendants' allegedly
discriminatory actions – inadequate representation of
minority grievants and the administratorship over Local 538
– violated Title VII as well as § 1981.
The parties disagree as to which standard this Court
should apply in evaluating plaintiff's claim.
argues "all that is required to state a Title VII claim
against a union is a breach of the duty of fair
representation because of race.”
Agosto v. Corr. Officers
Benev. Ass’n, 107 F. Supp. 2d 294, 305 (S.D.N.Y. 2000).
union may breach this duty even when the employer has not
breached the CBA.
Id. at 304.
“A union breaches [the duty
of fair representation] when its actions are ‘arbitrary,
discriminatory, or in bad faith.’ ” Agosto, 107 F. Supp. 2d
at 303 (quoting Air Line Pilots Ass'n Int'l v. O'Neill, 499
U.S. 65, 67 (1991)). Council 4 argues that a narrower test
should be applied in accordance with Bugg v. Int’l Union of
Allied Indus. Workers, Local 507, 674 F.2d 595 (7th Cir.
1982), which traditionally governs Title VII claims against
The Bugg test requires a plaintiff to show (1) the
employer committed a violation of the collective bargaining
agreement with regard to her, (2) the union permitted the
breach to go unrepaired, thus breaching its own duty of fair
representation, and (3) there was some indication that the
union’s actions were motivated by racial animus.
Id. at 598
While the Second Circuit has not yet endorsed Agosto,
which rejects Bugg as too narrow, several district courts
have relied on its analysis.
See, e.g., McIntyre v.
Longwood Cent. Sch. Dist., 658 F. Supp. 2d 400, 421-22
(E.D.N.Y. 2009) ("As the court in Agosto acknowledged, the
Bugg test, which arose in the context of an alleged breach
of a collective bargaining agreement, is likely too narrow a
statement of the law.").
And while the Second Circuit has
cited to the Bugg test in a few summary orders, its most
recent, relevant decision did not reference the requirement
that the employer have violated the CBA.
See McIntyre v.
Longwood Cent. School Dist., 380 Fed. App'x. 44, 49 (2d Cir.
The language of Title VII itself prohibits
discrimination in the broadest terms.
Therefore, I agree
with the Agosto court that plaintiff need not show her
employer violated the CBA; she need only show the union
breached its duty of fair representation because of race.
However, she has failed to make this showing.
For substantially the reasons stated above, plaintiff
fails to raise a triable issue as to whether the union
inadequately represented minorities at Step III of their
grievances because of race discrimination.
failed to produce evidence of similarly situated Caucasians
who received superior representation from Council 4.
Therefore, plaintiff has not presented evidence that Council
4's actions were arbitrary, discriminatory, or in bad faith.
And again, much of plaintiff's claim, including her
reclassification grievance – likely the only portion of the
claim she has standing to bring – is time-barred.
portion of plaintiff's Title VII claim fails.
Plaintiff also cannot show that the audit,
administratorship or removal violated Title VII.
International argues that internal auditing decisions are
removed from the usual sphere of "fair representation," so
plaintiff cannot bring a claim against the union under Title
VII, even if the audit was conducted for discriminatory
Neither cites any case law.
I need not decide this question, however.
the reasons stated above, in connection with plaintiff's
§ 1981 retaliation claim, plaintiff cannot show that the
audit, administratorship, or removal occurred because of her
She has failed to present competent evidence of a
conspiracy between Luciano and Glynn to remove her from her
position, and she has failed to produce evidence of any
similarly situated comparators outside her protected group
who were treated differently.
International has presented
evidence of two instances where white officers were accused
of financial malfeasance and the Locals – 287 and 2511 –
were put under administratorship.
And Glynn's affidavit
notes that an administratorship over the all-minority board
of Local 1161 was lifted when the board cooperated with
Plaintiff has not presented evidence that
any of defendants' actions were arbitrary, discriminatory,
or taken in bad faith.
Title VII: Retaliation
Plaintiff claims defendants' allegedly retaliatory
activity also violates Title VII.
The standard for a
retaliation claim under Title VII is the same as the
standard under § 1981.
Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010).
Title VII retaliation claim fails for the same reasons
stated above regarding the § 1981 retaliation claim.
Section 1985(3): Conspiracy
Plaintiff alleges that defendants conspired to deny
fair representation to minority grievants and to silence
plaintiff's protests of inadequate representation; and she
alleges that defendants, led by Luciano and Glynn, conspired
to initiate an unwarranted investigation into Local 538's
finances, to interfere with her ability to defend herself at
her hearing, and to remove her from her position as Local
The elements of a § 1985(3) conspiracy claim
are: "(1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is
either injured in his person or property or deprived of any
right or privilege of a citizen of the United States."
United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825,
In addition, the conspiracy must be
motivated by racial animus.
conspiracy claim fails.
Id. at 829.
She cannot establish the first
element, a conspiracy, because she has not provided
competent evidence that Luciano conspired with Guiles-Smith,
Glynn or International's auditing department.
At most she
has shown that Luciano pressured the auditing department to
conduct the audit; however, as she has not presented
competent evidence that the audit, which led to her removal,
was conducted improperly, she has not shown a conspiracy to
deprive her of her rights.
She has also failed to show that
any of defendants' acts were motivated by racial animus.
Section 1986: Negligence in Preventing or Aiding a
Plaintiff claims that International's auditing
department violated § 1986 by aiding Luciano and Glynn in
their alleged conspiracy to deprive plaintiff of her rights.
Section 1986 provides a cause of action against anyone who,
“having knowledge that any of the wrongs conspired to be
done and mentioned in section 1985 are about to be committed
and having power to prevent or aid, neglects to do so.”
Katz v. Morgenthau, 709 F. Supp. 1219, 1236 (S.D.N.Y. 1989),
aff'd in part and rev'd in part on other grounds, 892 F.2d
20 (2d Cir. 1989).
The parties agree that this claim stands
or falls on plaintiff's § 1985(3) claim.
See Lopez v.
McGill, No. 3:08-CV-01931 (CSH), 2009 WL 179787, at *7 (D.
Conn. Jan. 21, 2009) ("Section 1986 provides relief only if
'any of the wrongs conspired to be done, and mentioned in
section 1985 of this title are actually 'committed.'" 42
U.S.C. § 1986.").
Plaintiff cannot succeed on her § 1985
claim; therefore, her § 1986 claim also is unavailing.17
Intentional Infliction of Emotional Distress
Finally, plaintiff claims that defendants' alleged
actions make them liable for intentional infliction of
emotional distress under Connecticut law.
To establish this
claim, a plaintiff must show, "(1) that the [defendant]
intended to inflict emotional distress or that he knew or
should have known that emotional distress was the likely
result of his conduct; (2) that the [defendant's] conduct
was extreme and outrageous; (3) that the defendant’s conduct
was the cause of the plaintiff’s distress; and (4) that the
emotional distress sustained by the plaintiff was severe."
Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000).
Plaintiff fails to show that defendants engaged in
extreme and outrageous conduct.
Even if she could support
International relies on § 1986's one-year statute of
limitations. See Paige v. Police Dep't of City of Schenectady,
264 F.3d 197, 199 n.2 (2d Cir. 2001). As the events at issue
occurred in 2006, and this case was filed in 2008, the § 1986
cause of action is time-barred.
her claim that Council 4 provided inadequate representation
to minorities, "claims that '[t]he union discriminates
against African-Americans,' 'does not represent AfricanAmericans in the same way it does white union members,' and
'failed to follow the grievance procedure,' or that Luciano
failed to hold meetings in response to plaintiff’s concerns
about widespread racism, even if proven to be otherwise
unlawful, do not show the extreme and outrageous conduct
required for this tort."
Smith v. AFSCME Council 4, No.
05cv829 (JBA), 2007 WL 735815, at *4 (D. Conn. March 8,
If plaintiff could prove that Luciano conspired
with others to falsely brand her a thief and unjustly remove
her from office, she might well be able to satisfy this
element of the tort.
See, e.g., Musacchio v. Cooperative
Educations Svcs., No. CV 94 0137050 S, 1995 WL 681664 (Conn.
Super. Ct. Nov. 8, 1995) (jury could find that supervisor’s
false accusation of lying amounted to extreme and outrageous
However, the record cannot support a finding that
Luciano schemed against plaintiff.
Nor is there competent
evidence showing that the defendants engaged in extreme and
The plaintiff in this eerily similar 2007 case was a
different Ms. Smith.
Accordingly, defendants' motions for summary judgment
(docs. 224 & 228) are hereby granted.
The Clerk will enter
judgment in defendants' favor and close the file.
So ordered this 17th day of August 2012.
Robert N. Chatigny
United States District Judge
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